The Austin Chronicle

http://www.austinchronicle.com/news/2014-01-10/escamillas-defense/

Escamilla's Defense

Aftermath of Lehmberg removal trial leaves opponents still polarized

By Jordan Smith, January 10, 2014, News

Judge David Peeples' expression was stern as he looked down from the bench at Travis County District Attorney Rosemary Lehmberg in mid-December. Her behavior the night of April 12, 2013 – when she was popped for drunken driving and spent an inglorious night in the county jail, much of it captured on video – was abysmal and embarrassing, he noted. She should keep the video of her behavior and refer to it, he said, to remind herself just how bad it really was when she made the "conscious decision" to get inebriated and behind the wheel of a car, breaking the law. "Ms. Lehmberg, I want to say something to you; I'm not going to lecture you. The extent of [your] intoxication was enormous and your behavior that night was beyond the pale," he said. "And you know that."

Indeed, Lehmberg's public intoxication and combative attitude during and after her arrest prompted local employment attorney Kerry O'Bri­en and then County Attorney David Esca­mil­la to seek her removal from office, under a relatively obscure provision of the Local Government Code that allows for the ouster of certain elected officials for incompetence, official misconduct, or – in a Prohibition-era flourish – a single incidence of intoxication, on or off the job.

Although her behavior was (at a minimum) both unacceptable and embarrassing, Peeples said that he had decided Lehmberg would not be removed from her elected position. "The petition" for removal, he said, "is denied."

'What Would You Have Me Do?'

Peeples' decision came within minutes of closing arguments – delivered by Lehm­berg's attorney Dan Richards and by Esca­mil­la's executive assistant, Jim Collins. It followed three days of detailed testimony, after just a brief interlude of silence, as Peeples composed himself. His brief ruling was the culmination of nearly eight months of stories and news about what happened that April night, and the subsequent debate about whether Lehmberg should be ousted – beginning with her arrest, her guilty plea and stint in treatment, through Escamilla's investigation, and the assistant county attorney's ultimate presentation to Peeples of the case for her removal. It was abruptly ended – within minutes, and without even a brief recess from the bench.

To many of Lehmberg's supporters, Peep­les' quick ruling suggested that Esca­mil­la's case – and, fundamentally, his decision to pursue Lehmberg's ouster – was ill-advised and lacking in substance.

In the days after the decision, Escamilla faced withering criticism from some – including Chronicle News Editor Mich­ael King, who argued that the lawsuit made a mockery of the system and of the county attorney's office ("Point Austin: Lehmberg's Scarlet Letter," Dec. 13, 2013). Others (including the Statesman editorial board) suggested Escamilla did the right thing ("a process made necessary") under the circumstances ("Rosemary Lehmberg needs to regain public's trust," Dec. 12, 2013). And as the story finally comes to a close, the legacy of the case, and of Escamilla's handling of it, remain open to consideration. "To those who might challenge my decision to go to court," Escamilla said, "I would ask them, 'What would you have me do?'"

As Escamilla tells it, he had no choice but to pursue the case. Lehmberg was obviously intoxicated, and pleaded guilty to driving while drunk – her blood alcohol concentration level was nearly three times the legal limit well beyond an hour after she was taken to the jail. (Jim Collins, the assistant county attorney who was among the lawyers who actually tried the case, noted that it was a stroke of luck that Lehmberg's reckless behavior didn't end in her killing herself or someone else as she weaved along Highway 620, a half-empty bottle of vodka on the seat next to her.) Under the law, the intoxication alone would be enough to seek her ouster, but it was her behavior with the deputies who arrested her and those who had to deal with her at the jail that ultimately prompted O'Brien to file the initial suit seeking her removal. That suit was ultimately dismissed (it had structural problems, Escamilla says) and was refiled by the county attorney; Judge Lora Livingston allowed Escamilla's suit to go forward.

Had Escamilla not pursued the case, he says, O'Brien – or others – simply would have filed it again – and potentially, again and again. Because Livingston ruled there were grounds to move forward on the question of whether Lehmberg should be removed for her drunken episode, dismissing outright any such lawsuit would launch a potentially endless game of legal chicken. "To have dismissed it without any justification would have done greater harm to the public interest than what had already been done," said Escamilla.

During his office's investigation of the matter, it became obvious that Lehmberg was suffering from serious alcohol addiction, he said – a fact confirmed in a diagnosis offered by addiction specialist Herbert C. Munden, who was initially asked to evaluate Lehmberg by her defense team, while she served her time in jail on the guilty plea.

Armed with that information, Escamilla said he sought to settle the case – to avoid a public spectacle in open court that would put Lehmberg's job on the line. But the defense, he said, refused to meet what he considered reasonable terms, that would prescribe "transparency, treatment, verification, and enforcement" as requisite for dismissing the suit. Really, Escamilla said, the terms are no different than those that would be required of a private citizen offered a probated sentenced after being popped for drunken driving in Travis County.

And although Lehmberg had publicly apologized for her behavior and had voluntarily checked herself into an in-patient treatment facility – Arizona's Sierra Tucson, one of three facilities recommended by Munden – Escamilla said she was unwilling to provide any public guarantee that she would remain sober. He proposed immediate and ongoing compliance with recovery recommendations provided to her in treatment, random drug testing to verify her sobriety, and additional enforcement should she fall off the wagon and into the backseat of another police car. Indeed, he notes that Sierra Tucson recommended that upon her return to Austin, Lehmberg should immediately join a 12-step program, but she did not do that until months later – and, conveniently, just before this case was scheduled for trial.

Escamilla said that given an adequate settlement, he would have "taken a bullet" and dismissed the case – accepting the likely backlash from O'Brien and others who insisted that Lehmberg should have resigned her position immediately after her inglorious arrest and night in jail – but "there weren't any opportunities" to do so.

Without concessions from Lehmberg to settle the matter, Escamilla said, his only option was to go to trial. The question for the court was not simply whether Lehmberg should be ousted for intoxication, but whether a "DA who has a DWI – and particularly this DWI – an arrest for something they have jurisdiction over, like DWI, [should] continue to be DA," he said.

'Inaccurate and Crazy'

Escamilla's insistence that the lawsuit had to go forward irks attorneys Catherine Mauzy and Chuck Herring, both of whom worked on Lehmberg's defense. "As to the first, that he had no choice, I completely disagree with that," said Mauzy. A prosecutor's job is to "evaluate the facts" and to decide whether a case should proceed – and both the county and district attorneys dismiss any number of cases every day. Escamilla should have dismissed this one, Herring and Mauzy argue.

Absent any proof of official corruption or professional incompetence (also potential grounds for removal), it was irresponsible to seek to undo the result of a popular election on the basis of one drunken episode, the lawyers argue. If that's the standard, they say, then nearly every eligible officeholder is vulnerable to such proceedings. "Every county officeholder can be subject to a crackpot citizen complaint. Is he then going to try every case?" Herring asks. Escamilla's position that he had no choice but to proceed is "one ... inaccurate as a matter of law; and two ... crazy."

Herring and Mauzy said that the defense tried to settle with Escamilla, but that they did refuse to concede that Escamilla's office should be allowed to "seize control over the medical professionals" and to dictate terms of treatment, which is what Herring believes Escamilla was trying to do with his four-pronged settlement offer. "Everyone knows an 'officer may' be removed for intoxication on or off duty," Herring notes. But the law "must have a rational application," he said. "The question is, does it have merit?" To Mauzy and Herring – and others both inside and outside the bar – the answer is a resounding no. "If you're going to be a leader you have to be responsible to make decisions. [Escamilla] allowed this to fester, and it became worse," Herring said.

Indeed, Herring believes Escamilla should have approached the situation from an entirely different angle – one he said Escamilla was counseled by many to take. Escamilla should have done "what a lot of people told him to do at the outset": Tell Lehmberg to get treatment, defer to the determination of professionals – including Munden – that Lehmberg poses "no risk to the public" by remaining in office and, ultimately, "dismiss the case because it's a medical issue," Herring said. "And you can always refile the case if you believe she hasn't improved" or stayed with the professional treatment plan.

'A No-Win'

Despite Mauzy and Herring's criticisms, Escamilla believes he did the right thing, given the circumstances. He didn't try to insert his judgment for that of medical professionals, he said. Rather, it is his duty to protect the public and, regardless what others may say, Lehmberg's judgment will now always be an issue – perhaps not one that will haunt her office, but one that will always linger under the surface of decisions made therein. There will now "always be the opportunity to question her judgment," he said. "That does not mean her judgment is wrong ... but the perception of her judgment is compromised and that's another argument" in support of the position that the arrest and aftermath has damaged "public integrity."

Escamilla said he believes his suit was unsuccessful because Peeples wanted to hear not about theoretical damage to the public trust, but that "actual damage" had been done. "Alcoholism is a progressive disease. It was spiking [for Lehmberg]. So the threat [that poses] to the public interest is what you're missing," he said. Still, it wasn't concrete evidence of damage that Peeples was apparently looking for. "The truth is, we didn't have actual" damage to show.

Nonetheless, Escamilla said he believes that filing the suit was the right thing to do, and as precedent will help others evaluate similar situations in the future. "There have been people who have come to me and said they believe the only way to get through this ordeal was to go through the process," he said; "whether they agreed with [the suit] or not, we had to go through the process."

"You know, I've learned more about people," Escamilla continued. "We got into this knowing it was a no-win, but that we had our duty. We knew there would be people angry with us. You know the old saying that if you're being attacked from both sides you must be doing the right thing? We've been attacked by both sides and we're still being attacked by both sides, and that's fine."

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