Rerun at the D.A. Corral
Republican Shane Phelps Takes Another Shot at Veteran District Attorney Ronnie Earle
The sun was creeping up over the horizon when Ronnie Earle and Shane Phelps sat down for breakfast last month in the Texas Club at Royal-Memorial Stadium. Earle, the Travis County district attorney, and Phelps, his Republican opponent on the November ballot, were featured speakers at the monthly meeting of the Metropolitan Breakfast Club. Phelps had notified the TV and print media of the event and hired his own film crew to shoot some footage for possible use in a TV spot. Earle looked as though he'd rather be somewhere else. Looking out across the room, you could sense that the folks bent over their eggs and bacon were not part of Earle's crowd.
In many respects, the D.A. race seems like a rerun of the 1996 election. Phelps, 43, is making his second attempt to unseat Earle. His campaign slogan is the same: "A prosecutor -- not a politician." So are his attacks on Earle for his lack of presence in the courtroom. He believes Earle is soft on crime and soft on punishment, and doesn't seek the death penalty nearly as much as Phelps would if he were elected. Phelps is running a law-and-order campaign based on his own record of experience and victories in the courtroom. Earle, on the other hand, is running as an administrator whose job it is to hire good prosecutors and make policy decisions. As someone who has spent nearly 24 of his 58 years in the same office, Earle is marketing himself as a progressive prosecutor, one who reflects the culture of a progressive community. While Phelps talks about his courtroom victories, Earle touts a record of national recognition for combating and preventing crime through teamwork involving neighborhoods, the police, and the D.A.'s office. Community justice, Earle believes, is the wave of the future.
As it happens, Earle is running at a time when the crime rate is low and Austin is ranked among the safest major cities in the United States. Moreover, the Austin Police Association PAC gave Earle its endorsement last week, signaling an end to years of acrimony between the police department and the D.A.'s office. And, in another well-timed turn of events, Earle last week announced that a newly created DNA review board is reviewing 400 murder and sexual assault convictions. The process has already determined that two men did not commit the crimes for which they were convicted in Travis County. So Phelps has some catching up to do, even though his success at the polls may be determined somewhat by how well George W. Bush turns out voters in his home state. At any rate, Phelps says he plans to spread the word by spending a good chunk of his campaign contributions on TV advertising.
At the Metropolitan Club debate, Phelps was the first to take the floor. He sprang from his chair, strode confidently past the lectern and moved in closer to his audience. "Thank you very much!" he enthused into a hand-held microphone. As a former Harris County prosecutor and ex-assistant attorney general, Phelps is an energetic and skilled speaker, and even at this hour of the morning, it's easy to imagine him addressing a panel of jurors -- instead of the Metropolitan Breakfast Club. In that context, his introduction might be compared to warming up to the jurors before asking them to send the guy at the defense table away for a long, long time. Which was essentially what Phelps was leading up to. He started off talking about his three years in the U.S. Marine Corps, rising through the ranks to sergeant. He went on to discuss the process of leadership by example. "That's something I learned in boot camp in the Marine Corps. That is, that my drill instructors never asked me to do anything they could not do themselves." In other words, how can Earle be an effective leader when he is not in the courtroom prosecuting criminals?
After running through his résumé, Phelps turned his attention back to Earle, singling out one murder case in particular -- the death of Helen Frost a year ago this week -- that Phelps said could have been prevented had the D.A.'s office locked up the killer on a prior sexual assault charge, instead of "putting him on probation!" By the time he began outlining details of another murder case, Phelps was really worked up, speaking louder and faster. But with his time about up, he was only able to touch on the Lacresha Murray "debacle" of 1996, in which an 11-year-old girl was charged with capital murder in the death of a two-year-old. And, he exclaimed with exasperation, "Don't even get me started on the yogurt shop murder case!"
Next up was Earle who, even after the demolition job Phelps did on his character, ambled comfortably to the front of the room. "Boy," he drawled in the voice of a country lawyer. "That's terrible stuff, idnit? What a way to start the day." Then, Earle began trying to shift the mood out of its crime-ridden funk to one of hope and unity. "I 'preciate the opportunity to visit with you this morning," he said, sounding a positive note about how the D.A.'s race presents a "great opportunity" for Austin to focus on quality-of-life issues. "But you know," he said, "there is not any qualify of life without safety. And Austin is a really safe city. We have the lowest murder rate in Travis County in 24 years." As Phelps' polar opposite, Earle's delivery carries all the Southern smoothness of a veteran criminal defense lawyer. "The issue is not who tries the cases," Earle said in his defense. "The public doesn't care who tries the cases. I've got 63 lawyers at the district attorney's office. Over half of them have more experience than my opponent." Addressing Phelps' account of the murder of Helen Frost, Earle acknowledged the difficulties of a criminal justice system that sometimes doesn't work the way you want it to. "We would all like to see everybody hung for victimizing women and children; and you can do that in some cases," Earle continued. "But you can't do that in cases where the witnesses are children; sometimes you have to look at the long-range picture. The big picture. We'd all love to see perfect, perfect justice come from each individual case. And all we can do is come to a close approximation."
In their summations to the breakfast club jury, Earle focused on his strengths of problem-solving and bringing communities together. "The question is not who can be a hero, but how are we going to solve the problem," said Earle. Phelps took a different turn. "I believe very strongly that the district attorney is that one person in the criminal justice system who draws the line in the sand. The district attorney is not a social worker. You draw that line in the sand. Once you cross that line, God help you ... we're gonna take you out of society!"
A Q&A session followed, and the questions were all for Earle. One man asked whether his unsuccessful 1993 prosecution of U.S. Sen. Kay Bailey Hutchison -- on charges based on acts Earle alleged she committed while she was state treasurer -- was politically motivated. Gerald Daugherty, a light rail opponent who served as Phelps' campaign treasurer in 1996, queried Earle about the police interrogation tactics used on suspects in the 1990 deaths of four teenaged girls at a North Austin yogurt shop. And another man in the audience asked why nightclub owner Clifford Antone got such a light sentence on a drug conviction. Earle cheerfully responded that he had nothing to do with Antone's sentencing, as the case was handled in federal court. And he couldn't discuss the yogurt shop investigation, which is still under way. When the meeting ended, Phelps appeared pleased with his performance, and, from a dramatic standpoint, it was a good performance. Yet Earle looked as relaxed as he had been when the debate started, only relieved that it was over.
Of course, neither Earle nor Phelps volunteered any information about the missteps in their careers, although they've both had their share. Earle's blunders stick out more because he holds an elected office, and because he's been in that office for over two decades. "We've known Ronnie longer, so of course we know all of his warts," said one Democrat familiar with the workings of Earle's office. Most other people familiar with Earle know about the embarrassment brought to bear on his office with his indictment of Senator Hutchison -- followed by her acquittal when prosecutors, on the eve of trial, abruptly backed off from the ethics charges. Hutchison went on to become a star in the Republican Party, while Earle is still widely ridiculed for what even many Democrats believe was a politically motivated prosecution that fell apart in the end. Earle denies it was political, however, and is quick to point out that he has also brought charges against powerful Democrats, such as Jim Mattox and Gib Lewis, through his office's powerful Public Integrity Unit, which is authorized to prosecute crimes arising out of state government.
What Lies Beneath
Most residents of Austin are by now familiar with Earle's highly criticized handling of the Lacresha Murray case, which today hangs in limbo -- even after an appeals court reversed a jury's conviction and the Texas Supreme Court rejected the D.A.'s appeal (see "Juvenile Justice?" p.30). More recently, there's been a series of setbacks in the county's attempt to prosecute four suspects arrested last year in the yogurt shop murders. Two grand juries have refused to indict one of the suspects, and DNA and ballistics tests provided no links to the defendants. That leaves prosecutors relying solely on the suspects' confessions, which defense attorneys argue were coerced. In this particular situation, Phelps criticizes Earle's office for seeking indictments while the results of lab tests were uncertain.
Earle certainly has his defenders. Rosemary Lehmberg, his first assistant on the D.A.'s 170-member staff, credits Earle with number of "firsts." His was the first D.A.'s office in the state to have a Victim Assistance Division, and one of the first in the nation to implement a neighborhood D.A. program to help weed out crime. "Ronnie is always looking toward the future and assessing how to do things better. He's a big reason why I've stayed here as long as I have," Lehmberg said.
Phelps' own record as an assistant attorney general -- first from 1993-95 and then from 1999 until a few months ago -- has not been as widely publicized. But, like his Democratic opponent, Phelps has made his share of mistakes. In 1995, when he was chief of the prosecutor assistance division under Democratic Attorney General Morales, Phelps was sent to Kilgore, in East Texas, to help out on the notorious "Kentucky Fried Chicken Murder Case," which had gone unsolved since 1983. Phelps moved to indict Earl Mankins Jr., the son of a former state legislator, whom police had questioned repeatedly over the years, though they had no actual evidence to prove he killed five people abducted from a KFC franchise on Kilgore's main strip. Phelps was forced to drop charges against Mankins, however, when a second DNA test appeared to bear out the defendant's claims of innocence. The case took another embarrassing turn when someone from the lab that conducted the first DNA test revealed that they had originally informed the A.G.'s office that the test results for Mankins "were incomplete and possibly flawed," according to The Dallas Morning News. The case remains unsolved.
There are other examples of bad decisions made under Phelps' leadership, Earle's supporters say. Under Attorney General John Cornyn, Phelps served as deputy chief of the criminal justice division, where he oversaw nine divisions and a budget of $15 million. During his tenure, there was trouble in at least two of those divisions: the Crime Victims Services Division and the Capital Litigation Division. Brian Ogawa, whom Phelps says he recommended to head crime victims services, has since been demoted, returning to his former job at the Crime Victims Institute, a smaller agency within the A.G.'s office, according to a Sept. 22 story in The Texas Observer, which first reported on allegations of mismanagement under Ogawa's leadership. While Phelps, in an interview with the Chronicle, defended the division's operations under Ogawa, an internal audit is expected to reveal why only $823,804 of $3.4 million in specific victim-compensation funds had been disbursed to victims. Victims' advocates contend that much of the money intended for victims actually went to cover overhead costs stemming from reorganization at the division.
There were other problems beyond funds not getting to victims, according to three crime victims' advocates -- two in Austin and one in Northeast Texas -- all of whom backed up the Observer's reporting. "Our services have gone to hell as far as I'm concerned," said the Northeast Texas advocate, who relies on the A.G.'s office to promptly process crime victims' claims. "The problem I've had since the new administration came in -- and I'm a Republican -- is that there's no one over there doing outreach. Sure, they have warm bodies over there answering the phone, but they just don't seem 100% committed. I don't like to call people on an emergency case and have them call me back three days later," she said. "I'm pissed about that." And one Austin advocate observed that Phelps, as the overseer, should have been monitoring Ogawa more closely. "He should have been asking for reports to make sure victims were being served," she said.
The capital litigation division also got into hot water on Phelps' watch, when two of his attorneys missed retrial deadlines in death row cases. In one case in which an inmate's conviction was thrown out because his defense lawyer slept though some of the trial, federal district Judge David Hittner of Houston gave the A.G.'s office 120 days to either retry Calvin Jerold Burdine or set him free. "An attorney just blew it," Phelps said of the missed deadline. "And he's a good attorney." Assistant Attorney General Douglas Danzeiser, quoted in newspaper reports, apologized for missing the deadline, saying he thought filing a notice of appeal would automatically stay the order. Burdine remains in prison pending a decision on the state's appeal of Hittner's reversal of the conviction.
Phelps' allies at the A.G.'s office are quick to defend his abilities. Megan Ferland, chief of the juvenile crime division, and Don Clemmer, chief of the special crimes division, both speak highly of Phelps (while stressing they were speaking as individuals and not as employees of the state). "When he first came in," Ferland recalled, "I was afraid he was a lock-'em-up-and-throw-away-the-key type of administrator because of his background as a prosecutor. But he was very supportive and committed to our intervention programs. He's really the most evenhanded boss that I've ever worked for." And Clemmer, who has known Phelps since they worked together in Harris County, described Phelps as an "exceptionally gifted trial lawyer." As a boss, said Clemmer, "he shows a real knack for handling a large group of people, because he's done everything."
Perhaps one of Phelps' most influential supporters in the Republican Party is Texas Agriculture Commissioner Susan Combs. "I am very, very impressed with his legal ethics and his legal talent," said Combs, who first met Phelps in 1993 when she was an assistant district attorney in Dallas and Phelps was at the A.G.'s office. Combs brushed aside a question about how Hutchison might figure into the race. "This race is about legal talent, legal skills," she said.
Perhaps what is most striking about the Travis County D.A.'s race is that the two men are so very different from one another. Their early years were equally dissimilar. Earle grew up working cattle on a ranch in Birdville, Texas, a town outside of Fort Worth that has since disappeared into urban sprawl. Phelps, born June 20, 1957, in Eugene, Oregon, grew up under the discipline and patriotism of a father who was a U.S. Marine and who came to the United States from England following World War II. Phelps' formative years were spent living the transient life of a "military brat," spending no more than two years at any one school. "It was hard to make friends," he recalls of those days. Phelps' maternal grandfather was a state senator -- a Republican, of course -- who had also unsuccessfully run for district attorney at one point.
Way Back When
Until Phelps decided to set his sights on locking up bad guys, he experienced a rather painful and troubled adolescence. He was, as he put it, hanging out with the wrong crowd in Stockton, California, while his father was away in Vietnam. Phelps was even picked up by the cops once for dropping water balloons off the interstate bridge. "I'm not proud of that," he said. He tried pot, too, he says. "I even inhaled, but I didn't like it." Even during those trying times, "I always knew I wanted to be a prosecutor," Phelps said one afternoon at Schlotzky's on South Lamar, one of his favorite stops for a Diet Coke and a peanut butter cookie. In 1975, he graduated from high school "by the skin of my teeth." Because he still lacked a class credit when graduation day rolled around, "I had to sit in the stands and watch graduation ... That had a pretty profound affect on me." From that day forward, Phelps tried to stay on the straight and narrow, beginning with enlisting in the Marines. "There was never any question that I would follow my father into the Marines," he said. When his term of enlistment ended, Phelps got an English degree from Rice University and then moved to Austin to work toward his law degree at UT. From there it was on to the rough-and-tumble world of Harris County and District Attorney John B. Holmes Jr., Phelps' mentor, who is famous for the record number of people he has sent to death row.
Ronnie Earle is no Johnny Holmes, and perhaps Travis County is the better for it. Born Feb. 23, 1942, Earle credits his family for helping him shape his perennial optimism. "I grew up in the bosom of a warm, loving, and extended family," he said of his childhood. He played football for the Birdville Buffaloes on Friday nights, and attended the Birdville Baptist Church on Sundays. When asked what lessons he learned from growing up on a ranch, Earle responded immediately: "If you want the water in the creek to be clean you keep the cattle out of the creek upstream." Earle went on to explain. "That has formed my view of the quality of life in this community, and the development of children into adults. And the quality of air and water," he said. "It's the same principle."
When he left Birdville to attend the University of Texas, Earle enrolled in a journalism course that included a Saturday night lab. One of those Saturday night labs fell on election night of the 1962 gubernatorial primary, which Earle was assigned to cover for The Daily Texan. He loved it. Because of that experience, he said, "I ended up being appointed as a delegate from UT to the National Student Association meeting at Ohio State the summer of '62." The student body president who appointed Earle was Lowell Lebermann, who went on to become an Austin City Council member and a UT regent. The experience at the national meeting "opened up a whole new vista for me," Earle recalls. "I came back pretty committed to the cause of racial equality, and I became interested in public policy." Earle knew then that his next stop would be the UT law school. After getting his law degree in the late Sixties, Earle went to work for Gov. John Connally. While his contact with Connally was limited, "I had enough contact ... to marvel at his intelligence and charisma and his grasp of the details of state government," Earle said, sitting in his office on the second floor of the Stokes Building.
In January 1969, Earle secured an appointment as an associate municipal court judge. (Thirty years later, his daughter, Elizabeth Earle, would also be appointed to fill a municipal judge vacancy.) It was, Earle still insists today, "the best job I ever had. I loved it." His tenure in municipal court coincided with a wave of unrest sweeping the nation, and the UT campus was no exception. "We had riots and disturbances on campus, we had racial issues, and we also had the beginning of the Austin music scene," Earle said. Students arrested for disturbing the peace were frequently hauled into Earle's courtroom. "I was 26 years old, and these were my friends. These were people with whom I agreed philosophically." By then, Earle had gotten to know quite a few cops, so he began trying his hand at peace brokering. "I feared that the country was being ripped asunder and I wanted to do what I could do to hold it together," he said. After that, Earle moved into the political arena, where he has stayed. He was elected to the Texas House of Representatives in a special election in 1973, joining Austin's young, progressive delegation made up of Wilhelmina Delco, Sarah Weddington, and Gonzalo Barrientos.
In 1976, Earle made a last-minute decision to run for district attorney, even though lines had already been drawn dividing the three camps of competing candidates: then-county attorney Ned Granger, attorney Ron Weddington (former husband of Sarah Weddington), and assistant D.A. Charlie Craig, who dropped out of the race. "I won without a runoff," Earle said. "And that surprised everybody." Earle's campaign slogan then was something to the effect of "a virgin mind, a keen sense of justice" -- which meant that he had never been a prosecutor, but he knew the criminal justice system. You could say the same thing about Earle today. He is, as one former assistant D.A. bemoaned recently, more interested in policy than prosecution. Yet he has gained national prominence for his community justice programs. "There's been a revolution in criminal justice in the last several years," Earle said. "And the most obvious manifestation of that is what we refer to as community policing, and community justice. The point of all this is not just to make the prosecutor the strongest guy in town, but to make the community stronger."
With one month to go before the November election, the general vibe around town is that Earle is, in the words of his political consultant David Butts, "beating the pants off of Shane." But we'll see what happens. Earle, with Lebermann and banker and philanthropist Joe Long directing his fundraising, had raised about $200,000 as of the last week of September. And a fundraiser held at Mayor Kirk Watson's home earlier this week was expected to add another bundle to the pile.
But Phelps has been on an aggressive fund-raising drive in many corners of the state, particularly in Dallas and Houston, where the Republican Party is a little more flush. Phelps wants to raise at least $300,000, and spend most of it on TV. In his first bid for D.A., the Associated Republicans of Texas -- best known for moving huge blocks of money into legislative races -- chipped in over $100,000. But A.R.T. associate director Pat Robbins said the Travis County D.A.'s race in 2000 has been displaced by more important matters. "We won't be doing as much, financially speaking, because our emphasis is on the Senate and the House. This is our last shot before redistricting." While Earle's bungled prosecution of Senator Hutchison is still fresh on the minds of many in the party, "it's not something that's going to be hammered," she said. "We want Shane Phelps if for no other reason than because Earle's been in office for too long. And we think Travis County is winnable if our folks just come out and vote."
Phelps' GOP backers might not be obsessed with the Hutchison prosecution, but they recognize the unique power and stature of the D.A.'s office in the state capital. Says Phelps: "There's a lot of interest in this race from all over Texas."