Battle for the 403rd

Frank Bryan

Amid this fall's electoral blizzard, local judicial races garner about as much attention as third-party nominating conventions. But if you're not already exhausted by the prospect of a mile-long ballot, the battle between Republican Frank Bryan and Democrat Brenda Kennedy for the 403rd Criminal District Court merits a closer look. It pits underdog incumbent Bryan, a rare Republican on the Travis Co. bench who has refused to take campaign contributions from criminal defense lawyers, against the more experienced and better-known Kennedy, who has presided over County Court at Law No. 7 since 1987.

Like most conservatives, Bryan supports local control and reducing the size of government, but considers himself difficult to label. Before Governor George W. Bush appointed him to the newly created 403rd nearly two years ago, Bryan was a special assistant U.S. attorney, where he came to the conclusion that the federal justice system is "totally fouled up" -- particularly when it comes to mandatory minimum drug sentencing laws, which he calls unnecessarily harsh. "My job is reactive in a lot of ways," he said, "but my hunch is that money is much better spent channeling it into programs for kids between four and seven -- you get much more bang for your buck there than at the end of the system building prisons."

Bryan has spent 12 of the last 13 years handling felony cases -- as a district judge, as a prosecutor for District Attorney Ronnie Earle (experience he shares with his opponent), and as a chief prosecutor of two local district courts. He has also served as assistant general counsel for Gov. Bush, and handled misdemeanors for Travis Co. Attorney Ken Oden. A self-described introvert, "un-candidate," and "a disaster politician," Bryan says his job as a judge is to play umpire and not let politics interfere with justice. His decision not to accept money from defense attorneys has been "liberating."

Kennedy counters that if Bryan were sincere about refusing campaign contributions, the two of them could have skipped fundraising and simply run on their records. "I'm not a wealthy person," she said. "There's no way I could get my name out there without contributions."

Brenda Kennedy

Like Bryan, Kennedy spent her early career as a prosecutor. Her interest in felony cases -- as opposed to the less-complicated, lower-level misdemeanor and state jail cases she now hears -- began during her early-Eighties tenure in Earle's office. (She has also served as an assistant attorney for the city.) She says she's ready for a new challenge. "I've probably done as much good as I could do" in No. 7, she said. "Sometimes it feels like a warehouse -- so many people, you don't know if you're making a difference. So many people are repeat customers." She regards listening as the most important skill a judge can have, but says a judge's personal background can also play a role: "People expect most judges to be old, white, and bald. Some people find it comforting that I'm not."

Kennedy's community and civic involvement has won her honors from several local organizations, and she's been endorsed by Democratic clubs and the Travis Co. Sheriff's Assoc. This year her court at law colleagues chose her to handle their administrative affairs, and in February she handily defeated Bryan in the Travis Co. Bar Association's preference poll.

Though Bryan has more experience handling felonies than Kennedy, he has less experience behind the bench. Some judges and criminal defense attorneys criticize his courtroom rules, which they say have slowed down the 403rd's docket. For instance, he requires prosecutors to be present in open court for defendants' pretrial release requests, which he says enables him "to hear from both sides." Kennedy points out that the district's Pretrial Services office is charged with determining bond eligibility and special release conditions, information made available to defense counsel and presiding judges. Said Kennedy, "I don't think most judges are willing to let people out without knowing anything about them."

Perhaps the biggest issue in the race concerns the caseload and backlog in Bryan's court. Bryan says he has disposed of nearly all the 600 cases originally transferred to the 403rd from other district courts, but as of Oct. 1 the 403rd led the area's five district courts in the number of pending cases with 931; one court faced only 648 cases. The 403rd also has the highest number of pending jury trials, with 146; the lowest number is the 147th's 49 cases. Judge Jon Wisser, the administrative judge for the district courts, blames some of the 403rd's backlog on the fact that when it was created by the Legislature in 1999, each of the four other district courts passed a number of their worst cases to Bryan. The 403rd "became a receptacle for a bunch of old, bad cases," Wisser said. Bryan spent some time off the bench due to an undiagnosed back injury, and his court also operated for some time without a full team of prosecutors. "Each was supposed to have five," said Wisser, "but he dealt with three or four. Things started stacking up badly." By comparison, Kennedy's court has fewer active cases than other Travis Co. criminal courts at law.

Bryan's critics speculate that his loaded docket could also mean that plea agreements aren't being efficiently resolved. Bryan admits he doesn't fit in with or favor what he perceives as the courthouse's "good ol' boy" system or private dealmaking between judges and lawyers. But for better or worse, those deals can sometimes save defendants -- many of whom are poor -- a lot of hassle and heartache. One "nonpartisan" attorney who regularly appears in Bryan's court told the Chronicle that the judge's bonding rules impose an unnecessary obstacle on low-level or nonviolent offenders trying to get released on bond, and generally clog up the system -- which until very recently had suffered from severe overcrowding.

The lawyer concluded, "I dread the 403rd."