City Loses Its Mala Sangre Brain
Outside counsel Lowell Denton both attorney and witness is disqualified from the case
It was a case of turnabout on Nov. 17 when the city of Austin lost its bid to keep outside counsel Lowell Denton on the payroll to defend against the whistle-blower lawsuit filed by APD Detective Jeff White back in 2002. During a Wednesday afternoon hearing, Travis Co. District Judge Lora Livingston granted White's motion to have Denton and his entire firm Denton, Navarro, Rocha & Bernal disqualified from representing the city in this infamous and seemingly endless case, built on allegations of high-level APD misconduct before, during, and after the mid-Nineties drug-trafficking investigation code-named Mala Sangre (Bad Blood).
White filed his suit in May 2002, alleging that former APD Assistant Chief Jimmy Chapman transferred him from his plum assignment in organized crime and narcotics, and blocked his assignment to a joint federal task force, in retaliation for White's alleging that Chapman may have interfered with the Mala Sangre investigation
Back in 2000, shortly after White told APD Internal Affairs investigators his concerns about Chapman's alleged involvement in the truncated drug operation, White was summoned to the APD's Fifth Floor for a closed-door interview (in Chapman's office) with Denton, who at the time was representing the city against the first Mala Sangre lawsuits. During the interview, Denton told White that he was the person chosen by the city to "get to the bottom" of the various allegations thus indicating to White that Denton was the proper authority with whom to register his concerns about Mala Sangre and Chapman.
But after White filed suit in May 2002, the city, with Denton as its counsel, asked the court to toss the case, asserting that Denton was not an appropriate authority with whom to report a whistle-blower allegation. The city's bid for summary judgement was denied by District Judge Paul Davis meaning, in part, that the question of Denton's authority should be decided by a jury at trial. This decision placed Denton in an odd position representing the city, but also a key witness in the case. As such, on Nov. 17, White's attorney, Donald Feare, argued that Denton and his firm should be disqualified from continuing to represent the city. "We've got a real problem here with Denton a witness who is a lawyer who has made himself a witness by filing a motion saying he's not the proper person [for White] to report [a whistle-blower allegation] to," he told Livingston. Further, Feare argued, even though White's suit was filed more than two years ago, the city never claimed that losing Denton would be a hardship one way they could have defended themselves against losing their counsel of choice.
City Attorney David Smith countered that the city did raise the issue of hardship in a letter to Feare, more than a year ago. And he told Livingston that losing Denton would be tragic for the city because the lawyer has been working on the Mala Sangre cases for seven years and has institutional knowledge of all the issues information that has never been put down on paper and would be hard to pass on to anyone else. "It's in his brain, it's that kind of thing. That says he can't be replaced," he said. "That is the hardship."
But Livingston wasn't buying it: "Sure, I'm certain it would be an inconvenience," but mentioning the potential "hardship" to Feare one year into the case is not a timely notice, she said. "I agree no one can get in his head, but certainly another lawyer could get the information."
Livingston ruled for the city on another motion, asking Livingston to release the entire contents of an APD investigation into last year's allegation that Chapman lied under oath in his deposition in White's suit. After several months of investigation, outside investigator James McLaughlin deemed the allegation "inconclusive"; Chapman resigned his position with the department the next day. Livingston ruled that the contents of that report were barred from disclosure under civil service law. However, she did order the city to release the names (and contact information) for the approximately 20 witnesses McLaughlin reportedly interviewed. Whether they'll talk to Feare remains to be seen.