Prosecutor Times Four

Last week in Part 1, we introduced readers to Rick Reed, Rosemary Lehmberg, Mindy Montford, and Gary Cobb, the four candidates in the Democratic primary race to replace longtime Travis County District Attorney Ronnie Earle – not only as the county's top law enforcer but also as the state's top watchdog over cases of public corruption, via the office's Public Integrity Unit. Last week we focused primarily on each candidate's background and experience; this week, we take a closer look at each candidate, focusing on areas of perceived weakness raised by critics during the short, but intense, primary campaign. Indeed, because no Republican candidates filed for the office, the county's next district attorney will effectively be decided on March 4.

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Rick Reed: Public Integrity

On Jan. 18 and again on Jan. 25, Travis Co. District Attorney Ronnie Earle wrote to the five assistants in his office currently running for public office (four for D.A. and one for a district judge seat in Bastrop Co.) to remind them that they should "be mindful" of state law and the rules of professional conduct for lawyers when carrying out their campaigning. In particular, Earle wrote that he is aware that the candidates have been asked to comment on pending cases and reminded them that they should refrain from doing so.

While Earle's memos to the candidates offer only a general admonishment, the timing made their contents seem most directly pointed at Rick Reed. Reed, who is running on a platform of personal responsibility and dogged integrity, generated criticism last month in the course of questioning Rosemary Lehmberg's commitment and ability to act as a watchdog over political corruption cases under the purview of the D.A.'s Public Integrity Unit. Reed told The Texas Observer ("Replacing Ronnie Earle," Jan. 25) that he had been the only prosecutor working on the criminal investigation into former Rep. Tom DeLay who had actually favored presenting the case against DeLay to the grand jury. Reed claimed that Lehmberg was firmly against that move, precisely because DeLay was too politically powerful and that the consequences of securing an indictment would haunt the D.A.'s office. That "was the crux" of it, he reiterated to me last week. "There was no question in my mind then or now," Reed said, "that she was arguing in favor of not presenting [the DeLay case] to the grand jury."

Ostensibly, Reed made those claims in order to further distinguish himself as the candidate of public integrity, but his statements have caused critics to question whether he himself acted ethically in revealing the confidential discussions of prosecutors working on what remains a pending criminal matter. One observer suggested that Reed actually may have breached the confidentiality of his office in a manner that could provide DeLay's defenders with an opening to argue that the prosecution of the former rep from Sugar Land was politically motivated (as DeLay has long alleged) or that, by divulging otherwise privileged communications, Reed might have provided an opening for DeLay's attorneys to subpoena testimony from prosecutors.

To Reed, such worries are nonsense. "I don't believe that it is a breach of any kind," he said. "The comments [I made] did not involve any of the evidence presented to the grand jury, or any of the evidence presented in the course of the investigation." If anything, Reed says, his comments actually weaken DeLay's position. "The argument made by DeLay is that this was a politically motivated indictment," he said. "And the fact of the matter is ... that actually his status as a powerful political figure" worked in his favor, prompting Lehmberg to argue against indictment. He doesn't believe his comments were improper, nor does he believe they would offer DeLay's attorneys "a wedge of any kind." Rather, he believes it important to come forward with what he knows about the inner workings of the office "given that one of the individuals involved in the process" is also a candidate. "My belief is that any time a person is indicted for a criminal offense, regardless of their political status, there are always consequences," he said. "I personally did not believe that a government office-holder should be treated any different."

On Jan. 28, in the wake of the controversy and Earle's memos, Reed resigned his position as an assistant D.A., a post he's held for nine years. "During the past several weeks," he wrote, "it has become increasingly evident that I cannot continue to serve both as a candidate [for D.A.] and as an employee" of the office. "Either I must surrender my independence as a candidate, and with it my candidacy itself," he continued, "or I must surrender my position as Assistant District Attorney." Indeed, he wrote to Earle, resigning his position was the only means by which he could "conduct my campaign ... unfettered by the restrictions that you have sought to impose upon me and my two fellow candidates." In referring only to "two fellow candidates," Reed said he indeed meant that Earle's directive implicitly favored Lehmberg, whom he has endorsed.

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Rosemary Lehmberg: Heir Designate

According to Lehmberg, Reed's accusations regarding her position on the DeLay case are untrue. Lehmberg insists she never once argued against bringing the case to the grand jury – in fact, she points out that she herself made the presentation. Moreover, she says that Reed's comments not only reflect his ignorance about the duties of the first assistant D.A. (serving as Earle's right hand, which she's done for the last decade) but also raise questions about his commitment to upholding the rights of criminal defendants. "He does not completely understand the role I play as the first assistant. My [job] is to present and discuss all sides of an issue, which is what I did on this," she said. "I question the judgment of anyone, especially a prosecutor, who discusses a pending case. That's about all I could say."

Lehmberg has drawn her own critics, who question whether she will be anything more than an Earle clone – a "status quo" candidate who will maintain the office's current operations instead of being open to changes that would streamline operations or provide alternatives to incarceration. Lehmberg adamantly denies the charge. "I've heard that we 'need change,' but I haven't heard any new ideas," she says. She believes her opponents are often calling for change "just for the sake of saying, 'We need change.'"

Lehmberg says her 31-year career with the D.A.'s office has been marked by advocacy for effective long-term change. She says she recruited advocates for sexual-assault and child-abuse victims long before the office had an official Victim Services program and that, for every division she's overseen (during her career she's been in charge of every major division), she's "sought opportunities for change" and has made them. "I've created new divisions and special units," she says, "every time I thought the numbers called for it or the problem called for it." Lehmberg points to the numerous diversion and community justice programs she's championed – like the "re-entry roundtable," which seeks to help inmates from state jails, especially lower-level drug offenders, prepare for productive life on the outside – as evidence that she's forward-thinking. "[I've been] instrumental in making changes throughout my career, and there is no reason to think I wouldn't continue to do that."

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Mindy Montford: Connected

Montford's candidacy has drawn the harshest public criticism, paradoxically for one of her campaign's strengths – her connections to powerful state Democratic politicians. At the core of the argument against electing Montford D.A. is the concern that she could allow Capit­ol lobbyists to hobble the Public Integrity Unit. There is little direct evidence to support the argument: Montford worked in the PIU on the case against DeLay and says she favored bringing it to the grand jury for indictment. If elected, she says, she would lead the PIU with strength and energy, dogging elected officials and pursuing corruption cases as necessary.

Her critics doubt that would happen. Their skepticism is tied, in large part, to an irrevocable fact: Montford's father is John Montford, the former Democratic state senator from Lub­bock turned corporate lobbyist – for SBC Communications from 2001 until 2005, when the company purchased AT&T and he took on his current post as the telecommunications giant's senior vice president for legislative and regulatory affairs (i.e., institutional lobbying). Montford's opponents note that AT&T made significant contributions not only to DeLay's Texans for a Republican Majority political action committee – which was investigated by Earle's PIU, culminating in a handful of indictments – but also to Texas House Speaker Tom Craddick's Stars Over Texas PAC. Indeed, in 2004, two years after the Texans for a Republican Majority investigation began, AT&T handed Craddick $100,000 in corporate cash – money that Craddick ultimately returned after the campaign finance watchdog group Texans for Public Justice cried foul. (AT&T was not indicted in the case.)

While it should be noted that John Montford was not then working for AT&T and thus was not directly connected to the dubious contributions, the previous dealings combined with the elder Montford's power-broker position prompt critics of Mindy Montford to argue that to elect her as the state's only D.A. vested with the power to investigate state officials and agencies is to elect a D.A. with a built-in conflict of interest. How, they ask, could she possibly be able to investigate her own father or his colleagues? They argue that all the available evidence – including the fact that Montford has accepted thousands in campaign donations – suggests she is perhaps a stalking horse for forces that would love nothing more than to see the PIU neutered – perhaps by moving the unit to the Texas Attorney General's Office, an action intermittently raised at the Capitol. This concern about potential conflicts has raised other suspicions – notably, that Montford was never an integral part of Earle's investigation of DeLay and that Earle shielded Montford from large portions of the investigation that involved her father.

Asked about the litany of suspicions, Montford sighed. First, she insists there is absolutely no truth to the allegations concerning her role in the DeLay investigation. "Ronnie Earle in no way, shape, or form would've hand-picked me ... to work on the most important case of his career" if he thought her family ties or her character would jeopardize the investigation, she says. "Names of people I've known came up" during the investigation, she said. "In fact, I found documents with my father's name on them. I was asked, 'Are you OK with this?' I said, 'Well, you know, it's a little strange, but I'm doing my job.'" Montford said that the only materials ever shielded from her were documents in an unrelated matter that mentioned her then-husband, Austin City Council Member Brewster McCracken, who was not suspected of any wrongdoing.)

Montford says the allegations against her have been "manufactured" by opponents: "It bothers me a lot, because the number 1 thing I pride myself on is my integrity." She notes that she's not the only D.A. candidate who has taken contributions from lobbyists (indeed, she says that even Earle historically accepted campaign cash from Capitol lobbyists, including Republican sources). Moreover, she points out that each of the candidates in the race has accepted money from defense attorneys, yet critics aren't claiming that practice is troubling or that it might pose a conflict of interest – although as prosecutors, "we deal every day with defense lawyers who want something from us." Montford adamantly denies that she has any interest in turning the work of the PIU over to some other agency. "Oh, no – no, no, no," she says emphatically. "And I testified against that at the Legislature, because they were trying to usurp our power. I went to the mat against that."

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Gary Cobb: Zealous Prosecutor

Among the four candidates, Cobb has remained to one side of the public fray over the work of the PIU, because he's never worked in that unit. On the stump, he does question the work of those who have served in the PIU, arguing that prosecutors should be more aggressive in pursuing cases against public officials. He asks: Why haven't PIU cases been regularly, and more quickly, brought to trial? With Cobb as D.A., that would happen, he says, although it's not certain whether that would be possible given the complex nature of such prosecutions – or even whether that approach would always be the best strategy.

Cobb's stance on this issue does serve to highlight what critics consider his main flaw: that he's simply too aggressive, prosecuting cases with much zeal but not always the goal of finding justice. The work of the PIU, for example, can often be subtle – in some cases, the specter of being investigated by the PIU is all it takes to deter or correct a lawmaker's behavior. That approach may not make headlines, but it can serve the interest of justice. Cobb doesn't buy it. "I've heard that, but, again, what [has the PIU] accomplished?" he asks. "What crime has been deterred?"

Cobb's critics say he's entirely too focused on winning – an approach that can emphasize convictions over justice. Critics argue that was what happened in Cobb's prosecution of then-11-year-old LaCresha Murray in the mid-1990s, whom he became convinced was responsible for the death of a 2-year-old allegedly left in her care. Murray's supporters say Cobb was only able to secure her conviction by ignoring evidence of her innocence and by spinning an unsupported story about Murray being responsible for babysitting the toddler. Murray's conviction was later overturned and Murray ultimately freed because police, with guidance from the D.A.'s office, exploited a loophole (since closed) in state law, which allowed for Murray to be interrogated for several hours without first notifying her guardians or the court. (A series of Chronicle stories by this reporter was instrumental in exposing this dubious prosecutorial practice.)

Cobb ultimately dismisses the suggestion that his being aggressive somehow diminishes his ability to be compassionate or clouds his judgment. "Here's how I look at it: The cases I'm tough on involve violent crimes," he said. "You'll find that I'm consistent across the board and that the families of victims appreciate my aggressiveness." He argues that he thoroughly presents all the evidence in a case and suggests that perhaps courthouse critics are complaining only because he doesn't necessarily do what they'd like him to do in any given case. "I don't know anyone out there that thinks I'm not fair in how I present a case," he says. "If someone is suggesting I should be doing it 'nicer' – I don't know how you could prosecute a case 'nicer'."