Fairness, Consistency, Safety

Rosemary Lehmberg defends her record

Fairness, Consistency, Safety
Photo by Jana Birchum

Austin Chronicle: What do you think are your biggest accomplishments?

Rosemary Lehmberg: Lots. You know, one of the things I've tried to do – not only while in office, but always – is if we see a problem, try to fix it. So when I came into office, one of my priorities was that state court environmental prosecutions were sporadic, and the feds were cutting back because they were paying more attention to terrorism. And so I got a full-time environmental prosecutor, Patty Robertson. Patty has been on the [environmental] task force for me for a while and had been interested, so when I got full-time funding she was, of course, the perfect choice for that. And so we have statewide jurisdiction under the Water Code. So there are some jurisdictions, particularly down along the coast, who don't seem to want to go after industrial polluters – but I do. And so we have done that.

AC: What kind of resources do you have to pursue those kinds of cases in a huge state like Texas?

RL: It is a huge state, and I usually talk to the local prosecutor and see if they want to participate, and if they do, that's great. The cases can be brought in Travis County, which saves our travel. The investigators from the EPA [Environmental Protection Agency] and the TCEQ [Texas Commission on Environmental Quality] help us develop the case, as do staff lawyers there. And we usually try to bring a staff lawyer on to second-chair Patty as we go.

AC: Now, the TCEQ has been notoriously foot-dragging about such cases, so do you find yourselves in tension with them?

RL: No, I don't; no, I don't. Their own enforcement is kind of their business. The prosecution of these cases, criminally, is mine. And their investigators are very gung-ho to work with our prosecutor on these enforcements, and we get excellent assistance. I do not have to go to them for policy decisions or anything like that.

AC: So they work on the scientific side?

RL: They do give us expert testimony, which is great. For instance, the Gulf Chem case was a very controversial one, and very difficult. And those folks were letting heavy metals go into the creek beds around their company. It's down in Brazoria County. It's been written up and was in the news. And, you know, things like heavy metals – and they seemed to think that was OK and didn't realize that was going into the Gulf of Mexico. So we went down and prosecuted it and extracted some large fines from it. So, Patty has opened over 60 cases already.

AC: How many have been closed?

RL: I think she's gotten 18 convictions, and we largely go for corporate convictions because we can levy big fines. We've already collected over $3.5 million in fines.

AC: Now, do you also get a cleanup order?

RL: We do. Our first priority is remediation. And if remediation is possible, if it's a waste dump case – we have these all over the state and in Travis County – we make the company clean the site up first. Then we assess fines and any other restitution that is in order. But I really do believe that even though sometimes we go for an individual – like it might be the main engineer or the president of the company for individual responsibility – mostly what these folks recognize is where it hits them in the pocketbook. And I think that we're going to end up being more and more aggressive about that. The more we do these, the more we learn that we can assess bigger fines, because that's what's punitive to a big company.

So, the environmental thing is one of the things I really wanted to tackle. Just some other quick things: We cut the ribbon on our new Child Protection Center, and I was able to finalize the bringing of the rest of the team people there. We cut the ribbon on the second part, which was to bring all of the team there from the other agencies together, and we did that during my first term. And now we are working on expanding our work there to include the investigation of domestic violence, because we see so many of the same families involved and the police and the sheriff's department and I are just about ready to finish that expanded collaboration.

AC: What was the focus before?

RL: Just child abuse. We spent a lot of time with the domestic violence community – with SafePlace – and we have a domestic violence protection team, just like we have a child protection team. And so we're not going to merge all the resources – like the SafePlace center and our center – but we're going to merge the investigative piece, which makes sense.

I have worked – we had a spike in property crime, so I worked with the chief [Austin Police Chief Art Acevedo] on looking at why that was happening, why we weren't solving as many property crimes as we could. And we did two things: He recentralized the burglary detail, which doesn't sound like much, but it's a big deal because when you have detectives north, south, east, and west and they're all working crimes but they're not talking to each other about serial burglars, you don't get the cases. And so they did that, and they're sending us the chronic, serial burglars for us to take a look at and to try to get some incarceration on those. We're not talking about the kids who go into a garage and steal beer; we're talking about professional burglars.

One of the first things I started working on was to revise our discovery policy, and that is part of a larger effort that I've been working on with the Innocence Project. We needed to make sure that defense attorneys were getting the tools they need, and getting them easier, to prepare a defense. And we needed to make sure that we opened our files to them more easily, so that they could spend their time developing the case instead of just writing down what is in the offense report. And so we opened up our discovery policy.

I had already started the equivalent – what we call our Conviction Integrity Unit in my appeals division. And have been expanding that to include a "Brady Unit" – what is nationally known as a Brady Unit [regarding Brady v. Maryland, a Supreme Court case requiring that all exculpatory evidence be disclosed to the defense] – where we have a central location. John Neal, my first assistant, just went to a conference for me up in New York that the Innocence Project put on where all the newest things in innocence projects are being discussed. And having a centralized place for cases that involve Brady, where prosecutors can go and read what's the newest – easily find what is the newest law – developing checklists for prosecutors prior to trial, ensuring that all requirements of Brady have been fulfilled and that they do that on an ongoing basis.

AC: In other words, to ensure that material doesn't get lost in the file and is not handed over.

RL: Right. And also updated, because you can have a file that comes in and a few weeks later there may be a supplement – that the defense attorney doesn't remember to ask for the supplement – and we have the ongoing duty of disclosure.

AC: I know that in the past, the defense attorneys have complained that the D.A.'s office is insufficiently computerized.

RL: And that's another thing we're doing. We've started doing electronic discovery, almost immediately sending defense attorneys offense reports, particularly on drug cases, via email.

It was really gratifying when I took office and sat down with my staff and said – once we had everybody in place and knew who was going to be where – "We need to be doing more open discovery, guys; we need to be doing this electronically." And to the person, they agreed. So it was not a hard sell for my staff. And we started moving those cases. You know, I remember one thing [Chronicle News Manaing Editor] Amy Smith said to me when we were doing the last campaign, is that defense attorneys complained that they had to sit there ...

AC: Right, and write everything out by hand.

RL: She challenged me to do that, and it was really one of the first things we did. And now that John's back from New York, we're going to talk about totally open discovery. What we withhold now sometimes are witness statements of victims, and that's for security reasons. So what we're going to work now on is how to properly redact those for security reasons but make sure that defense attorneys get all of the file that they're entitled to. There will be some work product stuff that we can't, and mental health records and things that are confidential – but [otherwise] a completely open discovery policy. A Brady, a centralized Brady place where witnesses who have had impeachment material in the past, they're there. And part of the checklist is to check to see if you've got any witnesses who have impeachment material – police officers, experts – to make sure that we disclose those.

One of the newest things that's happening in this area of innocence is developing a process in the office about whether or not a failure to disclose was a mistake or whether it was prosecutorial misconduct. And I'm really interested in that. And I'm going to bring the materials to the staff next week that John got in New York and take a look at that. You know, that is so much in the news right now – prosecutors overlook things, but I don't want prosecutors on my staff who hide things. Innocent mistakes are fine, you know, but you need to be more careful.

AC: So you're saying that what John Neal learned at that conference is how to ferret out which is which?

RL: Just some ideas about procedures. What I will probably have in the office is a group of people – and not just office people, but people from the Innocence Project who will come in and work with us, asking questions of prosecutors, if they have questions about disclosures, and also looking at conduct. Really, really fleshing it out to make sure you don't have a prosecutor who is hiding evidence, because that is just wrong. And I think you'll see some legislation coming up in the next session about prosecutorial misconduct.

AC: Have you had instances of that, in your term?

RL: Not that I think was prosecutorial misconduct. We had a disagreement in the Laura Hall case [i.e., the case of the murder of Jennifer Cave, with a sentence overturned because of withheld evidence] that one of them caused the reversal. And I talked to them about that, and my take on that – and Judge [Wilford] Flowers, who held a hearing on it – was that it was not prosecutorial misconduct.

I've taken a pretty good look at those [issues from the Hall case], and I'm pretty convinced that nobody was trying to deceive anybody. But those issues are in the forefront, and I think part of my responsibility is to make sure that people have confidence in the system. And so we're going to do some more work on that.

Part of that was that, you know, we had our two or three exonerations years ago, and that made me be able to work closely with the national Innocence Project back then.

AC: And who are you talking about, Christopher Ochoa?

RL: Oh, I'm talking about [Ben] Salazar, Carlos Lavernia. Those were the two mistaken identification cases. We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. But, Ben Salazar and Carlos Lavernia were the two mistaken identifications. And then sometime later we had a really different kind of deal, which was the Pizza Hut deal, which was Ochoa and [Richard] Danziger. But it was after the two mistaken identification deals, and during the Ochoa and Danziger case, that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

But once I was sworn in, I signed a work agreement with the UT Law School, with [actual innocence clinic lawyers] David Sheppard and Bill Allison, to have their students come in and re-examine those. And any time we had a request to work with us on those, so we have more eyes, and neutral eyes looking at these cases with us. But it was that initial work with the national Innocence Project in setting up the clearinghouse protocols which allowed me to have a sort of open door with them. So, when the Morton evidence came up [the Michael Morton DNA exoneration in Williamson County], they brought it to us immediately, and we tested it within a matter of weeks and contacted the judge to let them know that another suspect that was in CODIS [the national Combined DNA Index System] was on that bandana. That's when [Williamson County District Attorney John] Bradley turned around on it.

So we're going to continue the work on our Conviction Integrity Unit and our Brady Unit. I'm also in the process of doing an eyewitness field identification study, which is real neat. And I would encourage y'all to talk to – that was rolled out by [Barry] Scheck [of the Innocence Project] and the [memory] research guy, [Iowa State University psychology professor] Gary Wells, in The New York Times and, eventually, here.

The first phase is done at [the police department] and the second phase will start in my office here, sometime after the first of the year. The second phase is to look at the cases where they did the eyewitness identification with the computerized, double-blind administration [in which neither the eyewitness nor the administering officer is aware of the suspect in the array]. They're going to look at how those cases go, the dispositions. The first part of the study itself was important, for a couple of reasons. First, I think it's going to be the first good study that shows that double-blind administration [works].

We sat down with them and set up the computers [for providing photo arrays]. So that's going to be a good source of data. And, I think it really sold the police on, you know, first of all, double-blind is like, "duh." You know, if the police officer doesn't know who the suspect is, you take away all of the questions. But it was the question of sequential vs. simultaneous [arrays] that was really what they homed in on. And it's going to show that sequential demonstrations doesn't keep suspects from being identified, but it does cut down on the number of wrongful identifications. And both are important to police, right?

AC: That's because when people are comparing photos simultaneously they're looking for the one that "most looks like" the perpetrator?

RL: Yeah, this [sequential array] kind of makes them go back to their memory instead of shopping around for who looks the closest. And so we're going to finish that over in our office in the next year or so.

And I have always supported drug courts, because we have a lot of drug cases in this town. We have a drug court in juvenile court, and we have deferred prosecution out there. And we have an important drug court in the adult system that has now served, oh, 3,100 people and has graduated at about 50% success rate, which is pretty good with rehab. We also have one over in CPS [Child Protective Services] court, by the way, that is working primarily with drug-addicted mothers, trying to keep their children with them instead of separated. So we're big believers in specialty courts, and I am supportive of our drug court.

AC: I'm sure you've heard Baird's criticisms of the deferred prosecution program: that it is too small, that it is too narrow in focus – that by narrowing the eligibility requirements, you're only really snagging a group that ultimately makes it look like one of the common complaints with other specialty courts nationwide – and that's one of NACDL's [National Association of Criminal Defense Lawyers] biggest complaints – is the "cherry-picking" issue. Baird would prefer a larger, all-comers-eligible [program], provided you can meet the screening. What do you say in response to his criticisms of that particular program? And number two is, what's wrong with a more expanded model like he's talking about?

RL: First of all, I have watched our experience with drug court and am pleased with the progress at drug court. It provides a diversion, which I think is real important, because people who graduate from that – and we let them fall off the wagon as many times as they can get back on and graduate – they come out of that without a conviction. They can hopefully go on and get a license, be a doctor, be a fireman, be a whatever they're going to be, and get on and lead a productive life.

When I was running, I had so many people from the defense bar say: "Yes, but that's just for people who are addicted. Are there just as many worthy people who just make a mistake?" Like the county attorney has a diversion program [for misdemeanors] – most D.A.s are not wanting to do that in felonies, because they're felonies. So I decided to take a look at starting a parallel program for nonaddicted people that had a very strict criteria for starting out. That means this is your first time to stub your toe. And so many people we've worked for years and years with at juvenile, they've had misdemeanors and felony stuff, and so we have established very strict criteria that it be a true first offender.

And the reason for that is that there are other – like there's deferred adjudication already and probation – which provides people with a way out of the system without going to prison, and this is meant to be a true diversion. And so we set it up, and we talked to the defense bar, and we started getting applications. We're not limiting the program, but we are using a fairly strict screening criteria. When I saw that we were getting more Caucasians than African-Americans and Latinos, I did two things. First of all, I need to let this program run a while, because I think the numbers are starting to even out, much like they did in drug court, the more familiar people become with it. So we went back to the defense bar and said, "You need to know, if you're court-appointed and get your client into this program, you'll still be paid." I mean, those are the folks who represent blacks and Latinos so many times, because of indigency issues. And so I think we started making them more familiar with, "Getting your client into this program is the equivalent of disposing of it in court and getting paid for it."

AC: Do you think they didn't think that they would get paid?

RL: I think that it wasn't clear because it is a diversion program and you don't go to court. You don't plead guilty; you don't go to trial.

AC: But you still have representation to get you there.

RL: That's right. And of course I have my prosecutors on the lookout for worthy candidates.

AC: On that note, I'm your prosecutor and I say, "This guy over here, his attorney hasn't done anything, but I think he's a good candidate." How do you go about that because it seems a little ...

RL: The attorney will bring it to a supervisor – I do interview some of these myself – the supervisor is going to call the defense attorney and say, "Hey, do you know about the diversion program?" Now, the decision on whether or not to apply really needs to stay with the defense attorney, because only the defense attorney really knows the client, really knows the risk factors, really knows whether this person has a support mechanism in place – or one that he can develop – and that's really important for this because they have to make restitution, they have to maintain a job, they have to do community service. And so the defense attorney is the one that needs to assess the situation because, after all, that's what they're supposed to do, to decide what is best for the client. And then they bring it to us.

The [racial proportion] numbers are starting to get a bit closer. They're still like 57% Caucasian, but I want the program to run for a while before I just tweak the criteria and throw the doors open.

AC: How long has the program been running now?

RL: About 13 months. Maybe a little longer than that now. I think our first one was in September of last year [2010], so a little bit more than that now.

AC: And how many total people have gone through the program?

RL: Well, there are about 90 in it now. And some have already graduated.

AC: Would you be open to expanding the eligibility? Because it seems that there are a lot of people – let's take a juvenile for example, a juvenile that has had some interaction [with police], but that doesn't necessarily mean that they're destined for a life in TDCJ [Texas Department of Criminal Justice], and they may be in many terms a stub-your-toe kind of person, but currently they're not eligible.

RL: Yes, of course I would. Sure, I'm going to look at that; absolutely I'm going to look at that. I've already brought in some other folks into the screening committee, to make sure we have a good mix in the screening committee. [Currently it's First Assistant District Attorney] John Neal, [court division Director] Robert Smith, [trial bureau Director] Buddy [Meyer], [and assistant prosecutors] Monica Torres and Craig Smith. So I've got two younger people from the trial division in with the two heads, and I want my first assistant on it, because it is a very sensitive program to me. The first time we put someone in here who we give a total diversion on a felony, who goes out and kills somebody ... then we're going to have a public outcry.

AC: Sure, but it seems if you take enough people, over time that's going to happen; something bad is going to happen. But does that mean that you shouldn't keep trying? I wonder if there is some institutional fear that creeps in with this kind of thing. Like, "Oh, the last thing we need is for this guy to go out and kill somebody." But you couldn't have seen that coming, and life being what it is, these things are going to happen.

RL: Well, you've got to know, I've dealt with that my entire career. And it's never easy. You go back and look at it, and if you think you did the right thing, you just say, "We did the right thing." And if you didn't, you change it. But I think the answer to your question is obvious: I started the program. No, I'm serious. I remember when they interviewed John Bradley on this [kind of program] and he said: "Why would we do that? It's creating another tier of justice, and you're the judge and the jury and all that." Well, hogwash. You know, this is an important opportunity for people who need it. But I don't believe in just, you know, being reckless about setting it up.

Well, I've got one of those on my desk right now. And I'm going to decide, and I'm probably going to take a chance on him. Those folks who end up on my desk are sort of – I usually talk to them myself. I get the defense attorney to bring them in, or sometimes the defense attorney will say, "Go on in by yourself." And I just want to eyeball them. I want to ask them: "Why are you doing this? Do you really mean it? Tell me where you're going in your life." And that usually helps me a lot, because I've got pretty good instincts.

But one of the things we're already looking at is the juvenile piece. I don't want people who've had previous felonies. Some of those people actually need probation because, believe it or not, our probation department is a nationally recognized component of workforce people who find jobs for people. You know, and I know Charlie's talked a lot about his jobs program and his parenting class, but that was a very small number of people, and it didn't last very long. But our probation department has certified workforce people, and their model has been adopted [elsewhere].

So, some of these people actually need probation; they need the help. But I'm looking at, if they have juvenile records – but you have to make sure it's fair. ... So if we open up juvenile, then we're still going to have to say, "these types of juvenile cases." Minimal – they were POM [possession of marijuana] or truancy. So, those people need a second chance – those people probably get four or five chances. What I don't want is a juvenile that we've worked with and worked with and who keeps committing violent crimes.

AC: A corollary question on this that we could spend days talking about: Briefly, what's your sense of the public resources we spend on incarcerating drug criminals, on treating the drug problem as a criminal problem as opposed to a public health problem?

RL: It's enormous.

AC: What does it do to your work as a prosecutor?

RL: Well, I think it's money that I'd rather be spending somewhere else. I don't know how else to answer that. I think there is a misconception out there that we are sort of wholesale sending [people], particularly black men, to prison for drugs. Most of the time, whether they have juvenile records or not, when people come into our system for possession or use of drugs, they're going to get whatever help they want. We've got drug court, we've got Commitment To Change out at the state jail, which is not prison. It's jail, but it's got a six-month drug treatment program. We've got all kinds of drug treatment programs that probation offers. So, folks are going to get those opportunities all the time. Most of the folks that I see go to prison are because they've got other things going on, too. And it may be that they're committing other types of crimes to get the drugs.

But my job is to balance those opportunities and what I owe those people with what I owe neighborhoods, because I'm talking to a lot of neighborhoods, and they're compassionate, too, but they get tired of the quality of life not being taken care of in their own neighborhoods. So I have to balance that. And we give drug cases to juries occasionally in order to get a benchmark. And I'd be glad to share those jury verdicts with you. The problem is, what you see on just a – you know, "Jordan Smith was tried for possession of heroin ...

AC: Hey!

RL: ... and got 20 years." You're not going to see the record. Because when people go to prison in Travis County for drugs, it's because there's a hefty criminal record.

AC: Another criticism from Baird is that there are not enough jury trials – and that bespeaks the idea that the D.A.'s Office acts as judge, jury, and executioner, so to speak, and that there's too much pleading out going on. The criticism was directed as much at judges and even defense attorneys as prosecutors, but it reflects the current system.

RL: You know, when I've looked at the declining number [of jury trials], I've wondered, sort of, why. First of all, we've got more courts. And more people plead guilty as they're standing facing a jury – they may have been on a jury docket for weeks and weeks, but until "that's my jury," they don't get serious about whether they're going to go to prison or not. And so that phenomenon has always been present. In our world, people talk about hiding on the jury docket. You can just hide for weeks and weeks and weeks, because you can only try one a week, usually, in each court. So the more courts we got, the more cases we dispose of.

But the other thing that happened is that when we established our magistrate docket with drug cases, we cut out so many of the cases that used to hide on the jury docket because we got those drug cases ready in four or five days and sent them electronically to the defense attorney and said: "Here's the lab report; here's the offense report; here's our best offer. If you want to go to mag [magistrate] court and dispose of your case, do it today. If not, go get on the jury docket." [Retired District Court Judge] Bob Perkins says it cleared out the underbrush. That's the way he put it. So that made a dramatic change in our dockets because it took all of those drug cases, and they're a third of our docket.

When we started looking at the overcrowding and deciding what to do about it, that's the kind of stuff we do, because everybody looked at us: "OK, the jail is overcrowded, and it's all pre-trial felons, so y'all figure it out." So we did an analysis, and, sure enough, a third of our docket is drug cases. So we said: "Fine, let's take the bad drug cases, the sales, the people who are cooking speed in their bathtub and selling it to people on the corner. But then let's look at these one-rock crack cases and this kind of thing, where people need diversion or treatment or drug court or Commitment To Change or whatever it is, and let's expedite them, because they can be ready quickly." You know, you don't need to talk to a victim; you don't need to figure out restitution; you don't need to find witnesses – it's police officers. And you put the search warrant out there and it's either good or bad.

So we expedited those cases and really took a load off the district court dockets. So what's happening now is that the cases that are being tried are the cases that need trying. Rather than just, you know, OK – because a prosecutor can't be ready for 20 cases on Monday morning. You can't. You have to have some notion of which cases need to be tried so that you can get those witnesses there. And so you're getting more cases that need trying that are actually going to a jury.

And a lot of times the issue in our jury trials is the sentencing. We just can't arrive at a meeting of the minds on the sentencing.

The other thing that I want to mention before I forget – the hate-crimes task force. People aren't hearing about that much, but it's really a big deal. This started when [County Attorney] David Escamilla and I and several of the council members got together after some incidents Downtown. ... I think [former Council Member] Randi [Shade] will probably come back in some other capacity, and I think [Mayor Pro Tem] Sheryl Cole has been interested. And we've had really wonderful attendance of law enforcement, schools, advocacy groups for all areas of bias. The new U.S. attorney is going to come. We have not only put out a training program; we've gotten together and divided into groups – prevention and response, you know, how to train law enforcement to look for hate crimes and to document them. But we are already in the school system doing training; we're in 180 schools already in Austin, and have the commitment – it's called No Place for Hate – and have the commitment of the district, and we're now looking at other districts, to have this training in the schools, and that's pretty quick for a task force that's been going for about a year.

So, what we know is that you have to train law enforcement and you have to document these cases so that you know there's a problem, because that's where money comes from. You've got to get into the schools and try to teach them about bias, and our next step is going to be – fine, but they go home after school, and there's a lot of bias at home, and so our next outreach is going to be what is called A Community of Respect, and you'll see that launched in January, for the whole year, where we're going to seek funding and go to businesses to be partners in A Community of Respect, and start getting into the businesses. To me it's a very important initiative, and it's an action-based initiative; it's not everybody sitting around and brainstorming about, "Oh my god, we hate each other." You know? ...

One of the things that, one of the things I've been working on really hard with the district judges, is to make sure that we get diverse grand juries. You know, there are two ways to impanel a grand jury. You can pick commissioners who come together and submit names, and that's one way of making sure you get African-Americans and Latinos and Asians – by the way, which we're really not getting – is to make sure your commissioners are mixed and tell them, "I need a diverse grand jury." Or, you can use the jury wheel [a database system of random selection] – where you bring in, just like a regular jury panel. And what I have noticed is that when we use the jury wheel, we're not getting diverse grand juries for some reason. And I've talked to the district judges about it a lot, that they pick grand juries and that's their province only. The grand jury is the cornerstone of our system; the grand jury is the break between me and the courts, you know, they're the pass-through. And we get a lot of good stuff from the grand jury – we're seeing this trend, or we need that change.

And so, I was a little concerned when I noticed that my opponent is talking about how the things I'm doing are discriminatory or timid or whatever he calls it, but the last three grand juries that he impanelled – which is one of the most important things that they do – had almost no minorities on them, they're almost totally white, Caucasian. Here they are [consulting a list]: January 2010, there were – there's 14 on a grand jury, 12 and two alternates – in January 2010, he impanelled a grand jury with 10 Caucasians, three Hispanics, and one black; seven white males, three white females, one black female, and two Hispanic females and one Hispanic male. In July of 2010, he impanelled a grand jury of 14 people with 12 Caucasians, one Hispanic, and one black. And in July of '09, he impanelled a grand jury of 14 that was 13 Caucasians, one Hispanic, and no blacks.

AC: Do you think there was even any filter there, or was there just a list of names that he picked from?

RL: I think that the first time he did it, he decided not to use the commissioner system and got a grand jury that was almost totally white. And, you know, he probably got a panel that looks like any venire [jury panel] you would walk into to pick a jury from. And, I don't know what it looked like, but he filtered from that – people who had excuses and couldn't serve and stuff – but that's what he ended up with. And you know, I can see that, but if you see that and you do it twice more, then I don't understand that.

I have a problem with it because I present cases to these people – particularly officer-involved cases, the critical incidents – and what happens is, if I present to a grand jury like that, I get criticized. They don't know that the judge picked the grand jury. That's why I'm going to them and saying I have got to have more diverse, better grand juries.

AC: From day one, Baird's made the case – and it shades over into the political consequences – that justice in Travis County is racially biased. Whether that's intentional or an institutional problem, he's laying that at your doorstep, that you haven't done enough to change this. There is a perception, especially on the Eastside, that justice in the county is a Westside phenomenon, and that's been the pitch of Baird's campaign. Obviously, it's a broad question, but what's your sense of how good the county in general, and the prosecutor's office in particular, is addressing that inequity?

RL: I think that there's certainly disproportionality in the criminal justice system, there's no doubt about that; there's disproportionality in the CPS system. I've been listening to Peck Young [director of Austin Community College's Center for Public Policy and Political Studies] talk about the election of City Council members – I guess I've heard his presentation about three times now, how West Austin always picks the East Austin black [candidate]. And so there is that perception on the Eastside. I have a problem with his [Baird's] totally laying that at my feet, because I think that's an issue that all of us want to work on. I will tell you that what I think has happened in his campaign is that that has become his single issue. I have been waiting, since last July, for these "great ideas": 24/7 [intake] – that's not new, and it doesn't work.

And there's nothing new about it, and people don't understand it. "Conviction Integrity Unit" and hiring Mike Ware [former Dallas County assistant district attorney who headed up the office's conviction review unit] – we've already got one. So he has now focused on this one issue, and he's a single-issue candidate. And the fact of the matter is that while I would like to make sure the criminal justice system is totally fair, it is true that the cases that come into my system are made by law enforcement, and it is my job to assess and judge them. And we do a good job of screening those.

I believe that if we're going to tackle the disproportionality issue, we have to go much further back than the adult system. I'm not saying we don't deal with it in the here and now, and that we try to be fair – our [sentencing] recommendations on court-appointed cases are the same, if not better, than the recommendations we make for a hired advocate. But I believe that we have to go back even further than juvenile court, where there is the same dilemma. We have Latino and African-American kids coming in [to the criminal justice system] in bigger numbers than Caucasians. And so I'm looking at the schools; I'm looking at working with Del Valle and Pflugerville. The Austin school district is working actively on the disproportionality issue in the sense that we know that kids being disciplined over and over again and eventually expelled leads to their going into the juvenile justice system, and that leads to them going into the adult system. And so that tells me we should go back and figure out: Are we being fair in the measure of our discipline, the meting out of our discipline? And if we seem to be being fair, so how do we reach, for instance, the areas where we're getting juvenile referrals – Del Valle and Pflugerville now much more than at AISD [Austin Independent School District], because the populations have moved. And so I believe it is an issue, I believe I am working on it in the adult system, but I believe it is not just my problem; I believe it is a citywide problem and a national problem, but what I'm more interested in is in going back to stem the tide.

AC: We haven't talked about the 24/7 [intake], but obviously that's something that Baird brings up immediately, so let's get back to that.

RL: It's like déjà vu all over again [i.e., of the 2008 Mindy Montford campaign].

AC: And I think what he's talking about is similar to the way Mindy talked about it the last time, if I'm not mistaken?

RL: I think she had worked in Harris County, and so has he. And there's nothing new about a 24/7 arrest review process. It's been in place in Harris County since the Seventies. Dallas tried it and stopped. I piloted it twice, actually. I sent just one prosecutor down for several long weekends [years ago], just to see what felonies were coming in after hours and didn't go with 24/7 at the time because there weren't enough cases. And then after I was sworn in, I did a more serious pilot where I sent all the division directors, I guess seven of them, down all night for a week, each of them two weeks. So it was a pretty good, long pilot. And we looked at how many cases were coming in, what they were, how many we would've rejected, and did we have an area of problem cases.

The result of that was – and Charlie has a way of laughing at me, my saying it's not "cost-effective" to get these innocent people out of jail. Well, that's misleading. I said it wasn't cost-effective because it's not. It's not a good expenditure of our time and money to review the few cases that come in overnight. So we decided not to do 24/7 arrest review; we review them first thing in the morning. But I started looking at something that I think is better, which he scoffs at, and that is electronic arrest review. And that's the future. I mean, Harris County is having trouble with theirs right now. You may have noticed that the police union has voted no confidence on [Harris County District Attorney] Pat Lykos because they're rejecting, you know, drug cases. But Tarrant County has a computer guy who came in and is working on a system where you can get it with real-time staffing.

AC: I was going to say, how does that work? So I'm a cop and I come in with this case, and you would review?

RL: I would have an attorney, instead of being down there all night. They're on-duty now, and the phone rings. I mean we've got people 24/7 who are on duty. They get the offense report, and they get the witness statements, and they ask questions by email, and they say yes or no. If they say yes, they may say, "You have to follow up and make sure you get this and this and this amount; ask this witness these follow-up questions," and you staff the case.

AC: Or, "No, this charge is not appropriate, but maybe this charge is appropriate."

RL: Right. That's one of the real things that I'm interested in. Because the problem we've had is not insufficient cases; the problem we've had at intake is, you get a DWI and they bring you in and charge you with misdemeanor DWI, but they don't know that you had one in Williamson County and you had one in Caldwell County, or you had one in New Jersey, and so you don't get charged properly, with the felony. And the bond is affected and all kinds of stuff. Or domestic violence: You come in on a domestic violence case, and the law says if you've been convicted twice before for domestic violence, it becomes a state jail felony. And we don't, the police don't have that prior conviction stuff.

So what was happening was we were getting cases going back and forth between the county courts and the district courts, the county attorney and the district attorney, because they [the county attorneys] handle the misdemeanors.

AC: Do you have the opposite problem as well, cops that overcharge, for example – and you have to come back and say, "No, we don't have this," but you don't find out until later so you have to dismiss and refile charges or rework it?

RL: That happens. That happens, but the police seek our help; they want our legal assistance. I don't know that they want someone saying "yes" or "no." ... What I want is the best charge, and I want it to be triable, and I want it to be fair. And the future is – and we're already working on this, because the Conference of Urban Counties has offered to Dallas and to us to help us, and we're doing this – to institute the computerized [system]. I think we'll have most of the components in place in the spring to do this. It's much more efficient.

AC: So this would answer the 24/7 intake, but in a more cost-effective way. Is what you're saying?

RL: Yes, and his scoff at that was, having a person at a laptop isn't enough. And I'm going, OK, I think it is. And we've already got people on duty that we don't pay overtime; that's just part of the job. And what I think he doesn't know – he doesn't know a couple of things. He doesn't know that the police call us immediately on violent crimes. We have prosecutors who get up every night – well, not every night, but every time one of those things happen, and go over and work on search warrants, and juvenile cases, to make sure the warnings are correct. So we have people who, now, get up and screen cases and give legal advice. Sometimes I think the problem I have with Charlie is that he's just misinformed, and he doesn't like to hear that. He really doesn't; he really reacts to that. But he is.

For instance, I went to see him once because I heard – I didn't hear, I saw – that he'd "Hobbied" a lawyer out – you know what Hobbying is? When [former Lieutenant Governor] Bill Hobby was arrested [in 1974] for DWI and he got a special deal. His lawyer went down and said: "Here is my Bar card. I'll make sure he's back in the morning for magistration. I'll take him home with me now, and he's not going to drive." So that's the Hobby Rule. What it is is a bypass of staying in jail for the night and going to magistration the next day. So I found out that he'd Hobbied a lawyer that came in on a domestic violence case. So I went to talk with him: "That's your business; you're a district judge. But do you know what happens on domestic violence cases in the meantime?" And he didn't. He didn't know that we develop a safety plan for the victim, that we developed protective orders and got them in place.

AC: Prior to that person being released.

RL: Prior to release. That's the purpose for the separation and for somebody going to jail, so the person doesn't get hurt worse or killed. But if somebody walks right back in the house and is still drunk or angry, we can have a bad problem. He said, "Well, what do you want me to do?" I said, "I want you to call us, so that we can get the victim out of the house." And so there's a lot of stuff like that that I think he's just misinformed about.

AC: How long ago did that happen?

RL: A couple years ago – it was within the last year of his term. [Baird retired from the 299th Criminal District Court on Jan. 1, 2011.] And I didn't go see him a lot, but I did go to see him a couple times on things like that, because I really thought that .... I didn't always agree with his sentencing practices, but that's what he gets elected for.

AC: Well, there was clearly tension between his court and at least some of the prosecutors. Some of the stories that hit the Statesman were prosecutors complaining that he was "soft on crime." How fair do you think that criticism is?

RL: I think some of it was well-taken – that his bonding practices were risky, often. Like, for instance, making a bond [in 2009] on the [Emily] McDonald woman, who was caught on tape putting fecal matter into her child's feeding tube. She was a Munchausen [by proxy], which is very unusual – it is very compulsive, obsessive, and she'd been doing it – and making a bond on her was not a good idea. ["Munchausen by proxy" refers to a parent or caretaker who repeatedly induces illness in another, usually a child.]

And guess what? She was found with her sister, with her child, and put back in jail, and she eventually got about a 20-year prison sentence. Because that child almost died. Those kinds of things I disagreed with him on, bonding practices. I agree that bond is meant to ensure that people show up for court, but I also believe you have to look at public safety factors, too. So there were some bonding procedures that I didn't agree with, but for the most part I'm respectful of the fact that people put judges on the bench to make discretionary sentencing decisions. And so that's why you didn't hear me hollering very often. And the problems I have I addressed to him pretty much privately. And when my prosecutors complained, I'd look at each situation, and if it seemed like a reasonable discretionary call, we shouldn't have a problem.

I think there was a case that was noted where he let somebody out who pulled either a knife or a gun on somebody, and he let him out and he got out and fled and did it again. That happens. But I think you have to be awful careful.

AC: We talked to him about the death penalty in Travis County and my impression that Travis County sought the death penalty less often than other jurisdictions. He said that wasn't necessarily true; I haven't had the chance to go and check that percentage. And he had a fairly nuanced judgment of the use of the death penalty. He said he didn't have moral objections to it, and that sometimes, some crimes demand the death penalty. His objections to it were primarily on the grounds of capriciousness – that in a system run by humans, that is flawed, it's very difficult to support capital punishment with confidence, and that when you were to seek it, you'd make sure it was in cases that are absolutely solid – where the evidence against that person was absolutely solid. What is your own position on the death penalty, and when do you think it's necessary for the office to seek it?

RL: I think that one thing you'll find with my opponent is that if I say X, he'll say Y, whether it's misleading or not. I don't know what his current position is on the death penalty; I think he's received awards for being anti-death penalty. [Baird received the 2010 Central Texas Civil Libertarian of the Year Award from the ACLU of Texas.] Mine has been pretty consistent. It is true that we seek the death penalty less in Travis County than in other jurisdictions. It used to be that Dallas and Harris County far exceeded [Travis County], and I think with the change of administration in those places, and with the institution of life without parole, you're seeing prosecutors everywhere seeking the death penalty less. And we all hope that "life without parole" continues to mean life without parole, because we rely on that in making these decisions.

The first thing I do – and of course I've had a lot of experience in these cases with [former District Attorney] Ronnie [Earle], when I was his first assistant – my first inquiry is: "Is there any question, at all, that this is the right person?" If you have any question at all, it's not this person, you certainly don't seek the death penalty. Two, how likely is it that, legally and factually, from a Travis County jury, that the death penalty is warranted? With life without parole, we are now in a position where the issue of future dangerousness has totally changed. In the past, when people could parole, it was pretty important that they be on death row, which didn't allow for parole. But now you've got to question whether or not they're dangerous in prison, not in free society. And so that has totally shifted the issue of the special issues that a jury answers.

And so, for instance, you saw Paul Devoe, who killed, what, five, six people in four days. That jury didn't have any question that he was going to be dangerous whether he was in or out or wherever he was. On the other hand, if you take someone who kills a child, for instance, who may not have a criminal record, is that person going to be dangerous in prison? You know, you have to ask those kinds of really practical questions. So, we are conservative in the way that we decide them; I am very conservative in the way I decide them. I do use a committee of legal advisers. I even go to the committee now; I just went to one yesterday, where I want to hear my senior staff and others talk about the case, talk about the investigation. Talk about, first, certainty: Is this the person? Talk about why the crime happened, how egregious was it, whether there is a record, what the families on both sides are like, then I go back to my office and make a decision. Sometimes I ask for more records, sometimes I ask for more information, but these are clearly my decisions. I don't use the committee to make the decisions, which is what I think he is trying to put out, that he wouldn't have a committee deciding things. I don't; I use it because I think it is important to have opinions. Opinions are valuable.

AC: Have you ever been wrong? You're saying you have this factual certainty – one case that comes to mind immediately is the yogurt shop – seeking death against these guys, but now we've got all this DNA that throws everything into flux. So have you ever been wrong? Or does something like that set you back a bit, because you're obviously ready, for whatever reason, to sign off on death for these people only to have something come up that fundamentally could be a game-changer. But for certain decisions, [yogurt shop murder defendant] Robert Springsteen might already have been executed. What does that mean?

RL: Well, I'd like for you to look at the decisions that I've made.

AC: I understand, but you were in on that process on the yogurt shop case.

RL: I'm not denying that I was there, but I would like you to hold me to my decisions rather than those of others. But of course I would say that absolutely I was affected by that, just as I was by our exonerations. Those types of things affect the way that you think. And I think my position is as I just told you: The first thing I'm going to look at is certainty. Does that mean I would've done something different in yogurt? That's not on the table. But if you look at the ones I have made a decision on, I don't think there was any question of guilt.

AC: How many death penalty decisions have you had to make?

RL: Well, I've only had to decide, really, on a couple. Because the first one that we tried, that we had where the jury gave life in prison, was one where Ronnie had decided. And I could've intervened. But the two that I kind of said yes were [Milton] Gobert and Devoe. And one more – there's one more that we just tried. The fellow that came in one morning and – her mother had left – killed Bianca Maldonado, and his name was Areli Escobar. He sliced her up, and his girlfriend was on the phone, and he cut the kid [Maldonado's 1-year-old son]. Those are the ones that I decided. They're horrible.

And the reason I mention the thing about a child is the case we staffed yesterday was a child death, and those are very different, you know? They're not strangers. They're horrible, but they're almost always by a caretaker or a parent and you just have different dynamics. So, that's kind of how I feel about the death penalty.

It is something that is totally my decision. I don't like making them, but I do, and those are the criteria that I look at, in that order. First of all, certainty of identification.

AC: Well, the corollary of this is, why is it so hard for prosecutors to admit that they're wrong?

RL: You know, it's not for me, anymore, but I remember when our first two came up – of the three sexual assaults – and I forget the guy's name who it confirmed, but then [Ben] Salazar, who was the Northwest Hills rapist, and Carlos Lavernia, who was the [convicted but later exonerated by DNA] Barton Creek Greenbelt rapist. I can remember those days, and I think it's fear. I do. It's like, you know, we gave that to a jury; they couldn't have been wrong. But once you have DNA and you really have found out that eyewitnesses could be wrong, it really almost knocks you out of your shoes; it does. I mean, you think of the damage that has been done to somebody who actually goes and spends a few years in prison, or a long time in prison, because of a faulty investigation or a faulty eyewitness identification procedure; victims are horrified. I remember talking to a few of the jurors, and they were crying and upset. I think that it jolts you, and I think that once it happens you go, "OK, that's never going to happen again." And when you're wrong, you say you're wrong.

And I'll give you a different example. Do you remember the female police officer who was chasing a guy, and her partner in the patrol unit backed into her? Amy Donovan. Our prosecutor just missed that case, on that defendant. ... But I had to publicly say to that family: "I'm sorry; we made a mistake. We missed that case." I had to write to the parole board to say, "This was a [mistake]." ... But you just do that because what I've learned about people is that they're much more forgiving if you say, "We were wrong." Now, if there were reasons, they need to know it, but mostly you just try not to be wrong. And you do everything you can do avoid it.

So these days we do DNA testing up front, so we don't have this whole post-conviction phenomenon. You have other ways to be certain: You do eyewitness identification field studies to make sure that police procedures are as good as they can be. You train your staff; you spend time with them instilling your values with them. You check people out and make sure that, you know, if somebody, you hear something from a defense attorney and you have a good, open relationship with the defense bar, that's real important, so that they feel comfortable in coming to you and letting you know. You kind of constantly are evaluating people. So when they come to you and say "I made a mistake," you support them if they just made an innocent mistake. If they didn't, they leave. And you publicly own that for them, because it's my watch. And I really believe that. And I don't mean for that to sound all heroic. It's hard.

But I think I've learned from way back in '97 [when Salazar was exonerated], what it feels like to be wrong. And I remember going over to the Commissioners Court to talk to them about settling with some of those folks because it was before we had the state law. And I was sure.

AC: I do have one more follow-up. The political side to that is that prosecutors do not lose votes by being hardass. That it might be a little less true in Travis County than elsewhere, but there are plenty of people who think a few mistakes don't matter as long as ...

RL: We get most of it right?

AC: ... get most of it right, throwing a few extra people in jail doesn't matter. Baird's position is that there is a huge voting group out there that feels like justice isn't equitably handled here, and that's where he is going to find his votes. And I said, "Well, there's just as large a group out there that feels like, 'Look, we don't hire prosecutors for nuance; we want them to throw people in jail, and that's what we vote for.'" So I guess it's just a corollary to this question about mistakes, is that you don't really get blamed for your mistakes as much as if somebody gets out and kills somebody or whatever – that voters care more about that than someone going to jail unfairly, that no prosecutor ever lost votes for being a law-and-order prosecutor.

RL: See, now, I don't know. That's not my sense of the voting public in Travis County. The voting public in Travis County wants to be safe. They don't necessarily want me to take somebody who burglarized their home and throw them in prison; they want me to make sure he doesn't burglarize their home again. And they want me to do what it takes, fairly, consistent with that person's history, to try to ensure their safety. I get that sense from people I talk with, that they want me to exercise good judgment, and they want me to be balanced. They want me to give second chances where they're due, and make sure that people have an opportunity to make it and get out of the cycle, but that if they're dangerous, they don't want them out on the street.

AC: It's been suggested Baird is largely relying on minority voters, and yet that therefore prevents him from winning, precisely because there aren't enough minority voters.

RL: He's never been to juvenile court; he doesn't understand domestic violence, obviously; he doesn't know anything about critical incidents or how those are handled or thought about how those are handled; and obviously he doesn't know anything about intake. He really doesn't. He's just thrown this Harris County program out there and said, "We'll be there, and we'll demand this kind of bond, and we'll do that." And that's his "new ideas." But he does not know what goes on at the District Attorney's Office, the breadth of the responsibility. He thinks we don't have a Conviction Integrity Unit, and we've had one longer than anyone in the state; we helped Craig Watkins transition into his conviction integrity.

But the issue that I have focused on and have spent more time on, are these critical incidents. And I am in the grand jury every minute or every critical incident, because when I come out and talk to the public, I don't want to be talking about what some prosecutor told me what happened. I need to feel it and I need to see it and I need to know what I'm talking about so I can answer the questions.

There is not a good answer to how do we stop – not an easy answer, to how do we stop confrontations between the citizen and the police where the citizen is killed. Some of them are very legitimate; some are very worrisome. I think that Acevedo is working as hard as he can to train his officers on how to step back, not to overreact, but at the same time he is very, very supportive of when they do fire, when he believes, in his heart, that they fired in self-defense to save themselves or innocent bystanders. But those incidents have been more divisive than any number of drug cases, and I have looked at other jurisdictions and how they handle them, and there is not a better way for the criminal justice system to handle them. I mean, there are administrative findings; there are federal court cases; there's all kinds of ways for those cases to be fleshed out. But as far as what we do with them, in our system, I am overseeing them; we are treating them almost like trials in the grand jury, where they get the entire case, they get live witnesses, they get experts, they get to ask for anything else they want. They're told the law, and it's explained to them, because if they're going to indict a case, I don't want them to indict for some weird offense that we can't prove. So we spend a lot of time giving them the law. But those are, in our community, the most divisive cases, I think. And that is across the board, Caucasian, Latino, and African-American.

But I really don't go in and say [to the grand jury], "You indict this; you don't indict that." That's just not the way we handle them. My job is to make sure they get all of the information, and to make sure that we have diverse grand juries.

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KEYWORDS FOR THIS STORY

Rosemary Lehmberg, primary election 2012, election 2012, death penalty

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