Judge, 167th District Court: Two Sides of the Law

Efrain De La Fuente (Photo by Jana Birchum)

The race to replace retiring district Judge Mike Lynch has contracted since we first reported on it in February (see "A 3-D Race for the Bench," Feb. 24) – Assistant District Attorney Bryan Case has moved over to run for the Third Court of Appeals. That leaves two dynamic and qualified Dems – veteran defense attorney David Wahlberg, and Assistant D.A. Efrain De La Fuente – competing to preside over this busy felony bench. No Republican has filed, so the contest will effectively be decided in the May 29 primary.

David Wahlberg (Photo by Jana Birchum)

Here's a refresher on the candidates.

Efrain De La Fuente

De La Fuente, who grew up in a family of migrant farmers and union activists, says he knows well that not everyone was born with a silver spoon and that many lack access to the kind of resources necessary to defend themselves in court. A good judge, he says, understands there are inequities in the criminal justice system; he understands that and says he would work toward equitable resources in court – you must "be vigilant to ensure there is a level playing field," he says. Part of that is making sure court-appointed defense attorneys have access to money for experts and investigators. "That is critical," he says, to "ensuring the fair administration of justice." De La Fuente says he'd like to see an expansion of the deferred prosecution program that has been operating through Lynch's court – a program that offers defendants a chance to avoid prosecution and to clear their records. He says the current program is good, but that certain rules – including those covering restitution payments – need to be relaxed in order to give defendants a fighting chance to complete the program requirements. Moreover, he says the system needs to be better about assessing the root causes of crime – such as substance abuse and mental illness – in order to "get away from [over-]incarceration," he says. "Judges can make a positive footprint in the community."

David Wahlberg

Wahlberg has been practicing law in and around Austin for 35 years. In that time, he says, he's "come to realize that while the system is good, there's a lot of room for improvement." It's a given that court-appointed lawyers need more access to resources – something he says he has confronted regularly for more than three decades – "I know what it's like to walk in [to court] with the short stick in your hand." And that intimate knowledge of the challenges of defense work is one of the assets he says make him the best choice to replace Lynch. Five of the current seven felony district judges came to the bench straight from the D.A.'s office; it's time to add a different perspective to the bench, he argues. "They all intend to do well, but that uniformity of professional background has a blinder effect" on the system, he says. Indeed, voters need look no further than Williamson County, with its wrongful conviction of Michael Morton making national headlines, to see an example of what happens when the "prosecutors, judges, and police are all too closely aligned," he says.

Wahlberg says he'd like to help build a better "carrot-and-stick" approach to punishment. Often when a defendant is put on probation, he notes, he's given a list of things he can't do, lest he wind up back in prison. But Wahlberg says there are plenty of ways to balance that system, such as by offering potential time cuts for life improvements – from earning a GED or associate's degree to getting and maintaining a job. Wahlberg also believes the deferred prosecution program currently being run through the 167th court is a good one, but one that needs to be expanded. Two-thirds of the defendants in the system are represented by court-appointed attorneys, he says, but just about 10% of those involved in the diversion program are indigent defendants. "There's clear disparity there," he says. One of the issues may be that the requirements to get into the program are very strict – currently, to be considered for the program, a defendant cannot have any criminal history. "The eligibility requirement is essentially virginity," he says, which is disproportionately hard on minorities.