Point Austin: Lehmberg's Scarlet Letter

I canceled two doctors' appointments – for nagging things that I need to take care of soon – to attend the Rosemary Lehmberg removal trial this week. After two days of watching the Travis County attorneys present the State's case against Lehmberg, I'm really glad they can't get their hands on my medical records. They'd be prosecuting me for malingering, malfeasance, bad excuses, and a "pattern of conduct" detrimental to my job performance.

Travis County District Attorney Lehmberg's April arrest for driving while intoxicated and her subsequent deplorable behavior toward arresting officers and at the jail was a public embarrassment, for which she quickly pleaded guilty, served her sentence, repeatedly apologized, and endured lengthy public humiliation. Travis County Attorney David Escamilla's prosecution of Lehmberg – for that's what this nominally "civil lawsuit" became – was a public disgrace, which Escamilla and his staff could have prevented, but for which they themselves will suffer few ill consequences, and after which they will likely never think to apologize. They've taken bad law and almost no precedent and turned the case into yet another public shaming of Lehmberg and consequent media circus (see "Lehmberg NOT Removed"). In court, I found myself waiting for Asst. C.A. James Collins to bring out the stocks so the D.A. could be placed in them, and we could all start throwing rotten vegetables at her, out in front of the courthouse.

Neither side was talking for the record, but sources with the C.A.'s office have let it be known that Escamilla believed his hands were effectively tied by the initial citizens' removal lawsuit, and that they've had to pursue "the process" in order to apply the law as written. Moreover, they suggested (in and out of court) that Lehmberg's drinking had become more of a problem than she has acknowledged, and that (as they've implied in court) she was deceiving her doctors and the public that she has earnestly taken remedial steps to end her drinking and stay in rehab.

Passing the Buck

Well, baloney. I watched the State attempting to construct its argument – mostly by (repeatedly) reconstructing in exhausting detail the April 12 DWI and aftermath that is not only well-known but legally well-settled, and then to turn it into some sort of template that would underlie all of Lehmberg's future actions. They couldn't really manage it, and I wasn't the only one in the courtroom who found it troubling. Judge David Peeples was clearly puzzled by the State's relentless focus on a DWI that had already occurred and been adjudicated, finally asking Collins, "Are you asking me to predict the future" and somehow anticipate that in some future circumstances, Lehmberg might again drink and drive?

Collins and co-counsel have responded that they're trying to show a "pattern of conduct" and – explicitly – to stamp Lehm­berg with the scarlet A of "ALCOHOLIC." But their medical evidence didn't show that, their submission of Lehmberg's prior liquor receipts was trivial and irrelevant, the D.A. has apparently stopped drinking and pursued effective treatment, and both her doctors and Wednesday's queue of well-known character witnesses made it abundantly clear that Lehmberg's past drinking had not, in any way, affected her professional conduct nor her office's work.

In short, the county attorney did not have a case, and should never have pursued this lawsuit after the original "citizen" suits were dismissed. In his video deposition Wednesday, he attempted to wash his hands of the suit and blame it on an abstraction called "the State." He should have instead been willing to take the heat and announce simply, "There are insufficient grounds for removal."

A Disgraceful Day

I'm no teetotaler, but I have no patience for drunks and even less for mean drunks, which both the video evidence and Lehmberg's own testimony reflect she became when she let her evening drinking rule her moods. Driving while intoxicated – even the day after the funeral of a close friend – is inexcusable, and Lehm­berg was rightfully arrested and punished. And I don't consider it a bad thing that she spent a few weeks in the Travis County jail. DWI or no, it would be beneficial if every criminal prosecutor were required to spend some time residing in the environs where they're always so eager – and politically rewarded – for sending other people. From the available evidence, Lehmberg has personally and psychologically benefited from her extremely mortifying wake-up call.

All this said, enough is enough. Sam Biscoe, Bob Honts, Mack Martinez, Gon­zalo Barrientos, Mike Krusee, Eddie Rodriguez, Naomi Gonzalez, Wilfred Aguilar, Ann Richards, Bob Bullock, etc., etc. What do all of these names, plucked from memory, have in common? They are or were all Texas public officials who either received DWIs or had serious, documented drinking problems. Not a single one of them was ever the subject of a removal lawsuit, let alone a lawsuit brought by a county attorney who describes himself only as a "relator" acting on behalf of the State of Texas.

On Wednesday afternoon, Judge Peeples immediately ruled that Lehmberg would not be removed – any other decision would have been a travesty. This nonsense never should have been allowed to get this far, and the Travis County Attorney could have simply ended it. To apply an obscure Prohibition-era state law – enacted when it was literally illegal, under federal law, to possess alcohol – to a one-time DWI by a longtime public servant who has otherwise had a clean and distinguished record, is not only a violation of equal protection under the law, it's a disgrace to the institutions and citizens of Travis County.