Adam Reposa on Ice
Sentenced to six months in jail for direct contempt, city’s DWI king meets stalemate in state courts
As of today – Thursday, Nov. 9 – local DWI attorney Adam Reposa has spent 35 days in a county jail. That's roughly one-sixth of a 180-day sentence for a determination of direct contempt that the bombastic attorney steadfastly believes was not carried out with due process. Reposa was found in contempt by the Hon. Nancy Hohengarten, after a March 27 spat with the judge brought a mistrial in one of his cases – but he's spent much of his sentence in the custody of Williamson County, where he was delivered on a bench warrant issued by Hon. Rick Kennon, who's been sympathic to Reposa's cause.
Indeed, Kennon is the judge who issued Reposa a bond on Oct. 2, before he was taken into custody – and during a status hearing that day, told Reposa he "was not comfortable with the procedure that was followed" in his commitment. But the state's 3rd Court of Appeals has since blocked movement on Kennon's order, putting a stay on proceedings in his court. Making matters more complex is that Kennon himself is not sure if he even has jurisdiction over Reposa's case; the contempt charges were brought, heard, and affirmed in Hohengarten's County Court at Law 5 in Travis County, and the 3rd Court of Appeals hasn't ruled one way or another on whether there's any merit to Kennon's bond.
Meanwhile, here in Travis County, Hohengarten has effectively recused herself from Reposa's appeals, and the judge brought on to replace her – onetime district judge Paul Davis – has repeatedly told Reposa to await his turn at the state's Court of Criminal Appeals, which to date has failed to hold a hearing (or do much of anything), but did deny Reposa's requests for both an emergency stay and personal bond a few days after his arrest on Oct. 6. Which means Reposa is stuck in a county jail until the CCA decides to hear his case, something he and his attorneys believe won't happen until he's served his complete sentence.
"He's a man, sitting in jail, not having committed a criminal offense," his attorney Carissa Beene texted to me on Sunday night. "And no judge to hear motions."
Trying for a Fair Trial
It helps to know what happened in Hohengarten's courtroom to determine the sincerity of Beene's assessment.
Reposa is a DWI attorney alleged by many colleagues to be one of the best in the region. He's also a jerk – self-aggrandizing and excessively confident, the kind of guy who'll deride a publication as an "entertainment weekly" while simultaneously asking for legitimate press, or go onto YouTube intoxicated beyond repair to slather oil over his nearly naked body and talk smack about how much better he is at defending DWI clients than his colleagues. But he is a ruthless defender of those clients, unwilling to recommend a plea deal in exchange for probation. Reposa believes in jury verdicts; cut-and-dried punishments involving fines or jail time that allow his clients to quickly move through the state's justice system.
"I'm the only dude who does this shit," he told me a few weeks ago from a surveilled telephone in Williamson County. "I'm the only guy who doesn't care: If you get a DWI tonight, and you blow a .18, and you say 'Reposa, I'm fucked,' I'm going to say 'I don't care.' We're going to plead not guilty. You're going to take some classes. I'm going to go to the jury on punishment. Even if you lose, you're not going to get shit. You're just getting a fine. We ain't taking probation. We ain't taking none of that shit.
"Hohengarten hates that. She hates that approach. If you demand due process when your guy is obviously guilty, in her mind that is untoward. That's dirty. It's not what good lawyers do for their clients."
(Hohengarten declined to comment on this story, citing pending litigation and the advice of the State Commission on Judicial Standards. "As much as I would like to answer your questions, it would place me in jeopardy of a grievance," she wrote.)
In part, Reposa has been successful with this style because of a move he makes during jury selection that allows him to form a pool of individuals who he says could truly consider the full range of punishment – which, for a class A misdemeanor (first DWI with blood alcohol content level of .15 of greater, or second offense, any BAC) means a fine of up to $4,000 or jail sentence between 72 hours and one year. "It's like the death penalty," he said, alluding to the state's requirement that all jurors on capital cases be willing to consider death as punishment. "You basically create two buckets" – those who can actually consider a minimum sentence and those who only say they can.
"I think he may use [the example of] a school bus full of kids," explained Steven Brand, one of Reposa's primary attorneys. "Somebody has a DWI. They're over .15, and they ram into a school bus. None of [the kids] have serious bodily injury, because that would up it to a felony. But they all have some pain or injury in some way.
"Everybody can consider the high end. But the hard part is the low. Are you the type of person who, if, for example, this guy pulls into his driveway, gets out of the car, and everything's fine, but they bust him ... are you the kind of person who can go up to your neighbor, say you served on the jury and just gave him a fine, or a day in jail?"
Reposa has practiced law in Texas for 14 years, and for much of the past decade has successfully employed this method of voir dire under Standefer v. State – and has even been successful using it in Hohengarten's court. But during a jury selection on March 27, the judge rebuked his line of questioning, telling Reposa that he cannot seek an answer from a potential juror more explicit than whether they could consider the full range of punishment.
That mandate brought on a back-and-forth between the attorney and judge that concluded with Hohengarten telling a potential juror to ignore Reposa's continuing line of questions, and for Reposa to approach the bench for an off-the-record conversation about the law. Reposa rebuffed that request, telling Hohengarten he'd like to "have everything said in public" during a public trial. But Hohengarten doubled down; noncompliance would land him in contempt of court.
The two went off the record; when they went back on, Reposa told her, loud enough for the court reporter and jury to hear, that he "got that and it's wrong. I want to show the people how hard it is to get a fair trial in this court, and that's what I'm doing."
Hohengarten called for recess and retreated to her chambers. She called a mistrial when she returned, then turned to Reposa and told him that she'd be drafting a motion for contempt. "I'm not taking you into custody," she said. "I'm just notifying you that I am going to have that [motion] drafted and delivered." One week later, Reposa was formally charged.
Direct contempt refers to an act of contempt that occurs within the presence of a judge, and is the rare offense designed such that a sentence is handed down before the offender is determined to be guilty or innocent. (The state contends that the law does not require sentencing and conviction to occur as so.) Under Sec. 21.002 of the state code, any attorney charged with contempt can be released from jail through a personal recognizance bond, then stand for a hearing on their charges before a presiding judge.
That distinction is important: Because attorneys are sentenced upfront, they can consider whether to challenge the sentence or accept punishment and move on. But that's not what happened with Reposa's case. On April 3, he learned only that he'd been found in contempt on five charges: refusing to approach the bench; continuing to question the jury panel when Hohengarten was attempting to hold a bench conference; continuing to question a venire person after Hohengarten had instructed the juror to not answer the question; stating during the hearing that he was trying to prove how hard it was to get a fair trial in Hohengarten's court; and speaking in a disrespectful "tone and tenor."
Paul Davis got assigned to Reposa's case by Billy Ray Stubblefield, who presides over the state's third administrative judicial region. Davis, a retired district judge, now teaches courtroom decorum to fellow judges, and has somewhat of a history with Reposa: In 2008, he oversaw a contempt case brought on because Reposa rolled his eyes and made the universal masturbation gesture (when you clench your fist and pump it back-and-forth in front of your pelvis) toward former County Judge Jan Breland. Reposa received 90 days for the infraction, but after two years of appeals was able to reduce his sentence to 11 days, so long as he wore a monitor.
Davis' assignment began a characteristically absurd summer for Adam Reposa. A May 15 pretrial hearing to strike Hohengarten's charges came up unsuccessful. As did a request for a jury trial, held that same day. Reposa never posted to a June 16 hearing on a motion to recuse Davis from his proceedings (citing bias), and skipped out on a June 19 hearing that was supposed to be the beginning of his trial. Davis issued a capias for his arrest that day, but quickly pulled it under the condition that Reposa show up that afternoon for a hearing – which Reposa did not do. Reposa also ditched a June 20 hearing on the state's motion on sanctions for what it considered a frivolous motion to recuse Davis, and a June 22 hearing to consider his request for a competency evaluation. (Brand said Reposa was so hung up on his belief that Hohengarten violated Tex. Gov. Code Sec. 21.002 that he could not "participate in his own defense.")
Instead, and between family trips to Six Flags and announcing a campaign to replace Rep. Dawnna Dukes in House District 46, he spent that time publishing a series of YouTube videos designed to disparage Hohengarten and Davis. In one, posted online July 11, he stood on a bench in the Blackwell-Thurman Criminal Justice Center underneath Hohengarten's headshot and declared the "leadership in Travis County" to be "so weak." One month later in that same setting, he announced himself the mayor of a town called Fuckaround and said he told his lawyer "to tell the judge to 'eat a dick.'"
The parties finally met on Sept. 11 for a two-day hearing that opened with Reposa firing his two attorneys (Brand was eventually brought back) and concluded with Davis lecturing Reposa on the enduring nature of his conduct. "It's basically agreed by both parties that there is a line," he said. "The question before this court is whether or not, Mr. Reposa, your conduct goes over that line. But the fact that there is a line is not disputed. And I do find that you went over the line." Davis issued a formal order one week later, including a line from the Court of Criminal Appeals opinion on Reposa's first contempt case – "Judge Davis made it clear that he wanted the sentence [90 days] to send a message ... in order to prevent the applicant's conduct from continuing in the future" – and sentencing him to five 180-day sentences, to run concurrently, and be served day-for-day, without credit for good time, beginning Sept. 29.
On the Lam
Davis suspended his commitment order on Sept. 27 to honor Reposa's motion for a personal recognizance bond, and set a hearing for Oct. 2. But the motion was denied that day, and Davis promptly re-set the commitment for 2:15 that afternoon. Only problem was that Reposa wasn't there – he'd skipped out on the bond hearing, and was instead in Williamson County, where the next day he got a bond from Kennon.
On Oct. 3, Reposa checked himself in with the Williamson County Sheriff's Office on the expectation that he'd promptly get released on Kennon's bond, which failed when he was told that the Texas Crime Information Center database didn't have any information about his warrant. At that moment Reposa was effectively on the lam – and while Beene, who'd joined on as counsel, was before Travis County 427th Criminal District Judge Tamara Needles requesting a bond (which she said she'd grant whenever Reposa went into custody), Reposa was calling news reporters to tell them that he'd been banished from Travis County. That remained the case until the afternoon of Oct. 6, when Williamson County deputies found Reposa at a Round Rock YMCA and took him into custody on a writ of bodily attachment, which prosecutor Keith Henneke had convinced Davis to sign ex parte (without Reposa or his attorneys involved) and sealed. "Making this request public would only serve to warn [Reposa] and aid him in frustrating the execution of the order," read the writ. "It could also potentially place any law enforcement officer attempting to execute the writ in greater danger or physical harm."
Reposa was brought back to Travis County Court at Law 5, where he sat for a hearing in his workout clothes and got chewed out by Davis as "a disgrace" on his way into county custody. Needles signed her bond on Oct. 7, but Davis overrode her order at the Travis County Sheriff's Office. Reposa stayed in solitary confinement until Oct. 11, when Kennon signed a bench warrant to bring him to Williamson County, where efforts to get him out of custody have been just as unsuccessful.
A Chilling Effect
Though Reposa is admired for his work as an attorney, he's just as despised on a personal level by many of his colleagues in the criminal defense community. He is loud, rude, and bawdy, a narcissist who likes to stir up trouble, both within the courthouse and out: In the spring of 2015, he was the one who took credit for putting the stickers on Eastside establishments declaring them "exclusively for WHITE PEOPLE." Asked if he enjoyed the company of his client, Steven Brand offered, "I don't. We don't hang out socially. We never will hang out socially."
Yet Brand is convinced Reposa was deprived of fair due process, and that Davis – who'd had run-ins with Reposa before – should never have accepted Stubblefield's assignment. "If I were in Judge Davis' position, and the administrative judge came to me and said, 'Hey, I'm going to appoint you to this Reposa contempt,' I would say, and I think anybody else would say, 'I might be able to be fair, but it looks horrible. I did the last one. Just appoint somebody else to keep it clean.'" (Davis also declined comment, citing the Code of Judicial Conduct rules concerning discussion of pending cases.)
On Thursday, Oct. 12, Brand was one of roughly 45 criminal defense attorneys gathered outside of the Travis County Jail Downtown to decry Reposa's conviction and demand "that this unfair sentence gets set aside, a new trial be granted with a different judge," and Reposa be given a new trial. They disseminated a letter signed by 151 of their colleagues that called Reposa's sentence "radically disproportionate to every other sentence in Travis County, and disparate from sentences to prosecutors who have violated the law.
"Our former District Attorney received a 45-day sentence with 'good time' credit after pleading guilty to drunk driving," it continued, in reference to Rosemary Lehmberg's 2013 DWI, "and former Williamson County District Attorney Ken Anderson received a 10-day sentence, of which he served two days with 'good time,' after being found to have purposefully withheld evidence which sent Michael Morton to prison for nearly 25 years."
"He is a lawyer who pushes the envelope," longtime criminal defense attorney David Schulman told the scrum. "Every one of us knows Adam can grate on you; Adam can be really obnoxious. And he makes lawyers, judges, and prosecutors work for their money. But he wins. If he wasn't a lawyer who won cases and got better deals for his clients, none of this would have happened.
"The sentence ... had a very chilling effect on the extent to which we push the envelope. If you want to be a good defense lawyer, you have to push the envelope."
On Oct. 26, the Austin Criminal Defense Lawyers Association signed on in an official capacity to the letter's language, and Reposa has also earned the legal support of well-known criminal defense attorney Keith Hampton, a local champion for the wrongly convicted.
This Is Not About Adam Reposa
Reposa's case now sits with the Court of Criminal Appeals, which to date has publicly ignored each of Reposa's attorney's multiple filed motions – save for the petition for writ of mandamus that the court denied in September. (Judge Elsa Alcala issued a dissenting opinion, but declined to comment on the case, citing pending litigation. Other CCA judges have either declined requests to talk about the case, or ignored those requests altogether.)
The silence has confounded Hampton, who's not used to disregard from the high criminal court. "These are extraordinary writs," he told me on Monday evening. "They usually get attention." Yet to date, nothing – and each day that continues, Reposa's prediction that the CCA plans to ignore his case until his 180-day term is up becomes more likely. "If they wanted to get into this," said Hampton, "orders should have already gone out. 'Here's a briefing schedule, oral arguments in January.' These are the things that should be happening, and not a single one of them has happened. Now, we're into 30 days."
Moreoever, the CCA's silence aligns with an alarming trend of inactivity among the case's involved judges. Hohengarten has absolved herself of ruling authority; Davis has washed his hands. Same goes for Billy Ray Stubblefield, who in the past three weeks has received three motions requesting action, and considered himself without authority on each one. The 3rd Court of Appeals has issued a stay on Reposa's petition in Kennon's court, but has otherwise failed to act.
Indeed, it appears Kennon is now the only judge currently willing or able to profess an opinion on Reposa's saga, and according to transcripts from the Nov. 2 hearing, he's not pleased with what's gone down. "I have some concerns with Judge Hohengarten signing an order holding you in contempt but there not being a punishment," he told Reposa. "And normally, if it's a direct contempt, my understanding is the judge that it occurred in front of would hold you in contempt, would sentence you to whatever it was, one day or 180 days. At that point in time, you would get a personal bond. They would then have another hearing, and they would actually retry it and make that decision, which there's no appeal.
"The problem that I see in your case is they skipped the part of sentencing on the first holding in contempt."
Brand, Beene, and Hampton continue to work to get Reposa's grievance heard, but there's a sinking feeling that their efforts are increasingly falling on deaf ears – a problem, not only for Reposa, but for aggrieved defense attorneys in general.
"This is not about Adam Reposa," said Brand. "This is 10 times bigger than Adam Reposa. Adam is going to be Adam, and he'll make his enemies and practice law the way he will. It's not like once this is over Adam is going to be like, 'Oh, wow, I learned a valuable lesson.' Whatever issues he has can be addressed in different ways."
This story has been updated to reflect the state’s position on sentencing during cases of direct contempt.