How Much Reform Is Enough in the Travis County District Attorney Race?
Incumbent D.A. Margaret Moore faces challengers from the left
In a normal political year, incumbent Travis County District Attorney Margaret Moore would be able to run on her record as a criminal justice reformer. She could point to her aggressive reorganization and rebuilding of the D.A.'s Office, to her dramatic reduction in prosecutions of minimal drug possession, to her creation of specialized units to address civil rights, family violence, and adult sexual assault, and to her successful emphasis on collaboration among all area law enforcement agencies. And in a county where the winner of the March 3 Democratic primary will almost inevitably prevail in November, Moore and her supporters have indeed pointed to her record since succeeding Rosemary Lehmberg in 2017 as justifying a second term.
But 2019 is not a normal political year. Encouraged both by local circumstances and the polarized national political climate, Moore's Democratic challengers – José Garza and Erin Martinson – are running campaigns that essentially accuse Moore of being an ineffective reformer, or indeed no reformer at all. Garza has looked somewhat beyond Moore and Central Texas and, echoing a national activist reform movement, charged that "the criminal justice system is broken" and that only someone from outside that existing system can hope to fix it. Martinson goes further, suggesting that the system is not really broken, but instead is doing what it is designed to do, imposing unequal justice on the poor, people of color, and women – and that it needs to be completely redesigned, turned upside down.
On her campaign website (MargaretforDA.com), Moore cites broad personal and organizational support for her candidacy, of the sort and scale unsurprising for an incumbent and de facto front-runner. By contrast, Garza and Martinson have yet to announce supporters, and they open the race as underdogs. But should one of them pull off an upset – or together pull enough votes away to force Moore into an unpredictable run-off – it wouldn't be the first surprise in Travis County politics. County Judge (and Moore supporter) Sarah Eckhardt, reminded of her own 2014 upset victory over Andy Brown, a party veteran supported by many of the same bold-faced names, was asked if she thought Moore's challengers could gain enough traction to duplicate her feat.
She said simply, "I don't know."
Enter The Two Challengers
Moore is relying on her experience and her record as a prosecutor, and both appear formidable. Garza and Martinson are undoubtedly qualified to be the D.A., but their specific legal experience, in aspiring to preside over Travis County's highest law enforcement office, is comparatively thin.
Garza is currently the co-executive director of the Workers Defense Project, the workers' rights advocacy and activist group, where he has served since 2015. Born in Laredo, he grew up in San Antonio, and moved to Austin as a UT undergraduate in 1995; his law degree is from D.C.'s Catholic University. (He's the nephew of former Austin City Manager Jesús Garza.) He began his legal career as a public defender in Del Rio (Texas RioGrande Legal Aid) and subsequently played the same role in the federal courts in the Western District of Texas. That experience, he says, introduced him to what has become his campaign refrain: redressing "the impact our broken criminal justice system has on people of color, working people and poor people, and immigrant families."
In 2010, he returned to Washington and the Obama administration, serving first as a House committee counsel on labor issues, then special counsel to the National Labor Relations Board, and finally as a senior policy adviser to Tom Perez (then secretary of labor, currently chair of the Democratic National Committee). In his current post at WDP, workers' rights, and specifically fighting wage theft, remain fixtures on the agenda, although he notes that since 2017, his scope of work has inevitably widened. After Trump's election and the 2017 Legislature with its anti-immigrant Senate Bill 4, Garza says, "We really began to understand how our criminal justice system has been weaponized to target immigrant families, and ... communities of color writ large. And so in 2018, we were very, very involved in the 'Freedom Cities' policy debate, here in Austin."
He says he was inspired to run for D.A. in part by the courageous advocacy of WDP members, despite the persistent threats to their lives and livelihoods. And he sees himself as carrying forward the national and state movements for progressive criminal justice reform. He calls it a challenge and disappointing "that in the blueberry in the middle of the tomato soup [of Texas], not only are we not leading those reforms nationally, not only are we not leading those reforms in the state of Texas – from my perspective, we're behind."
Martinson arrived in Austin as a high school student, then studied at the University of the Incarnate Word in San Antonio, then UT School of Law. She has been a lawyer in Travis County for 20 years, initially in criminal defense private practice (which she says she gave up when she found it too difficult to request payment from indigent clients), and moved to the County Attorney's Office, where she handled protective orders and eventually became head of the Protective Order division. During her 12-year tenure, she says, she implemented a program to improve the hiring and training of victim counselors; she also began teaching related courses at UT Law (work she continues). In 2016, she moved to the Texas Legal Services Center, running its statewide crime victims program.
"I've been on the front lines my entire career," she told the Chronicle, "and politics was not anything I ever considered, really. But the state of affairs right now in Travis County is so concerning that I came around to it. ... I feel that we need to make a serious change in the way that we're prosecuting ... domestic violence and sexual assault, but I also – this has been sort of my fluent language for the last 20 years – I also feel very passionately that we need to look at some criminal justice reform." In connection with work in the County Attorney's Office and since, she has been involved with various victim and survivor advocacy groups.
Martinson shares Garza's broad goals of reforming the criminal justice system – reducing mass incarceration, ending disproportionate prosecution of the poor and people of color, and so on. The differences are mostly matters of emphasis – it's apparent that front-and-center for her is better attention to sexual assault prosecutions and what she considers the institutional neglect of survivors. She also advocates a greater "community" role in the D.A.'s Office; if elected, she says she'll establish a "community advisory board" to weigh in regularly on policy and prosecutions. "I really want to make sure that the voices of the few that have been sort of kept down a bit, that they are heard."
The Starting Quarterback
Incumbent Moore, curiously enough, shares most or all of the explicit aims described by her challengers – and indeed argues that her lengthy prosecutorial career has been devoted to pursuing and achieving them. Born into the role (her father, Tom Moore Jr., was McLennan County D.A. in the Fifties, later a state House member), she graduated from UT Law in 1972, served as a Texas House committee counsel, later as a juvenile public defender, and then an assistant D.A. from 1977-80. After a term as county attorney ending in 1984, for a decade she was an assistant attorney general – successfully prosecuting Medicaid fraud – and also served two (appointed) interim terms as Precinct 3 Travis County commissioner. She regularly cites Ronnie Earle, whose name now is borne by her offices opposite the courthouse on 11th Street, as her mentor in establishing a Travis County reformist tradition that a prosecutor's obligation is not to "get convictions" but to "see that justice is done."
Until recently, Moore enjoyed a political honeymoon as the new D.A., moving the office out from under the shadow cast by predecessor Rosemary Lehmberg's embarrassing DWI bust and its aftermath, and the subsequent loss of jurisdiction over state public integrity cases. Moore proudly recites the changes she has made since: diverting most minor drug possession cases away from state jail felony prosecutions; promoting diversion and treatment programs; creating the Civil Rights Unit (along with a Civil Rights Advisory Council) that reviews all police use-of-force cases rather than reflexively deferring to grand juries; and establishing a new Family Violence Unit that collaborates with the County Attorney's Office and other enforcement agencies, as well as an Adult Sexual Assault Unit.
Each of these programs, Moore says, relies on her leadership and credibility in persuading disparate agencies and personnel to work together for a common goal, beyond the walls of their bureaucratic silos. "What I brought to this job, and what I continue to bring to this job is, I see the field, like a good quarterback," she told the Chronicle. "And so I'm able, then, to go to them and say, hey, if we're going to solve this problem ... we're going to have to get a whole bunch of people together, who have different bosses, different accountability systems, and say, we're going to solve this. Because we got to get this job done."
Moore says her experience and credibility have enabled her to get moving on initiatives that accomplish the very things her opponents say need to be done: less arbitrary or discriminatory incarceration, more aggressive and effective prosecution of serious crime, better alternatives to imprisonment, greater attention to victims and survivors. As it concerns DNA evidence, for example – an issue that encompasses not just local but nationwide failures in rape-kit retention and analysis – she began meetings with newly appointed Austin Police Chief Brian Manley and others even in advance of her swearing-in, to proactively address the problems raised in Travis County and elsewhere.
On another front, in an attempt to establish whether racial discrimination is a factor in state-jail drug convictions, Moore commissioned a 2018 study that concluded instead that the racial disparities occurred "upstream" – in disproportionate arrests of African Americans. Moore says she has been working with APD to address those disparities – while other advocates (including Garza and Martinson) suggest the best approach would be broader "decriminalization" of low-level drug offenses. Because of recent (and apparently inadvertent) action by the Legislature, that outcome has effectively occurred for possession of small amounts of marijuana (typically not a felony handled by the D.A.), but Moore has said she is reluctant to unilaterally decide which other laws are worthy of enforcement. "We are not safer," she says, "if prosecutors are refusing to enforce the law."
Beyond these specific issues, Moore bristles when she's accused of dragging her feet on reform, or that she's insensitive to the victims of crime. In fact, she says, Travis County has been a model of criminal justice reform, and insists, "I've worked with victims my entire prosecutorial career."
Nevertheless, Garza has continued to reiterate his campaign theme – "our criminal justice system is broken" – and that newly elected prosecutors in Philadelphia, Dallas, and elsewhere are leading the way on radical reform, especially decriminalization of many minor offenses and the virtual elimination of cash bail. Martinson is more centrally focused on issues related to sexual assault, and argues that not only has Moore not improved matters at the D.A.'s office, but has made things worse.
"I haven't seen any improvements," she told the Chronicle. "I would say that before Margaret Moore, I think we were doing an okay job – not a great job. But I think it's gone downhill." Citing her experience as an advocate and adviser to victims, as well as the pending federal class action lawsuit filed by a group of sexual assault survivors against the D.A., the APD, and others, Martinson continued, "What I see right now is that the victims are not getting justice out of the process." That lawsuit awaits a ruling on standing from Judge Lee Yeakel, and Moore cites legal advice (reiterated by her counsel, County Attorney David Escamilla) that she is not currently free to speak on the matter, although she disagrees with the "sensationalist" versions of the case in circulation.
Although their campaigns address a broader range of criminal justice concerns, both Garza and Martinson have pressed Moore on the matter of sexual assaults. Moore has acknowledged that when she began her term, the number of sexual assault prosecutions was low, although she attributes that both to the transition from her predecessor and to the local and national "DNA meltdown." She points to steadily increasing numbers of prosecutions since that time – although her challengers insist that the percentage of trial prosecutions remains too low, and the number of convictions negligible.
Moore and her defenders say most such cases are resolved – successfully or otherwise – in advance of any trial, and that the criticisms largely ignore the difficulties of such prosecutions, especially in cases where physical evidence is lacking or victims decide, for whatever reason, not to cooperate. She points to instances where her prosecutors accomplished rape convictions even without cooperation of the victims – or even over their opposition. She cites as well the success of the Family Violence Unit (where issues of sexual assault often overlap). According to the D.A.'s annual report, in 2018 the FVU received 1,413 cases, indicted in 1,003 cases, and secured 831 convictions (that total included 15 jury trials).
A puzzling aspect of the debate over sexual assault prosecutions is that it can seem at odds with broader arguments advocating criminal justice reform, which generally call for less focus on arrest, prosecution, and incarceration. Garza insists that there's "no contradiction" in the balance between reforms and stronger prosecution. He says there is no substantive dispute that some people "need to be in jail. ... It's really a question about how we are using our resources, what our priorities are." Martinson, in keeping with her emphasis on community involvement and her belief that the issue represents a broader cultural problem, suggests that the D.A.'s Office needs to place more attention on public education. "I don't think people care about it," she said. "I don't think they want to hear about it. ... And it threatens their sense of security and safety." That means prosecutors and other public officials need to address it in part as a public health issue. "There's a lot of work to be done there."
It's worth noting that at least some leading criminal defense attorneys don't necessarily agree that the Travis County D.A. is lackadaisical about sexual assault prosecutions. Sidney Williams, until recently a board member of the Austin Criminal Defense Lawyers Association, said that in fact, "They prosecute these cases all the time," with or without physical evidence of assault. In fact, Williams said, in the current #MeToo cultural atmosphere, the "pendulum has swung very far" in the direction of presuming an allegation of rape is credible. Since the accused is most often a man, Williams said, "A male word has been diminished in value."
Attorney Steve Brand said that based on his own criminal defense experience, prosecutors are now "bowing toward the will of victims' groups," especially in "he said/she said" prosecutions. The default terms employed – e.g., "victims" instead of "accusers" – predispose prosecutors and juries to presume guilt, he said, even in cases when there is no physical evidence of assault. And since many cases involve alcohol, an accuser is often presumed too intoxicated to give consent, while no such extenuation is granted the accused. Brand says that the inherent bias now running from the initial arrest, through the investigation, and into the courtroom, "cuts completely against the presumption of innocence."
Whatever the circumstances of individual cases, Brand said, local prosecutors have not been shy about seeking convictions. "I am not a champion of the D.A.'s Office by any means," Brand said. "But I am not going to sit here and say they don't take sexual assault seriously."
Achieving Real Justice?
Move a couple of steps back, and an observer could readily conclude that on policy matters, there is not much daylight between the three candidates. All three support decriminalization of minor offenses, better advocacy and services for victims of crime, efforts to end institutional racial and economic discrimination, and addressing substance abuse and mental health issues as public health matters rather than excuses for stronger prosecution. Garza and Martinson say that if elected, these are the things they will do; Moore responds that she is already doing them.
Recently, Garza announced that he's been endorsed by the Real Justice PAC, a national effort led by journalist/activist Shaun King to help elect progressive district attorneys. According to the PAC's national political director, Brandon Evans, the decision was based on a questionnaire given to all three candidates, and then a follow-up interview with Garza. Evans told the Chronicle that while the organization is most familiar with the current local controversies over sexual assault, otherwise it considers Travis County "not exceptional in how the criminal justice system is working."
The Real Justice website declares that Garza will "transform the justice system." Moore ("who has the support of the police union"), the endorsement claims, "has doubled down on the failed war on drugs, withheld power from the community so that she can personally determine whether to prosecute police shootings, and has perpetuated cash bail."
Those are serious charges, although misleading ones that illustrate how little the PAC knew going in* about Travis County's specific criminal justice environment. The first is flatly false. The second misrepresents the new Civil Rights Unit's policy of transparent "declinations" to prosecute by the D.A. for reasons disclosed, in cases of police use of force that appear justified, rather than obscuring those cases in grand jury secrecy. The third does not take into account Travis County's longstanding policy of prioritizing personal recognizance release over cash bonds – one that has drawn its own skepticism from observers who'd like a system less dependent on the actions and tempers of individual judges.
The odd thing is that reading through the responses to the Real Justice questionnaire from all three candidates (provided to the Chronicle by the respective campaigns, and posted below), shows not how much they disagree, but rather how much they coincide. All say they support de-emphasis of cash bail and support diversion programs; prefer to treat substance abuse and mental health as public health issues; oppose criminalization of poverty and reflexive maximum sentences; and advocate more services for victims. One area of disagreement is capital punishment. Martinson opposes the death penalty in all circumstances, Garza would consider a moratorium if "consistent with state law," and Moore says that while she has not yet sought capital punishment, some heinous cases merit its consideration. Moore's responses differ, primarily, in her reiteration that in virtually every instance, the reforms requested by Real Justice are either already long-established standard practice in Travis County, or well in progress.
Moore also rejects the questionnaire's implicit presumption that Travis County is lagging behind other jurisdictions in criminal justice reform. "In my opinion," she writes, "the Travis County criminal justice system is much more mature in terms of utilizing reform tactics others are just beginning to use. We have long sought to end over-incarceration and utilize balanced sentencing – our legal and moral mandate."
Eckhardt, admittedly a declared Moore supporter, describes her own general approach to local races: "If the incumbent is well-qualified and shows real progress and results, I generally see no reason to make a change. But I support a good contest in the primary among good Democrats." Eckhardt says that Moore's opponents are both good candidates, and in the current context, they are expressing an "anger over the deep misogyny in our culture that is real – and that anger is justified." She says there's some irony in having as a target a female D.A. "who has successfully prosecuted more sexual assaults in two years than in the several preceding years, before she took office." As a former prosecutor herself, Eckhardt's aware of the specific challenges facing Moore and her team, and she credits the D.A. with doing "more since 2016 – a lot of positive movement, from a prosecutorial standpoint – than I've seen in my 19 years in Travis County."
No doubt there are many aspects of the Travis County criminal justice system that can be improved, and many aspects of the District Attorney's Office that demand additional progress. The challenge for José Garza and Erin Martinson will be to persuade Travis County voters that that progress is not already well underway, and that someone other than Margaret Moore is the best person to make those changes happen.
Posted here are the Travis County District Attorney candidates' responses to the questionnaire submitted by the national Real Justice PAC, in order to determine the PAC's endorsement in the 2020 Democratic primary. Following the questionnaire and a followup interview, the PAC endorsed José Garza. Although the formats of the responses differ somewhat, the questionnaires are useful in reviewing the candidates' overall positions on policies and practices of the D.A.
* Editor's note: Following publication, a PR firm representing Real Justice PAC took issue with the implication in this sentence that the group did not do its homework and research Travis County issues before involving itself in the DA race. While we agree to disagree on how well the PAC understands the facts on the ground here, we can confirm from subsequent reporting that Real Justice engaged with activists and potential candidates in Travis County before either Garza or Martinson entered the race.