The Travis County legal community is choosing sides in the battle over whether our currently-incarcerated district attorney, Rosemary Lehmberg, should get to keep her job when she gets out of jail in a few weeks. She is currently serving a 45-day sentence for driving while intoxicated, which could be as short as 22-23 days if she manages to stay out of trouble while in there. A Travis County lawyer (also a colleague, law school classmate, and friend) filed a petition to remove her from office, citing a Texas statute allowing removal of a district attorney for intoxication. The County Attorney’s office has now filed suit under that statute to seek Lehmberg’s removal, and a group of Austin attorneys has filed a “Friends of Rosemary” memorandum opposing her removal.

My first thought upon hearing about the memorandum in Lehmberg’s support was a sense that, as a non-practicing but still-licensed attorney, I am somewhat on the sidelines of this debacle. The district attorney is elected by all the voters of Travis County, though, not just the attorneys who vote (even if the attorneys are usually the only ones who closely follow DA and judicial elections.) This affects me and every other individual in this county, even if I will never professionally deal with Lehmberg or her office. I understand the arguments in favor of Lehmberg remaining in office. Considering all of the factors at play, I’m not entirely happy to say this, but I agree that she should go. I think it would be better for her to resign, but the chess pieces are in place now, so I guess we’ll see what happens.

To be clear, I have one reason for this position: public safety. I do not care if the district attorney was drinking alcohol per se. I do not care what a public servant does in their private time, except when it directly threatens the safety of others. Driving while (apparently, very) intoxicated is a direct threat to public safety. The end (of my position statement.)

Here is a bit of a play-by-play of what has happened so far.

I. THE ARREST

According to a police affidavit, as reported by KXAN, a 911 call at about 10:45 p.m. on Friday, April 12, 2013 reported that a Lexus had been driving in the bike lane and weaving for about a mile on southbound FM 620 in west Austin. Police arrested the driver, DA Rosemary Lehmberg. Her behavior at the police station is sure to be the stuff of legend (the affidavit reportedly described her as “both polite and excited, insulting and cocky.”) (Also, restraints were involved.) She was released on a personal bond at about 7:30 that Saturday morning.

II. THE PLEA

Lehmberg quickly pleaded guilty to all charges, before actually knowing what those charges were for certain, in a letter to County Attorney David Escamilla. She also made a public apology. She formally entered a guilty plea in open court on Friday, April 19, and left the courthouse in handcuffs to begin her jail time. The court sentenced her to 45 days in jail and a $4,000 fine. A first-time DWI is usually a class B misdemeanor, but prosecutors bumped it up to a class A because of her high blood alcohol level (at .239, close to three times the legal limit.) Tex. Pen. Code § 49.04. This is reportedly the largest penalty ever imposed in Travis County for a first-time DWI offense.

I’m not sure why driving with a .239 BAC should somehow be less serious because someone has never done it before, but that’s just me.

III. CALLS FOR RESIGNATION

Calls for Lehmberg to resign as district attorney began about as soon as the news of her arrest broke on April 13. Police Chief Art Acevedo did not take a specific position on whether she should resign, saying it would not be “appropriate for a police chief to make a statement” on the issue. He also noted, however, that “[i]f I myself was arrested for DWI and conducted myself in a manner that was unbecoming of this position I can tell you that I would resign.” Austin Police Association President Wayne Vincent was less restrained, saying that “[a]t this point, it’s about the ability of the district attorney to be able to have any credibility with the law enforcement community,…and we would prefer if she would resign.”

Pressure at the state level started to come later in April. State Representative Phil King (R-Weatherford) is now threatening to move the public integrity unit, which investigates elected officials accused of corruption and other wrongdoing, to another county. I suspect Rep. King’s ultimatum is more about politics than public safety, since I doubt state Republicans much care for Travis County’s use of the public integrity unit–it is what allowed Lehmberg’s predecessor, Ronnie Earle, to prosecute former U.S. Representative Tom DeLay. I don’t know that to be the case, of course, and as it happens, I agree with the outcome Rep. King is seeking. I just wish we could do this through the legal system, or at least just the local political system.

The best case for resignation, in my opinion, came from the editorial board of the Austin American Statesman:

It may seem unfair that one drunken driving incident should force Lehmberg out of office. After all, the Travis County jail has been an unwanted stop after a night of drinks for a variety of state and local elected officials and other public figures over the years.

A drunken driving arrest is considered an occupational hazard in public life, but dismissing it that way betrays a narrow and selfish view. Drinking and driving doesn’t just threaten someone’s career; it endangers lives.

Law enforcement officials know that from hard experience and for that reason above all others should hold themselves to a higher standard of behavior. Law enforcement officials are human beings, subject to the same temptations as all of us are. The difference is that most of us didn’t take their oath to protect citizens, property and uphold the law.

***

She knew better and did it anyway. As a result, Lehmberg’s ability to perform her official duties is profoundly impeded.

IV. THE LAWSUITS

The Facebook page Remove Rosemary Lehmberg contains a good summary of the petitions that several people have now brought seeking Lehmberg’s removal from office. As I am writing this, the page has 3,919 “likes.” The page’s creator is Kerry O’Brien, an Austin attorney who was my classmate in law school, and whom I consider a friend and colleague. My favorite post there so far is entitled “11 reasons why the District Attorney must resign or be fired.”

O’Brien filed a petition for removal under Chapter 87 of the Texas Local Government Code. Texas ex rel. O’Brien v. Lehmberg, No. D-1-GV-13-000376, amended pet. (Tex. Dist. Ct. – Travis Co., Apr. 18, 2013) (PDF). Chapter 87 allows removal of a county officer for “intoxication on or off duty caused by drinking an alcoholic beverage.” Tex. Loc. Gov. Code § 87.013(a)(3). A district judge approved issuance of citation, a requirement specifically for this type of case, on Monday, April 22. O’Brien asserts in his amended petition that:

With over 35 years of experience as prosecutor, Lehmberg was well aware of the extreme danger of getting behind the wheel of a car intoxicated and driving it at night on public roads. Lehmberg violated the public trust, demeaned her office and created a substantial risk of injury to others. Lehmberg’s alleged conduct at the booking stating clearly disqualifies her from continuing in her elected position. The fact that Lehmberg had an open container of vodka within her passenger compartment, refused to cooperate with the responding officers, attacked officers and conducted herself in a manner completely unbecoming of a responsible adult let alone the most important district attorney in the State, demonstrates a dangerous and appalling disrespect for the public safety laws she is charged with enforcing. Her quick apology and guilty plea were clearly intended to suppress public disclosure of the facts of her arrest. Under the circumstances, Lehmberg has demonstrated that she should be removed from the office to which she was elected.

O’Brien, am. pet. at 6-7.

County Attorney David Escamilla later took over for O’Brien, filing a new petition seeking her removal under Chapter 87. Texas v. Lehmberg, No. D-1-GV-13-000421, orig. pet. (Tex. Dist. Ct. – Travis Co., Apr. 29, 2013) (PDF). As O’Brien has noted, Escamilla’s petition contains some language that may indicate an intention to find some resolution short of outright dismissal: “As the attorney representing the State, the County Attorney has full authority over the conduct of the litigation, including the authority to nonsuit, dismiss, settle, and/or try the case.” Id. at 3 (emphasis added).

V. THE “FRIENDS OF ROSEMARY”

In response to O’Brien’s petition, 179 Austin attorneys, including five former State Bar presidents, filed a “Memorandum of Amici Curae” (PDF) with the court opposing her removal from office.

I reviewed the list of names attached to the memorandum. It includes friends, people with whom I worked on a regular basis when I was practicing, and people whom I admire greatly. That is what makes it so disappointing. For a memorandum filed in a pending lawsuit, with nearly two hundred lawyer signatories, one might expect an amicus memorandum to include at least one legal argument. Instead, it reads like a campaign endorsement. After listing some of Lehmberg’s accomplishments throughout her “36-year career,” it states:

In short, Rosemary Lehmberg has unequalled [sic] experience, expertise, and ability to run the District Attorney’s office. She is a great prosecutor, lawyer, and public servant. She should remain in office and continue to serve the citizens of Travis County. We are confident that she will continue to provide exceptional and devoted service for the criminal justice system and for the citizens of Travis County.

I do not doubt that Lehmberg has had an illustrious career, and that she has made many positive contributions to the county. I happen to believe, however, that sometimes the best way for a public servant to support their community is to step down. She does not have to walk away. This does not even have to be the end of her career. But it should be the end of her term as district attorney.

The amicus memorandum meets allegations of law with bare assertions of opinion. It addresses none of the factual issues, and does not even acknowledge the rather indisputable legal grounds for removal. As a simple statement of support, it is adequately poetic, but as a supportive document in an ongoing lawsuit, it falls far short of what I might expect from such a concentration of legal minds. It is, as O’Brien says on the Facebook page, “a community petition signed by 100 people.”

I’ll end this section with two other quotes from O’Brien on the Facebook page. First:

How is this a public safety issue, you ask?

On Thursday, a criminal attorney I haven’t spoken to in 2 years texted me. I picked up on his negative tone immediately, even through text message. Here is how the conversation proceeded:

ATTY: Did u really file a petition for DA removal? R u running for office?
ME: Yes, and no way man.
ATTY: Mind if I ask why?
ME: Moral obligation.
ATTY: She is really easy to work with & I expect now, would be even easier.

What he is saying is that he can get good deals for his clients from her office, and after this, he can get even better deals.

That’s good for his business, but terrible for public safety. A compromised DA’s office is a threat. I think his perception and expectation is telling.

And second:

Of course the criminal defense attorneys want Rosemary to stay – they paid a lot of money for this lady.

VI. WHAT I THINK

People who know me know that I side with criminal defense attorneys, in terms of rights, procedure, and jurisprudence, almost 100% of the time. I believe a prosecutor that oversteps their bounds is vastly more dangerous than a sleazy defense attorney. A prosecutor has a bigger job than a defense attorney. The defense attorney serves the interests of one client, asserting that client’s rights under the Fourth, Fifth, Sixth, and Eighth Amendments, and whatever other laws come into play. The prosecutor is not just there to get a conviction, even if that is often how it seems to work. A prosecutor is supposed to represent all of us, and serve the cause of capital-J Justice. A prosecutor should be wary of defense attorneys, but not because those attorneys have something on her. It should be because the prosecutor has the burden of proving guilt.

VII. THE ARGUMENTS AGAINST REMOVAL

Let me be blunt: I have not heard any legal arguments against Lehmberg’s removal from office. I have heard what a great prosecutor and public servant she is, and if you haven’t gathered by now, I find that line of argument unpersuasive.

The other main argument that I have heard is that, if Lehmberg resigns or is removed, then Governor Rick Perry would appoint her successor. This is not a good argument, and here is why: We have already seen that at least one Republican in the Legislature is using this incident to play politics, and we (by which I mean the left-leaning people of Travis County) are better than that. The next election for a Travis County DA will not be until 2016, which might be a long time for a Perry-appointed DA to do……something. There are some suggestions that a Perry appointee would wreak havoc with the public integrity unit, but we’re in a damned-if-you-do, damned-if-you-don’t spot with that anyway. This is really just making the situation partisan when it should not be. It is putting politics above concerns like public safety and accountability. That is not what we do in Travis County.

VIII. PLEASE GET SOME HELP

Whatever happens, it seems clear to me that Lehmberg has a problem. I hope she gets help, be it through AA or some other treatment or program. Whatever she decides to do, I hope people support her in her treatment and her hopeful recovery.

UPDATE (May 15, 2013): I originally characterized O’Brien’s lawsuit as a qui tam lawsuit, a point on which he corrected me. I have corrected my characterization of the suit accordingly.