Monday, August 18, 2014

About Rosemary Lehmberg's Deposition

           It’s been a rough year for D.A. Rosemary Lehmberg of Austin, de facto crime-buster at the Texas Capitol. After sailing to reelection in 2012 she was arrested last year and shortly thereafter became target of an effort by Gov. Perry to remove her from office. There was an investigation of official misconduct on her part and a trial to see if she was fit to hold office. Lehmberg, who has been with the D.A.’s office longer even than Rick Perry has been in government, a long time, survived each of these challenges and has said she won’t seek reelection. But the wounds are still visible—really they were apparent even before the trial of her competency—when she gave a deposition in the case. The primary issue in her mind, you might be surprised to learn, was not whether she had a problem with alcohol or not, but what it’s like to be a woman in power in Austin.
           We’re used to testimony of defendants in court or even plaintiffs in a civil trial but it’s not often that we have the opportunity to hear the D.A. answer questions, especially when she is the chief prosecutor of the state.
           Q. All right. And I want to direct you specifically to the section—there’s a number of numbered paragraphs, but the paragraphs under the section, “Affirmative Defenses.”
            A. Yes.
            Q. Paragraph 11. I don’t want to read the entire paragraph, but I would characterize that as a claim that the State of Texas is engaging in discrimination on the basis of sex. Is that an accurate interpretation of that paragraph?
            A. Yes.
            The deposition was taking place five months after her arrest. She had been to rehab and emerged but denied being an alcoholic. Immediately after completing her jail sentence she took a plane to Arizona for rehabilitation and had two glasses of wine on the flight not because she wanted alcohol she testified but because she’s a “bad flyer.” She would not go to Alcoholics Anonymous which a lot of people don't like to, because she could not bring herself to say, “I am an alcoholic” or admit that she has a severe problem. What led her to drinking, Ms. Lehmberg said, what really got her in trouble were some recent stressors in office and the death of one of her employees, whom she was particularly close to.
             During the deposition she expressed the belief she was being treated differently from other officeholders who had been arrested for drinking and driving and the reason was her gender. There were other issues, as well.
            “I think that, you know, I’ve had to notice that I have never seen a jail video before, and particularly one that starts at the beginning and goes all the way through where people are filming you. I have never seen anyone whose videos are then put out in the private domain and splattered all over the media. I have never seen one where privacy has been breached in every way . . .
            “I went to jail for the longest period of time that any first offender DWI has gotten in this county. I served three weeks in jail, paid a maximum fine. I get out of jail, I went to treatment to a wonderful facility, and you want all the records of my confidential treatment. You have all of my medical records that you demanded, all of my pharmacy records that you demanded.
            “You wanted my hair, and you think you pulled a strand? They took my hair and put it up like this (indicating) and cut eight huge strands at the root because y’all wanted so many tests. I paid $10,000 in my salary for the time I was in jail. I have turned over every record you want. I have done aftercare that I am committed to.
            “It’s not your fault, but I’ve had to fight a veto of funding in my office. I think all of that put together, and there’s probably more, amounts to an overbroad reaction, an overreaction to what I did. And it’s never happened to anyone else that I know of in Travis County.”
            Q. You listed three more things that you thought were evidence of disparate treatment on the basis of your sex, and one of them was that you didn’t know of any other case where videos were taken while people were in the jail. Is that correct?”
            A. That’s correct.
            Q. Are you contending that a video of you was taken while you were in the jail because you are female?
            A. I can’t answer that. I don’t know what was in their mind.
            Ms. Lehmberg is now the most famous victim in present-day Texas jurisprudence. The governor has just been indicted for his attempts to remove her from office. To recap, she was arrested, acted out and threatened deputies. She pled guilty and did her time but an attempt was also made to remove her from office—an effort begun by private citizens, a Republican lawyer or two, but that was reluctantly taken over by County Attorney David Escamilla after discussion with Lehmberg's lawyers on the apparent theory that the county attorney would give the district attorney, both good Democrats, a softer landing. That was not enough for Ms. Lehmberg.
            Her argument and that of her attorney, Dan Richards, son of former Gov. Ann Richards, was that the D.A. was being pursued because of her sex. In the County Attorney’s own deposition—even though he would only pursue the removal feebly, and in a way that would even lead the judge to question the case almost at the start—Escamilla was treated by Richards as if the State of Texas was targeting Rosemary Lehmberg because she’s a woman. It was an accusation that flustered the County Attorney.
            Q. Okay. And you agree that selective prosecution violates the equal protection clause of the Constitution, right?
            A. I’m aware that there’s cases that—that avail that’s selective—as provided for in case law is prohibited by the Constitution.
            Q. And you would agree that a decision to prosecute cannot be based upon unjustifiable standards such as gender, right?
            A. That’s correct.
            Q. And it can’t be based upon race, can’t be based on whatever that list of things are, right?
            A. Whatever that—
            Q. Gender, race and some other things.
            A. You’re correct about race and you’re correct about gender. Religion, I think you were looking for.
            Q. You’re certainly aware that there are male officeholders in Travis County who are on the list [of the removal statute] who have either been arrested for DWI or who have been intoxicated? Would you agree with me for that?
            A. Who have been arrested for DWI. I do not know that they’ve been intoxicated.
            In her deposition the D.A. had complaints about how she was treated by the law enforcement apparatus she is a principal part of.
            Her objections to being cuffed behind her back and walked through her own office on the way to jail are well-known. (This was apparently not intended as a perp walk, in front of her employees, merely as the quickest way to jail—or at least that's the official explanation.)
            She objected that her statements regarding the arrest were used against her in an official misconduct investigation—even though that kind of jeopardy for a defendant is business as usual for most prosecutors including in her own office. She objected to the decisions to film her at the time of her booking and stay in jail and the decision to allow a petition to remove her to go forward in court even though, as she was reminded during questioning, a female jail supervisor and a female judge made those calls.
           What she most objected to was that in the cases of a number of prior drunk arrests of Austin officials there was no attempt to remove the men from office. As County Attorney Escamilla explained in his deposition, in one of those cases a court-at-law judge was found passed out on the hood of his car and charged with public intoxication—City of Austin officials dragged their feet on how to proceed. The judge was arrested again for DWI and resigned. In the second case, involving Travis County Judge Sam Biscoe, elected head of county government, there were no blood tests taken and the judge denied he was intoxicated, claiming instead that he was suffering from effects of medication. In the case of Ms. Lehmberg, as the County Attorney pointed out in his dueling deposition, the D.A.’s blood alcohol level was drawn and extremely high; after being released from jail she called a press conference and admitted the crime—including bad behavior with deputies; and if that wasn’t enough, Lehmberg sent an email to prosecutors after her arrest admitting her guilt and encouraging them to throw the book at her. That’s exactly what they did. They gave her what she asked for and maybe just a little bit more.
             It’s impossible to quarrel with Ms. Lehmberg’s emotions about her arrest, which would be understandable for anyone, but it is hard to believe her sensitivity is as acute as she voices here under questioning. In a relatively short career as elected district attorney in Austin, Rosemary Lehmberg has already asked for—and received—four death sentences. In almost four decades in the DA’s office she has been involved in quite a few more. Despite her liberal claims, Texas Department of Criminal Justice stats show she has sent a higher percentage of blacks to prison than in any other major city in the state which belies her liberal credentials. In jail she was inappropriate.
             Q. So you were not thinking about anything else that might happen as a result of your DWI arrest that might happen?
             A. Not specifically at that time.
             Q. You were not thinking—were you thinking at that time that you might have to resign?
             A. No.
             Q. Were you thinking that you would be removed from office?
             A. No.
             Q. We have got charts with time stamps and all this stuff, but I don’t have them, and I don’t remember exactly when this was. But my recollection is on the DVD there was a period of time when you were in the jail where you made a pistol motion, and it’s on the DVD, with your hand. Do you recall doing that?
             A. No.
             Q. Do you recall seeing that on the DVD?
             A. I do.
             Q. Do you know why you made that motion?
             A. Probably because I was tired of being videoed.
             Q. But what—I mean, you didn’t wave, you didn’t jump at them, you made a pistol motion. Why did you make a pistol motion?
            A. I don’t know.
            Q. What does that mean to you, the pistol motion made at someone?
            A. Do you mean I intended to shoot them—at them? No.
            Q. But what did you mean by making a pistol motion at someone as opposed to any other gesture?
            "She’s already answered that question," Dan Richards interrupted, telling his client not to respond. "She’s not going to answer it again" in fact she never answered it the first time.
            That this was a traumatic experience for Mrs. Lehmberg is undeniable. According to her explanation here she had just been left by her long term partner, apparently in part related to drinking, she had been severely criticized in the Democratic primary (mostly for discrimination against minorities in prosecution, the irony of which, in light of her own claims to being victim of discrimination, seems to have escaped her completely); she had recently lost several key administrators in her office to resignations and she’d lost the lead investigator in her grand jury office who, under the influence of narcotics and antidepressants—with a Benadryl chaser—riding a motorcycle without a motorcycle license, not that that’s important, crossed into oncoming traffic on a county road killing herself and almost killing another driver. In the deposition Lehmberg said she attended the funeral shortly before she was arrested.
            Being locked up was apparently hard on her in many ways. A physician, an addiction specialist who was sent to the Travis County Jail to interview her, described the scene.
            Q. What was her affect? You said it was not happy-go-lucky but what was it?
            A. Somewhat tense, a little bit, especially with the noise that was going on. She would occasionally look away and be distracted by a door slamming or someone yelling, but, you know, she was not delusional or paranoid, but it was not as though she was, you know, just inappropriately terrified, but she was in a situation of being incarcerated. I mean, there’s—we use—often use the term “appropriate” or “inappropriate affect.” Okay. Appro—I would say it—it—it was an appropriate affect—I believe I said that in there—for the situation. Inappropriate affect is when a person’s sitting there and they’re joking and laughing and it just doesn’t fit with the situation.

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