Political Intelligence

Poor Judgment

Bad Judge, Bad

Sometimes we just hate being right. Dallas County Court at Law Judge Sally Montgomery—whose judicial record we highlighted earlier this year [see “The Worst Judges in Texas,” February 10, 2006]—is in trouble again. This time, she stands accused of withholding relevant information from defense attorneys in a recent civil trial and then lying about the incident in open court—actions that could endanger a $10.2 million verdict.

The details of Montgomery’s alleged wrongdoing became public at a July 11 hearing in Dallas. The family of Timothy Bostic urged state District Judge Kent Sims to recuse Montgomery from Bostic v. Georgia Pacific Corp. The family is seeking wrongful death damages from Georgia Pacific, a maker of everything from paper products to construction materials, and where Timothy Bostic worked for many years. Bostic died in September 2003 at age 41 from mesothelioma, a deadly form of cancer caused by long-term exposure to asbestos. The family blames his death on prolonged exposure to asbestos in the company’s construction products. Timothy’s parents, Susan Elaine and Harold Bostic, have twice won substantial verdicts—one for $9.3 million in 2005 and a second for $10.2 million—against the company.

They’re still waiting to see the money. The first verdict was thrown out because of problems with the introduction of evidence. The verdict in the second trial, seemingly decided in early June, is now on shaky ground thanks to Montgomery.

The problems began in late May during the second trial, when Harold Bostic, 71, collapsed and died during a break. Jurors who witnessed his collapse were not told that he had died. Later, they started asking the bailiff questions—one even noticed that the Bostics’ attorney had begun wearing black every day. The bailiff, Gary Christensen, told the Bostics’ lawyer about the jury’s questions and advised her to stop wearing black and to “put a smile on her face,” according to court records and testimony.

The bailiff informed the court reporter, Cayce Coskey, who told Judge Montgomery about the jury’s questions. Montgomery told Coskey that she would deal with it and not to tell anyone, Coskey testified. In this situation, the defense has a right to know that the jury is asking questions, Coskey has testified. She shared her reservations with Montgomery, who dismissed her argument and reiterated that Coskey shouldn’t tell anyone about the jury’s queries.

Faced with an ethical quandary, Coskey disobeyed and told the Georgia Pacific attorneys anyway two days later. They immediately requested a hearing before Montgomery on the issue. In open court, Montgomery said she had just found out about the jurors’ questions and denied telling Coskey to keep it quiet. “I told [the defense] when I found out,” Montgomery said, according to court records. She then paused and added, “When it became relevant.”

After the trial ended—and the Bostics had won a $10.2 million verdict—Montgomery fired Coskey for disobeying her order. The court reporter said she felt like Montgomery asked her to “do something unethical.”

Georgia Pacific is already planning to move for a mistrial, while awaiting Judge Sims’ ruling to recuse Montgomery. The ruling should be released July 25, after Sims returns from vacation. Coskey is using her involuntary vacation time to look for a new job. Meanwhile, Judge Montgomery, a Democrat, continues to campaign for re-election this November.

Burning for Coal

Coal is making a big comeback in energy-gluttonous Texas. The number of planned new coal-fired power plants around the state keeps multiplying: Two years ago, it was two; now the number of proposed plants is 17, which would double the state’s current total. For that we can thank our thirst for electricity and the lucrative opportunities for power-generation companies. Coal is a cheap way to generate electricity, so it offers power companies a greater profit margin. The trade-off is that burning coal is an extremely dirty process, and the new plants will likely harm Texas’ air quality.

Gov. Rick Perry has decided that an abundant power supply and energy-company profits are more important than clean air. In October, Perry issued an executive order to expedite the state’s permitting of the proposed plants. Now a growing chorus of critics, including environmental advocates and some municipal leaders, are fighting the process. They charge that state environmental officials are doing nothing to slow the so-called “coal rush,” allowing polluters to put the environment and public health at risk. If built, the 17 plants will emit thousands of pounds of mercury (numero uno on the federal government’s list of toxic chemicals), thousands of tons of ozone-producing pollutants, and millions of tons of global warming gases.

The stakes are especially high for the Dallas-Fort Worth area. Nine counties in the greater Metroplex now violate the Environmental Protection Agency’s ozone standards, and must make significant reductions by 2010 or face severe federal sanctions. Clean-air advocates warn that the new plants will make it virtually impossible for the area to meet the deadline. Other areas on the clean-air brink, such as Austin, could be pushed into violation as well.

No one knows for sure the extent of the coal plants’ potential impact on air quality. That’s because the Texas Commission on Environmental Quality has chosen not to study the issue. The agency hasn’t done any comprehensive modeling or required the companies to look at what effect their emissions might have on air quality statewide, critics charge. TCEQ has argued that the state process for cleaning DFW’s air, known as the State Implementation Plan, will address the cumulative effects of new coal plants.

Environmentalists say the SIP process is inadequate on its own. “The SIP process is really just a paper exercise, rather than a true plan to bring us into [EPA] attainment,” said Wendi Hammond, an environmental lawyer and executive director of Blue Skies Alliance, a Dallas-based clean-air group.

In fact, one TCEQ commissioner has more or less admitted that the agency is allowing the coal-plant companies to violate a provision of the federal Clean Air Act. The section bars new, major sources of air pollution from causing air-quality violations elsewhere. In May, Commissioner Larry Soward, along with the other sitting commissioner, Chairwoman Kathleen Hartnett White, cast a precedent-setting vote approving air permits for the first of the 17 new plants, proposed by LS Power Group, a New Jersey-based company. But Soward added, “I’m not willing to say that they complied with the intent of the Clean Air Act. I don’t believe they did.” Why then did he vote for the permit? Because, he said at the hearing, he was bound by TCEQ’s long-standing rules and traditions. Those rules seem to allow companies to skirt the federal law.

“The fact of the matter is, the DFW area has been choking on bad air for almost a decade,” Hammond said. “The agency doesn’t have the guts to do what it’s supposed to do to protect the public under the law.”

Funding Sudan

No amount of pleading or legislating so far has swayed the moral conscience of Texas’ employee pension fund managers, who still refuse to divest from companies that do business with Sudan.

For three years, Sudan has been embroiled in civil war. In the western Darfur region, government-backed ethnic Arab Janjaweed militias have conducted a genocide campaign against ethnic African tribes that has killed an estimated 400,000 people; 2 million have been displaced. The Sudanese government has had past links with terrorist organizations, including Al Qaeda.

In mid-July, state Rep. Ruth Jones McClendon, a San Antonio Democrat, sent letters to the state Teachers Retirement System and the Employees Retirement System, which together control tens of billions in investments for teachers and state employees. McClendon asked the funds to provide her with a detailed report on all their Sudan-related investments, and to dump those holdings. According to the Washington, D.C.-based Center for Security Policy, the TRS has invested $5.6 billion in 35 companies that do business with Sudan, such as French telecom giant Alcatel SA. The ERS has invested $1.2 billion in 26 corporations, including South African oil company Total SA. Under U.S.-imposed economic sanctions on Sudan, American companies have been barred from selling goods to the African country since 1997. Yet Americans can conduct business with international companies that deal with Sudan.

As the chairperson of budget and oversight on the House Pensions and Investments Committee last session, McClendon helped pass out of committee House Bill 815, which would have prohibited state funds from being invested in private businesses or corporations doing business with Sudan. Authored by Democratic state Rep. Lon Burnam of Fort Worth, the bill passed unanimously out of committee, but never reached the House floor. Last month, state Sen. Rodney Ellis, the Houston Democrat who authored a similar bill that died in the Senate, also asked the employee system to divest.

So far, ERS hasn’t complied. ERS spokesperson Mary Jane Wardlow said the agency is following a resolution passed by the National Association of State Retirement Administrators, which in essence says that money managers shouldn’t use investments to influence U.S. foreign policy.

Other pension funds around the state are funneling money to Sudan-friendly businesses. The Houston Police Pension System has invested $46 million, with $83 million from the Dallas Police & Fire Pension System, and $23 million from the San Antonio Fire & Police Pension Fund.

Warren Schott, executive director and chief investment officer for the San Antonio fund, whose investments include Total SA and French bank BNP Paribas, said he is “waiting for a definitive list” of terror-sponsored states and companies from the federal government before the board would consider voting on divestment. Schott needn’t wait for the list of terrorist states. The U.S. State Department Web page lists five such countries, including Sudan, which received its dubious designation in 1993. Chris Holton of the Center for Security Policy called Schott’s position a “cop-out.” Less herd-bound states, including Missouri, Louisiana, and Illinois, have already started divesting.

Schott remains unconvinced: “At this point, we’re investing in companies with the highest rate of return and the lowest risk to make the most money.”

State vs. Reed

In April 1996, the body of Stacey Stites, a white, 20-year-old woman from Giddings, was found dumped in a field in Bastrop, southeast of Austin. A year after the crime, an extensive list of suspects was suddenly narrowed to one—Rodney Reed, a 29-year-old black man from Bastrop. In less than four hours of deliberation, the all-white jury that heard the case convicted Reed of rape and murder, based on a single piece of DNA evidence found at the crime scene. Soon after, Reed was sentenced to death. Now, 10 years after the crime, Reed sits on death row, his case pending before the state’s highest criminal appeals court. A recently released documentary raises fresh questions about Reed’s case and offers a detailed look at possible corruption in the small-town justice system that convicted him.

In October 2005, the Texas Court of Criminal Appeals remanded Reed’s case to the state district court in Bastrop based on evidence of prosecutorial misconduct. In June, after hearing new evidence left out of the original trial, state District Judge Reva Towslee-Corbett ruled that Reed’s attorneys failed to prove the new evidence could have changed the outcome of the trial. Reed’s attorneys appealed the ruling, and the Court of Criminal Appeals is expected to take up Reed’s case again this fall.

The newly released documentary, State vs. Reed, outlines evidence left out of the trial that clouds its outcome. The film was recently screened in Austin, with proceeds benefiting Reed’s family. The film sheds light on the racially charged atmosphere surrounding the case: Reed is a black man accused of killing a white woman who was engaged to a white Bastrop police officer. Reed also claims he was having an affair with Stites during her engagement.

The affair could explain the one piece of DNA linking Reed to the crime scene: a small amount of sperm found in Stites’ body. The affair also gives motive to another possible suspect who largely escaped investigation, Stites’ fiancé, Bastrop Police Officer Jimmy Fennell. “My personal opinion when I heard that she had been killed was that Fennell did it,” says former Bastrop prosecutor Steven Keng in the film. “When we heard she had been having an affair with a black guy, it was like well, that’s why he did it because… that would be a tremendous blow to his ego.”

Reed’s defenders continue to argue that the prosecution did not adequately investigate other possible suspects, including Fennell. Police officers never searched the apartment of Fennell and Stites, the last place she was known to have been. Fennell also twice failed a polygraph test when questioned about Stites’ death. Yet he was quickly eliminated as a suspect.

Fennell’s red pickup truck, which Stites reportedly took to work the morning she was killed, was found parked down the road from her body, leading investigators to suspect that she was transported in the truck. State investigators found only Stites’ and Fennell’s fingerprints in the truck.

In 2001, Reed found in his case file a previously unnoticed lab report filed by the state during his trial, which the prosecution failed to share with his defense team. The report states that DNA found on a beer can at the crime scene matched Stites and two Bastrop police officers. One of those police officers was Ed Samela, appointed lead detective for the case. Three months after Samela began investigating the case, he was found dead from a gunshot wound to his head. The death was ruled suicide. None of this, however, has yet won Reed a new trial.

Rigging Up a Reef

On July 11, the U.S. House passed with little fanfare the Deep Ocean Energy Resources Act. The legislation mainly deals with expanded offshore oil drilling. But what to do with offshore platforms once they run dry? Don’t call them wrecks; call them artificial reefs.

Tucked away in the bill is the green-sounding “rigs-to-reefs” amendment. The rider will allow oil companies to rename their rigs as artificial reefs and leave them where they are instead of removing them and cleaning up after themselves. The federal Mineral Management Service, which will oversee this process, maintains that rigs (or artificial reefs in the agency’s lingo) provide homes to sea life, noting a “profound and pervasive connection between fish, fishing, and oil and gas structures in the marine environment.”

But Zach Corrigan, staff attorney for Washington, D.C.-based Food & Water Watch, sees companies, not wildlife, gaining from this law. “Currently, rigs have to be removed within a year,” he said. “Many oil companies see this as being too onerous, and would much rather have the feds take responsibility.”

Texas already has a strictly regulated rigs-to-reefs program. Under the Artificial Reef Act of 1989, the Texas Parks and Wildlife Department manages 80 old rigs reclassified as reefs. However, the rigs must be relocated, dismantled, or dropped on their side, so that they lie at least 85 feet below the surface and don’t cause a hazard to shipping. The top 15 feet of sediment under them must be decontaminated. Finally, firms must split any money they save by not removing the rig with the state—up to $500,000 a rig.

Corrigan contends the new bill throws out these environmental protections: “The Mineral Management Service can point its finger, say, ‘you are now a reef,’ and t
at’s that.” Rigs could be left standing, rather than being chopped up or dropped to the bottom, creating shipping hazards. Without seabed decontamination, pollutants like methylmercury—found in drill-bit lubricant and linked by the National Academy of Sciences to brain damage and cardiovascular disease—may find their way into the food chain. In June 2005, researchers found fish in the Gulf of Mexico containing methylmercury four times the Food and Drug Administration’s legal limit.

Corrigan said the Mineral Manage-ment Service also plans to let fish farmers suspend huge net-cages under rigs, turning the platforms into open-sea fish farms. There are fears these pens introduce toxins and parasites into the wild fish population. According to Dale Shively, artificial reef coordinator for Parks and Wildlife, Texas has always rejected similar proposals.

For environmentalists, all this sounds a little too fishy.

Thomas Talks

Helen Thomas, grand dame of the White House press corps, was in her traditional front-row seat again recently—although not in a press room. Instead, Thomas was at a July 6 Writers League of Texas fundraiser at the Austin Marriott at the Capitol, where the veteran reporter of nine presidencies addressed an overflow crowd of more than 700. (There was a slight delay in the proceedings as hotel staff scurried to open a movable partition to accommodate the surprisingly large turnout.)

Thomas is on tour for her latest book, Watchdogs of Democracy? The Waning Washington Press Corps and How It has Failed the Public. She spoke warmly of LBJ, even found a good word for Nixon, before lambasting the current administration and Democrats who “should be calling a spade a spade” as an opposition party. But her harshest words were reserved for the White House press corps, which she said must stop transcribing and start asking questions.

Not that Thomas, or her views on the limp press coverage of the latest Texan in the Oval Office, were uniformly welcomed. Austin American-Statesman editor Rich Oppel, in his July 9 column, accused Thomas of encouraging journalists to indulge their own political opinions. Oppel—whose recent writings have included such serious journalism as a piece entitled, “That $70,000 boat-and other stupid money mistakes I’ve made”—castigated Thomas for advocating aggressive questioning at White House briefings, which he termed “showboating” for the cameras. Presumably Oppel objects to incidents like Thomas daring to challenge former Bush spokesman Scott McClellan at a press conference for saying the U.S. was in Iraq by “invitation.”

If Oppel really wants to improve questioning techniques, he might consider taking on some of the questioners who offered queries after Thomas’ speech. Many of the questions were preceded by that disheartening phrase that’s sure to elicit groans from any audience, “I have a comment to make before my question.”

Thomas took this all in stride, though, smiling through the audience speechifying. The 85-year-old even stayed past 11 p.m., inscribing personal messages in every book.

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Published at 12:00 am CST