Opposites Attract

This story was produced as part of a joint venture with Reporting Texas, a student-driven online publication at the University of Texas-Austin.

Prosecutors oppose defense attorneys every day in the courtroom. Yet come election time in Austin, they’re sometimes on the same side.

An analysis of campaign reports in the Travis County district attorney’s race reveals that criminal defense attorneys have contributed substantial amounts to the campaigns of District Attorney Rosemary Lehmberg and her opponent Charlie Baird.

In 2011, defense attorneys donated nearly a quarter of Lehmberg’s total campaign funds; in the last six months of 2011, they accounted for more than a third of Baird’s total.

Lehmberg was a long-time deputy to former District Attorney Ronnie Earle and was elected to replace him in 2008. In her run for a second term, she collected campaign contributions totaling nearly $200,000 in 2011. Most of the money donated to Lehmberg came in large sums from a small number of individuals. Of those who gave more than $1,000, about 80 percent are attorneys registered in Texas. Of these lawyers, nearly half were criminal defense attorneys who defend their clients from prosecution by Lehmberg. In 2011, they gave roughly $43,000 to her campaign.

Texas law places no limit on contributions to district attorney candidates, and donations by defense attorneys are indeed permissible. But some government watchdogs say the practice could lead to a conflict of interest if defense attorneys who contribute to the district attorney seek preferential treatment for their clients.

Our analysis found that defense attorney contributions are more common in Austin than the state’s other major cities. The 22 percent of contributions that Lehmberg received from defense attorneys dwarfs the amount received by prosecutors in Dallas County (8.6 percent), Bexar County (2.2) and Harris County (1.5).

There are a number of possible reasons for the higher percentage of contributions in Travis County.

First, Lehmberg is a well-known figure in the local justice system, where she has served as a prosecutor since the early 1980s. If criminal lawyers like the way her office is run, which it seems many of them do, it follows that they would give money to keep her in office. Donations from defense attorneys may simply speak to Lehmberg’s popularity in the justice system.

“Even if once in a while they’re given death sentences, life sentences, etc., so long as the district attorney is being fair, they’ll enjoy a good amount of support,” said Robert Kepple, executive director of the Texas District and County Attorney’s Association.

Lehmberg points out that she’s received support from a broad base of community organizations and activists. “Defense attorneys have an interest in having a fair, open, and compassionate district attorney,” Lehmberg said. “I can guarantee you that if you talk to any of the folks that contributed to my campaign, they’d expect that I’d be fair.”

Another explanation is the campaign by Baird, a former district judge who’s challenging Lehmberg in the May 29 Democratic primary. District attorneys in Bexar and Dallas counties are running unopposed in the 2012 elections, a fact that may explain lower numbers in those counties. But District Attorney Pat Lykos of Harris County is running against two Democratic opponents. Even so, defense attorney contributions comprised only 1.5 percent of total donations to Lykos.

Baird claims that as district attorney he would better represent minority groups most victimized by the public justice system. In February, his campaign announced the formation of a Latino outreach initiative to this end. But, like Lehmberg, he’s received large sums from defense attorneys. In the last half of 2011, Baird’s campaign received more than $113,000, with nearly a third from defense attorneys.

Baird believes that defense lawyers contributing to Lehmberg are those that have established tight relationships with the district attorney’s office and that the public has reason to be suspicious of their contributions. “It looks like justice is for sale,” Baird said. Asked about defense attorney contributions to his campaign, Baird said, “It’s a status quo versus change argument,” he said. “Those donating to me are donating for change.”

Several lawyers say another potential reason for the higher donations in Travis County is the Public Integrity Unit, a state-funded division of the Travis County District Attorney’s office that investigates state and federal elected officials accused of corruption. Because defense attorneys from around the state defend public officials against claims by the Public Integrity Unit in Travis County, additional donations to the district attorney come from out-of-county supporters. Under Earle, the Public Integrity Unit gained fame for its investigations of U.S. Sen. Kay Bailey Hutchison and then-House Majority Leader Tom DeLay.

But Public Integrity Unit cases are few and far between. “I’ve only had one Public Integrity Unit case since I’ve been on this side,” said Mindy Montford, who worked with Lehmberg in the District Attorney’s office and ran against her in 2008. Montford now works as a criminal defense and family lawyer. “Those cases aren’t going to be the majority of any defense attorney’s work.”

The larger question is whether defense attorneys should be contributing to district attorney campaigns.

“I do believe that Rosemary is fair,” said Tom “Smitty” Smith of the watchdog group Public Citizen. “But the question you have to ask yourself is if it is a good idea for people who represent criminals to be contributing to the district attorney, and if so, will their contributions be repaid in favorable treatment to their clients.”

Ronald Sievert, who served for five years as an assistant district attorney in Jefferson County and for 25 years as a trial attorney and supervisor in the U.S. Department of Justice, points to a larger problem. “The only people that appear to have a strong interest in the state criminal justice system are defense attorneys and prosecutors, and of these only defense attorneys have the financial resources to contribute to judges and DAs,” he said. “District attorneys and judges should not be exposed to the subtle, possibly even unconscious, influence of money or other irrelevant factors when having to make such decisions.”

One of Austin’s best-known criminal lawyers, Roy Minton, is a top donor to the Lehmberg campaign. “I’ve known her for years, and probably talk to Rose about a case every day,” he said. Outsiders, Minton said, “couldn’t be familiar enough with the system to know that the relationship between lawyers bears no impact on their professional dealings.”

His firm, Minton, Burton, Foster and Collins, donated $5,000 to Lehmberg’s campaign in 2011. In 2008, the firm donated $20,000, and Minton personally gave $5,000 more. “We can afford to help her,” Minton said. When asked about a potential conflict of interest between defense attorneys and the district attorney, he offered the following: “People sophisticated enough to know how politics work wouldn’t think a thing of it.”

But some watchdogs see reason for concern. “These are smart people who read the opposition and know how to place their bets on the strength of their opponent,” Smith of Public Citizen said. “If they didn’t think they were going to get a deal, they wouldn’t be investing.”