Travis County DA candidates differ on special prosecutor, other issues

Travis County voters will elect a new district attorney on Nov. 8 to replace outgoing Democrat Rosemary Lehmberg, who took office in 2009 as the first woman to be elected and serve in that post. Lehmberg’s departure ends nearly 40 years of a chain of leadership by Lehmberg and her former boss, Ronnie Earle. As such, voters have a rare and important opportunity to reshape the district attorney’s office.

RELATED EDITORIAL: Travis County district attorney’s race too crucial for voters to skip

Below are excerpts of questions and answers by both candidates in the order they appear on the ballot; Republican Maura Phelan and Democrat Margaret Moore. The full transcript of the questions and answers are at

American-Statesman: Would you establish an independent prosecutor system to investigate and bring to trial cases in which law enforcement officers have shot or critically injured residents?

Phelan: Yes. I believe that with the close relationship between the police agencies and the DA office, for the investigation and prosecution to be done by the DA office would create an appearance of impropriety that should be avoided in order to maintain the ethics required by the legal profession.

Moore: I am not persuaded that the Travis County District Attorney should abdicate her constitutional responsibilities regarding the prosecution of a general class of crimes under her jurisdiction. I believe that the elected prosecutor is the appropriate authority to account to the public for the operation of the criminal justice system. The innovations I’ve described above — i.e., the establishment of the Civil Rights Unit reporting directly to me and the calling of special grand juries — address the independence issue. There are significant issues that are problematic using special prosecutors, such as the qualifications and availability of the appointed prosecutors and the expense of the investigations and proceedings. Of course, in those instances where the law and/or the canons of ethics require it because of actual conflict, I will seek the appointment of a special prosecutor.

Tell us what your guiding philosophy would be in running the DA’s office if you were elected?

Phelan: To establish a program that is fair, efficient, compassionate, accountable and transparent so that justice is done and the residents of Travis County are well-served and can be proud.

Moore: It starts with the requirement of law: “It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.” Code of Criminal Procedure Art. 2.01. I believe a district attorney has a duty not only to the victims of crime, but also those accused and convicted of perpetrating crimes, to ensure the law is followed and rights are protected. The district attorney has a moral and legal obligation to pursue the appropriate operation of the justice system, to reflect the values of the community in reaching the resolution of criminal cases, to be a prudent steward of public resources, and to diligently and honestly inform the public about the discharge of her duties.

How would you select your leadership team and what role if any will racial/ethnic/sexual orientation/gender diversity factor into those decisions?

Phelan: First of all, by not offering jobs to people just because they support my campaign. Essentially, I’d fill the leadership team by selecting the best possible applicants for every position. I do believe that diversity is a virtue in this process, as different perspectives are always important for a vibrant and effective justice system. But specifically I would pursue and encourage persons of all racial/ethnic/sexual orientation/gender to apply and by creating a welcoming, fair, transparent, and compassionate workplace that serves the people of Travis County while following the law and adhering to the highest ethical standards and seeing that justice is done.

Moore: I am choosing my leadership team by determining the organizational structure I think best for the office, defining the roles of the leadership positions and the qualifications necessary to discharge those roles, and identifying the people who, in my opinion, meet my requirements. In making these choices, I consider experience, qualities and agreement with my values and goals for the office. It is very important to me that the Office of the District Attorney reflects the diversity of this community, and I will ensure that diversity is appropriately considered in making all appointments.

Some of the toughest cases a DA faces are those involving police shootings of civilians because the public views the DA’s office as being cozy with law enforcement. Is there a need to address that perception? If so, how would you address it?

Phelan: Yes, and I would do so by utilizing independent investigators and prosecutors. Although I feel much of the disconnect and perception is a failure — for a variety of reasons — of constant and engaged communication, there are formal unilateral ways for the DA’s office to address some of these issues. As the community is questioning the impartiality of the DA’s office in these investigations, and as legal ethics dictate the requirement to avoid even the appearance of impropriety, the DA’s office, who is required to work closely with officers in the interest of justice (utilizing them as witnesses and investigators in cases they pursue), the investigation and presentation of cases in which officers are themselves suspects need to be done by an independent party.

Moore: There is a need to address that perception. Society’s confidence in the fairness of the justice system is critical to our democracy and our ability to settle disputes without violence. I intend to address this with the following initiatives:

  • Establishing a Civil Rights Unit that is independent within the DA’s office, reporting directly to me. The unit will be staffed with experienced attorneys and supported with investigation personnel chosen for their ability to critically and thoroughly develop the cases. The unit will be responsible for investigating the incident, presenting the cases for indictment and trying the cases that are indicted.
  • Responding personally to the scene to improve the DA’s visibility when these situations arise.
  • Requesting the empaneling of special grand juries to hear only cases where law enforcement conduct is under investigation. These special grand juries will be fully educated and oriented to understand all aspects of these investigations and applicable laws. I intend to share with the public as much of that orientation as the law allows.
  • Fully informing the public regarding the thoroughness of the investigations, the law applicable to the conduct, and the factors affecting the outcome.

How would you rebuild public trust that has been eroded in several high profile cases in which grand juries have no-billed police officers in highly controversial shooting deaths, such as Larry Jackson and David Joseph?

Phelan: By following the independent investigation and presentation/prosecution as set forth above. Furthermore I think the DA’s office could assist the public in understanding the process better by explaining the grand jury process and the legal process involved in the investigation and prosecution of all criminal cases. The DA’s office also could assist in this education by ensuring that the same procedure is being followed in all criminal cases without exception.

Moore: In addition to the initiatives discussed above, I would start with open communication with the community regarding these cases. I will participate personally in community forums, so that people can judge for themselves the commitment of the district attorney to fairness and justice. I am committed to demonstrating a high level of visibility and accessibility as an elected official.

Would you change the grand jury system by allowing defense attorneys to enter the grand jury courtroom and address the grand jury personally, as at least one major county currently does?

Phelan: No. The grand jury is not a trial, and not the place for argument and adversarial representation; its only purpose is to review the evidence discovered in the investigation and to determine whether there is sufficient evidence to find probable cause to proceed with a criminal charge. While the grand jury can request to hear from any witness, counsel (for either side) would not and should not be a fact witness, so their personal testimony would not be evidence.

Moore: Although Tarrant County has recently discontinued that practice, I intend to ask the Austin Criminal Defense Lawyers Association to work with me to create policies that would allow defense attorneys to present evidence to the grand juries in appropriate instances. I also intend to ask the TCDLA (Texas Criminal Defense Lawyers Association) to send representatives to grand jury orientations to explain the defense viewpoint.

How would you make the grand jury system more transparent?

Phelan: By explaining the duty and purpose of the grand jury to the public and following the law. Much of the proceedings of the grand jury are subject to secrecy to protect the identity and reputation of all persons who are subsequently “no-billed” or found to have insufficient evidence to proceed with a criminal charge. No one who was ultimately found to have insufficient evidence for a proceeding against them should be subject to public scorn just because they were brought before a grand jury.

Moore: The Code of Criminal Procedure governs the secrecy of grand jury proceedings. I believe the public can be better educated by using community forums to explain how the system works — e.g., how grand jurors are chosen, how cases are presented, etc. Specifically, as to officer-involved shootings that are no-billed, I intend to continue releasing information that the current DA’s includes in press packets. I will also personally be available to address the public regarding these high profile cases.

How would you make the DA’s office more transparent?

Phelan: By being more transparent and making transparency of the office a priority. There are many other infrastructure-based ideas to achieve transparency, and I’ve been outlining many of them in my campaign. For example, the DA’s office should have guidelines for plea offers so that there is consistency and transparency in that process and so that plea bargains are equally applied. By requiring a documented reasonable basis, as determined by supervising attorneys and the district attorney, for any departure from that guideline – either up or down – so that the basis and reasoning can be explained and provided if there is a question about the departure. By providing statistics on the cases reviewed, accepted, indicted, prosecuted, and the results thereof. And finally, as discussed earlier, by educating the community about the duties, responsibilities, processes and procedures of the office and by reviewing those processes and procedures on a regular basis to find better ways to achieve justice in Travis County.

Moore: Regular interaction with community representatives and the media. I also intend to look at the office’s website to see if we can improve on the amount of information provided. I also intend to improve the office’s interaction with defense counsel, ensuring responsiveness and ease of access to discovery. The new electronic discovery process that is due to begin before January should help with that.

If you were elected, what would be your top three priorities?

Phelan: First, to institute 24-hour intake attorneys to review arrests and the warrants, searches, affidavits and evidence submitted in support and to participate in bail determinations while diverting those persons identified as eligible and in need of mental health care or addiction treatment; second, to establish guidelines for plea offers and assure that they are equally applied; and third, to establish a sexual assault division made up of prosecutors, paralegals, investigators and victim/witness counselors specially trained to work with sexual assault and trafficking cases.

Moore: Earning the community’s confidence; hiring, training, and retaining outstanding professionals; and addressing prosecutorial priorities—e.g., examining plea bargain recommendations to ensure fair enforcement; exploring the expanded use of diversion programs; collaborating with other enforcement agencies to effectively and efficiently protect public safety and public resources.

If elected, what initiatives would you install in the first 90 days?

Phelan: Those listed as my top three priorities, as well as reorganization of the office to address the 10,000 pending mental health cases; the 3,000 pending DNA analyses; the review of questioned convictions; and community outreach to schools, organizations and police agencies.

Moore: In addition to those discussed elsewhere in my responses to your questions, I would create a Family/Intimate Partner Violence Unit under the Family Justice Division. According to data I’ve received, these offenses constituted the second highest number of cases in 2015. I have discussed with the County Attorney the need to jointly staff these cases at intake, which will enable prosecutors to determine immediately whether the case is a felony or misdemeanor and initiate prompt victim outreach.

I will dedicate one prosecutor per district court to be specially trained to handle these cases and appropriately expedite resolutions; explore expanding the availability of the pre-indictment diversion program currently in place in the DA’s office; seek out resources to audit the DA’s office case dispositions to determine if there has been any disparity among classes of our community, and take measures to correct that if such disparity is identified; institute regular training for DA personnel; and work closely with other county agencies, such as the sheriff’s office and the commissioners court to address such issues as jail overcrowding, overincarceration and the use of treatment vs. incarceration in mental health and drug cases.

Would you expand the Public Integrity Unit?

Phelan: Not until the Travis County cases and issues have been brought under control, but with public integrity cases which are pending or presented will be pursued, I will not seek expansion until these backlogs and unaddressed issues are resolved.

Moore: The Public Integrity Unit is one unit within the Special Crimes Division, which generally handles white-collar, public fraud, and statutory enforcement cases. As part of reorganizing and expanding that division, I will pursue the following efforts:

  • Work with the Legislature to restore funding for investigation and prosecution of crimes involving the misuse of state funds and resources. I think it is important to take a fresh look at the Travis County D.A.’s ability to address state enforcement needs.
  • Form partnerships with local, state, and federal authorities to target misappropriation of taxpayer dollars and other fraudulent activities. For example, among others, I would work with the Attorney General’s Office and the Texas Health and Human Services Commission to prosecute Medicaid provider fraud cases; partner with the Texas Commission on Environmental Quality to expand prosecution of environmental crimes; work with the Department of Aging and Disability Services and local law enforcement to prosecute fraudulent schemes that target the elderly and disabled; and work with the Department of Insurance to increase prosecution of insurance fraud cases.
  • Collaborate with local, state, and federal authorities to vigorously enforce laws against human trafficking and other criminal statutes targeting illegal enterprises that target immigrants.
  • Partner with the U.S. Attorney for the Western District of Texas to cross-designate Travis County prosecutors, so that cases can be prosecuted in federal court when appropriate.
  • Invite state and local authorities to embed personnel within the Travis County District Attorney’s Office to facilitate the efficient investigation and maximize resources in the prosecution of cases in Travis County.

How would you address the overcharging of citizens by law enforcement officials, such as happened in the Breaion King case?

Phelan: Without commenting on a specific case, generally “overcharging” is a matter of opinion in some cases, which is why standards are necessary, as I stated earlier. Further, my institution of intake attorneys to review cases at arrest would address this issue for cases over which the DA would have jurisdiction.

Moore: I agree with the county attorney’s decision to dismiss the resisting arrest charge. I intend to establish much closer communications with the County Attorney’s Office to ensure that these situations are addressed much more promptly and effectively. My proposed Civil Rights Unit will be charged with the responsibility to work with the intake divisions of both prosecutorial offices to establish procedures to give these cases timely attention. In addition, I intend to explore ways the DA’s Civil Rights Unit can maximize citizen reports of improper police conduct.

What two steps would you take to better connect the DA’s Office with the community?

Phelan: Creating a community outreach program to go to schools, groups, organizations and events and educate and answer questions about the duties and responsibilities of the office. I would also work closer with our police agencies in Travis County to provide updates and training on legal issues and changes. For instance, the DA’s website could explain to citizens how to file complaints.

Moore: In addition to the measures I’ve already identified, I intend to participate in the city of Austin’s convening of a panel of community leaders identified by the mayor and the chief of police regarding community policing. This will provide an ongoing opportunity for community dialogue regarding criminal justice issues. I also intend to meet personally with various organizations, such as victim advocacy groups, criminal justice reform advocates, etc., as I have been doing during this campaign. I will also look at a more robust website, the formation of my own community advisory committee, and better media communications.

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