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DUI

Back to Buzbee

Looks like we’re not done with this yet.

Kim Ogg

Prominent Houston lawyer Tony Buzbee on Monday accused Harris County District Attorney Kim Ogg of “playing politics,” saying prosecutors are trying to revive a DWI case against him that has already been expunged.

Buzbee said Ogg’s office has filed a sealed motion seeking to reopen the criminal case by overturning a decision last month by a civil court judge that expunged the case files.

The district attorney’s office declined to comment on the details of the motion.

“We have filed a document that was sealed by the clerk,” said First Assistant District Attorney Tom Berg by e-mail. “As a result, we are not at liberty to discuss that document.”

Buzbee said Ogg singled him out because outgoing District Attorney Devon Anderson personally dismissed his case in the days before she left office at the end of the year.

“Ms. Ogg’s new position is that she didn’t personally sign the agreed motion, and the assistant DA who did so lacked her express permission,” he said Monday by email. “Of course, he says he did have that authority. So, I guess those two can fight about that.”

He called information that has been released about his case “bunk” and said his driving while intoxicated case last year was dismissed not as a political favor by the outgoing Republican but “due to multiple irregularities.”

[…]

Buzbee was arrested a year ago on suspicion of DWI and vowed to go to trial. Instead, Anderson personally dismissed the case, saying the attorney had fulfilled the obligations of a pre-trial intervention program.

However, his conditions were less onerous than the obligations for others who went through Anderson’s DWI intervention program, called DIVERT, which typically lasted a year. And he was allowed to expunge his case immediately, though others have been required to wait two years.

The diversion contract, which typically is placed in the public court file, was not filed publicly. The Houston Chronicle filed a request under the Texas open records law to obtain a copy of the contract, but Buzbee was able to block the request by claiming a third-party interest.

The DA’s office under Anderson then sent it to the Texas Attorney General’s Office for a ruling on whether it was public information; the ruling is pending.

Last month, the public file was sealed by an expunction approved by civil court Judge Robert Schaffer. The criminal file reappeared online Monday, however, on the Harris County District Clerk’s website.

Buzbee said Monday that a motion has been filed under seal in the civil case to reverse the expunction.

“In that motion to set aside, the DA takes a position that her assistant DA had no authority to agree to the expunction – which is an outright misstatement of the law, and which is factually untrue because he claims he did in fact have her express permission,” Buzbee said.

See here and here for the background. The way this case was handled sure looked weird, and the timing of it all, which was after Devon Anderson lost her bid for re-election but before Kim Ogg was sworn in, was awfully convenient. It may well be that there was nothing untoward and that the case against Buzbee was a loser that was never going anywhere, but I’m not inclined to just take his word for it. That said, Kim Ogg has a lot of big fish to fry, and she started out with a big target on her back as the first Democrat to be DA in a million years who has big reform plans and who fired a bunch of her predecessor’s people. Oh, and she’s also a lesbian, which drives some people absolutely crazy. My point is, she already has plenty of enemies, and plenty of obstacles to achieving her goals as DA. Tony Buzbee is an obnoxious blowhard, and the circumstances of his case are extremely fishy. But unless some actual malfeasance is uncovered, I don’t know how much time and energy it’s worth to pursue.

More on the Buzbee DUI saga

This just keeps getting weirder.

Devon Anderson

“It appears to have been an under-the-table deal with Devon Anderson,” said Tyler Flood, the president of the Harris County Criminal Lawyer’s Association. “I already have clients calling me saying they want the ‘Tony Buzbee deal.'”

Flood and other defense lawyers have questioned the treatment Buzbee received from Anderson and the judge presiding over the case.

[…]

A request to the district attorney’s office for a copy of the pretrial diversion contract, which outlines conditions and consequences of failing to meet those conditions, was sent to the office’s general counsel, who said lawyers for Buzbee have objected to its release. Such contracts generally are publicly available. The office of general counsel said Buzbee’s lawyers have informed it that they will seek an order from the Texas Attorney General’s Office forcing the district attorney to withhold the contract.

[…]

Another reason this case and its resolution is unusual is that the judge presiding over it is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. County Court-at-Law Judge Bill Harmon is opposed to any DWI pretrial diversion program and often cites Harris County’s record number of drunken-driving fatalities as the reason.

When a DWI case eligible for the pretrial diversion program lands in his court, it is often transferred to a different court. That did not happen in Buzbee’s case.

Earlier this week, Harmon acknowledged that he signed the dismissal forms and said he had not approved any diversion for DWI suspects. He said he would continue to refuse to participate in the program.

It’s those inconsistencies that bother Flood and other members of the Harris County Criminal Lawyers Association.

“Our target is not Tony Buzbee. That’s not what HCCLA is about. He hired good lawyers and got a good result,” Flood said. “Our problem is the appearance of impropriety between the district attorney and the judge.”

The deal Buzbee was able to obtain from Anderson was extraordinary, Flood said.

“He’s the only person in the whole county who is not excluded from filing for an expunction immediately after his case is dismissed on a DWI on a pretrial intervention.”

See here for the background. It’s weird enough that any of this happened, but it’s possible to imagine that there’s nothing untoward about any of it, it was just maybe handled in a clumsy fashion. But for Buzbee’s attorney to then file to keep the normally-public pretrial diversion contract under wraps, I mean that’s like putting up a giant blinking neon sign saying “THERE IS SOMETHING SUSPICIOUS HERE THAT WE DON’T WANT YOU TO SEE”. Under no circumstances should that file be withheld from public scrutiny. Let’s make the facts known, and then we can see if there’s something that requires a response.

Do the words “appearance of impropriety” mean anything to you?

Seriously?

Devon Anderson

Outgoing Harris County District Attorney Devon Anderson personally has dismissed the drunken-driving case against prominent Houston lawyer Tony Buzbee.

Buzbee, who was arrested on March 31, had his case dismissed Dec. 9, after completing “pretrial intervention” a type of informal probation that, if successfully completed, means a case will be tossed. It is common among first offenders, especially shoplifters or other nonviolent crimes.

On Monday, Anderson stood by her decision and issued a brief statement: “Based on the circumstances of the case, this was the right thing to do. He qualified for pretrial intervention and completed all of the requirements typically mandated for a first offender DWI defendant,” she said. “He did not contribute to my campaign in 2016 cycle.”

The dismissal raised eyebrows around the courthouse for several reasons.

First, the elected district attorney signed off on the case personally, which is exceedingly rare, especially misdemeanors.

Second, the DWI pretrial intervention program, which lets people walk away from their first offense without a conviction, generally lasts a year. Buzbee went from arrest to completion in just over 8 months.

Also, the judge presiding over the case is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. The DWI pretrial diversion program, formerly known as DIVERT, has firmly drawn guidelines – the terms of which generally are spelled out in a contract that a judge signs off before it begins. There is no such contract in Buzbee’s file.

Generally, when a DWI case that is eligible for the pretrial diversion program falls in County Court at Law Judge Bill Harmon’s court, it is transferred to a different court. That did not happen in Buzbee’s case.

[…]

Buzbee said it was “silly” to link political connections to a dismissal by the elected district attorney 21 days before she leaves office.

“I give money to most of the politicians in Houston and the state of Texas. To try to connect one thing to the other is silly.”

Courthouse observers said Buzbee’s statement makes the dismissal look like a gift from Anderson as she prepares to leave the office.

“Based on what (Buzbee) said, this is definitely not a diversion. If it’s not, then it is nothing but a political favor,” said JoAnne Musick, past-president of the Harris County Criminal Lawyer’s Association. “Unless (Anderson) just completely lied on a court document, because it appears, on the dismissal, that he completed a diversion – that he participated in some sort of program in lieu of prosecution.”

Buzbee claimed that the case was dismissed for lack of evidence, but that’s not what the form indicates. Maybe there’s nothing to any of this – I’m not a lawyer, I don’t know how these things work – but if so, it would be nice to hear that from someone who isn’t Devon Anderson or Tony Buzbee. Maybe there are more people who got a similar “early dismissal” of their nominally year-long diversion program. Maybe Devon Anderson had a specific reason for intervening on this one case. Maybe the dismissal form was filled out incorrectly and it really was a lack of evidence. Maybe there’s something else we don’t know about. Because if not, on the surface this sure looks like special treatment for a big shot. The Press has more.

(There’s now a bigger controversy breaking out at the DA’s office. I didn’t have a chance to get to it yesterday, but I’ll have something to say about it tomorrow.)

New study questions Uber effect on DUI

Interesting.

Uber

The introduction of ride-sharing services such as Uber and Lyft hasn’t had any impact on the number of fatalities related to drunken driving, a newly published study finds.

Researchers at the University of Southern California and Oxford University looked at the 100 most populated metropolitan areas, analyzing data from before and after the introduction of Uber and its competitors, and found that access to ride-sharing apps had no effect on traffic fatalities related to drinking alcohol.

Uber has repeatedly pointed to drunken-driving reduction as a benefit of its service. A 2015 blog post on its website, titled “Making Our Roads Safer For Everyone,” notes a survey Uber conducted with the group Mothers Against Drunk Driving that found anecdotal evidence that people believe their friends are less likely to drive drunk since the introduction of Uber.

[…]

In the latest study, published in the American Journal of Epidemiology, the researchers analyzed county-level data from 100 metropolitan areas in dozens of states and controlled for the effects of state laws that could affect drunk driving fatalities, such as bans on texting while driving, marijuana-related legislation and taxes on alcohol.

The authors also separated total alcohol-related traffic fatalities from those that occurred on weekends or holidays, and found no reduction in deaths with the introduction of Uber in either case.

So, why? The authors of the study speculated that drunk people might not want to shell out for the services.

The abstract is here; it looks like the full study is not freely available. I tend to give Uber and its ilk the benefit of the doubt here, as they do provide an option for people who may not have, or may not think they have, any alternative to driving. It may be a few years before we can feel confident in an answer to this. In the meantime, add this to the pile.

Bike safety is also car safety

It’s been two years since bicyclist Chelsea Norman was killed by drunk hit-and-run driver Margaret Mayer. The city has taken numerous steps to help make the streets safer for bicyclists. How are we doing on that?

“I personally don’t feel that the streets are any safer,” said Hector Garcia, who helps organize cycling events around Houston.

Up-to-date, verifiable counts for cyclist fatalities can be tough to obtain, but online databases and Houston Chronicle archives show that nine bicyclists were killed this year through Nov. 29 in the Houston area, excluding crashes in rural areas of counties adjacent to Harris County. That compares to 14 in 2014.

Even with the likely decline, however, cyclists say more must be done to reduce accident rates, especially inside Houston’s city limits.

[…]

Outreach to local politicians, meanwhile, has increased since Norman’s death, said Michael Payne, executive director of BikeHouston. To some extent, the advocacy group’s growth can be traced to the attention Norman’s death and others received in 2013.

“Cities and conditions change when people get involved,” Payne said. “Cycling, civil rights, you pick the issue. Houston has the cyclists. For too long we were a highly-fragmented group. United, we are getting recognition and a seat at the table.”

The city, with some prodding by Payne and others, is developing a bike master plan. That in itself is progress, Payne said.

“The city must set goals on how it wants to evolves and come up with a plan to get there,” he said.

Change will be gradual. Bike lanes and other features would commonly be added as streets are repaired or redesigned, meaning it could be years before new infrastructure is in place. Designs for improvements to Alabama and T. C. Jester incorporate bike amenities.

Payne says progress since Norman’s death has been limited.

“While not strictly a failure, I would have liked to have seen the city council and the mayor take a more aggressive stand on issues like distracted driving, speeding and DUI,” Payne said.

Recall that Mayer and Norman’s collision had fatal consequences, based on the investigation and trial, because Mayer had been drinking, not because Norman was on a bike.

“These are behaviors which are killing very large numbers of Houstonians, mainly people in cars, and we know that we can make improvements here with a bit of courage,” Payne said.

That’s something that I think tends to get overlooked in the often-polarizing discussion about bike safety in Houston: A lot of the things we could do to make the roads safer for pedestrians and bicyclists would also make them safer for cars and their occupants. That’s largely because the vast, overwhelming majority of accidents are caused by drivers. As this recent NHTSA press release notes, “NHTSA research shows that in an estimated 94 percent of crashes, the critical cause is a human factor. In contrast, vehicle-related factors are the critical reason in about 2 percent of crashes.” (See this Reuters story and this Ars Technica story, which is where I found that NHTSA link, for more on that.) Anything we can do to reduce the likelihood of drivers doing the sorts of things they do that lead to accidents makes us all safer. That includes things like Complete Streets, texting while driving bans, continued education and outreach about drunk driving, actually enforcing existing ordinances like the Safe Passing law, and more. We all know you can’t fix stupid, but you can mitigate against it.

Austin passes new vehicles for hire regulations

It’ll be very interesting to see how this plays out.

Uber

Defying implied threats that such a vote would chase Uber and Lyft out of town, the Austin City Council late Thursday put into city statutes mandatory fingerprint-based background checks for ride-hailing drivers.

But the move will not immediately empty the streets of transportation network company drivers. The ordinance, approved on a 9-2 vote with Council Members Ellen Troxclair and Don Zimmerman opposed, would not take effect until Feb. 1, and it phases in the fingerprint requirement in four steps. The companies, subject to further action by the council, would not have to do the checks on any of their drivers until well into the spring.

Still to come, perhaps as soon as late January, yet another transportation network ordinance that would outline what council members call “incentives” and “disincentives” to encourage the companies and their thousands of drivers to undergo the fingerprint checks.

What might those perks and penalties look like? Adler suggested both more money per ride for drivers who are fingerprinted, or offering them better locations for pickups at big events like the ACL and South-by-Southwest festivals. The specifics would be crafted as part of a separate ordinance the council hopes to pass in late January.

“This is taking an aspect of what is happening in San Antonio” where drivers can volunteer to be fingerprinted and shown as such on apps, Adler said, “and trying to put it on steroids.”

Lyft

[…]

Both companies have issued thinly veiled threats to cease Austin operations if the fingerprint requirement becomes law.

Under the earlier city ordinance, Uber and Lyft have been able to conduct the name-based criminal background checks that they prefer. They say that process, which requires little more from the driver other than providing a name, Social Security number, driver’s license and a few other pieces of information, maximizes the number of drivers and thus available cars on the street. (Lyft also conducts an in-person interview.)

The changes announced Thursday met with poor reviews from the companies.

“We haven’t had time to fully examine the details,” Uber spokeswoman Debbee Hancock said in an email Thursday afternoon, “but it appears the only substantive change is the implementation date is now after the next election. Similar to earlier proposals, these rules reflect a fundamental misunderstanding of how drivers use ridesharing platforms and the safety features inherent in our app.”

A third player in the market, Get Me, began providing rides Tuesday in Austin and has just 60 drivers at this point, the company said. Get Me officials have told Council Member Ann Kitchen that they will comply with fingerprint requirements.

See these Statesman stories for the runup to this. I have a hard time believing that Uber and Lyft will actually pull out of Austin, where I’m sure they do a lot of business. Good move by Get Me, which recently entered Houston and Dallas to pipe up that they’ll follow the new law – I’m sure they’ll be delighted to show Uber and Lyft out if it comes to that. I’m sure the two big boys will do what they can to put pressure on Austin City Council to ease up – they’re already doing that now, in fact – and they may well succeed. They’ve got the Austin police chief and Travis County Sheriff on their side because of their claims to reduce drunk driving, a phenomenon that has been observed elsewhere. The new regs are being phased in, so there’s plenty of opportunity for brinksmanship and one-upping. I can’t wait to see how it plays out. The Trib, BOR, and Newsdesk have more.

More on Uber and drunk driving

We have a study.

In this work, we investigate how the entry of the driving service Uber influences the rate of alcohol related motor vehicle homicides. While significant debate has surrounded the entry of driving services like Uber and Lyft, limited rigorous empirical work has been devoted to uncovering the social benefits of such services (or the mechanism which drives these benefits). Using a difference in difference approach to exploit a natural experiment, the entry of Uber into markets in California between 2009 and 2013, findings suggest a significant drop in the rate of homicides during that time. Furthermore, results suggest that not all services offered by Uber have the same effect, insofar as the effect for the Uber Black car service is intermittent and manifests only in selective locations. These results underscore the coupling of increased availability with cost savings which are necessary to exploit the public welfare gains offered by the sharing economy. Practical and theoretical implications are discussed within.

From the introduction:

Uber

Preliminary analysis conducted by Uber and several industry analysts suggest that introduction of Uber and other ride sharing services has a negative influence on DUI arrests. However, these studies have been questioned on several grounds: including involvement of Uber in the data analysis, methodological rigor (i.e. single city estimations), and the presence of confounding factors such as changes in city’s population, bar scene, and tougher enforcement.

Moreover, a limited understanding of the mechanisms by which such services influence the rate of DUIs exists. On one hand, it is plausible that the decrease in DUI is simply the result of availability of vehicles for hire and that patrons are willing to pay a price premium for such services. Insofar as it is often difficult to hire a taxi, based on time, location, or even the race of the patron (Meeks 2010), it is plausible that the presence of the platform mitigates these market inefficiencies by soliciting the driver electronically, thereby significantly reducing search costs (Parker and Van Alstyne 2005) and creating excess utility for the consumer. On the other hand, it is equally plausible that the effect is a result of both availability and cost. Drawing from rational choice theory (Clarke and Cornish 1985, Cornish and Clarke 2014) it is conceivable that individuals who make the decision to drive under the influence do so based on the costs associated with conviction, the cost of searching for and hiring a taxi, and the probability of being stopped by the police and/or striking another driver. This broad question: what is the impact of Uber’s introduction on alcohol related motor vehicle homicides in the local area and by what mechanisms, forms the core of the research investigated in this paper.

Empirically, we exploit a natural experiment, the introduction of the ride sharing service Uber into cities in the State of California between 2009 and 2014, to investigate the effect. Leveraging this econometric setup offers us several advantages. First, to the extent that the entrance of Uber is staggered temporally and geographically, we execute a difference in difference estimation to establish the effect. Second, Uber offers multiple services in each of the treated areas with varying price points (note that these services also enter at varying times and orders). On one hand, UberBlack, a town car service, offers transportation with a significant markup over taxicabs (~20% – ~30% price premium). On the other, the UberX service is a personalized driving service which offers significant discounts over taxis (~20% – ~30% price reductions). To the degree that each of these services identifies a different mechanism being at play (availability v. availability and price point), we are able to cleanly identify the dominant mechanisms at play. We test these using hand collected data from the California Highway Patrol (CHP) safety and crash dataset and a custom webscraper which indicates when each service entered a geographic area in California.

Results indicate that while the entry of UberX strongly and negatively affects the number of motor vehicle homicides which occur in townships, limited evidence exists to support previous claims that this occurs with the Uber Black car service as well (indicating that prior claims about the efficacy of Uber may have been overstated (Badger 2014)). Further, results indicate that the time for such effects to manifest vary is significant (upwards of 9 – 15 months). These results are robust to a variety of estimations (e.g. OLS, Poisson, and Quasi-Maximum Likelihood count models) and operationalizations. Finally, findings suggest an absence of a heterogeneous pre-treatment homicide trend in treated locations, indicating that the primary assumptions of the difference in difference model are not violated (Angrist and Pischke 2008, Bertrand et al. 2002). Further, results suggest no effect of Uber when surge pricing is likely in effect, thereby underscoring the importance of cost considerations. Economically, results indicate that the entrance of Uber X results in a 3.6% – 5.6% decrease in the rate of motor vehicle homicides per quarter in the state of California. With more than 1000 deaths5 occurring in California due to alcohol related car crashes every year, this represents a substantial opportunity to improve public welfare and save lives.

Emphasis mine, as that’s the key point. The paper overall is fairly technical and written for an academic audience, but you get the idea. We’ve discussed this issue before, and now that there appears to be some solid evidence behind the idea that Uber (and presumably Lyft) can help reduce the vehicular homicide rate in a city where those services are legal, it’s a factor that needs to be taken into account when they are debated. Sure, the people who are now using Uber to get themselves home after a night on the town could have called a cab in the past, but they didn’t. Uber is the option they prefer, and it comes with a benefit. Of course, Uber also comes with its own problems that haven’t been fixed yet, too, so this isn’t a debate ender. It’s just another point to keep in mind. Link via Streetsblog.

On Uber and DWI

This was from a few weeks ago, and I just hadn’t gotten around to finishing the draft post I’d started till now.

Uber

The entrance of app-based transportation companies in American cities decreases the likelihood that people living there drive drunk, according to a survey commissioned by car-for-hire firm Uber and Mothers Against Drunk Driving.

The entities didn’t release city-by-city results of the survey (sorry, no Dallas-specific info) and it’s based on online interviews, not crash or arrest data (though the company did look at such information in California).

But an overwhelming number of respondents said Uber has made it easier to avoid drunk driving and that their friends were less likely to drive drunk after the company set up shop in their city.

A report about that survey included data that Uber looked at in particular cities. Again, Dallas wasn’t one, but if you’ve ever talked to an app-based car-for-hire driver in North Texas, you’ll have heard anecdotes that align with what Uber saw elsewhere.

[…]

MADD president Colleen Sheehey-Church said the fact that there was a measurable drop in alcohol-related crashes in California shows that app-based car services have a positive impact.

“It demonstrates that when people have access to safe, reliable alternatives to driving, they make the right choice,” she said.

You can see the report on Uber’s blog and also on MADD’s media center. It’s in both of those organizations’ best interests to tout something like this, but it also makes intuitive sense. If it’s easy and (modulo surge pricing relatively inexpensive to catch a ride for a night out rather than drive yourself, some people will do that. I’ve also maintained that the widespread availability of services like Uber will make it easier for people to adopt a lifestyle that doesn’t require one car for every driving-age person in a household. These are good things, and worth keeping in mind when we hear another annoying story about Uber.

Possibly the last thing I’m going to say about the Perry indictment for now

Certainly not the last thing I’ll ever say, since there’s a vast amount of the story left to be told, and I reserve the right to change my mind. But for now, since the indictment came down on Friday there’s been very little actual news. There’s been the over-the-top response from Perry’s legal team, there’s been the predictable tribal responses, there’s been a crap-ton of woefully ignorant pontificating from mostly non-Texas writers, but not much else worth talking about. So, until there is a new development, I’m going to leave with these two thoughts.

This Trib story about Texans for Public Justice, the group that filed the complaint that led to the indictment, contains a little tidbit of information that even I hadn’t realized but which ought to be a required inclusion in everything anybody writes about this saga from here on out.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

TPJ didn’t plan to delve into the complex game of political chicken going on between Perry and Travis County District Attorney Rosemary Lehmberg near the end of last year’s legislative session. Lehmberg had been immersed in a political scandal since April, when a video of her aggressive behavior during her drunken driving arrest drew national attention. TPJ had stayed out of the drama until June 10, when [TPJ Director Craig] McDonald read in the Austin-American Statesman that Perry was threatening to veto the state’s funding of the Public Integrity Unit, housed in the Travis County DA’s office, unless Lehmberg resigned. Perry has said he only acted within the authority he has under the state Constitution.

“We decided [to get involved] that Tuesday morning,” McDonald said. “I said to Andrew [Wheat, TPJ research director], ‘This has got to be illegal. The governor can’t threaten the district attorney to do something that is out of his power. She doesn’t work for him. Never has.’”

Soon after, TPJ filed its complaint against Perry, hours before Perry vetoed the PIU’s $7.5 million budget.

Perry and his legal team have made his right as governor to veto state funding, and Lehmberg’s behavior during her drunken driving arrest, as central to the indictment. Various national political reporters and pundits have dismissed the indictment as overreaching or politically motivated, often pointing, like Perry, to a governor’s right to use his veto power.

McDonald said those critics are missing a crucial point: TPJ’s original complaint was filed before Perry implemented his veto because the veto is irrelevant.

“The threats are the issue, and I think that’s what the grand jury listened to,” McDonald said. “The only role the veto played and the only reason it’s relevant is that’s the club he held over his head to try to get her to leave her job. The veto is a side player to this. It’s not the subject of the charges.”

Emphasis mine. Did we all catch that? The complaint was filed before the veto was made. Let me repeat that, with formatting and an active voice construction: TPJ filed their complaint before Rick Perry vetoed the Public Integrity Unit funds. It wasn’t about the veto, it was about the threat, the coercion, of a duly elected public official that did not answer to Rick Perry. Anyone who opines about this in any fashion and doesn’t grasp that fact has no frigging idea what they’re talking about and should be ignored.

Another test for ignorance by those who bloviate about this case, in particular those who go on about Rosemary Lehmberg’s DUI arrest and of course it was sensible for Rick Perry to want a drunk DA to step down: Rosemary Lehmberg was the third District Attorney in Texas to be arrested for drunk driving during Rick Perry’s time as Governor. She was the first such DA to come under any pressure from Rick Perry about it. She was also the first such DA to be a Democrat. And yet it’s Rick Perry who’s the victim of a partisan vendetta, by a non-partisan special prosecutor appointed by a Republican judge who was appointed to hear the case by another Republican judge.

Oh, and one more thing, from Lisa Falkenberg:

In Harris County and other Texas jurisdictions where judges use the “pick-a-pal” system to empanel grand jurors, bias and corruption are natural byproducts. The judge picks a pal, called a “commissioner,” to go out and find some more pals to serve on a grand jury and supposedly mete out justice. The process, as I’ve written, has been outlawed in the federal system, and is still only used in Texas and California.

But it wasn’t used in this case.

[judge Bert] Richardson didn’t ask a buddy to empanel the grand jurors. The members were randomly selected from Travis County jurors who answered a summons – a similar process to the one used to select regular trial juries.

See this story as well. Grand juries are the prosecutors’ show, and we all know what they say about them. But still, a jury of ordinary citizens thought there was sufficient evidence of a crime to return two indictments. Mike McCrum didn’t indict Rick Perry, the grand jurors did.

Now it’s certainly possible for an informed observer to examine the indictments and think they’re a stretch. We really have never seen anything like this before, and generally speaking our laws about official misconduct have to do with money and/or influence in fairly direct ways. It’s fair to say that the laws Perry is accused of breaking weren’t really written with this situation in mind, probably because no one ever imagined this sort of situation might happen. That doesn’t mean that these laws don’t apply or that a fair jury couldn’t find Rick Perry guilty. It does mean that the appeals courts are someday going to perform fine surgery on some legal hairs, and one way or another we’ll have a clearer understanding of what these laws do mean, at least based on this experience.

But once we start down that path, we are – to borrow a legal phrase we all know from “Law and Order” – assuming facts not in evidence. We don’t know what Mike McCrum’s case is yet. We’ve heard plenty from Rick Perry and his high-priced legal team – the best lawyers the taxpayers can provide for him – and from his hackish sycophants in the national press. What have we heard from Mike McCrum, other than the indictment itself? Not much.

McCrum, asked in an interview earlier Monday about criticism that the case is weak, calmly defended it.

“The case is going to bear itself out in the long run, both from a legal standpoint and from a factual standpoint,” he said.

I’ll say it again: We just don’t know what cards Mike McCrum is holding. It’s certainly possible that he’s gone off on a wild hunt against Rick Perry for some reason. It’s possible he’s tendentiously misreading the law in an attempt for, I don’t know, fame and glory and a lifetime of being a legal expert on CNN or something. It’s possible he’s shooting from the hip and didn’t really think through how his actions would be scrutinized by criminal defense attorneys. There’s nothing in his history to suggest these things are true, but I don’t know Mike McCrum and I have no idea what’s in his head right now. What I do know is that we don’t know what his case will look like once it’s all been laid out in a courtroom. Maybe we’ll look back someday and say “Holy moly that was a load of crap, what in the world was Mike McCrum thinking?”, maybe we’ll say “That was a strong case but ultimately the jury/the Court of Criminal Appeals/SCOTUS didn’t buy it”, or maybe we’ll say “Where were you when Rick Perry was hauled off to the slammer?”. I for one am not making any predictions. And until there’s something new to talk about, I’m going to let it rest.

Three Uber stories

Uber

We’re still waiting for Council to take action on vehicles for hire, so here’s some more reading on the subject to keep you up to date on what’s happening elsewhere.

Wonkblog: Are Uber and Lyft responsible for reducing DUIs?

Wonkblog: Uber is tapping into the too-drunk-to-drive market, user data suggest

A question asked and then tentatively answered about a possibly beneficial side effect of having companies like Uber and Lyft and the added transportation options they would bring to one’s city. It’s hardly a ridiculous question to ponder – Grits was pondering the same thing over two months ago, after some high-profile DUI fatalities in Austin, including one particularly tragic on at South by Southwest. More transportation options was the subject of a Statesman story at the time, and Uber and Lyft were suggested as possible remedies. The data so far is extremely preliminary and comes from Uber itself, but again, the premise is sound. It’s worth considering and keeping an eye on.

Techblog: How Uber is disrupting the taxi business: It’s simply great.

Chron tech writer Dwight Silverman and his wife visited Atlanta, used Uber exclusively to get around, and generally had a great experience with it. Note that in Atlanta, as in Houston, Uber is currently operating without the authorization of city officials, and they are as fast and loose with the rules there (picking up people at the airport even though their not supposed to) as they are here. Make of that what you will.

WSJ: Seoul Moves to Ban Uber, Plans Own App

For those of you that think cab companies should just adapt to changing technology or suffer the market consequences, I give you this:

Uber Monday evening called Seoul city government’s earlier statement a sign that it lags behind in adopting what it called an innovation in transportation. “Comments like these show Seoul is in danger of remaining trapped in the past and getting left behind by the global ‘sharing economy’ movement,” the statement said. An Uber spokesman in Seoul denied that the service was illegal as Uber is “a technology company that connects drivers with passengers” and doesn’t directly run a taxi service with rented cars.

The Seoul city government said Monday it would seek a ban on a car-hailing smartphone app from Uber Technologies Inc., joining a global battle by municipalities and traditional taxi services against the service.

The local authority said in a statement that Uber is illegal under South Korean law, which forbids fee-paying transport services using private or rented motor vehicles unregistered with the authorities.

The city added that it will launch in December an app that will provide similar features to Uber for official taxis, such as geo-location data on cabs nearby, information about them and their drivers, as well as ratings.

A Seoul-based Uber spokesman said the company was preparing a response to Seoul’s move, which follows a string of other actions taken by the city against the service in recent months.

Be careful what you wish for, I suppose. Definitely worth keeping an eye on this as well.

Perry grand jury may be winding down

We are getting close to some action on this.

Corndogs make bad news go down easier

This corndog has no comment

A grand jury looking into whether Gov. Rick Perry abused his power with a veto threat appears closer to wrapping up after current and former Perry staffers were behind closed doors with the panel Friday.

“It’s getting to the point where we’ll have talked to all the people that we need to talk to. It’s getting closer to that point,” said special prosecutor Michael McCrum, a San Antonio lawyer.

McCrum said he hadn’t talked to Perry, who is considering a second presidential run in 2016. He said two weeks ago that he had no plans at that point to call the governor to testify.

The grand jury next is scheduled to meet July 11.

A member of the Public Utility Commission, Brandy Marty, on Friday entered the room where the grand jury is meeting. Marty is Perry’s former chief of staff and was policy director for his 2010 primary campaign for governor. He named her to the PUC last August.

See here, here, and here for the most recent of my updates. I’ve missed a couple of newer stories, like this one about other Perry aides being called, and this one about Chron reporter Mike Ward, who had broken a story about the Perry/Lehmberg saga while working for the Statesman, being called. Not really much more to add here, since the proceedings are secret. We may know more when the jurors reconvene on July 11.

Harris County tries to get smarter about drunk driving

That seems to be the thrust of this story.

Convicted drunken drivers soon could face tougher scrutiny through a series of reforms designed to reduce the rate of drunken driving fatalities in Harris County, among the highest in the nation.

Repeat offenders, and those arrested for egregious blood-alcohol levels while behind the wheel, will be targeted under the Harris County Community Supervision Department’s initiative, which includes having probation officers trained on the psychology behind drunken driving assigned to those considered to be at high risk of repeat offenses while on probation.

“With higher-risk DWIs, we know that when these individuals are getting in a car, they are driving a loaded weapon,” probations department Director Teresa May said. “If they continue to drink at that level, their risk of killing someone is very, very high.”

In 2013, about 13,000 people – half of all Harris County probationers – were on supervision for a misdemeanor driving-while-intoxicated conviction. Thousands more crowd county jails.

Harris County has the highest rate of alcohol-related traffic fatalities among large counties in Texas and, some years, the nation. In 2012, 2,809 alcohol-related crashes caused 175 deaths and 942 serious injuries in Harris County, according to the Texas Department of Transportation’s most recent statistics.

A 2009 report found that 60 percent of traffic deaths in Harris County were alcohol related – twice the national average. It sparked county-wide reduction efforts that May, who was hired last year, has now joined.

She has pushed for numerous changes at the probation department, including the gradual implementation later this month of a new risk assessment for all convicted defendants that aims to determine how likely a person is to re-offend while on probation and, for the first time, why.

Currently, about 6 percent of DWI offenders have their probation revoked for any reason, May said.

Of the 400 probation officers put through a “Hard Core Drunk Driver” course, 60 were selected to receive ongoing training and work with DWI probationers at the highest risk of re-offending. Those officers will have a limited number of cases assigned to them so that they have more time to work with each offender and judge.

The probation officers have gotten some specialized training for how to deal with likely repeat offenders, and judges have agreed to sentencing guidelines to abet this effort. These reforms have been done elsewhere, though the story doesn’t cite any statistics about their effectiveness. It certainly sounds like a reasonable approach to take, though it would be nice to get the perspective of a defense attorney on this, as well as some data.

On a side note, Grits points to a Statesman story that suggests better transit options as well as the availability of ridesharing would help decrease the incidence of DUIs because they would give folks that go out drinking easier non-driving ways to get home. Keep that in mind as we go forward with Metro’s bus reimagining and the Uber/Lyft debate.

Lehmberg beats the rap

Good for her.

Rosemary Lehmberg

District Attorney Rosemary Lehmberg will remain in her position as the top felony prosecutor in Travis County, visiting Judge David Peeples ruled Wednesday.

Lehmberg hugged her supporters in the courtroom after the decision was read, shedding tears.

In closing arguments, Jim Collins, an assistant county attorney prosecuting the case, argued that keeping Lehmberg in office would harm the public interest. He said Lehmberg had a pattern of lying and was not managing her problems with alcohol.

On April 12, when she was arrested for drinking and driving, she was so drunk she could not walk and did not know where she was, Collins said. But it was not her single instance of intoxication, he said, pointing to receipts from Twin Liquors that he said showed she had spent about $8 on vodka a day.

“It is nothing else but by the grace of God that we’re here for a removal hearing and not a funeral,” Collins said. Later he said, “She lies even under oath — mostly she lies about what she drinks.”

But Lehmberg’s attorney, Dan Richards, argued that the state had not proved its case. Lehmberg had pleaded guilty within a week of her arrest and served her punishment. She was seeking treatment and her duties had never been affected, Richards said.

“I am a believer in redemption. I am a believer in Ms. Lehmberg,” Richards said. “And I am a believer in recovery.”

Not the most compelling argument I’ve ever heard, but it worked. I have no idea how much of a running punchline she may be in Austin, but I never thought she committed a firing offense, and I thought she was right to stand her ground against Rick Perry. She’s already said she won’t run again in 2016, so here’s hoping she can get her personal life in order and rehab her image between now and then. In the meantime, we’ll wait to hear more from the special prosecutor who is investigating Rick Perry in regard to the veto threat. Isn’t the term of that grand jury up around now?

Lehmberg civil trial this week

I’d almost forgotten about this.

Rosemary Lehmberg

Travis County District Attorney Rosemary Lehmberg heads to court this week as a defendant in a civil trial that could result in her ouster from office.

The trial, set to start Monday in Austin before a visiting judge from San Antonio, stems from Lehmberg’s drunken driving arrest in April. She pleaded guilty within days, was sentenced to 45 days in jail and took a leave of absence to check into rehab. Lehmberg, who a year ago had been elected overwhelmingly to a second four-year term, then returned to her job.

But a petition seeking her removal was filed by Austin attorney Kerry O’Brien under a state law that allows the removal of elected officials for “incompetency,” ”official misconduct” or “intoxication on or off duty caused by drinking an alcoholic beverage.” Anyone living in a county for six months can file a petition there.

“I think the integrity of the office is compromised as long as she is there,” O’Brien told the Austin American-Statesman (http://bit.ly/1jAC93L ).

[…]

State District Court Judge David Peeples, who has handled several removal cases in South Texas, will rule in Lehmberg’s case after she waived her right to a jury trial. His decision could come by the end of the week.

Lehmberg could appeal a finding against her, and Peeples also would have to decide if she could remain in office while appealing.

See here and here for some background. I’ve kind of lost track of the minutiae here since it’s mostly the Statesman that’s reporting on this and most of their stuff is behind a paywall these days, but I gather that Lehmberg waived her right to a jury trial, so Judge Peeples will render the verdict. That said, they are putting daily updates on the trial on their free site. Here’s Monday’s report, and here’s Tuesday’s. I get the impression the judge is not terribly moved by the prosecution’s arguments so far, but we’ll know soon enough.

Perry special prosecutor seeks to hire investigator

Moving right along.

Rosemary Lehmberg

The special prosecutor in an ongoing investigation into whether Gov. Rick Perry violated state law by vetoing funding for the Travis County ethics-enforcement unit is seeking to hire an investigator and researcher, the first public hint the probe is moving forward past its initial stage.

In a request filed Tuesday in Travis County district court, Michael McCrum of San Antonio sought court approval to fill the temporary staff positions at a maximum cost of $2,500.

[…]

“I want to look into some matters, some issues that need to be examined and answered as a part of this case,” McCrum told the American-Statesman. “It will be cheaper for an investigator and a researcher to do it, and will keep me from being a witness in the case if I do the research myself.”

McCrum, a former assistant U.S. attorney who is now a criminal defense attorney, said the staff positions will begin work as soon as Senior District Judge Bert Richardson of San Antonio approves the hiring.

The ethics enforcement unit at the Travis County district attorney’s office normally would investigate such a complaint, but the case was referred outside the county because the Public Integrity Unit is involved in the political drama over its funding precipitated by District Attorney Rosemary Lehmberg’s drunken driving conviction in April.

[…]

As the special prosecutor, McCrum could have looked at the complaint and dismissed it as unfounded — or he could move to further investigate it, which he has done. If the complaint is eventually validated through an investigation, officials said charges could be filed or presented to a grand jury.

Craig McDonald, executive director of Texans for Public Justice, applauded the move by McCrum. “We’re happy to see that the special prosecutor is moving ahead to look into these serious allegations, as we think he should,” he said.

See here and here for some background. I don’t know about you, but I like having the opportunity to put “special prosecutor” and “Rick Perry” in the same sentence. Rosemary Lehmberg was no-billed by her grand jury, so she has one less thing to worry about. Perry, not so much, at least at this time. Texas Politics and Progress Texas have more.

Grand jury convening in Perry/Lehmberg veto threat case

Can’t wait to see how this turns out.

Rosemary Lehmberg

A visiting state district judge began convening a special grand jury Wednesday to consider two possible criminal cases stemming from the April drunken driving arrest of Travis County District Attorney Rosemary Lehmberg.

The 12-member panel with two alternates, which may be seated as early as Friday, will help determine whether Gov. Rick Perry broke any law when he threatened to veto millions of dollars in state funding to Lehmberg’s office unless she resigned.

The grand jury will also help determine whether Lehmberg violated any state laws, including those concerning obstruction, resulting from her behavior in the Travis County Jail immediately after her arrest.

The grand jury will meet, hear evidence and deliberate in private. It can issue indictments or can decide criminal court action isn’t merited.

See here and here for other recent developments. According to KVUE, the grand jury is “expected to possibly consider jailhouse recordings that show Lehmberg dropping the names of both Travis County Sheriff Greg Hamilton and Austin Police Chief Art Acevedo”. I hadn’t known that Lehmberg’s behavior was also in scope, but it makes sense. Let’s get to the bottom of this once and for all and see what if anything needs to be done from here. Juanita has more.

UPDATE: Patricia Kilday Hart adds on.

San Antonio State District Judge Bert Richardson notified the special prosecutors he plans “to put together a grand jury to be at our disposal as we may need it,” said former Brazos County District Attorney Bill Turner, who was named special prosecutor for the complaint against Lehmberg. “It’s not at all unusual in an investigation to use a grand jury. They have the ability to subpoena witnesses and recover records. It’s part of an investigation.”

Turner said he expects the panel to be sworn in Friday. He will be working in concert with San Antonio attorney Michael McCrum, who was named as special prosecutor to handle the complaint against Perry.

[…]

The term of a Travis County grand jury is three months, unless the panel seeks additional time to complete an investigation.

I hadn’t realized there was a second special prosecutor involved. Good to know, as is the time frame. We may be done with this phase of the saga by the end of the year.

DUI and blood testing

Not sure what I think about this.

A decision by the Harris County District Attorney’s Office to demand blood tests for every drunken-driving suspect who refuses breath tests has drawn an unusual opponent: Houston police officers.

“We’re just very concerned it’s going to take officers off the street for an extended amount of time,” said Ray Hunt, president of the Houston Police Officers’ Union.

Hunt said that, unlike officers specially trained to find and arrest drunken drivers, most officers are not used to navigating the system, which includes swearing out a warrant, waiting for a judge to sign it, then finding someone at a hospital to draw the suspect’s blood. A single arrest could take an entire shift, he said.

“They’re not going to be as savvy on how to do these warrants, so it’s going to take them six to eight hours, and that means the officer is off the street for that entire time,” Hunt said. “It’s a major issue.”

Houston defense lawyers echoed that concern.

“Spending so much time, energy and money to prosecute a Class A or Class B misdemeanor is ridiculous,” said Todd Dupont, president of the Harris County Criminal Lawyer’s Association.

Prosecutors say the change, which took effect in April, will save time and money in the long run because drunken-driving cases are more likely to be resolved via plea agreement than a trial.

[…]

In San Antonio, police have been mandating blood testing for all suspected drunken-driving cases for nearly two years. The key, Bexar County prosecutors said, was a gradual implementation and money earmarked for computers, facilities and a nursing staff.

On the one hand, doing blood tests as a matter of routine would lead to much more certainty of outcome, because blood testing is more accurate than the notoriously imprecise Breathalyzers, and not subjective or unproven like field sobriety tests or horizontal gaze nystagmus. The experience in Bexar County appears to be positive, though we didn’t get a defense bar perspective on that. On the other hand, it’s more expensive up front and far more invasive. It is a lot of resources to put into combating a misdemeanor crime, and it doesn’t really do anything about the fact that a relatively small number of repeat offenders are responsible for a disproportionate amount of drunk driving incidents and mayhem. If it means that we’d be getting rid of the less reliable methods of evidence gathering for DUI arrests then there’s value to this, but I’d like to know more before I make up my mind.

UPDATE: Byron Schirmbeck had some questions about this new development as well, and he put them in writing and sent them to the DA’s office. He got this response, which he graciously shared with me for publication here. Worth your time to read.

Perry will veto Integrity Unit funds unless Lehmberg resigns

This could be checkmate for Rosemary Lehmberg.

Rosemary Lehmberg

Gov. Rick Perry will veto financing for the public integrity unit — the state’s ethics enforcement division — unless embattled Travis County District Attorney Rosemary Lehmberg resigns, an official close to the governor said Tuesday.

The Austin American-Statesman reported Monday night that Perry would use a line-item veto to cut funding for the unit unless Lehmberg, who was convicted and served jail time for drunken driven this past spring, steps down.

So far, Lehmberg has declined to do that, and Democrats are concerned that if she does, Perry would be able to choose her replacement.

“Ultimately this is Rosemary’s decision,” said state Sen. Kirk Watson, D-Austin. “If she decides to resign, I will work with the governor’s office to make sure that whoever is appointed to that position is someone who represents Travis County appropriately.”

The deadline to veto bills, including line items in the state budget, is this weekend. Perry spokeswoman Allison Castle said the governor’s office is “going through the budget line by line, and the governor has deep concerns over the integrity of the Public Integrity Unit.”

The Statesman story is behind their new paywall, which unlike the Dallas Morning News doesn’t appear to be subverted via a Google News search. I’ve been of the opinion that Lehmberg’s crime doesn’t necessitate resignation, but unless there’s something else to this Perry has the trump card. It would be better for Lehmberg to resign and a new DA to be elected next year than for her to risk the funding of the Public Integrity Unit. If Sen. Watson can work with Perry’s office to name a replacement – I’ve said before that allowing Travis County Commissioners Court to nominate a replacement would be a good idea – then so much the better. It would be unfortunate for Lehmberg if it comes to this, but the office is bigger than she is. Texas Politics, Juanita, and Texpatriate have more.

Another petition filed against Lehmberg

The filer is a former colleague as well as a former opponent of Travis County DA Rosemary Lehmberg.

Rosemary Lehmberg

Rick Reed, who ran against Lehmberg in 2008 and is now a defense attorney in Austin, filed the petition with the district clerk’s office Wednesday. In all, it claims 16 counts of official misconduct ranging from coercion of a public servant to retaliation.

On Friday, one of Lehmberg’s attorneys said the petition appears to be another attempt to remove her on grounds that already have been rejected by a judge.

Her attorneys also have responded to a separate lawsuit seeking Lehmberg’s removal, asking the court to dismiss it and calling it unconstitutional, saying that the state has singled her out in a way it hasn’t male office-holders.

Reed’s petition was submitted under a state law that allows the removal of a district attorney on grounds of incompetency, official misconduct and intoxication on or off duty. He said Friday that he filed the petition in part because the already existing lawsuit to remove her from office only addresses intoxication.

[…]

Reed cites Lehmberg’s request for the sheriff throughout his petition, among other actions, as examples of her alleged official misconduct.

“She committed numerous criminal offenses when she was detained by deputies, and this is someone who is the chief law enforcement officer of Travis County,” he said.

[…]

The first petition was filed by Austin attorney Kerry O’Brien in April. O’Brien, a former assistant state attorney general, sought Lehmberg’s removal on grounds of intoxication, incompetency and misconduct. Judge Lora Livingston granted O’Brien’s request on intoxication grounds but denied his application for a citation issuance in the case on grounds of incompetency and misconduct.

Later that month, Travis County Attorney David Escamilla dismissed the lawsuit, which had procedural problems, but immediately refiled a new civil case with himself as the plaintiff.

Then on Tuesday, Austin resident Matt Murdock also filed a petition for Lehmberg’s removal, but he said a district court judge attached his case to Escamilla’s.

Reed’s petition is still pending.

Things had been a bit quiet in Lehmberg land lately. This was the first new news I’d seen since she was released from jail three weeks ago, though I can’t say I’d been paying especially close attention with all that had been going on in the Legislature. As with the other petitions, this one requires approval from a judge in order to proceed, and it may wind up being joined with the Escamilla lawsuit. What all this suggests to me is that the political heat on Lehmberg has simmered down a bit, but it has definitely not begun to cool off. She’s still very much in jeopardy. I think she’s more likely to survive now than she was when this all first blew up, but she’ll never be in the clear.

Lehmberg out of jail

Her incarceration may be over, but Rosemary Lehmberg’s problems are far from it.

Rosemary Lehmberg

Travis County District Attorney Rosemary Lehmberg was released from jail early Thursday after serving half of a 45-day jail sentence for pleading guilty to driving while intoxicated.

Lehmberg, who was sentenced April 19, served half of her jail term under a law that gives two days credit for every day served for good behavior.

Travis county jail records no longer showed Lehmberg booked by 3 a.m. Thursday.

“She’s been released,” said Travis County sheriff’s spokesman Roger Wade.

Wade said there were no immediate reports of any incidents or security concerns during Lehmberg’s release early Thursday. A day earlier, Wade said Lehmberg could be released anytime after midnight Thursday, but did not have immediate details as to what time she would be released.

Though some inmates are able to to get three days credit for every one day served if they work while incarcerated, Wade said Lehmberg didn’t qualify.

Lehmberg also was sentenced to a $4,000 fine and a 180-day license suspension under a plea agreement.

Upon her release, Lehmberg issued a statement saying she would seek treatment as well. At the time of her sentencing, I thought that if this story remained in the news throughout her incarceration that it meant the political pressure to oust her was not abating. Well, it’s not abating, but if she’s lucky it may run out of time.

State Rep. Phil King, R-Weatherford, went on the offensive against the Travis County district attorney Tuesday night, pushing for an amendment to transfer power over the state’s public integrity away from Rosemary Lehmberg, who is serving jail time over a drunken driving conviction.

King pulled the amendment, which had been attached to House Bill 3153, before it reached a vote, but he said he believes he has the support to attach it to future bills.

“I don’t know if you’ve seen the two videos that are out there,” King said, referencing jail booking footage where an intoxicated Lehmberg kicked doors and shouted at authorities. “She showed incredible belligerence and disrespect.”

King’s amendment would have moved authority over the public integrity unit, which is housed in the Travis County DA’s office and is responsible for investigating malfeasance by the state’s elected officials, to the Texas attorney general’s office in instances when the local DA is convicted of a crime.

He pulled the amendment after members of both parties suggested that it would wreak havoc on the unit.

“The office is being run today very competently without her being there,” state Rep. Charlie Geren, R-Fort Worth, said. “I don’t believe we need to take the money away from them, especially with ongoing investigations.”

“The amendment disrespects, in my view, disrespects the office,” state Rep. Sylvester Turner, D-Houston, said.

So far, Rep. King is the only legislator actively pursuing Lehmberg’s resignation, but he claims that he has the support to get his amendment adopted and will try again. Put that on your list of shenanigans to watch out for in the last two weeks of the session. BOR has more.

What to do with a problem like Rosemary?

The Austin Chronicle has a great overview of the Rosemary Lehmberg situation.

Rosemary Lehmberg

All speculation aside, Lehmberg has vowed that she will not resign. In a letter to Travis County residents (apparently dictated to friends from jail and posted to her official website and to her Facebook page), Lehmberg reiterated that she intends to stay in office, but will not seek a third term (she says she never intended to do so). She wrote that she does take her offense seriously and offers apologies to TCSO deputies and jailers, to county residents, and to her staff. “There are hundreds of reasons that lead up to a single event in our lives – but no excuse for driving while intoxicated,” she wrote, adding that she will “seek professional help and guidance” upon her release. (At press time, Lehmberg had served 13 days. Exactly when she will be released remains fluid – her behavior and whether she qualifies for a job in the jail could significantly reduce the actual number of days she must serve.)

Exactly what will happen in the meantime isn’t entirely clear. But concerning the O’Brien lawsuit – now officially the Escamil­la lawsuit – the likely next steps are far less sexy than the rumors. Under Texas law, there are several mechanisms for removing officials from their positions, including Chap­ter 87 of the Local Government Code, which derives from a provision of the Texas Constitution stating that officials – including D.A.s, county attorneys, and constables – may be removed from office by district judges for “incompetency, official misconduct, habitual drunkenness, or other causes defined by law.” The “other causes” apparently may include a single incidence of “intoxication on or off duty,” as codified by lawmakers in 1987.

A petition for removal can be filed by virtually any county resident, but whether a judge approves the suit is another matter. In this instance, Livingston did so on Monday, agreeing to allow Escamilla’s re-filed lawsuit to proceed.

In theory, whether Lehmberg was intoxicated as charged would be decided by a jury; afterward, the judge, not the jury, would be tasked with determining whether that drunkenness actually warrants her removal – but removal is not automatic, lawyers consulted by the Chronicle say. Neither is taking the case to trial. Now that County Attorney Escamilla has assumed responsibility for the suit, he legally represents the interests of the state, and he has available to him the range of options available in any civil case: He can dismiss the suit altogether, take it to trial before a jury, or, alternatively, craft a settlement that would avoid a trial but would require Lehmberg to do any number of agreed-upon things – perhaps including counseling, a specified stint in rehab, and/or anger management classes. Escamilla has, for now, declined to comment, allowing the lawsuit to speak for itself.

Determining which route his case will ultimately take certainly depends on what happens during the discovery phase, when Escamilla’s office will receive evidence and be able to ask questions about why Lehm­berg was intoxicated that night, whether the incident was a one-time aberration or the symptom of some larger problem, and whether either circumstance would mean that she is incapable of carrying out the job voters elected her to do. Indeed, removing Lehmberg from office, if it came to that, would necessarily thwart the will of more than 256,000 voters who elected her to a second term in November 2012.

That is the key to understanding how serious a removal suit is, Potter County Attorney Scott Brumley wrote in a paper covering Texas laws that govern officeholder removals. The procedure outlined in state law is “intended for the benefit of society, rather than for the involved individuals,” Brumley wrote in a widely read paper on the rarely used procedure. “At the same time, it cannot be forgotten that the stakes in this kind of controversy are extremely high in a democracy. A removal suit seeks to undo the results of an election for reasons usually unrelated to the election itself. For that reason, the procedure cannot be invoked lightly.”

“Escamilla” is Travis County Attorney David Escamilla, who is now the custodian of the lawsuit to remove Lehmberg from office. The Statesman has an interesting story about the filer and original custodian, Kerry O’Brien.

This isn’t the first time O’Brien has taken on city hall.

As a college student studying music at the University of North Texas in the late 1990s, he tried to oust a classical guitar professor.

“He hadn’t performed in 10 to 20 years, and he wouldn’t push his students. He couldn’t teach,” said O’Brien, wearing casual Friday jeans on a Wednesday morning at Panera restaurant, a favorite hangout near his office in Rollingwood.

O’Brien surveyed the 15 students in the professor’s class. “I got 10 surveys back and showed them to the dean. When he saw the results he asked me if I had showed them to anyone else. The dean then offered to help me get into another music school of my choice. ‘We’ll help,’ he said. It was a bribe. I lost.”

He transferred to the University of Texas, where he eventually earned a degree in music theory, a reflection of his rolling stone ways as a college student.

Fresh out of Clements High School in Sugar Land, where he played the tuba and trombone and worked his way to drum major in the marching band, he enrolled at Texas A&M to study music.

That was a disaster. He was turned off by the Aggie Bonfire crew chiefs who were in charge of cutting wood for the bonfire. “I saw these drunk guys climbing trees. It was disgusting and insane,” he said.

Amateur psychologists, start your engines. I have no idea what will happen if this case eventually goes to a jury instead of reaching a settlement. I still think a first-offense DUI is insufficient reason to oust someone from office, though if it can be shown that she’s a habitual drunk who had just never been busted before that would be different. It would definitely thwart the will of the voters, since Rick Perry would appoint a Republican in a county that doesn’t elect Republicans. I forget where I saw it, but somewhere O’Brien suggested that Travis County Commissioners Court select a replacement for Lehmberg. They don’t have that authority, but if Perry would agree to abide by their recommendation, that would at least ameliorate the will-thwarting issue. Lehmberg says she won’t resign, so it’s a moot point until and unless she gets forced out. We’ll see how it goes.

Who resigns after a DUI arrest?

The Statesman asks the question and gets some answers.

Rosemary Lehmberg

In 2006, District Attorney Tim Cole had a decision to make. The then-chief prosecutor for Montague, Clay and Archer counties had been arrested for drunken driving after a day of July Fourth celebrating at a lake across the state line in Oklahoma.

It didn’t take him long to conclude he could no longer in good conscience continue being the chief law enforcement officer in the community northwest of Dallas. “I had criticized other (prosecutors) in the same situation, and it would have been pretty hypocritical of me not to do what I expected them to do,” he recalled.

So despite the urging of other prosecutors to stay, he resigned. “I felt like I needed to do it for my own integrity and the integrity of the office,” he said. Yet today, after working for a few years in private practice, he’s back working as an assistant prosecutor, in Wise County outside of Dallas.

Travis County District Attorney Rosemary Lehmberg, who pleaded guilty to DWI on Friday and was sentenced to 45 days in jail, has insisted she has no intention of quitting. Friends and colleagues say part of the reason is personal. A driven career prosecutor who ascended to the top job in 2008 after working three decades behind the scenes, her county work has been her life.

Politics are also a factor. While an obscure Texas statute allows prosecutors to be removed from office for drinking, it’s rarely invoked, although a local lawyer has filed such a petition under the law. State law calls for the governor to name a replacement for a vacated DA’s office. Rick Perry almost certainly would appoint a fellow Republican, dealing an insulting political blow to Travis County, which votes Democratic.

It’s still unclear whether Lehmberg can survive professionally. Other Texas public officials convicted of drunken driving haven’t spent stretches of time in jail. The Travis County position is also especially high profile because it includes the state’s public integrity unit, which prosecutes Texas public officials accused of misdeeds in office. And jail records described Lehmberg as uncooperative toward police and correctional workers after her arrest, details that could ratchet up public pressure for her to resign.

Cole’s professional trajectory also highlights the complicated calculus that must be performed when a law enforcement official sworn to uphold the law is caught breaking it. Elected officials, in particular, who are under no legal obligation to quit, must weigh their ambition and competence against a critical public perception that can erode the effectiveness of their work.

There is no clear course. An American-Statesman analysis shows that, unlike Cole, other district attorneys, as well as judges and elected officials, have chosen to remain in office after their DWIs.

I had wondered about this, so I’m glad to see the Statesman address the question. Besides Cole, there were two other DAs arrested for DUI – these were all in the last ten years or so; I suspect there would be more if the Statesman had looked farther back, but the value of each example would decline over time – and neither resigned, but both were eventually defeated for re-election. No District Court judges stepped down after being busted. This all strongly suggests to me that Lehmberg will stick to her original plan to not resign. It’s possible that the complaint under that obscure law about drunk DAs could eventually force her out, but color me skeptical in the absence of any precedents for that. I suspect the force that will ultimately determine if she stays or goes is pressure from the Travis County Democratic establishment. If they have her back, she’ll probably be fine. If they decide she’s more trouble than she’s worth, out she’ll go. Watch what is or isn’t being said in public, and that should tell you what you need to know.

Lehmberg pleads guilty, gets 45 days

Off she goes.

Rosemary Lehmberg

District Attorney Rosemary Lehmberg has pleaded guilty to drunken driving, was sentenced to 45 days in jail and immediately taken into custody.

Lehmberg’s blood alcohol level registered at 0.23 when she was arrested April 13, her attorney David Sheppard said.

Sheppard said the the punishment is “without a doubt” the “harshest” sentence for a first-time drunken driving charge in the history of Travis County.

Lehmberg’s driver’s license was also suspended for 180 days.

I didn’t think she’d see the inside of a cell. I was wrong about that, but not because jail time is the norm in these cases. I’ve heard some chatter that she preferred the jail option to probation on the grounds that after the 45 days are up (*) she’s done, she isn’t tethered to a probation officer for a year or two, which can be quite onerous. It’s not long ago that choosing jail over probation was commonly done in Harris County. I don’t know what I’d have done in her shoes, but I can see the appeal of this.

With that aspect of the case now over, the focus is on the political fallout.

Travis County District Attorney Rosemary Lehmberg has said she won’t resign despite pleading guilty to drunken driving and being sentenced to 45 days in prison, though the drumbeat for her to do so is getting louder.

It’s a decision that may have its roots in party politics.

That’s because the DA in left-leaning Travis County oversees the state-funded public integrity unit, which investigates allegations of malfeasance against elected officials, and has been a thorn in the side of GOP lawmakers.

If Lehmberg resigns, as the Austin American-Statesman has editorialized that she should — or if she’s forced out by a lawsuit under a rarely used tenet of state law that authorizes the removal of county officials over drunkenness — Gov. Rick Perry would get to appoint a replacement to finish out her term, which isn’t set to expire until 2016. That would almost certainly put a Republican (or a conservative Democrat Perry believed could hold the seat in future elections) in the highly politicized post.

Josh Havens, a Perry spokesman, said that whenever there is a DA vacancy, the governor appoints the replacement, “just like what happened in Kaufman County” this month after the murder of that jurisdiction’s chief prosecutor and his wife.

The Travis County DA holds the lead responsibility for enforcing the state’s government and election code. It was created under the leadership of Ronnie Earle, the Democrat who served as Travis County DA for three decades until his retirement in 2008. Earle captured national attention with his investigations into former U.S. Sen. Kay Bailey Hutchison and former U.S. Rep. Tom DeLay, R-Sugar Land, and became the poster child for what Republicans view as the unit’s politically motivated prosecutions.

Dismantling the unit is a perennial platform plank of the Texas Republican Party, and numerous members of the GOP, including DeLay and Hutchison, have criticized what they view as its politically motivated prosecutions.

Lehmberg has continued to maintain that she will not resign. I don’t know if that petition that’s been filed can force her to resign or if only political pressure can do it. If it’s the latter then I doubt she will step down, even if the threat of Rick Perry messing with the Public Integrity Unit is temporary and overblown. But you never know – political scandals often unfold in unexpected ways. The thing about DUI is that while it’s a serious offense, it’s not necessarily an indicator of an underlying character issue, at least for a first time offender. Unlike scandals involving money or sex, you can fairly credibly claim it was a mistake. That doesn’t mean there shouldn’t be consequences – certainly, Rosemary Lehmberg is facing consequences for this – but it might mitigate the extent of them. Who knows? If this is still being talked about in a week or two, then maybe the pressure builds up enough to knock her over. If not, then I think she survives. Ask me again in two weeks. BOR has more.

(*) – In Harris County, at least, non-violent inmates can get time shaved off their sentences for doing things like enrolling in educational or work programs. I rather doubt that would apply to Lehmberg even if the Travis County jail offers a similar option. Point being, Lehmberg might wind up serving fewer than 45 days. I could well be wrong about that, I’m just saying it does happen in some cases.

Should Travis County DA Lehmberg resign?

Perspectives on that are colored by politics right now.

Rosemary Lehmberg

While Travis County District Attorney Rosemary Lehmberg sought to put her weekend drunken driving arrest behind her, debate over her political future reached the State Capitol on Monday, where lawmakers weighed in on whether she should resign and how a replacement might be chosen.

Some officials pointed to an obscure provision in state law that allows a district attorney to be removed from office for being drunk. The provision also says that a single county resident could start such a removal.

If Lehmberg, a Democrat, were to resign or be removed from office, Republican Gov. Rick Perry would appoint a replacement who would be subject to confirmation by the GOP-controlled state Senate.

Chapter 87 of the state’s Local Government Code lists among the “general grounds for removal” of a district attorney and other county officials “intoxication on or off duty caused by drinking an alcoholic beverage.”

Under that law, a removal petition could be filed by anyone who has lived in Travis County for six months and is “not currently under indictment” for a crime here. The petition would be filed with a district judge, and a trial would be held on the charge — with a jury to determine the official’s fate, according to the law.

While there was no indication Monday that such a petition was being contemplated, an unofficial online petition to Gov. Rick Perry seeking Lehmberg’s removal was gathering signatures at Change.org. The petition by “Beth S” in Cedar Park said Lehmberg, as a result of her arrest, “is not a person to lead this county in delivering justice.”

That petition has now been filed, though Lehmberg has said that she has no intention of resigning. She has also said that she will not contest the charges against her and will accept whatever punishment she receives, which will depend in part on the result of her blood alcohol test, which is still pending. If her BAC was less than 0.15, she will be charged with a Class B misdemeanor, for which the maximum sentence is a $2000 fine and six months in jail. More than that is a Class A, for which the max is a $4000 fine and a year in the pokey.

I’m curious about two things. One is how often District Attorneys get into legal trouble of their own, and how often they resign as a result. Surely Lehmberg isn’t the first DA in Texas to be arrested for drunk driving. What are the precedents here? We in Harris County saw Chuck Rosenthal resign in 2008, though that was a far different situation than Lehmberg’s, not least of which was that the pressure on Rosenthal came largely from his fellow Republicans, who correctly saw him as a major liability for them heading into that fall’s election. How often have DAs been arrested for something, and how often have DAs resigned for whatever the reason? It would be nice to know so we could have some context to evaluate Lehmberg’s case.

Also, while the max sentences Lehmberg can receive include jail time, it seems highly unlikely to me that a first time offender such as she will see the inside of a jail cell. What is the typical range of punishment for a first time DUI offense, in Travis County and across the state? I’m hardly an expert on this, but if you made me guess I’d assume that things like a fine, probation, alcohol counseling, and a suspension of her license would be in the mix, but not jail time. Those of you who do know more about this, please speak up in the comments. Does one’s perception of Lehmberg’s position change if that’s the actual punishment she’s likely to face? If she were County Attorney or Tax Assessor or some other office – I’m sorry, but that obscure law about drunk DAs needs to stay obscure – would that change your perception? These are the things I’d like to hear more about.

Finally, on the matter of the petition to remove Lehmberg, BOR has a good analysis of what it means and what the procedures are, as well as a copy of the petition itself. It’s not quite as straightforward as news reports have made it sound. Interestingly, there’s a connection between the law being cited to remove Lehmberg and the attempt by the HCDE to oust Michael Wolfe. Which didn’t work, for whatever that’s worth. Anyway, if nothing else this has the potential to be some entertaining political theater, so keep an eye on it.

Travis DA Rosemary Lehmberg arrested for DUI

Oops.

Rosemary Lehmberg

Travis County District Attorney Rosemary Lehmberg, arrested and charged with drunken driving overnight, plans to remain in office and will not resign, according to a spokeswoman.

According to county records, Lehmberg, 63, was arrested by Travis County deputies in Northern Travis County near RM 2222 and FM 620 and booked into the county jail shortly after 2 a.m.

An arrest affidavit was not clear whether she took a breath test. She told deputies that she had consumed two vodka drinks earlier in the evening.

Lehmberg had been released as of 8:30 a.m. today.

That was from Saturday. Lehmberg apologized on Facebook Saturday evening. Outside of whatever giggles one might get from the irony of this, it’s unlikely to be a big deal. Burka does note one angle of interest.

The DA’s office is home to the Public Integrity Unit, which has jurisdiction over crimes committed by public officials. Republicans have long hungered to get their mittens on the office, which has a history of prosecuting high-profile Republicans, including Tom DeLay and Kay Bailey Hutchison. (It has also prosecuted high-profile Democrats, including former speaker Gib Lewis, and, more recently, state representative Kino Flores. If the office were to become vacant — say, due to Lehmberg’s resignation — Governor Perry would be able to appoint a successor, as he did in Kaufman County, and, of course, the successor would be a Republican. It’s too early to know how this is going to play out, but Republicans may be able to drive a wedge into a Democratic stronghold.

The Statesman story says that Lehmberg does not intend to step down, so this is likely a moot point. However, I think Burka is overstating the effect if Lehmberg were to resign. It’s true Perry would get to name a replacement, just as he would name a replacement District Court judge, but there would be a special election to fill the remainder of Lehmberg’s term (she was re-elected last year) in 2014, so the effect would be temporary. Since the power of the Public Integrity Unit is determined by the Legislature, I can’t think of anything that an appointed DA might do that couldn’t or wouldn’t be undone by the next elected DA. The only case being worked right now by the Public Integrity Unit involves a legislative staffer, so there wouldn’t be any Get Out Of Jail Free cards of consequence to issue. It’s embarrassing for Lehmberg, and assuming she pleads to something she’ll deserve whatever lumps she gets, but I seriously doubt at this time there will be anything more to this than that.

Anderson’s DWI proposal

You may recall that former Harris County DA Pat Lykos’ DIVERT program for DWI offenders was a major point of contention in the GOP primary fight that was eventually won by new DA Mike Anderson. (If you don’t recall, see here and here for some background, or review the interviews I did with Lykos and Anderson.) Among other things, Anderson claimed that the DIVERT program was a subversion of existing state law, as DIVERT was intended to serve as a form of deferred adjudication for DWI offenses, when deferred adjudication didn’t exist as an option for DWI. Anderson is now backing a legislative proposal to create a deferred adjudication option for DWI offenses.

DA Mike Anderson

Anderson said he expects his office to lobby for deferred adjudication for a first-time DWI conviction, which may seem like a policy reversal to those who followed last year’s district attorney race.

Deferred adjudication is a form of probation that allows suspects who successfully complete probation to go on with their lives without a criminal conviction on their record.

During the Republican primary campaign, Anderson attacked incumbent Pat Lykos for her DIVERT program, which did the same thing by allowing for probation for a first driving-while-intoxicated offense.

“It’s a really good alternative to DIVERT,” Anderson said of his position. “In DIVERT, the person was never put on deferred adjudication. It was just ‘invented’ at the District Attorney’s Office.”

During the campaign, Anderson criticized Lykos by saying she changed the legislative intent behind banning deferred adjudication for DWI convictions.

Anderson’s proposed change would allow first-time convictions for DWI to be erased from a defendant’s record, but, unlike DIVERT, prosecutors would be able to tell juries about the DWI if there are subsequent intoxication-related offenses.

The proposed change is modeled on domestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges.

I’m not a lawyer, but Mark Bennett is, and he has a quarrel with the Chron’s characterization of “deferred adjudication”.

“Without a criminal conviction on their record” is technically true, but misleading. Lawyers who describe deferred adjudication that way to their clients and judges who do so to defendants are doing them a disservice. A deferred-adjudication probation can, in some cases and at the trial court’s discretion, be sealed from public view with an order of nondisclosure (read the statute), but unless and until the record is sealed there remains a public record of the charge, the guilty plea, and the probation. Employers and landlords and others who use background checks treat deferred-adjudication probation the same as a conviction. When a defendant is told, “you won’t have a criminal conviction on your record” he hears, “you won’t have a record.”

“[E]rased from a defendant’s record” is untrue. At best a deferred-adjudication probation for DWI will, at its conclusion, be eligible for nondisclosure at the trial court’s discretion.

[…]

“[D]omestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges” is (even apart from the wandering subject) thoroughly wrong.

A deferred-adjudication probation for anything greater than a class-C (fine-only) misdemeanor cannot be expunged. An acquitted or dismissed case can be expunged. An expunged case cannot be used to upgrade future charges or for any other purpose.

A deferred-adjudication probation for a more serious misdemeanor or a felony may be subject to nondisclosure (not expunction), but family-violence cases are explicitly excluded. So if the change is modeled on domestic-violence laws, then more than likely deferred-adjudication probation for DWI will be coupled with an amendment to the nondisclosure law excluding DWI cases from the nondisclosure statute (so that someone with a DWI deferred will have a public record of it forever).

The Chron doesn’t say what the bill number is for Anderson’s proposal or who the author is (assuming a bill has been filed yet; it is certainly possible this is still in the proposal stages), so this is all we know about it. I’d sure like to see Mark’s concerns be addressed before any such legislation gets passed.

Former HPD lab supervisor files sues Lykos, county

Here’s a nice little going away present for District Attorney Pat Lykos.

DA Pat Lykos

Two former Houston Police Department crime lab supervisors have filed a federal lawsuit against Harris County District Attorney Pat Lykos, saying the county’s top prosecutor retaliated against them after they spoke out about problems with HPD’s breath-alcohol testing vans.

The lawsuit, filed Monday, was brought against Lykos, prosecutor Rachel Palmer and Harris County by Amanda Culbertson and Jorge Wong, identified as “citizen whistle-blowers” in the lawsuit.

Among several allegations, the lawsuit says that officials with the DA’s office retaliated against Culbertson and Wong by lobbying the Harris County Commissioner’s Court to cancel a contract with a local private laboratory, where the two found jobs after leaving HPD.

The lawsuit also alleges that retaliatory actions taken by Lykos and Palmer included harming Culbertson and Wong’s reputations and putting their licenses as technical supervisors for the state’s breath-alcohol testing program at stake.

Culbertson and Wong said the retaliation began after they expressed concerns about the reliability of tests conducted in HPD’s breath-alcohol testing vans.

“It’s important for citizens to be able to speak openly and publicly about matters of public concern, such as problems with the (breath-alcohol testing) vans and problems with the crime lab,” said attorney Scott Cook, who represents Culbertson and Wong. “That is the heart of the First Amendment.”

I didn’t follow this saga very closely, so let me refer you to some other people who did:

Grits for Breakfast

Paul Kennedy

Murray Newman

See also this Grits post, in which he makes the point that breathalyzers and their efficacy should be under the purview of the Forensic Science Commission but aren’t, and this Big Jolly post, which has video from the plaintiffs’ press conference and a copy of their statements and the lawsuit itself. I’m sure there’s more but that’s plenty for now. I’m also sure Murray’s prediction that this will move along slowly is accurate. Anyone in the peanut gallery want to add something to this?

Report: Most elected officials refuse to contribute to their own prosecution

That’s what the headline to this story should read.

Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas — including representatives, senators, judges and commissioners — in which police on the scene asked for a sample to determine whether the driver’s blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

[…]

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

That’s one way of looking at it. Another is to note that most elected officials are knowledgeable enough to realize that breathalyzer tests have high rates of error, and consenting to take the test can only help the prosecution. Which, despite the fulminations of MADD and the TDCAA and Williamson County DA John Bradley is not something that anyone accused of a crime is required to do. In fact, as the original story notes, all of the elected officials in recent years who had been pulled over for DWI and refused to take the breathalyzer test wound up either being acquitted or having the charges dismissed. With a track record like that, who among us wouldn’t do the same?

Now, if you want to argue that there’s a certain hypocrisy here, especially with state legislators who routinely vote to get tuff on crime as long as it applies to someone else, I won’t dispute that. But as long as we still have the freedom to not make it any easier for the state to prosecute us, I don’t have any objection to those who exercise that freedom.