South By Southwest Tragedy: Austin Needs New Top Cops

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Which Art Acevedo is in charge of the Austin Police Department this month? The one who said it was “courageous” to admit to driving three times over the legal limit in February 2014? Or the one who said it was capital murder when’driving drunk?resulted in terrible tragedy?in March 2014? Here is the sorry recent history of DWI prosecutions in Austin, Texas:

On March 12, 2014, Rashad Charjuan Owens, 21, drove his car into a crowd at the South By Southwest Music and Media Festival (SXSW) in Austin, Texas, killing three and injuring 22. Questions remain about whether an Austin police officer pursued Owens into the crowd, when he turned his overhead lights on, and whether barriers set up to protect the attendees were adequate. “The driver rammed through police barriers ? three wooden pieces held up by metal poles.”?Owens’s?bail was set at 3 million dollars.

Just a few weeks ago, Austin Police Chief Art Acevedo created a media firestorm when he said that a young female jogger, taken down on video?by two of Austin’s finest for jaywalking, was lucky because, “In other cities there’s cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for a controversy in Austin, Texas.”

News outlets the world over noted that saying, in essence, “at least we don’t sexually assault the women we arrest,” sets a very low bar for adequate police performance. He blamed his comments on what he said was an “emotional week.”

This week, things went from emotional to truly horrifying. Acevedo is back in the news again because one of his officers assigned to the “drunk driving patrol”?pursued a suspect in a stolen car into a crowd of SXSW attendees.

What is truly unusual is that Chief Acevedo has made the decision to charge the defendant in the SXSW tragedy?with capital murder. Based on all the statements he has made to date,?Acevedo made this decision?based upon a misreading of the Texas Penal Code provisions dealing with murder and capital murder. He has other, more prudent and conservative options that don’t carry?a risk of reversal and 20 years of appeals. If?Acevedo charged Owens with three counts of intoxication manslaughter and 22 counts of intoxication assault, Owens would be facing a possible aggregate sentence of?280 years in prison; enough prison time to put him away for life and then some. But then seeking the death penalty looks tough and is always big news.

Chief Acevedo has two problems. One is that intoxication?manslaughter is never charged as capital murder. The other is that,?just last month,?he backed Austin/Travis County District Attorney Rosemary Lehmberg?to the hilt when she committed Aggravated DWI, calling her “courageous.”

A list of similar crimes in The Los Angeles Times does not indicate that any of those defendants were charged with or convicted of capital murder. A review of other recent intoxication manslaughter cases in Austin demonstrates that none of these defendants were charged with capital murder, or even attempted capital murder.

In a 2013 intoxication manslaughter case, Garbrielle Nestande received shock probation, meaning the she would serve 180 days in prison and remain on probation for ten years. At her trial, “Prosecutor Allison Wetzel?. . .?reminded jurors about a credit card charge at an Austin liquor store just days after Griffin was killed.”

Also in 2013, Ruben Flores received eight years in prison for an intoxication manslaughter in which one person was killed and the other person was seriously injured. Like Owens, Flores had a record.

In December 2013, Nicolas Wyzykowski drove drunk and killed two people on FM 620. He faces 19 felony charges, including 2 counts of intoxication manslaughter. He has not been charged with capital murder.

In a 2014?case in Travis County, a drunk driver, Terri Elmore,?who killed two people was not charged with capital murder. She was charged with two counts of intoxication manslaughter and sentenced to eight years on each count in February 2014.

There are more sample cases, but the point is this: While the sentences are all over the map, not one of these defendants was charged with capital murder.

The District Attorney in Austin, Rosemary Lehmberg, was herself convicted of Aggravated Driving While Intoxicated last year?on RM 620. The Austin Chronicle, a founding co-sponsor of SXSW, basically functions as an arm of the Travis County Democratic Party, almost always endorsing the candidates the party has selected for a given office. The Chronicle argued?vehemently that the district attorney’s Aggravated DWI was not such a big deal that the district attorney should lose her job. Her blood alcohol content was higher than that of Owens when the district attorney drove drunk on the same busy street where Nicolas Wyzykowski killed two people; yet she was charged with Aggravated DWI and not Attempted Capital Murder. Because of her conviction on a Class A misdemeanor, Lehmberg is not permitted by law to look at the official criminal histories of someone like Owens; in fact, it is a crime to share this information with the D.A. due to her Class A misdemeanor conviction. So it is going to be difficult for her to evaluate this case to decide whether to go along with Chief Acevedo’s assessment.

To make matters even more bizarre, Austin/Travis County?Sheriff Greg Hamilton, whose name Lehmberg invoked for hours in the jail while threatening his deputies with the loss of their jobs, declined to charge Lehmberg with multiple hit-and-runs that occurred on RM 620 at the same place and time Lehmberg was driving drunk.?A deputy on the scene in?one police?videotape called Lehmberg’s car “a match.” The damage on her car was correctly positioned for her to have been the hit and run driver. But the Sheriff maintained later that testing did not conclusively link the front end damage on Lehmberg’s car with the damage on the other cars.?This is despite the fact that an eyewitness followed her for at least a mile and watched her driving into oncoming traffic before calling 911. All the victims of those hit and runs?could clearly see was a pair of oncoming headlights.

Lehmberg was also later no-billed by a grand jury for threatening all those deputies with the loss of their jobs.

The following week, another assistant district attorney was arrested in Austin?for a DWI collision. It was 3:30 in the afternoon, and he hit another car, lied to the officers, and tried to intimidate the driver he hit. But nobody was hurt: so no harm, no foul. It appears from a look at the Texas State Bar website that he kept his job. D.A. Lehmberg maintained that there were drunk drivers all up and down “the ranks” in her office, and that in each case an individual assessment had to made about whether that prosecutor should be?fired or not. Unfortunately, this policy was not in effect when hilarious and beloved assistant D.A. Cynthia Bell was arrested for drunk driving just a couple of years earlier. She was fired and subsequently drank herself to death. A local news outlet “learned Frank Dixon and Cynthia Bell with the Travis County DA’s office were fired after offenses of DWI. A source also tells [us]?a victim witness counselor was fired after a DWI offense.”

Lehmberg, having not learned her lesson, exactly like Gabriel Nestande, had a few drinks on the?airplane between jail and rehab?to calm her frazzled nerves. Democrats in Austin did not want Lehmberg removed because Rick Perry, a Republican, would have?chosen her successor; even though that successor would only have been in office for a short time. County Attorney David Escamilla bungled the subsequent removal trial, so District Attorney Rosemary Lehmberg is still in office.

In its defense of Lehmberg keeping her job, the Austin Chronicle named a large number of public officials who had not lost their jobs due to DWI or known substance abuse problems:

“Sam Biscoe, Bob Honts, Mack Martinez, Gon?zalo Barrientos, Mike Krusee, Eddie Rodriguez, Naomi Gonzalez, Wilfred Aguilar, Ann Richards, Bob Bullock, etc., etc. What do all of these names, plucked from memory, have in common? They are or were all Texas public officials who either received DWIs or had serious, documented drinking problems. Not a single one of them was ever the subject of a removal lawsuit .?. . . “

The problem with that analogy is that it unfairly lumps a person using heavily while?in office in with someone, such as Governor Ann Richards, who had been sober for years?before?she held high office. Judge Wilfredo Aguilar did eventually lose his job — when he was arrested for DWI somewhere other than Travis County. One Travis County DWI was no-billed by the Travis County District Attorney’s Office. Mack Martinez, First Assistant County Attorney, was arrested for DWI in Travis County. He initially resigned his position, but was hired back as a prosecutor after Travis County Attorney David Escamilla was re-elected and could safely renege on his promise that Martinez would never work as a prosecutor in?that office again. Martinez had also had his law license suspended at some point in the past for forging a judge’s signature on an order.

In conjunction with that?trial to remove the D.A., first filed by a citizen lawyer and then taken over and incompetently executed by Travis County District Attorney David Escamilla, Chief Acevedo made a statement on behalf of Lehmberg. Acevedo is purported to have said that he thought it was?in the public’s interest for Lehmberg to stay in office and that her pleading guilty to driving?while blind stinking drunk?was an ?example of courage.” Acevedo had initially suggested that Lehmberg should resign, as did the Austin Police Association, the Austin American-Statesman, and The Daily Texan. It isn’t clear what changed?Chief Acevedo’s?mind. Travis County Democrats?such as State?Senator Kirk Watson, who embarrassed himself nationally on Chris Matthews show on MSNBC,?said Lehmberg should not resign. 17 other?Democrat public officials or candidates?took no position either way.

Lehmberg behaved horribly after her arrest, including failing field sobriety tests, refusing to cooperate with the police, being argumentative, slapping at and scratching officers,?and refusing to take a Breathalyzer test while insisting she was not drunk. Hours later, when her blood was drawn pursuant to a court order, she tested positive for alcohol at almost?three times the legal limit. Presumably, at the time of her arrest, her blood alcohol content was even higher than that.

Assistant Travis County Attorney Jim Collins tried the removal case. At one point he argued:

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

Under cross-examination of Lehmberg, the following exchange took place:

In September, Lehmberg told Collins?that she wanted the deputies to call Acevedo because he’s a friend.

?So I’ll ask you again, you thought Art Acevedo, chief of Austin police, would want to know that you’ve been arrested by the sheriff’s office because he’s a friend,? Collins said Tuesday.

?Because he’s a friend of mine,? Lehmberg replied, also saying that she thought he would get a call about what happened and she wanted him to be notified.

?He’s not your only friend, is he?? Collins said.

?No,? Lehmberg replied.

?You didn’t ask them to call any other friends, did you?? he said.

?Greg Hamilton,? Lehmberg said, referring to the Travis County sheriff.

It helps when you land in jail for Aggravated DWI, and behave deplorably for hours, to the point that you have to be physically restrained,?to have friends who happen to be the Travis County Sheriff and the Austin Chief of Police. They will cover for you and make excuses for you, describing you as courageous.

The Austin Chronicle also said Lehmberg’s?record of purchasing copious amounts of Ciroc Vodka from Twin Liquors was “irrelevant,” despite Lehmberg apparently falsely blaming her drunk driving on a friend’s recent death. She later changed her story to say that her drinking was due to back pain and a contentious 2012 re-election campaign.?Over a 16 month period, long before her friend’s death, Lehmberg purchased 72 bottles of vodka, or 23 gallons, from just one liquor store chain. Yet evidence of an alcohol purchase was deemed relevant in the Nestande case to prove she had not learned her lesson. When the elected district attorney did it on an airplane to rehab after a stint in the local jail, it was just an understandable case of nerves.

Austin, Texas, is completely schizophrenic when it comes to drunk driving. If you drive blind stinking drunk?and you’re lucky enough “by the grace of God” not to kill anybody, and you have friends in high places, you’re just a misunderstood social drinker who everybody in law enforcement and local politics rallies around?in your hour of need,?despite?your deplorable conduct.?If you’re still walking and talking hours after arrest when a normal person would?have been?unconscious, it’s not because you have built up?a high?tolerance to alcohol that every active alcoholic ultimately achieves if they do not die first. In fact, you never have to admit publicly that you are an alcoholic, and you do not have to go to AA, unlike every single alcoholic ever arrested in your county. You can enroll in some alternative program before your removal trial, and experts will testify that you are sincerely tackling your (non) alcoholism.

If, however, you are a maybe-wannabe rapper from Killeen (it is disputed whether?Owens had really been booked at a club or not), and you drive blind stinking drunk, and the worst happens,?AND you?mar Austin’s international showcase party event; you are an animal not worthy of continuing to?live on this planet.

It is?the identical illegal and dangerous?conduct, treated very differently depending upon who you are and the outcome of your drunk driving.

That seems like a breathtaking double standard for a?metroplex of two million souls inviting the whole world to come visit. When it was a small?town of 250,000 people, things were a lot different than they are now that Austin is the center of a huge metroplex with some of the worst gridlock in the country. The same people who ran that small town are still running this giant metroplex. It is time for a change, not just in top cops and prosecutors, but in Austin’s attitude toward drunk driving in general.

Edited and published by: WG