Two Roads to Justice

Shane Phelps doesn't lack confidence. But appreciating his confidence requires a bit of selective memory. Forget that he's already run -- and lost -- a race for Travis County district attorney. Forget that he's a Republican running in a county that has been a Democratic stronghold for decades. Forget that he's running at a time when crime in Austin is near an all-time low, and that he's facing an incumbent who has been in office since Gerald Ford lost to Jimmy Carter. Forget all those things, and you'll likely agree that Phelps has a legitimate shot at deposing DA Ronnie Earle in November. Phelps doesn't need to remember any of those things, because he has no question that he's going to win. "I'm going to be the Travis County district attorney," Phelps said during an interview on a recent rainy afternoon at a South Lamar coffee shop. "It's inevitable. I'll keep running until I win. But I'm gonna win."

With no primary election hurdles to clear, both Phelps and Earle will head straight into November to square off in the general election. Whether the race will merely be a repeat of the 1996 contest -- with Earle and his supporters whooping it up at a victory party after a nine-point win -- is too soon to predict with any certainty.

In any case, you have to admire Phelps' attitude. And if you give him a moment, he'll be glad to tell you all the things that are wrong with Earle and the way the longtime district attorney has been handling criminal cases over the past few years. "Ronnie Earle is more vulnerable now than he was four years ago. If I didn't think he was, I wouldn't be running," said Phelps, who is running unopposed in the upcoming GOP primary. Phelps quickly ticks off a list of what he believes are Earle's weaknesses. The first and biggest issue he lists, not surprisingly, is the Lacresha Murray case, in which Earle sought capital murder charges against the defendant, who was 11 years old at the time she allegedly killed Jayla Belton, a two-year-old girl who was being cared for in the Murray home. And although Earle won a conviction on a lesser charge, the conviction was later tossed out on appeal and Murray was set free. Phelps quickly turns to Earle's prosecution of U.S. Sen. Kay Bailey Hutchison on ethics charges, reminding listeners that when it came time to present his evidence in court in 1994, Earle refused to do so and the case was dismissed. Phelps calls the case against Hutchison "an abomination."

Finally, and perhaps most incredibly, Phelps insists that Earle hasn't done enough to fight crime in Austin. Reminded that crime rates in Austin are among the lowest in the nation, Phelps contends they can be even lower. It's a somewhat odd stance for Phelps to take. But then, Phelps doesn't have much choice. He has to position himself as tough on crime and insist that Earle has been a lax prosecutor -- even if the numbers don't back him up.

For his part, Earle contends that he has been helping to keep Austin safe, even though the city is experiencing rapid growth. "We are in danger of losing the things that made Austin special because of the growth we are experiencing," Earle says. Despite that growth, Earle points out that Austin's crime rate has dropped, and that the city now has the second lowest murder rate in the U.S. "That's unheard of," Earle says. "That's a result of a whole lot of hard work by the police and by the district attorney's office, by neighbors and by neighborhoods."

To bolster his point, Earle says that the state's juvenile crime rate decreased by 6% between 1995 and 1998; over the same period, juvenile crime in Travis County fell by 34%. "Juvenile crime committed with weapons, including guns, decreased 78% from 1995 to 1999. Those figures are no accident," says Earle, adding that the statistics are "nothing short of miraculous that we've had a big growth in population and a decrease in crime simultaneously.

"I know how to help make safe neighborhoods happen," Earle says. And that's what has made Austin so special and that's what we are in danger of losing. If we don't continue these policies, we won't continue to be a safe city."

During the last race he spent $250,000 to beat Phelps. This time, with banker and philanthropist Joe Long and former University of Texas regent Lowell Lebermann working on his finance committee, Earle will be able to raise significant amounts of money. But he refuses to say how much that will be. "Like everything else, prices have gone up," he says.

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Lifelong Ambition

To appreciate Shane Phelps, you must understand that he's spent more than half his life plotting his trajectory. He has wanted to be a prosecutor since he was in grade school. And he's spent many of his waking hours since that time figuring out how to make that dream come true. That kind of attitude doesn't exactly make Phelps a barrel of laughs. Instead, he's a serious, almost somber personality who says in a matter-of-fact way things like, "I have some remarkable qualifications to be district attorney." And then he adds that he has "worked toward that goal my whole adult life."

Phelps happily talks about his work at the Office of the Attorney General, where as deputy attorney general for criminal justice he oversees the lawyers at the agency who prosecute criminal cases. His branch also defends the state in death penalty appeals. It's a good job. It pays $105,564, and it allows Phelps to be in close contact with Attorney General John Cornyn, a fellow Republican for whom Phelps has great admiration.

Although he clearly likes his job, Phelps isn't satisfied. He wants Earle's job and he won't be satisfied until he has it. Maybe it's his upbringing. The son of a career Marine Corps officer, Phelps followed his father's lead and enlisted in the Marines a year after he finished high school. After a three-year hitch, he went to Rice, where he got a degree in English. He then went to UT Law, passed the bar in 1987, then moved back to Houston, where he became a prosecutor under longtime Harris County DA John B. Holmes Jr., a man who has sent more convicted murderers to death row than most countries. After three years at the Harris County DA's office, Phelps moved back to Austin, where he began working at the AG's office. In his new job he worked as a special prosecutor helping smaller counties and municipalities gain convictions in costly or complex cases. He later helped create a capital murder prosecution team that provided assistance to smaller jurisdictions that were seeking the death penalty. As part of that job, Phelps tried, and won, his first death sentence. And he's proud that he sent James Lee Henderson to death row for the 1994 murder of 85-year-old Martha Lennox in Clarksville.

That case helped Phelps solidify his opinion about the death penalty -- it's an "ugly necessity," he says -- and it also leads him to believe that Earle has mishandled the issue in Travis County. "My opinion is that we don't seek the death penalty often enough," said Phelps.

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A Cautious Approach

Earle has taken a softer approach toward the death penalty than many of his fellow prosecutors. Of the five biggest counties in Texas, Travis County has the fewest inmates on death row. Earle relies on a committee of senior prosecutors to make recommendations on whether to seek the death penalty. And while Earle has the final say in the matter, he acknowledges having a bit of reluctance to seek death. Last fall, he told the Chronicle that "the big issue is the future danger posed by the offender. The law says the jury has to consider if the person is a continuing threat." And he added, "I approach these issues cautiously."

Phelps cannot brook that type of attitude. Instead, his stance on the death penalty is remarkably similar to that of his former boss, Holmes, who seeks the death penalty whenever he thinks the facts support it. "The prosecutor's duty isn't to second-guess the Legislature or the electorate when it comes to upholding the law," said Phelps, sounding eerily like Holmes. "If a prosecutor says he doesn't believe in the death penalty and that he won't seek it, then he is violating the oath of office."

On the other hand, although he favors seeking death in capital murder cases, Phelps argues that Earle should have never sought capital murder charges against Lacresha Murray. And he contends that Earle only charged the girl with capital murder in 1996 because he was facing pressure from Phelps. "I am profoundly troubled by the way the Lacresha Murray case was handled," says Phelps. "The same day Lacresha Murray was charged with capital murder, Ronnie Earle had a press conference to say, 'We think this girl has committed a horrible act.' I think it's unforgivable to grandstand like that before anyone is ever brought to trial." Phelps draws a breath and nibbles on a cookie before reminding a reporter that the 3rd Court of Appeals overturned the conviction of Murray in April. Then, speaking of his 1996 challenge against Earle, he adds, "I believe Earle handled the Lacresha Murray case that way because he had his first credible opponent in 20 years."

Despite his confidence, Phelps will clearly have difficulty unseating Earle. Travis County is one of the most solidly Democratic counties in the entire state. Moreover, Phelps is running at a time when Austin's crime rate is falling. According to the latest FBI crime statistics, Austin had the second-lowest murder rate of any major U.S. city during the first half of 1999, and also ranked among the bottom five in robbery statistics. Austin police credit much of the drop in crime to better economic conditions. In addition, the city has used specially trained groups of officers to weed out gang-related crime. The units have been effective: Last year, the city did not have a single gang-related murder. Nor did they have a single unsolved murder case.

During an interview last month, Austin Police Commander Gary Olfers didn't list zealous prosecution by the Travis County district attorney as a reason for the drop in crime. Instead, he said Austin has benefited from the "downward crime spiral around the nation" and the effectiveness of the city's community policing and gang suppression programs.

So although Phelps acknowledges that the crime figures are low, he says they would be even lower if Earle were more aggressive in the courtroom against repeat offenders. "Twenty percent of the criminals do 80% of the crime. If you target them and put them in prison and keep them there, the crime rate will go down, just as surely as night follows the day," he said. If Earle had targeted the repeat offenders, insists Phelps, "Austin would have an even lower crime rate."

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Phelps Won't Have It Easy

It's an arguable point. Austin is clearly winning the war on crime, at least for the moment. And whether it's appropriate or not, some of the credit for the drop in crime will likely go to Earle. That, coupled with the fact that the Texas GOP has set its sights on other statewide and legislative races, could cause problems for Phelps.

In 1996, Republicans were still hopping mad about the case Earle brought against Hutchison, and they poured a lot of effort and money into getting Earle out of office. But four years have passed since then, so Phelps may not get the same kind of statewide GOP support this time as he did last time. During his last race, Phelps got about a third of his money -- over $100,000 -- from the Associated Republicans of Texas. This time, even some prominent Republicans are doubting that Phelps can knock Earle out of office, a fact that could hurt Phelps when it comes time to raise the $300,000 he estimates he'll need to win.

Despite Phelps' long odds, the candidate almost gushes with confidence. "I'm in a lot better position this time than last time. In 1996, I started from nowhere. I had no name I.D., no money, and I got 46% against an incumbent." And he continues, "I don't have to turn around that many votes to win. The planets are lining up. I don't think it will be that hard to win."

If confidence equals success at the ballot box, then Phelps will be the new Travis County DA. Unfortunately for him, turning that confidence into real votes may be a lot more difficult than he is willing to believe.