Point Austin: Continuity or Change

Elsewhere in this issue (see "D.A. Face-Off," ), we provide a longer look at what appears to be the most hotly contested Travis County primary race, between incumbent Dis­trict Attor­ney Rose­mary Lehm­berg and challenger Char­lie Baird. It shapes up not only as a high-profile contest between two highly qualified and combative opponents, but also an opportunity for Demo­crat­ic voters to consider at length (at exaggerated length, in light of the still-uncertain primary date) what is most important to them in electing a district attorney.

Personally and professionally, I am highly skeptical of prosecutors as a class. Despite what we're told on Law & Order (I do enjoy the polymorphous whodunits but try not to confuse them with judicial reality), prosecutors do not invariably defend "the people's interest," and in our adversarial system, they, too, often thumb the scales when they're supposed to be seeking justice, not counting convictions. (Chron­icle writer Jordan Smith has made a minor industry of exposing the results of the latter practice.)

That said, Travis Coun­ty has been relatively fortunate in its elected prosecutors, especially considering the spectacularly negative examples near at hand (see: Wil­liamson County). But the Baird challenge has usefully called into question not only Lehmberg's long tenure as a prosecutor, but also the institutional operation of the office over the past three decades. However the primary is decided, that reconsideration will be a useful exercise for voters.

Opening Statements

Baird's reputation as a "liberal justice" certainly precedes him, and his heroic days fighting the GOP ascension on the Court of Criminal Appeals were followed recently by a couple years of tangling with several of Ronnie Earle or Lehmberg's prosecutors, usually over alleged "leniency" highly dependent on the eye of the beholder. He has taken on Lehmberg over what he believes is bureaucratic efficiency being valued over justice, as well as a reluctance to innovate that means far too many people are being prosecuted rather than redirected out of the system. Most explosively, Baird charges that Lehmberg's institutional resistance to change inevitably results in racial injustice – because minority citizens are more subject to police contact and harassment, they are less likely to have the resources to defend themselves and navigate the criminal justice system and invariably endure prosecution disproportionately to their numbers – and that the D.A.'s Office allegedly pays that situation no mind.

Those are hard charges, but Lehmberg responds that Baird seems to think he invented racial equity and that, with a few high-profile exceptions, he knows very little about the range of functions carried out by the District Attorney's Office. She says Baird's promotion of 24/7 intake ignores the actual processes and requirements of arrest review, and that she has done plenty to modernize and computerize the intake and discovery systems. She has piloted and established diversion programs, plans to expand them, and says Baird is mostly insulted that his personal programs have not been picked up and pursued by other judges. She sharply resents Baird's blaming the D.A.'s Office for systemic racial inequities that prosecutors did not create, and points to her work with local school districts to address the issue as one more fundamental and long-lasting than slogans and headlines. Broadly, Lehmberg points to the many other functions of her office – environmental enforcement, public integrity enforcement, child and family protection, etc. – about which Baird has shown little knowledge and less interest.

Jury Summations

Those are the general outlines established thus far by the candidates in their campaigns. Baird remains a long shot against a popular incumbent – Lehmberg's 2008 trouncing of Mindy Montford is a cautionary tale – and most of the visible local officials have lined up behind Lehmberg. But Baird has always been a formidable campaigner, and he insists that there is a groundswell of dissatisfied local voters who believe dramatic changes are needed in the criminal justice system, and that he's just the man to make those changes happen.

In short, the D.A. campaign should allow local voters to weigh what they believe is most important right now at the District Attorney's Office and in our criminal justice system: steady, institutional management that can point to both high-profile convictions (e.g., the notorious Tom DeLay) and a willingness to modernize; or a sharp break with the past and a dramatic effort to redress ancient grievances and remake the prosecutor's office as a center of institutional change and a goad to the entire Travis County justice system.

There are plenty of good arguments for both sides, and – with a primary tentatively set for April 3 or even later – it looks like we'll have several more months to consider all of them.