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Candidates for Brazos County attorney are engaging in a bitter battle, with one accusing the other of refusing to aggressively prosecute drunken drivers.
The man on the receiving end of the accusation said he's moving cases through the system by negotiating plea agreements -- a method he said is punitive and more efficient than taking every case to trial.
Facing off in the March 4 primary election are Assistant District Attorney Shane Phelps and Assistant County Attorney Rod Anderson. Both are considered second in command of their respective offices.
Phelps said last week that he's spent a month gathering research on the cases that have gone to trial in the county attorney's office. He said he's found that too few make it into a courtroom because plea agreements are being reached or the cases are being dismissed.
About 2,000 driving while intoxicated cases were filed in the two county courts at law over the past three years -- but only 25 have been prosecuted, Phelps said, producing figures provided by the courts to back up his statement. About 700 assault cases were filed in the same three-year period, and just two were prosecuted, according to court documents.
Anderson agreed last week that not every case filed with his office -- all of which are misdemeanors -- is prosecuted. But plea agreements serve a purpose in punishing the offender and deterring future violations, he said.
"The end result is the same whether you plead guilty to DWI or it goes to trial and you get a conviction," he said. "It's not an unwillingness to go to trial. If we can get them in the system, then we're ahead of the game."
By the numbers
About 42 percent of assault cases filed in the county attorney's office over the past three years were dismissed or "pleaded out."
About 35 percent of DWI cases ended up with a plea deal or dismissal. Some of the pleas involved a change in the charge from DWI to something else, such as obstructing a highway or reckless driving, both Phelps and Anderson agreed.
Those cases that were pleaded to a lesser charge cause a problem if the person becomes a repeat offender, Phelps said.
"If someone gets DWI but they plead to obstructing a highway, it can't be used to enhance it to a felony when they do it [repeatedly]," he said.
Prosecuting just 25 DWI cases in three years is "unforgivable," Phelps said.
"I don't have words to express what a shortcoming that is," he said.
Anderson said he takes offense to that statement.
"When we plead to something else, sometimes the punishment is as strong or stronger than a DWI," he said. "They just don't have a DWI conviction on their record."
The Brazos County District Attorney's Office, for which Phelps works, tried 39 jury trials last year -- "and these are murders, rapes and robberies," he said.
"A DWI takes a day to try. Two days, tops," he said. "I believe real strongly that if you're not willing to try cases, you can't move a docket. It takes a couple of days, so you can try two a week. Even if you tried two cases a month you'd end up with [almost as many] in a year as they've tried in three years.
"I will be able to double the number of trials in this office without breaking a sweat," he said, adding that while he understands cases have to be negotiated out of court, the current administration is allowing far too many.
But the county attorney's caseload is handled by just two courts, Anderson said, explaining that criminal offenses such as DWIs have to "share" court time with family matters and civil cases.
And the county attorney's office isn't resting on its laurels, Anderson said. The agency issued 104 temporary protective orders last year and is responsible for providing legal advice to the commissioners court, issuing mental health warrants and prosecuting hot check cases. Of 5,615 cases filed in the two county courts last year, more than 5,000 were disposed of, County Attorney Jim Kuboviak said last week.
Of the 5,615 cases, 682 were DWIs -- and 152 of those pleaded guilty to DWI or a lesser offense, Kuboviak said. More than 450 of the DWI cases are pending, he said.
Misdemeanor DWI cases are difficult to prosecute, Anderson and Kuboviak said last week. In those cases, there's no victim and no accident. The defendant is usually a person who has no criminal record and was stopped for something such as a broken tail light, they said.
"My philosophy is I would rather take a less-than-perfect case and get that person into the criminal justice system," Kuboviak said. "I'd like to get that plea where I can get the alcohol counseling and get them monitored by the adult probation department.
"Do we want to use our bed space in jail on misdemeanor defendants or felons?" he said. "If we can change adult behavior without incarceration, that's our goal."
Backlog
According to figures Phelps downloaded from the state office of court administration in Austin, there were 380 criminal cases pending in the two Brazos County courts of law in January 2004. By December 2007, that number had risen to 3,623, according to the state documents.
A different database -- a program called Benchview used by local judges that helps local courts manage their caseloads -- shows that 1,252 criminal cases were pending in both county courts in January 2004, and 2,345 were pending at the end of last year.
Regardless of whether the pending caseload is 3,600 or 2,300, "something is desperately wrong," Phelps said.
The backlog can be attributed to the county attorney's refusal to prosecute DWI and assault cases, he said.
"If you're not trying cases, the defense isn't worried about going to trial and they have every reason to delay," he said. "You then create a backlog where you're just treading water. You're in crisis mode at that point, and the only way to dispose of cases is to dismiss them."
But more cases can be pleaded in a day than prosecuted, Anderson said Friday.
"If we can dispose of eight or 10 cases in a day, instead of trying one, that's a success," he said. "I don't think the backlog is that high -- and that's because we're able to move the docket."
Phelps called Anderson's statements "the rationale of an office that fundamentally misunderstands how to move a docket."
"I'm sorry, but that is utter nonsense," he said. "You've got three lawyers assigned to each court. You get one trying a case while you've got the other two working cases out."
County Court at Law Judge Jim Locke emphasized his intent to remain neutral on the upcoming election but said he understands the points being made by both candidates.
"Between 2,500 and 3,000 cases are filed in each court on an annual basis," Locke said. "It doesn't take long to realize that the way to keep up with that many cases is to dispose of 60 a week. We can't have 60 trials a week. We can't have 10. We can't have five. The huge majority have to be disposed of by plea bargain."
That being said, Locke added that cases have to be prosecuted.
"If there were no threat of a trial, there would be no reason for a defendant to take a plea offer," he said. "In the absence of a trial, for one thing, nobody knows how significant the threat is of the other side winning. I suppose if you plea bargain every single case, that would dispose of the case, but I'm not sure anybody would know what was a good offer and what was not."
The other county court at law judge, Amanda Matzke, could not be reached for comment late Friday.
In addition to the court backlog, Phelps has raised another issue -- the fact that the county attorney's office doesn't maintain records of its jury trials.
"This means there is no mechanism for measuring the effectiveness of the office," he said.
Phelps recently asked for the county attorney's documents related to jury trials, and a response showed that the request encompassed 9,600 pages of information. Essentially, he would have to go through each page of court documents to find the cases that went to trial.
The total estimated cost for the open records was more than $7,200.
Phelps instead got his information from the judges' records.
Anderson acknowledged that records of jury trials are not kept by the county attorney's office.
"The software the county purchased doesn't have the capability to manage those kinds of statistics," he said. "We don't go back and manually keep a tally sheet. It would be a great tool to have. This program doesn't offer it."
Fighting words
Although Phelps emphasizes the importance of getting tough on DWI defendants, the Assistant DA was arrested for drunken driving 30 years ago, Kuboviak pointed out in an interview with The Eagle last week.
The offense happened while Phelps was in the U.S. Marines in the 1970s. His blood alcohol content was 0.14, over the legal limit of 0.08. Phelps said he pleaded guilty to "something, but not DWI" and paid a $175 fine.
"I should have been convicted [of DWI]," he said Friday. "We have a completely different attitude about DWI now. The Legislature has recognized that it's dangerous."
Phelps said it was "cowardly" for Kuboviak to bring that up during the election campaign.
"They're obviously trying to distract attention away from their policies by personally attacking me," he said.
Phelps has some fighting words of his own, however. He pointed out that Anderson hasn't tried a case in 12 years. That weakens the assistant county attorney's argument that DWI cases are difficult to prosecute, Phelps said.
"You're talking about a guy who hasn't been in the courtroom for 12 years," he said. "You've got a county attorney [Kuboviak] who hasn't been in the courtroom in 20 years. They don't know whether it's difficult because they're not doing it.
"They're just wrong," he said. "Seventy, 80, 90 percent of those who are getting pulled over are creating a danger to the community. That's why they get pulled over. I have tried these cases, and they can be won. They are dead wrong, and the community is suffering because of it."
• April Avison's e-mail address is april.avison@theeagle.com.
