Updated

Davis' 2002 rebuke, fallout front and center as campaign issue

By CRAIG KAPITAN

Eagle Staff Writer

The State Commission on Judicial Conduct has conducted a “deliberate effort to mislead the public,” District Judge Rick Davis has alleged in recent campaign literature.

In a separate campaign letter, the judge has launched new allegations against District Attorney Bill Turner, who was the main subject of Davis’ failed Court of Inquiry request last summer.

While the judge contends his arguments are a necessary response to attacks made against him during his re-election bid for the 272nd District Court seat, his political opponents have said Davis’ campaign literature is proof that he is not fit to be judge.

Residents will decide during the March 9 Republican primary election if the judge will be allowed to serve as second term. He is being challenged by Assistant District Attorney Shane Phelps and defense attorney John Quinn.

No Democrats are running, meaning the outcome will be decided by the republican primary.

Davis was handed a public rebuke by the State Commission on Judicial Conduct in 2002, after the District Attorney’s Office filed a complaint about his demeanor on the bench. It was the highest sanction possible, making Davis the only sitting district judge in Brazos County history to receive such an admonishment.

The decision later was upheld on appeal by an independent three-judge panel, which added a stipulation that he meet with a mentor judge because of his “persistent refusal to acknowledge the serious ethical violations he has committed.”

In a four-page essay that was passed out at a campaign forum in January, Davis said the commission persecuted him for his religious beliefs and attempted to convey an image of him using common “cuss” words while on the stand.

“ I’ve never said that I did nothing wrong,” Davis said during an interview Friday. “I’ve admitted I’ve done wrong. But I have not done some of the wrongs that they said I did.”

Phelps said he takes a different view of Davis’ recent campaign trail allegations.

“ He just doesn’t get it,” he said. “He’s never really accepted or acknowledged his ethical violations. He’s still defending his actions to this day.”

Not cussing

According to Davis, the State Commission on Judicial Conduct misled the public in its reprimand when it said he used profane language. In doing so, he complained, they used the theological definition of profane.

“ If they had said I used shocking or offensive language, I could fully understand that,” he said Friday. “But people thought I cussed [former Assistant District Attorney Laura Cass] out, and I didn’t.”

In the 2001 letter to the district attorney that led to his reprimand, Davis told Turner that his criticism of a decision the judge had made was “as if you have defecated on Mount Sinai, holy ground.” Davis also wrote to Turner that “when you say such things, it is just as bad in God’s sight as if you were to duck into one of your assistants’ offices and fornicate.”

Davis said that while the words are offensive, and he doesn’t attempt to justify them, most people wouldn’t equate them to the common definition of profane.

“ In a real and genuine perversion of truth, the Commission ... created a false impression in the mind of the public that I was using Bible verses out of one side of my mouth and ordinary ‘cuss’ words out of the other,” he wrote in campaign literature. “Many people in Brazos County erroneously think that that is what I did.”

But the State Commission on Judicial Conduct’s senior counsel, Bob Warneke Jr., said Friday he believes Davis’ argument misses the mark.

“ It’s a bit of a red herring because the issue was the judge’s demeanor,” he said.

Neither the words “cussing” nor “profane” are mentioned in the canon of the Code of Judicial Conduct that the judge was found to have violated, he said. The main problem, he said, was the judge’s actions to humiliate a young prosecutor.

Davis’ run-in with the commission began in April 2001, when as a new judge he got into a dispute with former prosecutor Laura Cass — ordering her out of his courtroom and using such adjectives as “sneaky” and “surreptitious” to describe her.

The “bizarre series of events” that followed led to the public humiliation of that attorney, Justice Bea Ann Smith of the Third Court of Appeals summarized in a ruling on the matter.

At Davis’ request, the Supreme Court of Texas appointed Smith and two other justices to review the State Commission on Judicial Conduct’s original decision to issue a reprimand.

According to the three-judge panel, Davis had experienced problems with Cass when he was a defense attorney. But the situation got worse after Davis became a judge, when Cass one day informed an assistant attorney general about an outstanding warrant on Joe Friday Rodriguez — a defendant Davis had ordered freed so he could make a child support payment.

“ When Judge Davis learned of this phone call, he jumped to the conclusion that Ms. Cass was trying to undermine his decision,” the three-judge panel’s ruling states.

Cass’ actions — which were done at the request of her supervisor — were not unethical, both the State Commission on Judicial Conduct and the three-judge panel determined.

After telling the prosecutor she no longer was welcome in his courtroom, Davis wrote a letter to Turner, who was her supervisor, and asked that he assign a different prosecutor to the 272nd District Courtroom.

But because Davis’ rebuke of Cass was given in open court, Turner refused to move the prosecutor, fearing that would give the impression he agreed with the judge, he told the judicial conduct commission.

Davis again acted inappropriately, the three-judge panel ruled, when he forwarded his letter requesting Cass’ removal to local media outlets.

“ It was not a threat to Judge Davis’ authority but an affront to his pride that prompted his humiliation of Ms. Cass, his fight with the district attorney and the unfavorable publicity about this dispute,” the three-judge panel wrote.

With Turner supporting his assistant, he “also incurred the ire of the judge,” the three-judge panel wrote. Days later, Davis wrote Turner the letter that contained the Mount Sinai comparison and other statements supporting his “presumed biblical authority for his decision-making,” the ruling states.

That letter was not forwarded to the media, but it came into public light after Turner handed it over to the State Commission on Judicial Conduct.

Davis quoted a Bible passage in the letter: “The man who shows contempt for the judge or for the priest who stands ministering there to the Lord your God must be put to death.” This was described by the judicial conduct commission as a veiled threat.

The judge responded in recent campaign literature that it is mind-boggling to think anyone in the District Attorney’s Office would have felt threatened by him. Turner’s office never has sought to remove him from a case out of fear he would be unfair in court, he added.

Religious persecution?

During a February 2002 hearing before the State Commission on Judicial Conduct, Davis contends in his campaign literature, the commissioners “grilled me about my specific beliefs about matters of the Bible.”

“ A person cannot be legitimately sanctioned for having a theology that is not state approved,” he wrote in the campaign literature, citing the First Amendment and court cases that state “no person can be punished for entertaining or professing religious beliefs.”

Davis also contended in the literature that the State Commission on Judicial Conduct viewed “secret evidence” that he was not given an opportunity to respond to and that one commissioner compared him to Herod.

The judge said the comparison to the biblical figure was similar in offensiveness to his own letter because Herod was a Roman king “struck down by the Lord and eaten by worms because he did not give glory to God.”

But if Davis had such problems with the State Commission on Judicial Conduct, General Counsel Warneke said Friday, they already should have been addressed to the three-judge panel.

“ Certainly the judge had the opportunity at that point to raise any of these issues,” he said.

Justice Smith, who authored the panel’s decision, declined to comment Friday on the issue. In the panel’s 2002 ruling, however, the judges asserted their decision to uphold Davis’ sanctions had nothing to do with religion.

“ Judge Davis cannot shield his actions from sanction by couching his attack on Bill Turner and Laura Cass in religious terms,” the panel wrote. “The terms Judge Davis used to ‘rebuke’ the district attorney shock the conscience.”

His sanction is for failing to live up to the ethical standards required of a judge when he embarked on a vendetta against Cass and Turner, the panel wrote.

But the special panel’s review of the sanctions should also be suspect, Davis has contended.

According to Davis, it is the belief of his attorney, Lane Thibodeaux, that the panel “didn’t even consider” a post-trial brief filed on his behalf. The brief was sent to the panel on a Friday evening, but the group issued its written decision the following Tuesday, Davis said.

More Turner allegations

Last June, Judge Davis made a rare request for a Court of Inquiry investigation of District Attorney Turner and two other county officials. San Antonio-based Judge David Peeples, who was assigned to consider Davis’ request, eventually ruled there was no merit to launch an investigation.

Throughout the monthlong controversy that led up to Peeples’ ruling, however, Turner and other officials contended Davis’ actions were nothing more than a continued vendetta aimed at the district attorney.

Such accusations have become an issue again as Davis runs for re-election. Phelps, one of his two opponents, has said Davis’ willingness to concoct a scheme such as the Court of Inquiry request is the main reason he decided to run and should be the main reason residents vote the judge out of office.

Quinn, the third candidate, has said that whether or not revenge was an intention for Davis, it did seem that way to the public.

“ I think it left a bad taste in everybody’s mouth,” he said at a recent campaign forum.

Davis, however, consistently responds that duty — not revenge — was his motive for filing the request.

“ You can judge for yourself whether I was reasonable in believing that I had a duty to seek independent review,” he wrote in a recent campaign letter to voters that came with copies of several documents filed during his investigation request.

In the campaign letter, the judge also launches new allegations about the district attorney’s handling of a victims restitution account and accuses The Bryan-College Station Eagle of not telling the whole story.

On June 11, Davis filed the Court of Inquiry request accusing Justice of the Peace Ray Truelove and Tax Assessor-Collector Buddy Winn of breaking the law in “time card scams” dating back to 2001. Turner also broke the law, Davis contended, by not prosecuting the Truelove and Winn.

Turner later responded that he did previously look into the matters but determined that no laws were broken. But even if they had been, he wrote in subsequent briefs, it is the district attorney’s duty to determine which cases need to be prosecuted — not a judge’s.

Peeples dismissed the allegations.

Davis also used the Court of Inquiry request to accuse Turner of dragging his feet during an investigation of funds from the victim’s restitution account, which up until recently had been managed by his office. Turner could be financially and criminally responsible, Davis contended, for recklessness in overseeing the funds.

About $200,000 had gone missing from the account over a 19-year period, the district attorney announced on the same day Davis filed the accusations. The public hadn’t been notified earlier, he said, because it was an ongoing investigation and the main suspect had not yet been confronted.

But Turner said he was doing anything but dragging his feet. As soon as any wrongdoing was suspected — in February 2003 — the Texas Rangers and Attorney General’s Office were called in to take over the investigation, he said.

The district attorney also submitted an affidavit from Ranger Frank Malinak, who testified that he had asked Davis to hold off for several months so he could familiarize himself with the accounting process and confront the main suspect. Such a public disclosure would “be a detriment to the case as it would alert the suspect to the investigation,” Malinak wrote.

Davis made the Court of Inquiry request days later, Malinak wrote, identifying the main suspect as Queen Walker, a retired Brazos County Victim’s Assistance Program coordinator.

The investigation is still ongoing and no arrests have been made.

In recent campaign letters, Judge Davis emphasizes that Peeples made no mention of the missing victims restitution money in his written order to close the Court of Inquiry proceedings.

That’s because, Davis said, he dropped the allegations against Turner himself during the final hearing before Judge Peeples. Davis said he chose to “take Mr. Turner at his word” that the prosecutor would recuse himself.

But Davis did so only after Turner submitted as evidence a letter dated March 21, 2003, in which he asked the prosecutor’s assistance division of the Attorney General’s Office to take over in filing charges once the time came.

“ To date, Bill Turner still has not officially recused himself from the missing restitution fund investigation,” the judge wrote in bold type in his campaign letter.

But Turner has said that information is just dead wrong. The letter to the Attorney General’s Office that he filed during the hearing before Peeples should have cleared the issue up for good, he said. That letter is “all that needs to happen” to have himself recused, he said.

Davis has disagreed, stating that “a letter of assistance is not the same thing as a recusal.”

During the hearing before Peeples, the San Antonio judge agreed with Davis’ dropping of the accusation, stating that the issue need not be further discussed.

“ Before you filed the Court of Inquiry, did you go to Mr. Turner and consult with him?” Peeples asked Davis. “It occurs to me that some of this could have been avoided.”

Also in his campaign letter, Davis points out that after the Court of Inquiry controversy Turner asked the county to set aside money for him to have an independent auditor look over his victims restitution fund.

On numerous occasions, Turner has said that while he takes responsibility for what goes on in his office, he was under the impression that the county auditor was checking over the books for irregularities. If that wasn’t the case, he told the Brazos County Commissioners Court in July, he needed to hire someone who could do so.

But so far, none of the money set aside for such an accountant has been spent by the District Attorney’s Office, Davis argues in his letter.

There’s a good reason for that, Turner responded in an interview. It’s difficult to have an audit done when the documents are still the subject of a criminal investigation, he said.

“ Once the documents are released, we welcome and want an audit as quick as we can,” he said. “I’m ready for the audit to be conducted, but not to the detriment of the criminal investigation.”

Criticizing Davis’ criticism

“ As public servants, we have an obligation to give our undivided attention to the problems facing the community,” Turner said when asked last week to respond to the latest allegations against him. “Judge Davis’ continuing obsession with this issue is a disservice to the people.”

It took a neutral judge only about 30 minutes to listen to Davis’ complaints and conclude they were without merit, he added, alluding to the July hearing before Judge Peeples.

Phelps — who as Turner’s first assistant publicly spoke out against the Court of Inquiry request last summer — agreed with his supervisor’s assessment.

“ Judge Davis needs to understand this race is not about Bill Turner,” Phelps said. “This race is about his behavior on the bench.”

The most recent accusations from Davis’ campaign, Phelps said, seem to be a desperate act aimed at deflecting attention from his behavior on the bench.

“ It’s almost obsessive behavior,” he said. “It’s not judicial.”

But Davis strongly disagrees. His whole reason for bringing the issues back up, he said, are because Phelps has made it a point on the campaign trail to consistently attack him for requesting the Court of Inquiry.

“ I’m simply trying to explain why I requested one,” he said Friday. “I’m also explaining things that have happened since my initial suppositions.”

Phelps seems to be “capitalizing on some of the previous mischaracterizations,” Davis said, adding that he wishes he didn’t have to respond to such accusations.

“ I’d rather talk about my record,” he said.

• Craig Kapitan’s e-mail address is ckapitan@theeagle.com.

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