Accidental Victors

Wait...we voted for who?

If you think the local Democratic Party achieved its victory in Dallas County last week through good luck and timing, the rise of Jim Foster won't change your mind. Now the county judge-elect, Foster hadn't even decided to run until an hour before the filing deadline. On January 2, the 62-year-old small-business owner from Oak Cliff waited inside the scruffy party headquarters outside Fair Park to see if someone with a more impressive bio would take on incumbent Republican Margaret Keliher. When no one came forward, Foster belatedly chose to jump in the race, a Hail Mary moment that turned "hell, you never know" into a viable campaign strategy.

"I was hoping we could find another person," Foster says about what he was thinking as the deadline approached. "I thought it was a crime to leave that office uncontested."

Last Tuesday, local Democrats, some of whom barely raised enough cash to buy a plasma TV, beat Republicans in every contested countywide race, as a rather lazy electorate lumped civil judges and obscure administrators with an unpopular war and president. Just four years ago, the Dallas County Republican Party had a stranglehold on the judiciary, the commissioners court and the District Attorney's Office. But the Democratic Party, channeling voter fury at President George W. Bush, gained power years before any of them predicted. Their triumph hardly seems deserved, as the Democratic candidates didn't labor to differentiate themselves from the Republican stiffs they toppled. But they were in the right place at the right time, and besides, it's not like the county was thriving under conservative leadership.

Another brick in the wall: Dallas County Judge Margaret Keliher might have fought for Democratic issues, but that didn't matter to Democrats.
Another brick in the wall: Dallas County Judge Margaret Keliher might have fought for Democratic issues, but that didn't matter to Democrats.
Who am I?: New County Judge Jim Foster promises to bring harmony to the  
commissioners court.
Who am I?: New County Judge Jim Foster promises to bring harmony to the commissioners court.
We ran this photo with an August 31 story about the county Democratic slate. Looks like we were wrong...so far.
We ran this photo with an August 31 story about the county Democratic slate. Looks like we were wrong...so far.

"The ones that did nothing did just as well as the ones that did a lot," says former Democratic candidate for district attorney Peter Lesser on his party's county candidates. "In this perfect storm of a year, the tsunami was high enough that it swept everyone in power."

That includes Foster, who might be the face of the new county Democratic Party. Considered such a lackluster candidate that the lone Democrat on the commissioners court, John Wiley Price, endorsed Keliher, the mild-mannered Foster eked out his tiny victory on the backs of more than 100,000 straight-ticket voters who may not have so much as read his name on the ballot. Now viewed as the excuse-me victor, people are questioning his competency more in the days after his election than they ever did before, with Republicans particularly claiming that he and his fellow Democrats aren't up to the job.

"He doesn't have the background, nor the aptitude, nor the ability to be the leader of Dallas County," says Clayton P. Henry, who served as Keliher's campaign manager. "These are complex times with complex issues, and you need people to lead Dallas County into the future; you don't need not-ready-for-prime-time players."

Henry may not have mustered the same outrage over the qualifications of our last two GOP governors, but nevertheless he has a point. Democracy isn't necessarily a battle of résumés, but it's hard to imagine any managerial job where Foster would beat out Keliher other than one decided by straight-ticket voters. Keliher is a graduate of the University of Virginia and worked as a certified public accountant before graduating from the SMU School of Law. Foster had a stint at Tarrant County Junior College. Keliher labored as a prosecutor, a corporate litigator and a criminal court judge before winning election as county judge in 2002. Foster worked as a plant manager for Johnson & Johnson and now runs an alarm company from a nondescript office in Oak Cliff. On two other occasions, Foster has run for office, losing in elections for constable and sheriff.

The campaign itself didn't exactly bring out Foster's inner Churchill. Keliher has made cleaning up Dallas' dangerously noxious air a top priority while butting heads with her fellow Republican, Governor Rick Perry, on clean-air issues. Garnering the respect of environmentalists from across the state, who aren't exactly known for applauding Republicans, Keliher helped convince the operators of Ellis County cement kilns to adopt cleaner technology. In contrast, when Foster was asked at a League of Women Voters political forum how he planned to tackle Dallas County's air problems, he argued that local traffic lights should be synchronized. Since then, he hasn't exactly boned up on his environmental studies.

"I'm probably not in a position to analyze that right now," he replied when asked about his approach toward tackling some of the root causes of air pollution in North Texas. "We will be meeting and we will be dealing with a transition team on these issues."

Keliher hasn't been particularly gracious in defeat, refusing thus far to congratulate Foster. In what amounts to a rather cruel and convoluted irony, Keliher battled with her Republican colleagues on the commissioners court in part by staking out positions Democrats are supposed to care about, only to be criticized by the Democratic candidate for not getting along with her colleagues. Then she lost a race after an angry faction of local voters decided to vote Democrat across the board because of their fury at a Republican president thousands of miles away.

"The issues didn't matter; it's Washington that mattered," she says. "If I did nothing for four years, the outcome would have ended up the same."

Perhaps benefiting from the soft bigotry of low expectations, Foster is more impressive up close and personal. Still, it's not clear where exactly he differs, policy-wise, from his vanquished predecessor. A former reserve constable who has hauled people to jail, Foster talks about improving the staffing of the Dallas County jail, an initiative Keliher fought for successfully in 2005. Foster also has been suspicious of Sheriff Lupe Valdez's qualifications for the job, an argument Keliher made after the sheriff failed her first attempt to pass a mandatory state law enforcement test last spring.

In 2004, Foster lost to Valdez in the Democratic primary for sheriff, and for a while the two had a frosty relationship. Foster insists that he and the sheriff now get along fine, but he acknowledges he had concerns about whether Valdez, a former federal agent with scant local law enforcement experience, had the right stuff for the job.

"The only thing I was upset about, and I told her this, is that you're not a Texas peace officer, and you really need to get that under your belt before you enter the race," he says about Valdez's former lack of state certification. "I predicted that would be a problem."

Like his predecessor, Foster has also criticized the county's emergency readiness, particularly after a state audit expressed a lack of confidence in Dallas' ability to respond to a natural disaster or terrorist strike. That same audit criticized how the county spent federal Homeland Security dollars on a bug-ridden criminal database, which is a point Keliher has made to her colleagues for years.

If Foster hasn't staked out different positions from his predecessor, he does claim that he can help bring along the commissioners court to his way of thinking, something that typically eluded Keliher. "I've always had the ability to bring people together, and she didn't," he says. "You'll find that I can work with any elected official."

That includes Republicans such as North Dallas' county commissioner, Maurine Dickey, whom Keliher didn't seem to respect. "Maurine Dickey told me that it's amazing we had to have a Democrat come here for us to work together," he says.

Of course, if the commissioners court "works together" like it did before Keliher arrived, largely by underfunding county government and making ill-considered administrative decisions, harmony won't be a good thing. The key for Foster is if he can keep the peace on the commissioners court while still pushing for smart, efficient, modern government. For now, all we can do is wait to see if Foster can find purpose from his accidental victory.

The same goes for District Attorney-elect Craig Watkins. Like Foster, Watkins also seems to pale in comparison with the Republican candidate he defeated, star prosecutor Toby Shook. The felony bureau chief of the District Attorney's Office, Shook has successfully prosecuted some of the most notorious murderers in recent Dallas history. Watkins, meanwhile, eked out a living defending small-time criminals and working as a bail bondsman who had trouble paying his bills. The new district attorney of Dallas has battled the IRS and has been taken to court by several business owners who have claimed he owes them money.

Ironically, Watkins was even sued by the Dallas County District Attorney's Office after he failed to pay for receiving a monthly list of inmates in county custody. Watkins agreed to a settlement, which he didn't immediately pay until Bob Schnell, the chief of the Civil Division for the District Attorney's Office, sent him a letter.

"We will ask the court to abstract the judgment and proceed to have a writ of execution issued," it read.

Watkins is now Schnell's boss. Awkward.

But there is at least one important element in the criminal justice system avidly supporting Watkins: the long-neglected community of defense attorneys. To them, outgoing District Attorney Bill Hill has maintained the office's ethos of getting convictions at all costs, which has had the unhappy result of imprisoning the occasional innocent. They say that Watkins' lack of prosecutorial experience isn't an issue so long as he brings on top-shelf attorneys to institute key reforms. Besides, it's not like Hill himself came to office with Shook's credentials.

"Bill Hill has been out of the DA's office for about a million years," says defense attorney Deandra Grant. "He wasn't exactly Clarence Darrow."

Calling the job a "figurehead position," Grant says that Dallas should give Watkins the benefit of the doubt.

"I think we need to take a wait-and-see attitude on Craig," she says. "He may do a great job, but he's going to have to hire good people in the management positions."

During the campaign and immediately after, Watkins talked about the series of inmates released recently after they were wrongly convicted by the District Attorney's Office, indicating that he may be more reform-minded than his Republican opponent. Of chief concern to local lawyers is whether Watkins will follow up on his promise to institute a true open-file policy, which allows defense attorneys to have access to parts of the prosecution's criminal case, including police reports and witness statements. Tarrant County, which isn't exactly known as a liberal's vision of Xanadu, has such a policy, which both sides say speeds up the prosecution of cases. It's also a key safeguard in preventing the conviction of innocent people by allowing the defense counsel to—here's a revelation—mount an adequate defense.

"There is a hope now that Craig is going to establish a true open-file policy and that we will be able to get copies of police reports and all the things we should get anyway without there being roadblocks," Grant says.

The new Democratic judges are also hoping that Watkins can change the culture of the District Attorney's Office.

"Right now the D.A.'s Office gives the impression that they want convictions at all costs," says new criminal court Judge Lena Levario. "With Craig having been a defense attorney, that won't be the case."

Much like they did with Foster and Watkins, straight-ticket voters swept local Democrats into the judiciary. In essence, the candidates won a political lottery, not a contest of merit. Some Democrats such as Robert Burns, Ernie White and Levario come to the bench with no community complaints about their qualifications. (Burns is a respected defense lawyer. White is a visiting law professor at SMU. Levario is a former judge.) But others, including beleaguered county court at law incumbent Sally Montgomery, won election by nearly identical percentages despite grave concerns about their competency.

Judging by the voting percentages in judicial races, the voters didn't differentiate between the good and bad Democrats, nor the good and bad Republicans, opting for a wholesale party swap without regard to each candidate's particular qualifications. Naturally, last Tuesday's elections will renew questions about whether partisan voters should be trusted with choosing the local judiciary.

"If I'm having heart surgery, I don't want an intern cutting me," says outgoing criminal District Judge Manny Alvarez, who claims his replacement, Carter Thompson, isn't up to the job because he hasn't handled many felony cases. "I don't care if you're a Democrat or a Republican, I want to know if you have the experience when my life is at stake." (Thompson says he has represented felony defendants, though not as many as misdemeanor cases. Misdemeanors are more profitable, and besides, he's been busy lately running for judge.)

The Republican Party of Texas tried to make the qualifications of the Democratic judicial candidates an issue in an aggressive and misleading mailer it sent out during the campaign's homestretch. Referring to the Democratic candidate for the 282nd District Court, Andy Chatham, the mailer made light of the fact that he was suspended from practicing law this year, making it seem as if it were for incompetence or unethical behavior. Texas Lawyer later reported that Chatham's suspension only lasted for 12 days and stemmed from the candidate's failure to pay his Bar dues.

As you might have guessed, the Republican mailer didn't exactly address the more serious shortcomings of the candidate Chatham ultimately defeated, Karen Greene, who sent an innocent man to prison years earlier. Three years ago DNA evidence exonerated Entre Karage of the 1994 murder of his girlfriend. In a non-jury trial that lasted only one day, Greene convicted Karage and sentenced him to life in prison even though the prosecution had no eyewitness or forensic evidence tying him to the crime. (See "Undue Process," by Glenna Whitley, October 5.) Greene would later tell the Dallas Observer, "luckily the system did work," since DNA testing liberated Karage after seven years in prison.

It seems like Greene's lapse is just a tad more consequential than Chatham's failure to keep up with his Bar tab. And while election data shows that Greene wasn't singled out more than any other Republican judge, her loss won't exactly signal the end of jurisprudence in Dallas County.

The same likely goes for the defeat of criminal Court Judge Mary Miller. Last year, the former prosecutor under Hill allowed the state to present hearsay testimony in a murder case from a witness no one, least of all the prosecution, knows exists. ("Can I Get a Witness," October 19, 2006.) The case is now under appeal, and outside experts who looked over transcripts from the case were astonished at how Miller handled it. Defense attorneys who argued in her court rejoiced over her fall, after claiming for years she was biased toward the prosecution.

"She was not a good judge," says attorney Brian Gray, who argued several cases in her court. "She didn't respect the rights of the accused. I won't miss her."

Despite their accidental victory, the new jurists understand that they need to do better than the people they replaced. In the Democratic post-election press conference last week, Levario spoke about how "rehabilitation is not a liberal word," it's actually one of the aims of judges and prosecutors alike. That wasn't always the case during the Republican era.

"Every aspect of the criminal justice system will be looked at," Levario says. "And we have a plan to adjust it."

The new judges, nearly all of whom came from the defense bar, are almost certain to bring a fresh perspective to the bench. Nobody seriously expects them to go easy on the guilty, but there is a hope that they will have a better understanding of the fallibility of police officers and witnesses than the Republicans they replaced.

"The first thing is that it's a mindset change," Lesser says. "You've had people who have been out in the real world practicing law instead of being government employees. I think you're going to have judges who understand what 20 years really is."

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