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Innocent as Charged

Former Dallas County prosecutor Clark Birdsall doesn't know if he'll ever live down his assault trial, even though a jury took only 37 minutes to acquit him.
Mark Graham

Seated at his kitchen table, former Dallas County prosecutor Clark Birdsall--his voice soft, his speech measured--didn't act like a man who had just left the courthouse a free man, judged innocent of a tawdry crime he had spent the last four months insisting he hadn't committed.

Only a day had passed since he'd been acquitted of a charge that he had assaulted his girlfriend, but there was little about Birdsall's demeanor that suggested real joy that a nightmare had ended.

Clearly, some pain lingered; he'd lost sleep and energy, and his experience had conjured questions for which he's found no satisfactory answers.

Last week, the former prosecutor in the Dallas County District Attorney's public integrity division found himself on the other side of the judicial process, accused of having assaulted former girlfriend Pamela Sedmak during an after-dinner argument on McKinney Avenue. She reported to authorities that Birdsall had shaken her, twisted her arm, knocked her head against the car, and finally thrown her to the ground during an angry exchange. He, meanwhile, had insisted that Sedmak, a graphic artist, had been the aggressor, and that he had carefully avoided any contact that might be viewed as an assault. Still, he was charged with a Class A misdemeanor that carries a penalty of one year in jail and a $4,000 fine, and the matter was set for trial.

And months before a jury would deliberate for only 37 minutes before acquitting him of the charge, Birdsall was fired from his job without so much as an opportunity to tell his side of the story to his superiors.

What cost him his career was an unwritten but apparently long-standing policy within the DA's office that if one is arrested, one is fired. "I was aware of the rule," Birdsall says, "but I also knew it had been applied unevenly at best." He recalls a time when a felony prosecutor, in an angry courtroom scuffle, broke a bailiff's finger. The sheriff's department filed aggravated assault charges, but a grand jury ultimately no-billed the prosecutor and the matter was forgotten. The assistant DA wasn't fired. Birdsall also tells of a female prosecutor who was arrested for drunk driving but remained on the staff.

Birdsall, on the other hand, says he was told to clean out his desk the same day charges were filed against him. One need spend little time in the courthouse to hear his defenders whisper opinions that the assault charge only provided District Attorney Bill Hill and his new staff the opportunity to rid itself of another member of the "old guard"; that the trial itself was an exercise in high-profile humiliation co-authored by the new DA and high-ranking personnel in the Texas Peace Officers Association (the black officers' union) who were angry at Birdsall for what they viewed as his over-zealous prosecutions of black officers. Allies of the displaced prosecutor spoke of the fact that he had taken and passed a polygraph test that supported his innocence. They said they'd never seen any hint of a violent nature, or any proof that racism was evident in his approach to his duties.

During the course of the trial, even Birdsall's ex-wife testified that she had never known him to be physically violent or even confrontational. "The truth is," Birdsall says, "our divorce was not a pleasant one. But the moment she learned of the allegations, she phoned to say she knew they were untrue and was willing to do anything she could to help." Several other women whom Birdsall had dated in recent years spoke in his behalf.

It was the testimony of Birdsall's ex-wife and other female friends--all of whom indicated they'd never seen the defendant act in a violent or abusive manner--that emerged as the most critical evidence, according to jury foreman Donald Willis. "If he had those kind of tendencies," Willis told reporters after the trial, "you think they would have surfaced, particularly in the course of a divorce."

In what was basically a "he said, she said" case, neither side offered any eyewitnesses to the confrontation. Jurors, then, were left to weigh Sedmak's version of events--that Birdsall had assaulted her--against the defendant's. Birdsall testified that Sedmak became agitated and assaulted him, jumping on his back and grabbing his glasses and car keys.

"If Clark Birdsall is guilty of anything," his attorney, Reed Prospere, told the jury in closing arguments, "it was trying to make a relationship work that wasn't meant to be."

And if he was, indeed, a racist, why was Dallas County Commissioner John Wiley Price--a man whom Birdsall had once prosecuted unsuccessfully--on the stand at one point, swearing that Birdsall was "an honest man"?

In fact, Price's decision to testify provided the only light moment for Birdsall. "I phoned Price's office," he recalls, "and he called me back to say, 'I hope you're not calling me to be a character witness for you.' I told him, yes, that was exactly why I was calling. He started laughing, and it went on for what seemed like several minutes. Then finally, he said, 'OK, I'll do it. You've always been a straight shooter with me.'"

 

Straight shooter or not, the once up-and-coming assistant DA, a man who was convinced his lifetime calling was as a prosecutor, is, at age 45, pondering an uncertain future. "I even toyed with the idea of submitting an application to the DA's office," Birdsall says, "just to see what they'll say. I believe strongly in the profession, and I think there is always room for people who care, try hard, and are good at what they do."

But could he work for Bill Hill, even on the long-shot chance that he'd offer him a job? Birdsall smiles slightly. "No," he says in a resigned tone. "I really would not like to go back to work for him. And honestly, I don't think he would hire me back, because he was so happy to have a reason to run me off."

Says Hill: "Under the circumstances, I don't feel it would be appropriate to hire him back. No, I wouldn't."

It is best, Birdsall says, if he forgives and moves on. "There's just too much hurt and anger, and it is pointless for me to do anything that will help perpetuate that. The best thing for me is to go on and be successful in some other way." With that he falls silent for a moment.

"This," he admits, "has shaken my faith in the world. It is the worst thing I've ever experienced in my life.

"I always felt what I did [as a prosecutor], while not popular, was something that needed doing. I did it well and as fairly as I knew how. I agonized over every little step I ever took during an investigation or a prosecution.

"And then, when people came forward and accused me of being a racist prosecutor [see "Dirty Cops, Dirty Games," the September 7 Dallas Observer cover story], I felt betrayed when I was not supported by the new district attorney." Instead, when he saw Hill fire his immediate boss, Mike Gillett, Birdsall knew his own days were likely numbered. When he was transferred into the civil litigation section, his primary goal became survival--to remain on board for 10 more months and reach his 10-year anniversary so he might become vested.

His arrest ended any chance of that. "What it amounted to for people in the DA's office," he says, "was Christmas coming early. When I got word that charges had been filed, I went directly to [DA Hill's chief deputy] Mike Carnes' office to tell my side of the story. He said he didn't want to hear it and even suggested I should have a lawyer with me before I said anything else. Then he told me, 'I'm sorry, you're fired.' That was the end of the conversation."

And so, Clark Birdsall, accused criminal and out-of-work DA, made a career change he'd never previously considered. He had business cards printed, cleared a space in his home to serve as an office, and became a defense attorney. His income in recent months has been derived primarily from court appointments to defend clients accused of what he calls "thoughtless, impulsive crimes" like robbery, theft, and aggravated assault. "I could be busier," he admits, noting that some judges seemed reluctant to give him work while his trial was pending. "Others," he says, "have been quite helpful."

Truth is, he's found that he enjoys working from the defense table. "I can handle it as well as the next lawyer," he says. "But the skills I've developed over the years would, I think, lend themselves to a more specialized kind of defense work, cases involving corruption, that sort of thing."

In the next breath, he's talking again about returning to prosecution. "I've spoken with the district attorney in Rockwall County," he says, "who says he would be interested in putting me on his payroll as a special prosecutor. It sounds interesting." If nothing else, it would be a way to get those missing 10 months added to his career.

"I know," he admits, "that this will never be completely behind me." Indeed, there are deep scars. "I've had to face the loss of a job I dearly loved, the loss of respect that I valued greatly, and endure the glances and whispers of people who see me and look away." He adds that there are parents who will no longer let their children play with his 8-year-old daughter.

 

It is thoughts of his daughter, who lives with his ex-wife, that defuse any thought of moving from Dallas for a new start. "As long as she lives here, I live here," he says.

Even in the aftermath of his acquittal, Birdsall has found himself wondering about the fairness of the justice system. While he judged fair The Dallas Morning News' report of the trial, written by Holly Becka, he drove to the newspaper office the morning it appeared to ask why a photo of him taken at the jail following his arrest was used to illustrate the story. And why a quote from his accuser was highlighted in the body of the article: "He's a liar, and he really beat me up. I guess justice didn't get its day, but that's OK. I believe in truth, and Mr. Birdsall is not a truthful man."

"This was supposed to be my grand day of vindication," he says. "Instead, you had to read the story to even know that I was found not guilty." When he voiced his complaints to Deputy Managing Editor Lennox Samuels, Birdsall says, Samuels "said he agreed it was inappropriate to run the picture and the quote they did."

Later that day, he received a call asking if he'd come to the News so a portrait might be taken to accompany a follow-up article. In the next day's edition, a Becka-written story outlining Birdsall's plan to work with the Rockwall County DA's office ran, accompanied by a photo of him in coat and tie.

For Birdsall, it was a small victory.

It is obvious that Birdsall's feelings about media fairness are raw in the wake of his experience. "Channel 4 was on my doorstep back when the story of the charges being filed broke. They did several very negative stories on the matter. But last night's 10 o'clock news--after my acquittal--there was nothing."

Fox 4 News Assistant News Director Kingsley Smith disputes the claim. "We reported on the trial daily and ran a story on the verdict," he says. "If fact, we've been trying to get an interview with Birdsall since his acquittal."

By his own admission, Birdsall is now at a crossroads. "I'm not one of those who believes every experience you have in life is somehow good for you," he says. "I've now seen things first-hand that disturb me a great deal: There truly are innocent people charged by the state with crimes they didn't commit. And the government can, at times and for no really good reason, be very vindictive."


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