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Jurist imprudence

Misty Murphy was terrified. It was her very first trial in her short career as a defense attorney, and she was facing a jury in the courtroom of municipal Judge Faith Hill. To say that the strawberry blonde Murphy was inexperienced is an understatement. After all, she's only 15 years old. The closest the Madison High School sophomore had come to studying law was reading about the U.S. Constitution in civics class.

By all accounts, Murphy should not have been dragged into court on this sultry day in early July. For this she had Dallas City Attorney Sam Lindsay to thank.

It started back in November, when an African-American classmate in Murphy's history class called her a "redneck peckerwood." One thing led to another. Murphy attempted to protect herself as the boy lunged at her, and she inadvertently scratched him with a pencil.

The fight landed both students in the principal's office for a stern lecture. The principal told the youngsters he didn't think disciplinary action was warranted, according to Murphy and her father, James. Ron Price, the school's youth action officer--who would later be elected to the Dallas school board--says he told the duo the same thing after he counseled them and got them both to apologize.

"They were friends again an hour later," says Price.
So it came as quite a surprise when the city sent Murphy a citation accusing her of assaulting the boy, which carried a fine of up to $500. Both the principal and Price assured Murphy and her father that the case certainly would be dismissed. So it came as an even bigger shock to learn that the city attorney's office was going to vigorously pursue the case. Of course, it didn't take Murphy long to learn what lots of other folks in Dallas already know--that Lindsay and his underlings are far from formidable opponents.

Murphy and the boy appeared in court three times--the last for the jury trial, in which Murphy was up against not one but two lawyers from the city attorney's office. Murphy's dad, who is an electrician, couldn't afford an attorney, so he asked to represent his daughter himself. But the judge forbade him on the grounds that he was not qualified. The judge didn't have any qualms about letting Misty represent herself, however.

Although she had heard the old adage that a person who represents himself in court has a fool for a client, Murphy quickly discovered that that doesn't necessarily hold true if your legal opponent happens to be Sam Lindsay or his emissaries. After an hour-and-a-half trial, during which the boy said he did not want to be there, the jury found Misty Murphy not guilty.

Losing a pointless misdemeanor case to a 15-year-old is merely the latest embarrassment for the city attorney's office. Over the past few years, Lindsay has mishandled a zoning lawsuit that wound up costing taxpayers $5 million, been upbraided by a federal judge for helping the city violate state open meetings laws, and helped paper over apparent conflicts of interest involving the mayor.

Lindsay's inauspicious track record is just one reason mouths fell open in Dallas political and legal circles last week when the Texas congressional delegation recommended Lindsay for a lifelong appointment as a federal judge.

Lindsay is the fourth black candidate in the past seven years to be recommended for a judge's post that has remained unfilled since it was created. It's fair to say that the three previous candidates--who had Ivy League backgrounds and federal prosecutorial and defense experience--were much stronger than Lindsay, but none made it through the confirmation process.

Lindsay's nomination appears to be predicated on the belief that only an innocuous, undistinguished lawyer will be able to survive the tricky political waters that have sunk three others ahead of him.

"No one considers Sam a stellar lawyer," says a local attorney and prominent member of the Democratic Party.

Lindsay's candidacy is being pushed with Herculean effort by his old University of Texas Law School buddy, Mayor Ron Kirk, for reasons that remain unclear. It has met with disbelief and dismay from Democratic Party leaders and black elected officials and activists, the majority of whom thought Dallas attorney Kevin Wiggins deserved the nod.

A graduate of Harvard and of Stanford Law School, Wiggins is a defense attorney who served a stint as a state appellate judge. Lindsay's qualifications pale in comparison, his detractors say. They say Lindsay has not paid his dues in the party, and that he is too closely aligned with the business establishment. Beyond those issues, there are questions about whether Lindsay has what it takes to do the job as city attorney, much less as federal judge.

Some of the higher-profile cases Lindsay has handled do give one pause for concern. Take the Cinemark Tinseltown case, for instance--for which the city taxpayers wound up taking a $5 million hit. That was the case where Cinemark wanted to build an 18-screen movie theater and restaurant next to a residential neighborhood in North Dallas. The neighbors objected, and seven city council members and former Mayor Steve Bartlett sided with the neighbors and voted against the theater, claiming it was not a permitted use under the city's zoning ordinance.

 

Lindsay had warned the council in a memo that if it voted against the theater, the city would be sued and individual council members could be held liable. His legal reasoning, though, may have been flawed. The ordinance Lindsay cited was open to interpretation and didn't necessarily prevent the council from nixing the theater.

But when Lindsay's memo became public--leaked by former councilman Chris Luna--the underlying legal question was lost. The theater owners were able to bludgeon the city with Lindsay's own words and extract a $5 million settlement.

Lindsay hired a law firm to represent the city and council members--who were also sued individually--but didn't ride close herd on a case that many lawyers thought was winnable. In the end, the city paid the $5 million--and lawyers fees--and questions lingered about how well Lindsay had looked out for the city's interests.

The Cinemark case was costly and confusing. But Lindsay's role in another case was more clear-cut, and prompted a federal judge to rule that the city--with the blessing of its city attorney--had violated the Texas Open Meetings Act. In that case, the city attorney's office again had the pants beaten off of it by plaintiffs who represented themselves but were not lawyers.

In February 1995, Rick Finlan and Don Venable--notorious Dallas gadflies--had the audacity to try to attend a meeting between Dallas Mavericks owner Don Carter and several city officials to discuss the proposed new sports arena. Meetings like this one had been going on in secret for months--and might have continued had Finlan and Venable not tried to participate in the public process. After five security guards unceremoniously escorted the interlopers from the meeting--attended by five city council members and City Manager John Ware in the bowels of Reunion Arena--Finlan and Venable turned around and sued the city in federal court. And won.

U.S. District Judge Joe Kendall did not mince words in finding that the city had violated the Texas Open Meetings Act. "The Court finds, based upon the testimony of City Manager John Ware, City Council member Chris Luna, and City Attorney Sam Lindsay that, on the advice of City Attorney Sam Lindsay, the first two meetings of the Downtown Sports Development Committee, which were closed meetings, had no notice posted in violation of TOMA and were not tape-recorded in violation of TOMA. It is a Class C misdemeanor for members to participate in a closed meeting knowing that a tape recording of the closed meeting is not being made," Kendall wrote.

Lindsay tried to argue that the Downtown Sports Committee was not subject to the open meetings act. Then he changed tactics, arguing that the meetings could be held in secret because they fell under a real estate exception. But Kendall concluded that Lindsay had misread the provision and that the committee had gone way beyond discussing narrowly defined issues of real estate to financing strategies, tax revenues, and the city's agenda in the Texas Legislature.

Just a week after Kendall made his ruling, Lindsay aroused the judge's ire again by once more allowing the council to veer off into improper territory in a closed session. "The City characterized the City Council's actions taken in a closed meeting on June 14, 1995, as merely giving direction to its officers in how to proceed in a negotiation," Kendall wrote. "The reality of what the Court heard on the tapes is not quite so innocent."

Lindsay filed a motion to clarify Judge Kendall's order, which really sent Kendall through the roof. "The court viewed then, and views now nine months later, the request for a 'clarification' as nothing more than a vehicle for the City Attorney to publicly complain and demagogue about the Court's order in the press, which Mr. Lindsay did on June 11, 1996. To keep from appearing to stoop to that level, the Court has intentionally waited nine months to address the motion."

"The question I have," says Rick Finlan, "is should a man who does not obey a federal court order, who obviously has no respect for the federal bench join that bench? This is a city attorney who even when you show him the law, he still doesn't get it."

It would be a supreme irony if Lindsay, whose hand has been repeatedly slapped by a federal judge, took his place beside that judge on the federal bench. But just being recommended for the post is a long way from a congressional confirmation.

 

Lindsay's name was forwarded to Washington weeks after the previous candidate for the judgeship, Cheryl Wattley, removed herself from the running when it became clear she wouldn't get President Clinton's support because of a tax problem. Federal tax liens had been filed against Wattley's law practice in 1991 and 1993. After clearing up that situation, Wattley neglected to pay an estimated deposit as part of her 1995 income tax extension.

Tax problems aside, Wattley clearly had excellent credentials for the job. After graduating from Smith College and Boston Law School, Wattley worked as an assistant U.S. attorney for seven years--two years in Connecticut and five in Dallas. Following her stint as a federal prosecutor, she worked with high-profile criminal defense attorney Billy Ravkind and went on to defend Danny Faulkner in the seven-month-long I-30 condominium scandal trial, which ended in a hung jury. Observers believe Wattley's close ties to County Commissioner John Wiley Price--she helped win an acquittal for Price in 1992 on an assault charge--may have doomed her chances to become a federal judge with the conservative, Republican-controlled Senate.

In contrast, Lindsay's credentials for the bench are thin--at best. A graduate of St. Mary's University in San Antonio and the University of Texas Law School, Lindsay worked for a short while for the Texas Aeronautics Commission. He joined the city attorney's office in 1979.

The main force behind Lindsay's candidacy is Kirk, who, according to several sources, browbeat everyone from personal injury lawyer and democratic bigwig Frank Branson to U.S. Rep. Eddie Bernice Johnson to get behind his former law school buddy. Why Kirk is so desperately in favor of Lindsay is not known.

Could it be the favorable legal opinions Lindsay wrote on behalf of the mayor and his wife when questions were raised about potential conflicts of interest? If you recall, Lindsay didn't see any problem with the mayor negotiating the arena deal on the city's behalf, even though Kirk is on the payroll of a law firm that represents Mavericks minority owner Don Carter. Lindsay also didn't see a problem with Matrice Kirk sitting on the board of Brinker International, for which she receives a tidy director's fee, even as that company has zoning questions that come before the council.

"If Sam Lindsay had done a great job for the city, you'd think the mayor would want to keep him in that job," muses state Rep. Terri Hodge. "And if he hasn't performed that well for the city, why would you want him in an even more important job--a job he could have for life?


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