Prosecutor under fire

It's barely daybreak on the 1996 political horizon, but maverick Wise County Attorney Stephen Hale is already facing opponents who want to assure his political sunset.

Since shortly after taking office in January 1993, Hale, who prosecutes misdemeanor crimes in this rural county of 36,000, about 40 miles north of Fort Worth, has been caught in a dust devil of controversy. At issue is his unorthodox approach to minor marijuana-possession cases.

Hale dismisses them.
Hale also dismisses or plea bargains most first-time DWI cases to the lesser charge of reckless conduct, resulting in probation and community service for the offender.

This quest to speed the wheels of justice--his average daily court docket has dropped from six to three pages in three years--has pleased judges, defense attorneys, and frightened, small-time pot users.

But it also has made Hale, a 43-year-old Democrat, a target of the powerful local newspaper, and of a conservative Republican opponent who accuses Hale of sending a message that "serves to invite drug users and drunk drivers to move up here."

Hale, slightly built, bald, and ruddy-cheeked, dismisses opponent Todd Durden's criticism with a shrug of the shoulders. "I believe what I'm doing with the marijuana cases is the right and moral thing to do," Hale says. "As I see it, possession of four ounces or less of marijuana is a victimless crime, and there's no point in tying up the system and ruining someone's life over it."

Hale is still mindful of his own brush with the law in 1974. While he was serving in the Army in Florida, Hale was arrested by civilian police for possessing a baggie of marijuana--in those days, a felony, carrying a possible penalty of two to 20 years prison time. Hale got three years deferred probation, but the incident, he says, clouded his early legal career.

Texas would not grant Hale, a 1980 graduate of the South Texas College of Law, a bar card. So he spent the first five years of his career in Juneau, Alaska. "I felt like I was exiled," Hale says. Texas accepted his Alaska bar credentials when he returned to the state in 1985.

Hale defends his stance on DWI dismissals as well. Court records show that Hale has dismissed or reduced charges in more than 60 percent of drunken-driving cases. "With the DWI cases as it is now, I get people on probation and paying fines," he says. "In the past, these cases just sat there as the docket got longer and longer. They went off into nowhere. I guarantee that if this office prosecuted every DWI case, a three-page docket would be a six-page docket within a month."

Were Hale and Durden, a Fort Worth attorney who lives in Boyd, left to themselves to fight this out, Hale would likely walk all over his opponent in November. That's because Wise County has been a Democratic stronghold in countywide elections since Reconstruction, and "those damn Republicans don't have a chance up here," says Elaine Davis, Wise County Democratic chairwoman.

But in the best small-town Texas tradition, a greater power than the two candidates combined has waded into the race. In a series of news stories and editorials over the past two years, the Wise County Messenger has blasted Hale for his position on DWI and pot-possession cases.

Last summer, Hale again rankled Messenger publisher Roy Eaton by withdrawing as attorney of record for child-protection cases in the county. Until then, Hale was the sole attorney representing the state in terminating Wise County parents' rights in child-abuse cases.

Citing his heavy caseload--at the time, 496 Class A and B misdemeanors and 1,700 hot-check cases--Hale passed the responsibility on to the Wise County district attorney's office. The Texas Family Code allows him to do so. District Attorney Barry Green, who prosecutes the county's felonies, then passed the child-protection cases on to the attorney general. Green did so legally under the same statute.

When Hale turned over the cases he argued that his office received no state funds to handle them; as a matter of fairness, he said, Wise County funds should not have to pay for a state agency's legal work.

Messenger reporter Gary Bailey discovered Hale's motion to withdraw nearly three months after it had been granted, and wrote a series of stories in which child-protection authorities and foster parents chastised the county attorney for allegedly putting abused children in more jeopardy. Yet 271st District Court Judge John Fostel said the move had done nothing to slow the handling of child-protection cases.

The newspaper stories so angered Hale that on September 18 he filed a libel lawsuit in state district court against the Messenger, publisher Eaton, and reporter Bailey. Hale, who claims the stories failed to fairly point out that the district attorney and attorney general had handled child-protection cases after he bowed out, is seeking unspecified damages and attorney's fees in the suit.  

Hale says the paper refused to print a clarification or to publish his one-page letter to the editor detailing why he withdrew from the cases. He was further agitated by a one-page daily "update" the newspaper distributes at diners, stores, and other businesses throughout the county, which summarizes previously published stories and lists funerals, births, and club notices. On August 28, the Update led with a headline that read "NO MORE CHILD PROTECTION CASES." The paragraph that followed outlined Hale's reasons for withdrawing from the cases, but failed to explain that anyone had taken them over. "The reasonable person would be left to assume that no one had picked up the cases, which wasn't true," Hale says. "My nephew saw the Update and came and told me I sounded like some kind of child abuser."

Messenger publisher Eaton declined to comment on Hale or the libel suit. But Tom Williams, the Fort Worth attorney who represents the Wise County paper (and has occasionally done work for the Observer), says he believes his clients will prevail. "Stephen Hale is an elected official. We think this is fair comment on the carrying out of his official duties and that the case has no merit.

"Any public complainant has a very difficult burden of proof," Williams says. "The courts have generally held that speech regarding the disposition of official duties deserves to be protected."

Whatever the outcome of the case, it seems clear that the predominantly Baptist folk of Wise County have a little trouble accepting Hale's unorthodox beliefs. At Mickey's Barber Shop, which sits directly across from the Wise County Courthouse in Decatur, a patron named Steve (who refuses to give his last name) rolls his eyes upward when asked his opinion of Hale. "He only lets people off because he got caught once with marijuana himself. I guess he can do that, but it doesn't make it right."

Likewise, Wise County Sheriff Phil Ryan expresses philosophical differences with Hale. "I don't condone nonprosecution of drug cases. I know the average voter in Wise County would like to see them prosecuted."

But professionally, Hale and Ryan get along famously. "Outside of the DWI and drug cases, Steve has worked well with this office," says Ryan, a former Texas Ranger and longtime Democratic sheriff. "He's friendly, cordial, and efficient. He's kept that office moving.

"Look," says Ryan, "as soon as I get everything worked out perfect at this county sheriff's office, then I'll start worrying about other people's business."

Hale's opponent, Durden, has hammered him for being out of step with the conservative values of Wise County, a ranching community grappling with becoming a bedroom community for Fort Worth. Durden declined to be interviewed for this story. But in his candidacy announcement in the Messenger, he was especially critical of Hale for withdrawing from child-protection cases and turning the representation over to the state.

"If a locally elected prosecutor is not in charge of these cases, we will end up with a lawyer from a government agency in charge--an agency lawyer from another community, whose values might be much different from ours. In other words, we might end up with a big-city bureaucrat telling us how to raise our children."

Wise County Republican Chairman David Isbell says Durden has already gained ground in a race for a seat that everyone assumes will remain Democratic. Two weeks after Durden announced his candidacy for Hale's job, the Wise County Commissioners Court granted Hale's request to fund a part-time attorney to help with child-protection cases. Decatur attorney Roberto Hopkins, who specializes in family law, joined Hale's office in early January and is now handling the cases--an average of about six a month, he says.

"It's amazing to me that after our candidate came out with his announcement of candidacy, Mr. Hale immediately went to the commissioners and was able to get an assistant," Isbell says. "If Mr. Hale's office is so overworked, why didn't he ask for help back before his opponent decided to make the DWI and marijuana cases and child-protection cases an issue? We think he's vulnerable and that Mr. Durden has an excellent chance."

Hale counters the charge that he is responding to political pressure by producing a letter he wrote the commissioners on October 13--three weeks before Durden announced--requesting funding for an assistant.

The incumbent seems genuinely surprised by his organized opposition. "When Roy Eaton first started writing critical things about me, I went to see him and set the record straight. He's a power broker around here and I wanted him to know he's misrepresenting my record." Hale says he showed Eaton statistics that show Hale prosecuted 121 DWI cases during his first year in office. "For him to say I don't prosecute any DWIs is just a lie," says Hale.  

But the "attacks" continued, Hale says. "I got spit on so many times I decided I'd just stand up for myself and sue.

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