I know Barry Smitherman because my wife worked with him at the DA’s Office. He and Rachel served together in the Misdemeanor Division, the starting point for all new prosecutors. I have read some posts and comments concerning Barry’s time at the DA’s Office and this story is not about that subject. Rather, I will give you one antidotal story that made me like him before I ever met him. The story goes something like this.

The vast majority of new prosecutors go from high school to college to law school to the DA’s Office. There is really no such thing as a lateral hire because even experienced attorneys are required to start at the bottom in the Misdemeanor Division. So, Barry, knowing that he would have to start at the bottom and be supervised by attorneys half his age, chose to take an Assistant District Attorney position at the DA’s Office.

Each new prosecutor attends the Prosecutor Trial Skills Course (baby prosecutor school) in Austin. So, twice a year, a new group of ADAs are let loose in Austin. Barry joined the Harris County DA’s Office during the Rosenthal “frat” years. As the new prosecutors gathered to plan their drinking schedule, Barry rolled up in his Suburban with his wife and four children. The children exited the Suburban with their musical instrument in tow. I am an old guy and thought to myself how cool is that. Now I can’t get my children to pay attention, let alone play an instrument.

I liked Barry right away for many reasons, but if that visual doesn’t speak to you as a human and parent, you need to check your Republican creds. So, we saw Barry and his wife, Marijane, at the Kingwood Tea Party’s Ted Cruz event last year. As Rachel was recounting the baby prosecutor story, Marijane brought over one of their children, a recent graduate of Texas A&M. Marijane told us that their youngest son was serving on jury duty in Austin before heading to Princeton University.

So, like I said, Barry had another life before the DA’s office – an investment banker. You knew that the DA frat house was not going to hang onto Barry long and Governor Perry quickly selected him as a member of the Public Utility Commission.

Through his time on the Public Utility Commission and the Railroad Commission, Barry has done a lot of good things for Texas and Texans. These are a few highlights that I believe are important.

Since Barry joined the Railroad Commission, more oil and gas drilling permits have been issued than any previous eighteen-month period (going back to 1985). Additionally, permit turnaround times have been reduced. This time is crucial for oil producers. We are in an oil boom, the largest in our state’s history. The production in the Permian Basin is larger than the rest of the country. Permitting is important and fueling the economic boom here in Houston. Barry has been a good leader at the Railroad Commission, the governmental agency responsible for issuing drilling permits.

As Chairman of the Public Utility Commission and the Railroad Commission, Barry spent double digit percentages under budget and returned over 130 million dollars back to the State of Texas. During Barry’s tenure as Public Utility Commission Chairman, the agency spent 20{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} less than the amount authorized by the Texas Legislature. Barry returned over 110 million dollars to the State Treasury – monies that were allocated to the Public Utility Commission.

Barry proposed a policy change at the Railroad Commission that would allow all Railroad Commission employees in full compliance with the concealed handgun laws to carry firearms while conducting Commission business. Barry created the Railroad Commission’s first agency-wide CHL Course. I was raised on a gun club here in Houston owned by my grandfather. Second Amendment rights are important in our household and a necessity because of my wife’s profession.

Barry Smitherman is a fine example of family values, hard work, and accomplishment. He has clearly demonstrated that he knows how to operate government efficiently. The AG’s office has over 4,200 employees, mostly lawyers. A strong administrator is very important to this agency and Barry has proven himself.

 

The death penalty in Texas is not a hot button issue, with the overwhelming majority of Texans supporting it. Still, it is important to know where candidates for public office stand on the issue, especially candidates for Attorney General. Barry Smitherman has stated publicly that he supports the death penalty, going so far as to say that, referring to people that have committed capital murder, “those people do not deserve to live on planet earth with those of us that are law abiding citizens”. Here is that interview:

 

For reference, the interview was on the Chad Hasty radio show with a guest host by the name of Matt Crow on July 26, 2013. Click here for the full interview.

Now, you may think that because the Texas Attorney General doesn’t normally handle criminal cases that it isn’t important to know where a candidate stands. I would point you to the case that made Ted Cruz famous before he ran for Senate  – Jose Medellin. In case you don’t recall, Medellin was a Mexican national here illegally when he and others brutally murdered and raped Elizabeth Peña and Jennifer Ertman. The United Nations and the United States, under President George W. Bush, wanted Texas to stop the execution of this brutal rapist and murderer because they said he should have had the opportunity to call the Mexican consulate. Fortunately Cruz prevailed and Medellin was executed.

As I told you a couple of days ago, I did a Public Information Act requesting information from the Harris County District Attorney’s office about Mr. Smitherman’s trial record. I included his personnel file in that request. In that file was a document dated October 28, 2002 from Dan Rizzo to the Hiring Committee. Click here to read the entire document. Pay very close attention to this entry:

Smitherman is opposed to the death penalty for religious reasons. He said that being pro-life doesn’t “square with” the death penalty. I explained that being in favor of the death penalty is not required to work here.

I asked Smitherman about that entry today. He gave me much the same answer as his spokesperson gave Reeve Hamilton at the Texas Tribune:

Smitherman’s campaign said his views had been mischaracterized in the notes.

“Barry supports, and has always supported, the death penalty for the most heinous and violent criminals,” Jared Craighead, Smitherman’s campaign manager, said in an email. “… It is clear that there was a misunderstanding in a short interview with one person that occurred over a decade ago regarding Barry’s views on the death penalty.”

The problem is that Dan Rizzo is very well respected in the Harris County District Attorney’s Office. No one that I spoke to from/in the office believed that he would make such a mistake of this magnitude on such a high profile issue in the department. No one.

I also spoke with Mr. Rizzo, who retired from the office 4-5 years ago. He did not remember Mr. Smitherman or the interview.

So we are left with a choice. Do we believe Mr. Smitherman and his claim that the Mr. Rizzo “misunderstood” or, as he told me this afternoon, was “confused”.

Or, do we believe what Mr. Rizzo wrote in his report at the time? Note that the Smitherman spokesperson said “short” interview but the document suggests that Mr. Rizzo was very thorough in his evaluation, and the insiders at the HCDAO say that Mr. Rizzo was very thorough. And exactly how could he get confused about an issue that is fundamental to being a prosecutor?

And about the note, think about what Smitherman (allegedly) said: his religion prevented him from supporting the death penalty. There is absolutely nothing wrong with that and, as Mr. Rizzo wrote, supporting the death penalty is not a requirement to be hired at the HCDAO. But many, many people believe that you can be against abortion, the taking of what is inarguably an innocent life, and support the death penalty, because, as Smitherman now says, “those people don’t deserve to live on planet earth with those of us who are law abiding citizens”.

Election year conversions are always interesting. And sad when they go against your fundamental beliefs. I’ll leave it at that and let you decide if Barry Smitherman is telling the truth today and if he is the right choice to represent the State of Texas.

 

After Attorney General candidate Barry Smitherman’s visit to the Downtown Houston Pachyderm Club on January 2nd, I said this:

I do have a few questions about his presentation though. Why so little about the majority of his working career? He was an investment banker for 17 years but only made one small reference to that in this speech. He didn’t even mention the book he wrote about those days (click for a short preview). In contrast, he spent what seemed like an inordinate amount of time on his 15 months as a prosecutor in Harris County. Typically, a prosecutor in Harris County needs far more time on the job than 15 months before trying felony or high-profile cases. But Smitherman said that he earned a reputation as someone that was a go-to guy on hard cases that no one else wanted. And at the same time he was writing a book on his old life and serving on the board of the Texas Public Finance Authority. He must have been a very busy guy! I did ask him a question about his time as a prosecutor and will use his answer in a follow up post after I find more information on his time at the HCDAO.

Obviously, I was skeptical of his remarks. The reason for my skepticism is that no one makes a name for themselves or earns a reputation as a go to guy in the Harris County District Attorney’s Office in 15 months. No one. Perry Mason couldn’t do it. Okay?

Remember that old saying, trust, but verify. So I did. I immediately filed a Public Information Act request with the HCDAO for Smitherman’s trial record. And as I suspected, there is much less here than Smitherman is claiming on the campaign trail.

First, let’s look at a few of his statements, statements in the news and blogs, a Tweet, and his Facebook page header image. Bear with me – you need to get the context of his message about being a “proven prosecutor”.

In the video, Smitherman recounts his time as an Assistant District Attorney saying, “it was an honor serving as a prosecutor at the Harris County District Attorney’s office where I tried cases protecting families from violence and assault and drunk drivers.”

Barry is a licensed attorney who served as a prosecutor in the Harris County District Attorney’s Office. As a prosecutor, Smitherman focused on keeping families safe by specializing in prosecuting family assaults and drunk driving cases.

Smitherman went on to say, “As a prosecutor, I sat as ‘first chair’ on many DWIs and family assaults. In fact, I was in trial most days and gained a reputation for trying cases that others didn’t want to try. I was also described by my bosses as having trial skills and courtroom presence ‘far beyond my years of experience.’

“Before I went to Austin I was a prosecutor here in Harris County. I started off late in life as a prosecutor. I was a 43-­‐year old baby prosecutor. It was a second career for me. But I have to tell you. I found it one of the most rewarding experiences of my life. I could come home and tell my children, when they asked me what I “”did today, I put bad people in jail.”

“The second thing that you really ought to think about when you are trying to figure out who to vote for is who actually has experience in the courtroom. I think the Attorney General ought to know how to pick a jury. Ought to know how to make a closing argument. Ought to feel comfortable in the courtroom. I’m the only one in this race who’s been a prosecutor. I’m the only one who has met with the victim of a crime, heard her story, picked a jury, put the perp on, cross-­‐examined, made a closing argument, got a guilty verdict, and watched the “”perpetrator hustled out of the courtroom in handcuffs. That is the kind of experience that you need.” “

Smitherman said the job of attorney general needed a leader, not someone who cast votes. He said his experience on the Railroad and Public Utilities commissions, as well as a prosecutor, made him the ideal choice to replace Abbott.

“When these guys were freshman legislators I was putting bad people in jail in Houston,” he said.

Smitherman served as a prosecutor in one of the greatest District Attorney’s Offices in this nation, the Harris County District Attorney’s office. While there, he established a strong record of prosecutions, particularly in the area of domestic violence and drunk driving cases.

Smitherman has a record. He has a record of being a tough prosecutor which will serve us well as he moves forward to use the AG’s office to help secure the Texas border with Mexico.

Smitherman recounts his time as an Assistant District Attorney saying, “it was an honor serving as a prosecutor at the Harris County District Attorney’s office where I tried cases protecting families from violence and assault and drunk drivers.”

“I became a baby prosecutor in the Harris County DA’s office at the age of 43. And after everyone got through “”laughing at me, I became a good prosecutor. In fact, my specialty was prosecuting family assaults, particularly assaults where the man has beaten up the woman, usually a girlfriend but sometimes a wife, and she says it didn’t happen. We prosecute those cases in Harris County and let me tell you guys, there’s nothing more rewarding than putting a guy in jail who’s been beating up his wife for a long time. I could finally tell my “”children what you do for a living – I put bad people in jail. Really pretty simple.” “

“As a prosecutor in the Harris County DA’s office, where I was before we came to Austin, I prosecuted “countless cases.” ” (1-10-14 at the Austin Republican Women’s Club)

I developed a reputation for taking any case. I’ll take the hard cases. I’ll take the cases that could be difficult, that you might actually lose.  

In addition, I asked him about his time at the HCDAO during the question/answer time at the Downtown Houston Pachyderm Club. Listen to his answer.

 

Get the idea? One of the main themes of the Smitherman campaign is that he was some sort heroic prosecutor, putting, as he says multiple times, bad people in jail. 

So what would you think if I told you that in his entire 15 month career as a prosecutor, Smitherman had a grand total of 20 jury trials? Remember, he tells people that he prosecuted “countless cases” – can you count to 20? Does that sound heroic? How about his record of winning 11 of those trials and losing 9? And about all those bad people he put in jail? Well, there were five of them in total:

• James Wade Rogers – DWI 1st Offender – 10 days
• Aaron Osbaldo Garza – DWI 2nd Offender – 180 days
• Steven Brandon Alford – Assault-Family Member – 120 days
• Jimmy Dwayne Hasty – Assault-Family Member – 100 days
• Julian Ventura – Unlawfully Carrying a Weapon – 105 days

So when Smitherman says he put “bad people in jail”, he isn’t lying. Because five men did spend a few days in jail after Smitherman prosecuted them for Misdemeanor crimes.

But Johnny Holmes he ain’t (for those not familiar with Holmes, he is a legend at the HCDAO). Smitherman never prosecuted a single felony in his short time at the HCDAO.

Why is Smitherman exaggerating his split-second as a prosecutor and refusing to talk about his 17 years as a banker? That’s a question for another day.

Look, I don’t have a dog in this fight. I don’t know any of the candidates. Smitherman lives in Austin and his two opponents in North Texas. I just knew something wasn’t right about Smitherman’s statements, so I went looking for the truth.

And the truth is that if we as Republicans are going to dissect Wendy Davis’ life story and find exaggerations and omissions here and there, and make them into campaign issues to try and disqualify her in the minds of voters, we’d probably better look at our own candidates. And Barry Smitherman can’t pass that test. And yes, I’ve tried to contact that mysterious woman that supposedly looked Smitherman in the eye and silently thanked him for convicting her boyfriend – I haven’t been successful yet but I’ll keep trying. Because something about that doesn’t feel right either.

Click here for Smitherman’s trial record as provided by the Harris County District Attorney’s Office after my Public Information Act request. And if you want to look up the individual cases, you can search the Harris County District Clerk’s website. Or if you are nice and ask, I can send them to you. 

Texas Attorney General candidate Barry Smitherman made his way down to Houston last week and was the featured speaker at the Downtown Houston Pachyderm Club.

Background

Smitherman started by reminding us that he was from the Houston area and that it was great to be home. He discussed his race in 2012 for Railroad Commissioner and said that the primary reason he won was the activists in Harris County supporting his first campaign for office. He is the only person in history that was the chairman of both the Public Utility Commission and the Railroad Commission.

Prosecutorial Career

He spent quite a bit of time talking about his time as a prosecutor with the Harris County District Attorney’s Office, describing himself as a 43 year old baby prosecutor because it was supposed to be his second career. He liked being able to go home and when his kids asked what he did, he told them he put bad people in jail. He emphasized that he was the only one in the race that had been a prosecutor and had courtroom experience, saying that he met the victims, heard their stories, picked a jury, put the perp on the stand, and got a guilty verdict.

Smitherman also talked about the criminal side of the AG’s office, stating that his first act, should be be elected, would be to form a border security task force and help local DA’s prosecute criminals. He mentioned that one DA has over 500 hundred cases and only one ADA to prosecute them, using this example to discuss his plan to either help with or take over cases from local DA’s as needed. The Valley is a dangerous place and there is no law and order – people are afraid to leave their homes at night or to start businesses.

Agency Experience

Smitherman said that during his seven years with the Public Utility Commission, he reduced employees from 250 down to 175. After being appointed to the Railroad Commission in July, 2011, he said that he worked to improve the response time of the agency, creating a culture of treating permit applicants as customers. The agency now issues more oil and gas permits than anytime since the mid-80’s and has reduced the time to approve permit applications from weeks to days, taking only three days to approve an expedited permit. He noted that the U.S. will be energy independent in three years.

Of the many lawsuits the state has pending against the Obama administration, he is the complainant in seven of them, saying that he will always fight against boneheaded, poorly scienced  environmental regulations. He noted that one of his lawsuits about greenhouse gas regulations will be argued before the Supreme Court on February 24th, right in the middle of early voting.

Second Amendment

Smitherman stressed his commitment to the Second Amendment with two examples. First, he said that he is the only candidate in the race that has a CHL. Second, he said that when he arrived at the Railroad Commission, there was a policy in place that prohibited CHL holders from carrying their weapons in Railroad Commission buildings or vehicles. He got rid of that policy but took it further by provided firearms training to their employees in Austin and Houston, with San Antonio and Midland to follow. Now, if a bad person wants to hijack a Railroad Commission vehicle, they will think twice about it and probably go hijack a Texas Parks and Recreation vehicle instead.

Outsourcing

During a question about child support, Smitherman noted that the AG’s office has over 4,200 people working there and half of them are devoted to collecting child support in one form or another. After forming his border security task force, he is going to perform a study and see if any of those 2,100 jobs could be outsourced for more efficiency.

You can listen to his speech:

 

Commentary

Smitherman is an impressive candidate. He matched Rep. Dan Branch’s energy level and perhaps took it up a notch. He is an engaging speaker and knows how to work a room. It’s easy to see why he is at the top of most polls I’ve seen.

I do have a few questions about his presentation though. Why so little about the majority of his working career? He was an investment banker for 17 years but only made one small reference to that in this speech. He didn’t even mention the book he wrote about those days (click for a short preview). In contrast, he spent what seemed like an inordinate amount of time on his 15 months as a prosecutor in Harris County. Typically, a prosecutor in Harris County needs far more time on the job than 15 months before trying felony or high-profile cases. But Smitherman said that he earned a reputation as someone that was a go-to guy on hard cases that no one else wanted. And at the same time he was writing a book on his old life and serving on the board of the Texas Public Finance Authority. He must have been a very busy guy! I did ask him a question about his time as a prosecutor and will use his answer in a follow up post after I find more information on his time at the HCDAO.

So that’s my take on Barry Smitherman’s appearance at the Downtown Pachyderm Club. I predict that he is going to be very, very hard to beat.