Austin Firefighters Association Takes On Travis County D.A.

(l-r) Bob Nicks, AFA president; Christine Jones, VP; Rikki Stankevitz, representative (Photo by Jana Birchum)

Last October, Travis County District Attorney Margaret Moore offered a plea deal to former Austin Fire Lt. James Baker – five years probation for videotaping his colleague Kelly Gall in the women's locker room. Described as a "slap on the wrist" by Austin Firefighters Association President Bob Nicks, Baker's plea bargain focused the union's attention on the D.A.'s Office and, now, Moore's reelection campaign. This week, the AFA released several short videos that allege Moore has mishandled and failed to prosecute sexual assault cases – a key point of contention in her March primary face-off against José Garza and Erin Martinson. (See the videos and Margaret Moore's statement about them at the end of this article.)

It "all started with Kelly," AFA Vice Pres­ident Christine Jones told the Chronicle, "but once we started looking into it, we were all just appalled to see what was actually going on. We couldn't leave it." Jones and Nicks met with Moore to discuss Gall's case in Sept. 2018; Nicks insists it was a cordial meeting, but Moore has accused the AFA of making demands of her office.

AFA representatives Vanessa Schaefer and Rikki Stankevitz echoed Jones. Citing the 2018 Circle C Area Democrats meeting where (as we reported in March) Moore was caught on tape saying sexual assaults involving acquaintances are better characterized as "traumatic occurrences" rather than rape, Stankevitz said, "It just seems so inappropriate and so unsafe."

In the survivors' lawsuit filed last summer in federal court against local law enforcement, Moore and her office are accused of gender-based discrimination against women survivors of sexual assault, violating constitutional guarantees of equal protection under law, and perpetuating a culture of "disbelieving, demeaning, and ignoring" women who've been raped. In July, in response to concerns over low prosecution rates, the D.A.'s Office released statistics showing it had obtained "a plea or finding of guilt" in 111 adult sexual assault cases since Moore took office in 2017.

Prosecution rates in these cases do seem to be rising – the Statesman reported in July that the nine trials in 2018 and seven in 2019 to date gave the D.A.'s Office its "highest two-year total since at least 2011." But advocates worry that those big numbers disguise plea deals that are given – as in Baker's case – for lesser crimes. For example, the D.A.'s numbers show that in 2017, 37 cases resulted in a plea or finding of guilt; only one of those cases went to trial.

The union's decision to "educate the public on D.A. Moore's failure to prosecute sexual harassment and assault cases" was made in February after Schaefer made a formal request of AFA to get involved. Stankevitz described the decision as unusual, but explained: "We took an oath to protect and serve our community. ... How could we just turn our backs to this? If we have the means and relationships – and we do – don't we kind of have a moral obligation to use those means?"

Shortly thereafter, the AFA was contacted by local filmmakers Mike Blizzard and Vanessa Pla hoping to learn more about Gall's case; they soon decided to combine their efforts to amplify the voices of survivors. Blizzard, who learned about the survivors' lawsuit from one of the plaintiffs' families, told the Chronicle he and Pla were inspired to create the three short films (and a shorter compilation trailer) because they were "both angered and appalled by what we learned, and still are." Pla agreed: "After learning about the system that's in place right now, I felt like I had no choice but to do something about it." Funding for the project came from the Austin Firefighters Public Safety Fund and community donations.

Austin Deserves Better from Robert Nicks on Vimeo.

The videos, each running two to three minutes, feature several women claiming abuse by the system. Gall shares her story, as does rape survivor Hanna Senko, whose case was dropped in 2006, and Sarah Borch­ardt, whose daughter Emily is one of the eight plaintiffs in the class-action survivors' lawsuit. (Emily Borchardt has filed a separate suit against Moore and First Assistant D.A. Mindy Montford for allegedly sharing both confidential and false information about her case with third parties. Last week, she filed for a temporary restraining order against Moore and Montford; see below.)

As the videos hit social media, Nicks expects some blowback, but he insists this work isn't propaganda – that's what a "political opponent will always say when they're in the corner and they're losing on the facts," he said. Though the AFA hopes the videos will influence the upcoming election, Nicks said the firefighters have purposely not backed a candidate in the race. "We just want the videos out because these women need to be heard," Nicks explained. "These issues need to be heard, and people need to digest what's really going on in this race."

But for Schaefer, who has her own history with sexual assault (outside of Austin), it's personal; because AFD responds to all life-threatening medical calls, "We run calls on victims of sexual assault. I'm supposed to look them in the eyes and help them. I know what is laid out ahead of them. ... I want there to be something I can say, that there are resources, there's a path forward. There's something you can do when you feel like you are powerless and you can't do anything. I get it – it's difficult. No one is saying it's easy. ... I'm just asking that you do the job you signed up for."

After this story’s publication, Travis County District Attorney Margaret Moore provided the below statement to the Chronicle, reprinted in full:

I understand the pain, anger, and frustration expressed by the women in the video.

However, the video is inaccurate. It includes incorrect information. It does not tell the whole truth.

Personally I am appalled by the politicizing of this material, because it sends a terrible message to sexual assault victims currently wrestling with the decision of whether to come forward or not.

Telling victims that law enforcement, specifically, the D.A.’s Office, does not care and does not properly investigate and prosecute cases, only discourages victims.

We urge victims to report, period.

I have placed a very high priority on prosecuting crimes against women, including domestic violence and sexual assault. I created a Family Violence Unit and an Adult Sexual Assault Unit, the first of these in this Office.  During my administration, the DA’s Office has directed more resources, accepted more cases for prosecution, obtained more findings of guilt, and tried more cases to a jury than in the two years prior to my taking office: https://www.traviscountytx.gov/district-attorney/rec-req-rep#sexual-assault

I also point, as an example, to the 50-year sentence imposed on a defendant convicted by a jury of aggravated sexual assault just last week.

We work with our law enforcement agencies to build the strongest evidence possible to prove the elements of this offense required by Texas law. At all times, our primary responsibility is to see that justice is done. We have a duty not just to victims but also to the accused to see that Constitutional rights are protected and ethical standards are met. In short, we must be fair. I know the citizens of Travis County want the assurance that the system is fair to all.

It is not unusual for our decisions to fall short of the expectations and desires of both victims and law enforcement. The women in this video are among those disappointed.

I am not surprised that the Firefighters Union published this video in an act of political retaliation. I was approached by them and their member who is in the video, twice. They insisted that I renege on a plea bargain negotiated by my prosecutors to resolve a case of invasive video recording brought against another firefighter who supervised the victim.

The defendant admitted placing a video camera in a fire station changing room. No portion of the victim’s breasts or intimate area was captured in the recording. However, because it was in a changing room, it nevertheless constituted a state jail felony punishable by up to two year’s incarceration. The offender had no criminal history.

After a full investigation by the Austin Police Department, my office reached a plea agreement that, in our experience, was appropriately harsh. Although the victim claims the defendant was not held accountable, the plea bargain agreement required the defendant to plead to a felony offense in open court, accept the maximum number of years of community supervision (five years), and permanently surrender his credentials to be a firefighter and an EMT instructor, ending his career.

I reviewed the case and the plea negotiation and decided it was a just resolution, given all the facts. The plea was entered, and the terms were approved by the court.

In the two meetings requested by the victim, she and the head of the Firefighters demanded that I renege on the bargain agreed to by my prosecutors. I refused to renege.

I was told on both occasions that if I did not renege, I would face political retribution.

I believe my prosecutors did the right thing. And I will not be bullied by political threats into subverting justice and misusing my authority.

The other two women include the mother of a plaintiff in two lawsuits filed against me. This litigation is pending, so I will not comment on the specifics of it. The third woman reported her assault in 2006, and the case was declined in 2007 during a previous administration.

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What Does It Take for DA Margaret Moore to Prosecute? from Robert Nicks on Vimeo.

Mother of Emily Borchardt from Robert Nicks on Vimeo.

There Is Something Wrong with the System from Robert Nicks on Vimeo.

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Post originally said that former D.A. Rosemary Lehmberg declined to prosecute Hanna Senko's case, in fact it was Lehmberg's predecessor Ronnie Earle in 2006.