‘The Austin Bulldog’ intervenes to oppose this unusual action to deny public access
Part 7 in a Series
Updated Tuesday February 28, 2017 5:02pm to clarify Escamilla’s statements (see underlined text)
To keep a Deferred Prosecution Agreement (DPA) from being obtained by a victim of domestic violence — and ensure that it isn’t widely disseminated — Travis County Attorney David Escamilla has taken the extraordinary step of requesting that a hearing be held in a closed courtroom and that the related exhibits, motions, and responses to be argued in court be sealed because they might make reference to the DPA.
The Austin Bulldog filed a petition February 21, 2016, to intervene and oppose the County Attorney’s petition.
Courts are rarely closed, except in some family law cases involving child custody. Honoring this principle provides transparency and accountability. It avoids courts being thought of pejoratively as a Star Chamber, the ancient English tribunal “established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes.”
If the County Attorney’s petition is granted it would deny public access to courts, which is a cornerstone of our system of justice that is grounded in Texas law and the First Amendment, although this right is not absolute. Courts are sometimes closed to prevent dissemination of sensitive information to the public, such as matters dealing with attorney-client privilege, trade secrets, and matters of national security.
The Austin Bulldog’s motion states that the County Attorney’s petition to seal records fails to articulate — or to provide any evidence at all — of any “specific, serious and substantial interest which clearly outweighs” the presumption of openness of court records.
Attorney Bill Aleshire represents the Bulldog in this matter, citing in the motion Texas Rules of Civil Procedure 76a(3), which allows non-parties who pay a filing fee to intervene as a matter of right for the limited purpose or participating in proceedings.
“Trust in any governmental activity is enhanced with transparency,” said Aleshire, a former Travis County judge and before that tax assessor-collector. “And that trust is diminished with secrecy. Why should any deals a prosecutor makes with any defendant be concealed from the public? Is secrecy about prosecutor deals really in the public interest? In this day of enhanced concerns about equal justice (e.g., Black Lives Matter) does secrecy about who gets what deal from a prosecutor enhance or diminish trust and respect for the criminal justice system?”
A hearing on the matter was originally scheduled for February 22. The hearing was rescheduled for March 8 after the County Attorney learned through The Austin Bulldog’s motion and Aleshire’s e-mails to him that the county had failed to comply with the requirement to post notice with the Clerk of the Supreme Court of Texas.
For the entire past year The Austin Bulldog has been engaged in an ongoing investigation of problems in family law courts involving child custody cases and domestic abuse. As a member of the news media The Austin Bulldog also has strong interest in seeing that courts and court records retain the presumption of openness to the public.
“While intervenor finds it inexplicable why the Travis County Attorney would seek to withhold from public scrutiny an agreement the County Attorney made to defer prosecution of a person accused of abuse in the first place, Intervenor particularly objects to the broad, over-broad motion to seal every bit of future filed Motions for Summary Judgment and Responses regarding this case,” The Austin Bulldog’s motion states.
Even stranger, the motion points out that the very records the County Attorney asks to be sealed — motions for summary judgment, exhibits, affidavits, and responses from the defendant Attorney General — have yet to be filed.
As for closing the courtroom, The Austin Bulldog’s motion states that the County Attorney’s request fails to explain the protected interest of an unidentified person that would be harmed by permitting the public to observe the court proceedings when the motions are argued.
“Plaintiffs have failed to plead or prove sufficient grounds for closing the courtroom,” the motion states.
The motion to intervene notes than a less restrictive alternative is available in this matter. The County Attorney could show the applicable documents to the judge in camera, that is for the judge to review in private, and make a determination of whether they may be sealed.
A Department of Justice paper dealing with in camera review as used in Freedom of Information Act requests, states, “A problem arises if the agency determines that it cannot describe in a public affidavit the bases for withholding documents because to do so would reveal the information it is trying to protect.”
Assistant County Attorney Timothy “Tim” Labadie, who been in practice for 30 years and is representing the county in this case, said he realized that obstacle when preparing the county’s petition. “In preparing the Motion for Summary Judgment, I realized that to explain in court I would have to expose the content of the DPA.”
“This wasn’t done without thought and consideration but I thought this was all I can do,” he said. “Basically I don’t think the judge, simply by looking at the DPA, that the court on its own can determine that the release of this document would interfere with prosecution of a crime, without me explaining the precise terms of the agreement to the court as to why release of this record would interfere with prosecution of the crime.”
The County Attorney routinely drops charges against a defendant once a DPA has been signed, which may present an erroneous public perception that the case is closed and the defendant has escaped justice.
“We routinely drop charges and refile if needed,” Escamilla said. “Judges don’t want these cases on their dockets for two years.”
But during the period in which a defendant is subject to the conditions imposed by the DPA — typically one or two years, according to Assistant County Attorney Mack Martinez, who has headed the Domestic Violence Division for 22 years — the County may refile charges at any time if the defendant violates the agreement.
The abuse and aftermath
While all this legal jockeying is going on, what’s never said in public records or the motions flying back and forth is: What is this case about? Who did what to whom and when?
The Austin Bulldog interviewed the victim of alleged violence for which the offender was arrested, charged with domestic abuse, and agreed to a DPA — the very record the County Attorney is trying to keep secret.
It all began late at night on May 10, 2013, when Chet Edward “Ed” Cunningham, a former professional football player standing six-foot seven-inches and weighing 275 pounds, allegedly assaulted his wife, the mother of his four children, at home in the City of Bee Cave.
His wife at the time was Tara Michelle Coronado Cunningham, who is five-foot-nine and weighs 130. She arrived at the Bee Cave Police Station about 1am the next morning, where the lacerations and bruises on her back, visible wounds on her legs, and swollen and bruised right eye were observed and photographed. The report states she told police that he “struck her in the right side of her face and began to drag her along the driveway.” She told police he “had assaulted her many times over the past 15 years but she was not willing to pursue criminal charges against him.” She was examined by EMS but refused to be transported.
Police issued an arrest warrant. Bail was set at $3,500. An emergency protective order was issued.
Cunningham was arrested for Assault Family Violence, a Class A misdemeanor, a violation of Penal Code 22.01(a)(1). The statute states, a person commits an offense if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”
Fast forward to April 6, 2016 — almost three years after the violence allegedly occurred — when Cunningham and the Travis County Attorney’s office signed off on the Deferred Prosecution Agreement (DPA). Upon signing the DPA the criminal charge was dismissed with the option to refile charges if he does not comply with the DPA.
County Attorney Escamilla, when asked why it took so long to get a DPA, said he can’t comment specifically on the Cunningham case but added, “Domestic violence are complex cases.”
“There’s a huge backlog,” he said, so much that the volume of domestic violence offenses in the criminal justice system contributes to clogged court dockets and jail overcrowding.
As with all DPAs, no criminal record of this offense was filed with the state. Arrest and related records are maintained by the Bee Cave Police Department and Travis County. The Class A misdemeanor itself is not recorded in the online criminal history records of the Texas Department of Public Safety because there has been no conviction.
DPAs and enforcement
A copy of an e-mail from an Assistant County Attorney Neha Naik to Coronado dated April 8, 2016, and provided to The Austin Bulldog, states the following:
“[W]e completed the Deferred Prosecution Agreement paperwork … 4/6/16. The terms … are exactly what we discussed in my office — I would not lower it.”
Two years Deferred Prosecution plus CES/Recs (meaning he has to be evaluated for domestic violence and follow/complete the recommended classes) and stay away or have no contact with you, except per court ordered child custody agreement.
But a few days later, after Coronado pressed Naik, she responded with a second e-mail stating:
“The terms of the stay away/no contact in the Def(erred) Prosecution are: Ed is to have NO CONTACT with you through any means and to stay at least 200 yards from you, except per the court ordered child custody agreement terms.”
Coronado believes the stay away order has been violated on several occasions. An e-mail Coronado sent to Escamilla June 9, 2016, stated that Victim Services at the Texas Department of Criminal Justice indicated that an e-mail from Cunningham to her constituted a violation of the DPA.
“I would like a copy of the original plea signed April 6, 2016, and I would like you to explain to me how the reporting of violations is supposed to occur in situations like mine.
“I have reported three violations to your office and have seen changes in Ed’s behavior after I contact your office, which seems to indicate communication with him” from your office and/or his attorney.
“It is clear to me that Ed will continue to push the bounds of the plea as they remain ambiguous and seemingly unenforceable,” she wrote.
Assistant County Attorney Martinez, who heads the unit that pursues such complaints, cannot talk about an individual case. But he told The Austin Bulldog how complaints of DPA violations are handled by his office.
“I know where the bullshit is. I don’t care if you only left a red rose on her windshield for her birthday. You’re saying, ‘I can do this.’ We might file charges. Some guys act cute, think they can play this. Some things don’t cross the line but I don’t have a reputation for being easy on domestic violence.
“I don’t have a problem if you get tired of going to jail before I get tired of sending you to jail.”
Coronado stubbornly presses for DPA
Even though Coronado’s e-mail to Escamilla conceded that Cunningham’s behavior changed for the better after she notified his office of alleged violations, she remains unsatisfied.
Because she has not been given a copy of the DPA, and must rely on the information provided by Naik to know the terms, Coronado has persisted in making requests for the document. She filed three public information requests herself in April, September and October 2016.
The Crime Victim’s Bill of Rights, which was given to Coronado by the Bee Cave Police Department after the assault in 2013, states in part that a victim is entitled “to be informed of relevant court proceedings, if you request.”
But technically a DPA is not a court record, said Assistant County Attorney Tim Labadie, because the DPA was “not filed with the court.”
New request draws different AG ruling
Another request for the DPA and related records was filed July 12, 2016, by SafePlace attorney Laura Bates. Although Coronado says Bates requested this information on her behalf, a copy of it provided to The Austin Bulldog fails to indicate that Bates made the request for her.
And it was Bates’ request that caused Assistant County Attorney Ann-Marie Sheely to ask the Attorney General for another ruling. Because Bates asked for more than the DPA, Sheely could not rely upon the previous ruling that denied the DPA to Coronado.
The Attorney General’s new ruling (OR2016-21139) of September 19, 2016, states in effect that Bates was entitled to a copy of the DPA — and by extension so is anyone else, because the Texas Public Information Act requires that all requestors be treated equally.
That caught the County Attorney by complete surprise because a previous ruling (OR2016-10351) issued May 6, 2016, for the same record said it the DPA could be withheld from Coronado.
Shocked and dismayed by the reversal, the Travis County Attorney refused to release the DPA and instead exercised the only option available to contest an open records ruling. He filed suit against the Texas Attorney General. In an effort to keep the County Attorney and Attorney General’s cross-motions for summary judgment and related exhibits secret, the County Attorney’s Motion to Seal requested the court be closed and records be sealed. The petition even asks that the legal arguments related to these motions and exhibits be sealed.
Assistant County Attorney Labadie, the point man on the lawsuit, said that letter rulings such as were issued in response to these requests are signed by assistant attorney generals “and must be based on established law.” Yet, in discovery, “the attorney general’s attorneys admitted that the attorney general does not change law by issuing letter rulings — but that’s exactly what they did in this case.”
Labadie said there are four criteria for changing the Attorney General’s position for responding to a request. Because responses must be uniform, the circumstances must change before reversing a previous opinion. Labadie’s interrogatories were responded to by the attorney general’s staff. He said, “They admitted all four criteria applied but they are still refusing to allow us to rely on the May ruling that it’s not disclosable. That’s the crux of this lawsuit.”
Now it will be up to the court to decide.
DPAs used frequently
Escamilla said, “The key thing is that DPAs are used in family violence cases around the state, especially in big cities where we get lots of cases.”
Escamilla, who has the power to prosecute misdemeanors but not felonies, says his goal in using DPAs is to make offenders pay for their crimes and reform themselves going forward.
“I want offenders to learn from their mistakes, get counseling, comply with orders that require them to stay away from their victims,” Escamilla said. “It’s very hard to get a DPA if we’re going to hold you up to public shame because you’re signing this agreement,” he said.
In his 14 years as county attorney and 31 years in the county attorney’s office, Escamilla said DPAs have always been held confidential. But as county attorney he has made rare exceptions for DPAs involving public officials:
2012 — Escamilla went public with a press release and copies of seven DPAs struck with Austin Mayor Lee Leffingwell, five City Council members, and one former City Council member. His 20-month investigation of these elected officials resulted from The Austin Bulldog’s investigative report of an institutionalized conspiracy to violate the Texas Open Meetings Act and a criminal complaint filed by civic activist Brian Rodgers. Escamilla publicly announced he was launching an investigation the day the story was published, January 25, 2011, triggering rampant media coverage by virtually every local media outlet.
2013 — District Attorney Rosemary Lehmberg pleaded guilty and agreed to a serve 45 days in jail and pay a $4,000 fine after her highly publicized arrest for driving under the influence and rowdy behavior in jail that was caught on video and posted to the Internet, drawing both local and national coverage and pubic outrage over the conduct of the county’s top prosecutor. Long after Lehmberg served her time and went back to work the case remained in the public eye because of lawsuits that unsuccessfully sought to remove her from office. Escamilla said in a February 26 e-mail that “during the unsuccessful settlement negotiations for the removal lawsuit, one of the criteria I laid out at the beginning was that any ultimate settlement terms would be fully made public. But … I was never satisfied with the progress and we therefore went forward to trial.
But a key requirement in Escamilla’s criteria for making those two DPA cases public was that he needed and obtained the defendant’s agreement to do so.
If DPAs were routinely released and gained wide publicity, then it could impede a defendant’s ability to get a fair hearing when the DPA was violated, charges were prosecuted, and the case went to trial, he said.
Without a court order to release a DPA, or the defendant’s signed agreement to do so, Escamilla said he would be risking his law license for violating the Texas Rules of Professional Conduct.
But, do these rules, which bind attorneys ethically, override the requirements of the Texas Public Information Act? As in this case when the Attorney General ruling said to release a DPA?
No, Escamilla said, but his only solution is to sue the Attorney General and let the court decide whether or not to release it. If a court order authorizes release, then he will not be subject to disciplinary action for an ethical misstep.
Public officials are held to a higher standard, which is why the DPAs for these elected officials were not only released but announced through press releases or press conferences.
In settling Lehmberg’s case with a DPA, Escamilla issued a statement, published in the Austin American-Statesman April 19, 2013, saying her punishment shows that “justice is blind in Travis County.”
Is justice blind for all?
Is justice blind for the rich and well connected? Are they favored, treated differently for their criminal offenses, than the poor and minorities?
That is a question of overriding importance in this case because Chet Edward “Ed” Cunningham was in the public eye early on as an All American University of Texas football player who was voted most valuable player on the team and later played professional football in the NFL.
Perhaps more importantly, Cunningham, 48, on April 6, 2014, married Aimee Boone, 35, in Dallas, according to the Marriage Index published by the Texas Department of State Health Services. In addition, an article by Eugene Sepulveda published on his Community Matters website, includes the couple’s wedding photograph.
The marriage is significant because Boone is part of a mega-wealthy family that makes hefty contributions to candidates and political action committees of Planned Parenthood, other organizations, and the Democratic Party.
A related oddity that surfaced in this investigation is that the Agreed Final Decree of Divorce that Coronado provided to The Austin Bulldog was not signed by Judge Stephen Yelenosky until June 11, 2014. It was file-stamped by the Travis County District Clerk the same day (Cause No. D-1-FM-12-001109). That was more than two months after Cunningham married Boone. The divorce records were not available on the Travis County District Clerk’s website to permit authenticating the decree. (Coronado told The Austin Bulldog the records in her divorce case are sealed.)
That detail aside, according to OpenSecrets.org Ed Cunningham and his wife’s contributions in the 2016 election cycle topped $250,000.
Aimee Boone Cunningham is also on the board of the board of EMILY’s List, created in 1985 to fund campaigns for pro-choice Democratic women, and more recently to recruit candidates, mobilize voters, and win elections. Her biography on the organization’s website states she “has raised more than $38 million for Democratic candidates and progressive organizations in the last 15 years.”
In addition, she is on the board of The Center for Reproductive Rights, The Boone Family Foundation, and Planned Parenthood Votes, which she founded and chairs. She also co-chaired the Wendy Davis for Governor campaign and served on President Obama’s National Finance Committee.
The fact that Cunningham’s DPA is the underlying reason for the County Attorney suing the Attorney General — and this DPA involves some of the more well to do citizens of Austin — has no bearing on the way the County Attorney’s office treated this offense, Escamilla says.
“Nothing is further from the truth,” he said. “I’ve never met with them or talked to them (the defendant or his family).” Nor has Assistant County Attorney Martinez, who oversees the Domestic Violence Division, Martinez says.
Escamilla’s campaign finance records available online back to 2003 and searched by The Austin Bulldog show he has never received a contribution from Boone or Cunningham.
“When people say, ‘David Escamilla is more interested in helping powerful people,’ they’re wrong,” he said. “On December 31, 2020, I’m out of here. I announced that a year ago when I ran for reelection.” Escamilla clarified his statement in a February 26, 2017, e-mail to say that he would neither seek reelection nor higher office.
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain our independent coverage by making a tax-deductible tax-deductible contribution.
Plaintiff’s Original Petition, September 26, 2016 (6 pages)
Defendant’s Original Answer, October 28, 2016 (3 pages)
Rule 11 Scheduling Agreement, January 4, 2017 (1 page)
Agreed Protective Order, January 5, 2017 (5 pages)
Plaintiff’s Motion to Seal Court Records, February 1, 2017 (6 pages)
The Austin Bulldog’s Petition in Intervention In Opposition to Plaintiff’s Motion to Seal Court Records and to Close Courtroom, February 21, 2017 (7 pages)
First Amended Rule 11 Scheduling Agreement, Febuary 21, 2017 (1 page)
Verification of Public Notice of Motion to Seal Court Records, February 22, 2017 (2 pages)
Tara Coronado Cunningham’s Application for Intervention, February 22, 2017 (31 pages)
Tara Coronado Cunningham’s Motion to Oppose Sealing of Court Records, February 22, 2017 (1 page)
Related Bulldog coverage:
Part 5: A Troubled Father’s Last Chance: A mother fears he has not kicked his addictions or changed his ways, October 26, 2016.