hawk's response to motion for temp removal

7/23/2019 Hawk's Response to Motion for Temp Removal

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______________________________________________________________________________DAHAWKS RESPONSE IN OPPOSITION TO MOTION FORTEMPORARY SUSPENSION AND REQUEST FOR EVIDENTIARY HEARINGPage 1

C

AUSE

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DC 15 12517

STATE OF TEXAS, ex rel. CINDY STORMER,

Plaintiff,

v.

SUSAN HAWK, CRIMINAL DISTRICT ATTORNEY

OF DALLAS COUNTY,TEXAS,

Defendant.

IN THE DISTRICT COURT OF

DALLAS COUNTY,TEXAS

101ST JUDICIAL DISTRICT

DA HAWKS RESPONSE IN OPPOSITION TO MOTION FOR TEMPORARY

SUSPENSION AND REQUEST FOR EVIDENTIARY HEARING

DA Hawk files this Response in Opposition to the States Motion for Temporary

Suspension. Of course, the issue of temporary suspension should not, and statutorily may not, be

reached before this Court makes its threshold decision on the issue of citation. But in an abundance

of caution, DA Hawk responds to this motion below and attaches affidavits establishing that she

should not be temporarily suspended. Moreover, because these affidavits establish that DA Hawk

and her staff are promptly and properly fulfilling their official duties to the people of Dallas

County, these affidavits are highly relevant to and should inform this Courts preliminary decision

to deny the issuance of citation. In the event that citation issues, DA Hawk respectfully requests

a full evidentiary hearing before the Court rules on the Motion, and would show the following:

I.

Summary of Argument

In the Second Amended Petition for Removal, the State moves to temporarily suspend the

District Attorney under Texas Local Government Code 87.017. DA Hawk opposes the relief as

both unwarranted under the facts and a misapplication of the Ouster statute.

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The Court has discretion whether to temporarily suspend an elected official, but the same

policy reasons that caution against the use of the ouster statute for permanent removal should

inform the Courts analysis of the States Motion. Because the will of the voters of Dallas County

as expressed just one year ago would be undermined by the removal of their duly elected official,

the Court should only exercise that discretion upon a clear evidentiary showing by the State that it

is likely to prevail in its case and that harm to the people of Dallas County is imminent if the Court

does not act.

The State has not and cannot carry that burden. First, the State is unlikely to prevail on its

claims on the merits. DA Hawk has shown that the Petition to remove her is legally and factually

inadequate. SeeDefendants Consol. Mtns. (filed Oct. 19, 2015) and Am. Reply in Support (filed

Oct. 30, 2015). The gravamen of the States case is a stigmatizing and improper attack based on

the notion that individuals suffering from depressive disorder cannot meaningfully contribute in

our society. Applying the Ouster Statute to achieve that end is contrary to our public policy and

is preempted by federal law. If suffering from depression is enough to disqualify a licensed

attorney from being a district attorney, then roughly a quarter of the State Bar is disqualified. See

infra at7-8.

The remaining details of the States case are makeweight. Allegations and quibbling

criticismsnone of which meets the high standard for ousterappear to have been added to

bolster the mental health attack. Inter-office personality conflicts are not specified causes for

removal, and therefore are not enough to allow disgruntled employees to overcome the will of the

voters.

Second, the State cannot show that there is any imminent danger to Dallas County if the

DA is not removed. The States case is based on the allegations of five terminated employees who

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have not worked in the DAs office for months and therefore cannot have any personal knowledge

to support a claim that DA Hawk is currently incompetent or engaging in misconduct. The States

Motion for Temporary Removal of DA Hawk is based on no evidence of the current status of DA

Hawk or her Office. Nor has the State produced any evidence regarding whether DA Hawks

treatment was successful. On the contrary, the DA submits evidence showing that her treatment

has successfully allowed her to promptly and properly discharge her official duties, including the

following affidavits from the current leadership of all of the divisions of the District Attorneys

Office which are attached as exhibits:

Exhibit 1 Affidavit of Messina Pampillonia, First Assistant District Attorney;

Exhibit 2 Affidavit of Kevin Brooks, Felony Trial Bureau Chief;

Exhibit 3 Affidavit of Glen Fitzmartin, Administrative Chief of Division A, includingeleven felony courts;

Exhibit 4 Affidavit of Carmen P. White, Administrative Chief of Division B, includingthe Child Abuse Division, the Sexual Assault Division, the Animal Cruelty Division, andthe Mental Health Division;

Exhibit 5 Affidavit of Patrick Kirlin, Administrative Chief of Division C, including theOrganized Crime Division, the Specialized Crime Division, the Gang Unit, and theCommunity Response Team;

Exhibit 6 Affidavit of Jeremiah Varney, Administrative Chief of Division D, includingFamily Violence Division and six Felony Courts;

Exhibit 7 Affidavit of Kendall Castello, Financial Administrative Chief;

Exhibit 8 Affidavit of Dewey L. Mitchell, Administrative Chief of the MisdemeanorDivision;

Exhibit 9 Affidavit of Lori L. Ordiway, Administrative Chief of the Appellate Division

Exhibit 10 Affidavit of Russel H. Roden, Administrative Chief of the Civil Division;

Exhibit 11 Affidavit of Ellyce Lindberg, Administrative Chief of the Grand Jury andIntake Division; and

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Exhibit 12 Affidavit of Danl Simpson, Executive Administrative Assistant to the DistrictAttorney and 29 year employee of the District Attorneys Office through 5 differentadministrations.

This evidence of those in the leadership of the DAs Office irrefutably shows that since

DA Hawks return from treatment, the Dallas District Attorneys Office is running smoothly and

without incident. See id.

Further, the evidence will show that the DAs office fulfilled all of its required duties, even

when DA Hawk was absent from work and bravely dealing with her medical issues. The State has

submitted no evidence to the contrary, despite its new allegations that DA Hawks absence to

receive treatment was a dereliction of duty constituting gross carelessness or official misconduct.

In this country, we embrace the notion that when one of our fellow citizens gets ill, we support

their efforts to get treatment and applaud their recoveries. Just as it would be contemptible to oust

an elected official who must absent herself from work to successfully undergo chemotherapy for

cancer, it is equally contemptible to try to oust DA Hawk for successfully undergoing treatment

for a mental illness. The only inquiry is whether the Office is fulfilling its duties: it is and always

has under DA Hawk. Temporary removal is inappropriate.

If the Court is even inclined to consider the States request, DA Hawk requests a full

evidentiary hearing to prove to the Court that the DAs Office is functioning in an excellent manner

and that DA Hawk remaining in office presents no imminent harm to the people of Dallas County.

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II.

Argument and Authorities

A. The Court has complete discretion under the Ouster statute whether to temporarily

remove DA Hawk.

The statute vests authority in the trial court to temporarily suspend an elected county

official if:

an ouster proceeding is filed,

citation has issued, and

an appropriate temporary substitute has been appointed and bonded.

TEX.LOC.GOVT CODE87.017. The decision whether to do so is within the discretion of the trial

court. However, as with the issuance of citation and permanent removal under the Ouster statute,

the Court should act carefully and with full knowledge of the facts, not only the plaintiffs

allegations:

The clear intent of these removal statutes is to require the district judge to give a carefulconsideration to the petition of removal and to make such orders in relation thereto as, inhis judgment, acting in his judicial capacity, the exigencies of the situation require.

Morris v. McCall, 53 S.W.2d 667, 668 (Tex. Civ. App.Beaumont 1932, no writ).

A trial courts exercise of discretion in this context should be especially circumspect

because [t]he office[] of district attorney[ is] constitutionally created and therefore

constitutionally protected. The authority of ... district attorneys cannot be abridged or taken away

other than by meeting the constitutional and statutory requirements for ouster after a jury trial.

State ex rel Edison v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim App. 1990) (internal quotes and

citations omitted). InEdwards, the Court held that a trial court lacked jurisdiction or authority to

disqualify the Taylor County District Attorney and his staff from prosecuting a defendant based

on an alleged conflict of interest, because that order constructively removed the District Attorney

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from his elected office in violation of the requirements of the Ouster statute. Id.at *4-5(Where

power is granted by statute or constitution to remove a public officer for certain specified causes,

the power of removal is limited to the causes specified.). In exercising that discretion, the Court

should require the State to adduce evidence proving that suspension is necessary to protect the

citizens of Dallas County.

B. The Courts should apply an analysis similar to injunctive relief.

DA Hawk submits that in deciding the temporary-suspension issue, the Court should apply

ordinary injunctive standards which provide well-developed guideposts for determining when

temporary and restraining relief is appropriate. The temporary suspension itself mirrors injunctive

standards as it requires a bond to be posted to compensate the suspended party, just as injunctions

do, if the ouster grounds are rejected by the jury at trial. Compare TEX. LOC. GOVT CODE

87.017(b) with TEX.R.CIV.P. 684.

The Standards for injunctive relief are:

1. The Applicant must plead for permanent relief.2. The Applicant must show it has a probable right to the relief it seeks on final

hearing.3. The Applicant must show that it will suffer a probable injury pending trial

by showing that that (a) harm is imminent and (b) irreparable.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

1.

The State has pleaded for permanent relief.

The State has met the first prong by pleading the permanent relief of ouster of DA Hawk.

2. The State cannot show a probable right to permanent relief.

The State cannot meet the second prongshowing a probable right to the remedy of

ouster. The State cannot use 87.013 to oust DA Hawk because she is has suffered from

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depression. The Americans with Disabilities Act was passed in response to Congresss finding

that:

[P]hysical or mental disabilities in no way diminish a persons right to fully

participate in all aspects of society, yet many people with physical or mentaldisabilities have been precluded from doing so because of discrimination; otherswho have a record of a disability or are regarded as having a disability also havebeen subjected to discrimination . . . .

The ADA is intended to provide a clear and comprehensive national mandate for the elimination

of discrimination against individuals with disabilities, and to provide clear, strong, consistent,

enforceable standards addressing discrimination. 29 C.F.R. 1630.1(a). To that end, Congress

amended the ADA in 2008 to ensure that the Act is construed broadly in favor of expansive

coverage to the maximum extent permitted by the terms of the ADA. Id.1630.1(c)(4); see

Defendants Consol. Mtns. at 15-16. Accordingly, federal law preempts the application of any

state statute that would impair the purposes of the ADA. Defendants Consol. Mtns. at 15-16. For

that reason, the Ouster statute may not be enforced to remove DA Hawk from office because she

suffers from depression.

Even if the ouster statute could withstand federal preemption, ouster based on an alleged

mental defect must meet two requirements that are not present here. First, it must not exist at the

time of the officers election and second, it must render the DA unfit or unable to promptly and

properly discharge official duties. Tex. Loc. Govt Code 87.011(2)(C). The State cannot satisfy

either requirement.

It is undisputed that DA Hawk has suffered from depression, dating as far back as 7th

grade. See Jane Thompson, The Untold Story of Susan Hawk, DMAGAZINE (Nov. 2015). Her

situation was well-known prior to her election, including during her campaign for office. See

Sharon Grigsby, Prosecutor's pivot in incompetency case against Hawk spells new trouble for DA,

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DALLAS MORNING NEWS (Jan. 6, 2016) (Im also struck, talking to courthouse sources on

background, by how many people saw the kind of unbalanced behavior by Hawk prior to the

election that echoes the stories in the Wirskye-Balido statements.").

Depression is a widespread condition, especially among lawyers. A recent Texas Lawyer

Report cites a study of Washington State lawyers finding 19% had depression and a South Carolina

study citing a 25% rate (with 15% of those committing suicide). SeeAngela Morris,Life or Death:

Addiction and Depression in the Legal Profession, TEX.LAWYER(Spec. Rept. Nov. 20, 2015); see

also Texas Lawyers Assistance Program (TLAP) website, https://www.texasbar.com/AM/-

Template.cfm?section=Texas_Lawyers_Assistance_Program1&Template=/CM/HTMLDisplay.c

fm&ContentID=30501(noting that [l]awyers experience substantially higher rates of depression,

anxiety and suicide than the general population); http://www.daveneefoundation.org/-

scholarship/lawyers-and-depression/ (study cited by TLAP, noting among other things that

[c]hronic stress can trigger the onset of clinical depression, and that [l]awyers are the most

frequently depressed occupational group in the US because they are 3.6 times more likely to

suffer from depression than non-lawyers, and the finding that, among North Carolina lawyers,

37% suffer from depression and 11% suffer from suicide ideation); American Bar Association

Website, Lawyer Assistance Resource PageDepression link, http://www.americanbar.org/-

groups/lawyer assistance/resources/depression.html (providing additional information and

resources as well as links to articles dealing with lawyers and depression from Texas, Arizona,

Michigan, West Virginia, Missouri, Utah, and national publications). In fact, all 50 states, the

District of Columbia, Puerto Rico, the Virgin Islands, Canada and England have Lawyer

Assistance Programs. See http://www.americanbar.org/groups/lawyer_assistance/resources/lap_-

programs_by_state.html(providing links).

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Depressive disorders ebb and flow in their severity. The fact that DA Hawks depressive

disorder became exacerbated in early 2015 after a difficult campaign, being elected, taking on a

new job, and having her husband file for divorce is clinically unremarkable. Regardless, the

exacerbation of her depressive disorders to the point she needed treatment does not change the fact

that the underlying conditions pre-existed her election. As such, they cannot be the basis for

ouster.

Similarly, the State has not proved and cannot prove that the Dallas Criminal District

Attorneys office did not promptly and properly discharge official duties at any time since DA

Hawk took office. SeeTEX.LOC.GOVT CODE87.011(2)(C). The firing of personnel within the

DAs office, which forms a secondary focus of the States allegations and evidence, is not a

dereliction of duty. To the contrary, staffing the DAs office is a matter that falls wholly within

the discretion of the elected Criminal District Attorney. See TEX. GOVT CODE 41.102(a),

44.057(b).

The Dallas County Criminal District Attorneys official duties are to attend the terms of

the Dallas County Criminal Courts, exercise control over criminal cases and habeas corpus, serve

as the District Attorney, collect fees, and report to the Commissioners Court. Id.44.057(a), (c).

But DA Hawk need not conduct each of these dutiespersonallyshe has the power to discharge

her official duties by delegation. The DAs duties may be carried out by the First Assistant District

Attorney or others in the DAs office. Id.41.015(b). The State does not allege and adduces no

evidence to show that DA Hawk, through her delegates, failed to discharge these duties at any time

since being sworn in. In fact, it is undisputed that DA Hawks First Assistant (Messina Madson)

fulfilled DA Hawks official dutieseither herself or through delegates in the DAs officewhile

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DA Hawk was receiving treatment. SeeJamie Thompson, The Untold Story of Susan Hawk, D

MAGAZINE(Nov. 2015).

3.

The State cannot show imminent harm from DA Hawks continued service in

her elected position.

Finally, the State has not and cannot establish prong three of the test for temporary relief

showing the likelihood for imminent harm to the office of the DA or the County of Dallas if DA

Hawk remains in office pending trial. As shown in the attached affidavits, the Office of the DA is

in great shape and has been running smoothly since DA Hawks return from medical leave.

The leadership of the District Attorneys Office has sworn under oath that the Office is

running smoothly and DA Hawk is leading it competently. The current leaders are and state the

following, in relevant parts:

Messina Pampillonia, First Assistant District Attorney:

The office has had many transitions in the last year, however, it has continued toadjust and improve. Even when Judge Hawk was struggling the most, the officewas competently managed. She is able to serve as District Attorney and at no timedid the daily operations falter because of her mental illness. In terms of officeproduction we have only increased production and efficiency. Jury trials are up14% from the same time last year, we have reduced cost per disposition by $50 percase, this means that we have spent $880,000 less than the previous year to disposeof the same number of cases. Our office has obtained nearly $2 million in grantfunding allowing us to double our Sexual Assault Unit and bring a Protective OrderAttorney and Victim Advocate to the Family Courts to assist Victims' of DomesticViolence free of charge.

Judge Hawk has been back at the office for over two months. She is an active partof all decision making and meetingsWe have settled into our professional rolesand the office is running extremely well. We are currently meeting with theLeadership Staff to set 2016 goals and address how we can assist in their success,

both in their goals and in our expectations of them. Morale is high. While this hasnot been a comfortable experience for the leadership team, it has forged a strongrelationship and the office has become closer through the experience. We are nowfunctioning better than ever.1

1Exhibit 1.

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Kevin Brooks, Felony Trial Bureau Chief:

I am the Felony Trial Bureau Chief for the District Attorney's Office. In that role Isupervise the ADA's in the 17 Felony District Courts and the 11 MisdemeanorCourts. I also help in the formulation of Policy and Procedures for the District

Attorney's Office. I have held this position since January 1, 2015. I also was theFelony Trial Bureau Chief during the first 4 years of the Craig WatkinsAdministration. Having served in that capacity for two elected District Attorneys,I think gives me perspective that others don't have.

I am aware of most of the events depicted in the Balido and Wirskye affidavits.Despite the personal turmoil among and between Ms Hawk, Mr Wirskye and MsBalido, the functions of the District Attorney's Office continued uninterrupted. Atno time were the duties of the DA not performed.

Since District Attorney Susan Hawk's return, I can state unequivocally that the day

to day operation of the office has never been smoother. The morale within theADA's is very positive and high. If Judge Hawk were to be removed at this time, Ican't emphasize enough how damaging that would be to operation of that Officeand to the morale of those ADA's in the Court Rooms.2

Glen Fitzmartin, Administrative Chief of Division A, including eleven felony courts:

The State as far as I can tell is relying solely on accounts of Ms. Hawk's behaviorfrom before her treatment. I am not aware of their attempts to investigate her actionsafter her return. The State alleges The prospect of producing evidence against theiremployer would undoubtedly place these employees in an untenable position. Thepotential for the possibility of such undue influence can be avoided only by thetemporary suspension of the Defendant as requested by the State. To myknowledge the State has not reached out to any of the current employees to ascertainthe veracity of their own allegations. I know that no one tried to contact me. I wasinformed soon after this process began by Messina Madson, the current FirstAssistant, that we were free to and encouraged to participate in this process asneeded by anyone involved.

Since her return from treatment, Ms. Hawk is engaging, vibrant and focused. Shehad led meetings and attended others contributing where necessary. I watched agood portion of a murder case she led and noted that she was prepared, legallysound and very polished. Ms. Hawk has continued to implement programs andpolicies she started and promised on the campaign trail. I have seen her deal withthe media and the public in town hall meetings and been impressed with her poiseand ability to communicate effectively the work we are doing here. I am not awareof the particulars of her treatment plan other than what she has shared with the

2Exhibit 2.

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media. Whatever it is it is working. I believe her to be fully competent to fulfill theduties of the District Attorney for Dallas County.3

Carmen P. White, Administrative Chief of Division B, including the Child Abuse Division,the Sexual Assault Division, the Animal Cruelty Division, and the Mental Health Division:

As part of my duties in the Mental Health division, I have been assigned to workwith Judge Hawk to create the SET (Stabilization, Engagement, and Transition)program. This program was designed as a part of Judge Hawks ReformativeJustice plan. Since Judge Hawks return to the office this fall, she has workeddiligently in creating, planning, organizing and implementing this program. I haveworked with her as she organized the program, hosted meetings regarding theprogram, and set the final plans for the program. She has guided me onunderstanding the issues that need to be considered in creating and running asuccessful SET program. I have participated in meetings where she thoroughlyexplained the process of SET and how cases will matriculate through the Mental

Health Division. She has been instrumental in the reformation of the Mental HealthDivision. The four divisions that I supervise are functioning at a very high level.4

Patrick Kirlin, Administrative Chief of Division C, including the Organized CrimeDivision, the Specialized Crime Division, the Gang Unit, and the Community ResponseTeam:

I have been with the Dallas County District Attorneys Office since 1987 I wasunaware of any personal conflicts between D.A. Susan Hawk, Jennifer Balido andCindy Stormer, but I can say that since Judge Hawk took office, whatever personalconflicts existed, they did not interfere with the day to operations of the DistrictAttorneys office.

Sometime in the Summer of 2015 I became aware that Judge Hawk was seekingtreatment for depression. Judge Hawk returned from that treatment in early October2015. Since that time, the functions of the office and the duties of the DistrictAttorney continue to be properly fulfilled as they were before.

Since her return, I have interacted with Judge Hawk in administrative meetings andhave found her to be relaxed, aware, articulate, goal-driven and conducts businessin a very professional manner.5

3Exhibit 3.4Exhibit 4.5Exhibit 5.

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Jeremiah Varney, Administrative Chief of Division D, including Family Violence Divisionand six Felony Courts:

I began work with the District Attorney's Office in 2004 In October 2015, JudgeHawk asked me to serve as the Administrative Chief of Division D, which includes

the Family Violence Division, and 6 Felony Trial Courts. Since that time, I havehad the opportunity to have many more interactions with Judge Hawk bothpersonally and professionally. In that time, I have found her to be extremelyengaging, focused, and driven about the goals she has for the District AttorneysOffice.

I have seen her push with passion for initiatives internally and in the communitythat I believe will make this Office one of the best in the country. She has beenupfront about any past issues, and I have only witnessed an involved and energeticleader in the time I have been in an administrative role. Personally, she has alwayshad kind words and greetings every time I see her. She has on more than one

occasion mentioned our shared background in being from Arlington, Texas, andhas been extremely welcoming in my transition to Administration, making sure toask how my adjustment has been. Judge Hawk is both competent and fit to serve asthe leader of the Dallas County District Attorney's Office, and I have enjoyed mytime working with her.6

Kendall Castello, Financial Administrative Chief (Cindy Stormers former position):

In my role as Financial Administrative Chief, I provide advice and guidanceregarding expenditures and purchases made by the District Attorney's Office. TheDistrict Attorney, or any staff member, may approach me to request a specificexpenditure. I then research the expenditure to determine if it is an allowableexpense. This process may involve researching the rules that govern differentfinancial accounts within the District Attorney's Office. There is nothinginappropriate or unusual about anyone, including the District Attorney, making arequest. Judge Hawk has followed any advice I have offered regardingexpenditures.

Beginning in June 2015, the District Attorney's Office began escrowing many ofits accounts. This escrow process increases transparency by requiring approvalfrom the Dallas County Auditor's Office to make any expenditure from an escrowedaccount. This was an unprecedented step toward transparency by the DistrictAttorney's Office. Nevertheless, Judge Hawk has consistently asked about ways tofurther increase transparency including an idea to post all expenditures online.

Since her return from treatment, Judge Hawk has been highly competent in her roleas the District Attorney. She has tried a case to a jury, conducted multiple town hallmeetings, established new and innovative diversion and protective order programs,

6Exhibit 6.

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answered questions in Commissioners Court, given numerous interviews to media,and contributed to or led many meetings. In her current condition she is capable ofleading this office well and desirous of doing so.7

Dewey L. Mitchell, Administrative Chief of the Misdemeanor Division:

I have worked as an assistant district attorney in the Dallas County DistrictAttorney's Office since March 2003 believe that the Dallas County DistrictAttorney's Office is currently functioning at a very high level. The assistant districtattorneys are pursuing justice and upholding the laws of the State of Texas withsome of the greatest proficiency and ability that I have seen in my entire career. Ibelieve the morale of the office to be high. I also believe the administrations focus,under Judge Hawk's leadership, to be clear and consistent.

My observations of the way cases are being handled, prosecutors are being trained,and policies are being thought out and implemented have only been impressive. I

believe the citizens of Dallas County are currently being represented with thehighest level of professionalism by their elected District Attorney, Judge SusanHawk.8

Lori L. Ordiway, Administrative Chief of the Appellate Division:

From August of1992 until May of 2007, I was an Assistant District Attorney in theDallas County District Attorney's Office, exclusively practicing in the AppellateDivision, and from December of 1999 until May of 2007, I served as Chief of thatDivision. In February of 2015, I returned to the Dallas County District Attorney'sOffice to again serve as Chief of the Appellate Division.

The District Attorney's Office is currently operating at an exceptionally highlevel

Since DA Susan Hawk has returned in October from treatment, she has performedin an exemplary manner. She is a passionate advocate for the District Attorney'sOffice; she leads by example, having prosecuted a murder case in which sheobtained a guilty verdict and the maximum sentence allowed by law; she issupportive to every attorney in the Office, scheduling brown bag lunches with thenewer attorneys in order to get to know them and encourage them on their paths inthe District Attorney's Office; she has given several presentations and had town hallmeetings (that I personally have attended) in which she both speaks about the Officeand listens to the needs and desires of the citizens of Dallas County; she is positiveand warm, yet strong and sure in her identity as the lead prosecutor for DallasCounty; she is absolutely qualified to serve in her position due to her previous eightyears in the Office as an Assistant District Attorney prosecuting countless child

7Exhibit 7.8Exhibit 8.

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abuse cases, almost 12 years sitting as the elected Judge for the 291st JudicialDistrict Court, and her thorough knowledge of criminal law; and, most importantly,she is immensely dedicated to the District Attorney's Office and serving the citizensof Dallas County.

I see DA Hawk on a frequent basis, and I can say firsthand that DA Hawk eats,sleeps, and breathes this Office. She loves her work, and that devotion has madethis Office a model District Attorney's Office that stands as a shining light forDistrict Attorney's Offices across the country.

Accordingly, I totally oppose DA Hawk's removal from Office. As explainedabove, she is passionate about and dedicated to serving as Dallas County's DistrictAttorney. She inspires those of us who work for her to be like her, that is, to leaveno stone unturned in seeking justice, to protect the victims of crime, and to simplydo what is right. It would be a complete disservice to the citizens of Dallas Countyif DA Hawk were removed from Office.9

Russel H. Roden, Administrative Chief of the Civil Division:

In my position as Chief of the Civil Division, I have the opportunity to interactwith, and report to, District Attorney Susan Hawk. After Judge Hawk's return to theoffice in early October, I have participated in meetings with Judge Hawk and othersas well as in one-to-one meetings for the purposes of county business. During thistime period, I have also witnessed Judge Hawk address the Dallas CountyCommissioners Court on matters relating to various programs and staffing of theDallas County District Attorney's Office. In each of the aforementioned meetingsand presentations, Judge Hawk has been attentive and focused on the issues at hand,has expressed an understanding of the issues, and has provided meaningful andappropriate decision-making skillsIn each of the instances of which I havewitnessed above, Judge Hawk has presented with a calm, poised, and professionaldemeanor and has demonstrated competence in the handling of her duties as DistrictAttorney.10

Ellyce Lindberg, Administrative Chief of the Grand Jury and Intake Division:

I have been an Assistant District Attorney for the Dallas County Criminal DistrictAttorney's Office since January of 2000 Since Judge Hawk returned to work inthe beginning of October 2015, I have personally seen her shine as a leader and asthe District Attorney. Her positive transformation from earlier in the year isnoticeable, and the drastic improvement has been impressive. Whether during one-on-one meetings, larger group meetings, or small casual inter-office encounters,Judge Hawk has been lucid, clear, and peaceful.


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With her clear and open mind, she has initiated new diversion and specialtyprograms within the office, which she personally created, which will benefit thecitizens of Dallas County by aiding the community in addressing crime in a moreeffective and efficient way.

At this point in time she consistently demonstrates all the qualities of a talentedleader, while her demeanor is both sharp and simultaneously relaxed. Sincereturning to work I have seen nothing that would make me question her competenceto do her job. She makes wise decisions, has thoughtful insights, and conducts herbusiness in an extremely professional manner. I could not imagine a better personto serve as the Dallas County Criminal District Attorney at this time.11

Danl Simpson, Executive Administrative Assistant to the District Attorney:

I have worked at the Dallas District Attorneys Office for 29 years and have workedin 5 different administrations. I would like to start by saying Susan Hawk and I

have known each other since she started with the D.A.s office as an intern. I havewitnessed Susan grow as a prosecutor, Judge and D.A. She is an extremely smartwoman with great ideas for the office. We are extremely lucky to have such atalented woman as top prosecutor of Dallas County.

Many of the statements made by Ms. Stormer about demands for payment fromSusan are misstatements. I was the one that would come to Ms. Stormer withquestions, not demands. It is my understanding that was Ms. Stormers job asadministrative attorney to advise. Sometimes I would inquire what the possibleoptions were before speaking with Susan so I could advise her of her options. Thiswas as a continuing effort to be a good assistant and friend to Susan. It isunfortunate to have my questions to Ms. Stormer be twisted into demands comingfrom Susan

I have seen 4 other District Attorneys in action and, since Susans return to theoffice, she is as good as any of them.12

As this Court can see, the overwhelming evidence from the current leadership of the Dallas

District Attorneys Office is that Susan Hawk is presently functioning appropriately, and the Office

is functioning at the high level as it did throughout the time period DA Hawk sought treatment.

While there is no grounds for Ouster, there is certainly no grounds for temporary removal or

evidence that there is harm to the County. On the contrary, as Kevin Brooks, the Felony Bureau


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Chief avers, the harm would occur from DA Hawks removal: If Judge Hawk were to be removed

at this time, I can't emphasize enough how damaging that would be to operation of that Office and

to the morale of those ADAs in the Court Rooms.13

None of the Affidavits attached to the States Second Amended Petition describes any

events after DA Hawk sought treatment, and they cannot speak to the current functioning of the

DAs office from personal knowledge. The State offers no legally and factually sufficient basis

to permit the Court to conclude there is any need to suspend DA Hawk. All of the evidence shows

that such action is unnecessary.

C.

The States additional reasoning, that expected witnesses need a temporarysuspension, is logically flawed and would in effect require temporary removal in all

ouster proceedings.

In its request, the State claims that:

[S]uspension is also necessary because the prosecution of this matter will require sworntestimony from, and the production of evidence by, many employees who currently workunder the Defendants supervision. The prospect of producing evidence against theiremployer would undoubtedly place these employees in an untenable position.

DA Hawk denies that the employees would be in an untenable position. The Dallas Criminal

DAs office employs experienced prosecutors who are well equipped to handle difficult criminal

cases and unlikely to be intimidated by the prospect of being asked to tell the truth.

Setting that aside, the logic of the States contention would mandate suspension in every

case. In every ouster proceeding, the subordinates and co-workers of the targeted elected official

will be witnesses. In every ouster proceeding, subordinates and co-workers of the targeted elected

official will still be working with and have to produce documents about the targeted official.

Therefore, if the States logic was well-founded, it would transform a statutorily discretionary

13Exhibit 2.

PAGE 17


18/53


19/53


Respectfully submitted,

/s/ Daniel K. Hagood

DANIEL K.HAGOOD

STATE BAR [email protected]

FITZPATRICKHAGOODSMITH&

UHLLLP

CHATEAU PLAZA SUITE 1400

2515MCKINNEY AVENUE

DALLAS,TEXAS 75201

TELEPHONE:(214)504-1133

FACSIMILE: (214)237-0901

W

ALLACE

B.

J

EFFERSON

STATE BAR NO.00000019

[email protected] W.ALEXANDER


[email protected]

J

ENNIFER

J

OSEPHSON


[email protected]

ALEXANDERDUBOSEJEFFERSON&

TOWNSENDLLP

515CONGRESS AVENUE,SUITE 2350

AUSTIN,TEXAS 78701-3562

TELEPHONE:(512)482-9300

FACSIMILE: (512)482-9303

/S/Charla G. Aldous

CHARLA G.ALDOUS

State Bar No. 20545235

[email protected]

B

RENT

R.

W

ALKER


[email protected]

H

EATHER

L.

L

ONG


[email protected]

ALDOUS\WALKER LLP

2311 Cedar Springs, Suite 200

Dallas, Texas 75201

Telephone: (214) 526-5595FACSIMILE: (214)526-5526

ATTORNEYS FOR THE HONORABLE SUSAN HAWK,

DISTRICT ATTORNEY FOR DALLAS COUNTY

PAGE 19


20/53


CERTIFICATE OF SERVICE

On January 7, 2016, I electronically filed this reply with the Clerk of the Court using theCM/ECF filing system, which will send notification of such filing to the following (unlessotherwise noted below).

Mark A. HaneyState Bar No. [email protected]. Kelly PulsState Bar No. [email protected] HANEY, P.L.L.C.300 Burnett Stret, Suite 160Fort Worth, Texas 76102Telephone: (817) 498-9911Facsimile: (817) 332-1333

/s/ Brent R. WalkerBrent R. Walker

PAGE 20


21/53

FFID VITOF MESSIN M DSON P MPILLONI

STATE OF TEXAS

*

COUNTY

OF

DALLAS

*

Before me, the undersigned authority, on this day personally appeared MESSINA MADSON

PAMPILLONIA who, being by me first duly sworn, on oath deposes and states as follows:

My name is Messina Madson Pampillonia. I am over the age

of

18 and have never been convicted

of

a

crime. I have personal knowledge

of

the statements contained in this affidavit and they are true and

correct.

I have served as an Assistant District Attorney since January of 2004. Judge Hawk promoted me to the

Administrative Chief of the Misdemeanor Division in January of 2015. Prior

to

this, I had only interacted

with Judge

Hawk on a professional

basis.

I

had two

jury trials assigned

to

her court in which she

presided.

I served at the Administrative Chief over Misdemeanor from January to April 1, 2015. During this

period I interacted with Judge Hawk on a weekly basis. She and Mr. Wirskye (who was the First

Assistant at the time) would often take part in our meetings with the new attorneys and address them

regarding their expectations as leaders of the office. Judge Hawk gave impromptu speeches

to

the

attorneys that were eloquent, on point, and motivational.

I met with Judge Hawk and discussed her wishes

to

form a mentor program in late January or early

February. She requested a program that matched up young prosecutors with more experienced

attorneys. Upon draft ing a plan, I met with Judge Hawk and finalized the plan before implementation.

Judge Hawk and I discussed her meetings with the newly formed Law School at the University

of

North

Texas and her hopes to support the school and build a clinic program. Judge Hawk

has

continued

to

meet with the Honorable

Royal

Ferguson (who now serves as the

Dean of

the University) and has put

him in touch with Dewey Mitchell and me to draft a clinic program for young lawyers. Her motivations,

as expressed to me, were to promote learning in young attorneys, while using this opportunity

to

get

help in the over burdened misdemeanor courts at no cost

to

the county.

We conducted

an

intense round of interviews to fill a number of

entry

level positions. Kevin Brooks

and I were at all

of

the interviews. Both Mr. Wirske and

Judge

Hawk would make what interviews they

could. Judge Hawk was insistent that no one would get hired as a favor and wanted the hiring

committee

to

discuss the applicants candidly

to

ensure only the best applicants were offered positions.

Judge Hawk took part in the interviews. Her questions were appropriate and her demeanor was

professional. After the applicant would leave she would take part in the discussions and had insight that

was insightful and often similar to the rest

of

the panel.

At one point during my time as the Chief

of

the Misdemeanor Division I was reprimanded by Judge

Hawk for not following the chain

of

command. Information that was important was texted to Mr.

Affidavit of Messina Madson Pampillonia -

Page

1

Exhibit 1 - Page 1

PAGE 21


22/53

Wirske. Judge Hawk expressed her frustration wi th me for not following my chain of command (who

would have been

Kevin

Brooks) and for communicating in such a casual manner. She made it clear what

her expectations were. Her reprimand, demeanor and tone were all appropriate. Mr. Wirskye had a

much more casual way about him and

was

often walking around having small talk with prosecutors. He

was also a frequent user of texting. I understood this reprimand

to

be her setting her professional

expectations and reinforcing how

she

wanted to office to communicate. Later that night Mr. Wirske

called me to make sure I

was

alright. I told him that I

was

fine and that this

was

likely a lesson I needed.

I knew that Mr. Wirskye and Judge Hawk were struggling in their professional relationship, but did not

know the details. The only event

that

I witnessed

was

a meeting where she walked in and asked him to

step out. I could tell she was upset that she was not invited

to

the meeting but did not know anything

else.

I knew that Jennifer Balido had been assigned to the spot

of

Administrative Attorney after she had

already been given another job within the Public Integrity Unit. They were having a hard time f illing the

position and had offered it to a couple

of

other attorneys who had turned it down. It is an unusual spot

for

criminal attorneys and all those available would have

to

learn on the job. At the

time

my office

was

located on the other side of the building and did not have anything other than casual passing

conversations with Ms. Balido. I did not see her interact with Judge Hawk.

After

Mr. Wirskye was let go Judge Hawk called me into her office (Friday March 23, 2015) and offered

me the position as First Assistant. I explained to her that I would have to talk to my family. This would

be

a big commitment and not one that I would take lightly. She was gracious and said that she would

always expect me

to

put my family first.

I called her later that night and lef t a message. We did not speak until Sunday March 25, 2015. I told

her that I would take the spot she responded that she did not think I would and

had

started

to

speak

to

others. She asked that I give her some time

to

think it through. I responded

that

I respected that and

that either way I was proud of my

pOSitions

and happy to serve. That next day I started a

jury

trial on a

Capital Murder. Judge Hawk

was

respectful

ofthe

trial and always asked me to put that victim s family

first. Mid-trial she offered me the job and I accepted. On April 1 2015

she

presided over an office wide

meeting. Her remarks were appropriate. She named

off

all the staff and encouraged the office to

continue it s good work.

li s

we began our interactions

as

District Attorney and First Assistant there was a period

of

learning.

Judge Hawk likes to know everything going on in her office and feels it is her duty

to

be in the know

when

she

steps out in the community.

We

set up morning meetings where each morning I would brief

her on the office activities, important meetings and decisions

that

needed

to

be

made. We discussed

which meeting

she

wanted to be invited to and which she simply wanted to be briefed on. I began to

become familiar with which meetings needed to be planned around her schedule and which would only

be a part of her morning briefs.

li s I became acclimated Judge Hawk spearheaded many things. She reviewed applicants and set up an

interview with Patricia Cummings to become the head or our Conviction Integrity Unit. Ms. Cummings

Affidavit of Messina Madson Pampilionia -

Page

2

Exhibit 1 - Page 2

PAGE 22


23/53

has

proven

to be

exceptionally respected and was recently invited to take part in a discussion in

Washington regarding some of the recent concerns on forensic sciences. The interv iew

was

conducted

by Judge Hawk as well as the decision

to

hire Ms. Cummings was made by Judge Hawk.

We began to hold weekly meetings with the leadership team

that

Judge Hawk would attend and take

part in. These meeting did have tense periods. While it

was

clear that she

was

learning how to

be

a

District Attorney

it

was

also equally clear

that

she was

committed.

We created the Community Response Team

to

target those offenders that are repeated offenders and

abusive

of

the criminal Justice system.

Judge Hawk did struggle during this period. I knew that she was hurt by personal friendships that had

ended

with

her professional changes. We did not discuss these topics in detail. I had a professional

relationship

with her and never pushed to gossip about things

that

were not my business. I also knew

that

Judge Hawk

was

frustrated with some of her staff and was trying to ensure

that

the office had the

best people in leading roles.

Judge Hawk came in each morning by 9:00am and worked through the day. She attended community

events. She often came in

on

weekends. While she was extremely productive she was also struggling

as

a manager.

She was

not the best communicator in meetings.

She

felt like nothing she did

was

good

enough and that often people in meetings were not respectful. She knew that

she

was a topic

of

gossip

and that many people she counted

as

friends were now betting

on

her failure.

I often spoke to Judge Hawk about her good work, however she

was

greatly affected by what

was

going

on in the media and criticism.

On

July 29, 2015,

Judge

Hawk did not come into the office, but I spoke to

her

on

the phone. She

asked

if I would meet her at her friend Mari Woodlief's House the next day

because she wanted

to

take some time off. She asked if I would pull her calendar and bring it

to

the

meeting.

On July

30

2015 I pulled Judge Hawk's calendar and went to Ms. Woodlief's house. I did not know Ms.

Woodlief, but knew she was a close friend of Judge Hawk. We went over the calendar and made notes

as to who she would like to appear on her behalf. Judge Hawk explained that she

was

going to take

some time away and work to get in a better place. I remember tell ing her that I thought that was a good

idea. That

she

was doing really great things and needed

to

come back in a place mentally where

she

could

see

the good things and not just hear the bad. She did not say where she

was

going, nor did I

ask.

We made plans for how I should communicate with her. She explained she preferred I called and left

messages if I needed her and she would get back to me. She told me that Ms. Woodlief would be in

charge

of

the personal aspects

of

her life and I would

be

in charge

of

the office.

She

invited

me

to

call

her if I needed her. We went over her calendar and she assigned whom should appear on her behalf

and which meetings to cancel. We discussed what projects were currently in the works. She directed

me as to which projects

to

continue, whom

she

wanted involved in them, and which projects she would

prefer to have wait for her return. She requested that I discuss any media questions with Ms. Woodlief,

as

she was to

be

the media advisor while Judge Hawk was away.

Affidavit of Messina Madson Pampillonia - Page 3

Exhibit 1 - Page 3

PAGE 23


24/53

I left

that

meeting and talked

to

our head investigator, Randall Johnson, about making sure

that

we had

signed authority on all documents that were needed. I met with dif ferent administrative Chiefs and

scheduled them for appearances. Office activities continued.

On multiple occasions I met with Ms. Woodlief to deliver personal mail and discuss what office projects

were topics for press releases. At one poin t Ms. Woodlief told me about a check from the Comptroller

that

had been in a folder wi th personal papers. It was addressed

to

Susan

Hawk and appeared

to

be

personal mail. I returned the check to Cindy Stormer and she said Oh thank you, we have been looking

for this. At no point had Ms. Stormer expressed concern or even notified me that the check was

missing.

At another point I was notified

that

there was a new number

to

contact

Judge

Hawk. I had not had

reason to call her, but knew that I always had a way to reach her

if

needed. I later learned that the new

number was given

to

her by the Menninger Clinic

as

part

of

thei r requirements.

From April 1 2015

to

July 30,2015 Judge Hawk was struggling with her personal life, her friendships,

and management. At

no

point

had

she

ever shirked her responsibilities, avoided work, nor asked me

to

do anything unethical or questionable. Our relationship

was

professional and I understood that she

was

a woman with big ideas.

She

has always produced ideas and pushed the office to be better than it was

the day before. She was not perfect, however, even up

to

the point

that

she

took

a break

to

enter into a

treatment facility she was a hard working and faithful public servant.

In September I expressed to Ms. Woodliefthat if she was visiting Judge Hawk that I would also like to

do

so.

Ms. Woodlief made the arrangements and I took a vacation day September 4, 2015. We visited

Judge

Hawk in Houston. Prior to

my

visit Judge Hawk had requested what was needed in order for her

to go without pay for the remainder of her leave. I consulted our Administrative Chief in the Civil

Division, Russ Roden, and our Human Resource representative, Rhonda Frosch.

An

affidavit was drafted

in preparation for my visit.

My visit with Judge Hawk

was

a pleasant experience. I could see that she

was

truly working to get in a

bet ter place. She

was

more open about some of the struggles she had. She addressed some of her

insecurities and issues with trust openly.

This

was the most open and sharing discussion we had ever

had. She told me about her wishes

to

commit suicide that preceded seeking treatment. She told me

about her diagnosis of Major Depression and Anxiety Disorder.

She

was candid about the fact that this

was

something that

she

had struggled with throughout her life and would need to

be

managed from this

point going forward.

There

was

a clear change

in

her ability

to

recognize negative behavior in herself and communicate how

she would best serve herself in the future. She had made arrangements

to

get a notary

to

come for her

to

sign the affidavit.

She

made changes in the dates

of

her return. She extended her time without pay

in an

abundance

of

caution, stating she would rather return early and work without pay.


Exhibit 1 - Page 4

PAGE 24


25/53

During this visit I gave her updates on things going on at the office. I had brought brochures and

packets for dif ferent programs. Her discussions were consistent and appropriate to the topic. We also

discussed staff issues. I expressed to her

th t

I did not feel like Cindy Stormer

was

competent.

Ms. Stormer had let multiple bills go unpaid, minimized the affect it would have on daily functions

of

the office and I had moved some key personnel from her chain

of

command due to her treatment

of

them. Additionally,

as

the Chief Financial Advisor, it was her job

to

advise

on

how funds could be spent.

Any

casual

query seemed

to

fluster

Ms.

Stormer and did not instill any confidence in her ability

to

advise

the office

on

financial matters. Judge Hawk's decision

to

place both Federal and State Forfeiture funds

under Dallas County's oversight from the beginning

was

the only safeguard th t we were able to rely on.

Ms. Stormer

was

overwhelmed and

such

a poor communicator th t we often

had

meetings without her

during the budget process to try to compare notes on what she

was

requesting of the leadership team.

Judge Hawk knew

th t

I was not a fan

of

Ms. Stormer's due

to

her handling

of

a case with a Defendant

named James Boulware. Ms. Stormer had offered a conditional dismissal

on

a case with so many

alarming facts th t it

was

in my opinion, gross negligence. When Mr. Boulware shot up the Dallas Police

Department the Detectives contacted me asking why his previous

case

for felony assault, against

his

mother,

was

dismissed. I ordered the file from our records department. The records department

notified me th t the file

had

been recently checked out to Ms. Stormer. When I asked for the file I was

alarmed

by

the fact th t Ms. Stormer had not notified us of this issue herself. Judge Hawk and I

questioned her about the

case

and her comment was th t she had no idea about this storing guns and

body armor. This information

was

in the police report and should not have been over looked. She also

had not pulled the misdemeanor assault file out

ofthe

same transaction, nor contacted the

witness/family members of the Defendant and Complaining witness who was assaulted while protecting

the Defendant's mother (the victim of the felony assault). Had she done her due diligence, or even read

the entire report,

she

should have know about the weapons (documented in the report), th t the family

stayed in hotels after the offense

out of

fear

of

the Defendants threats

to

shoot people (in the police

report), and th t they were requested th t he

be

committed to a hospital because of

his

dangerous

behavior (notes in the misdemeanor file). After this event, I began to discuss with another

Administrative Chief, Carmen White, taking over the Mental Health Division. By September I

had

lost all

confidence in Ms. Stormer's ability to do her job

as

the Administrative Attorney.

In

my visit with Judge

Hawk in September she stated th t she would trust my judgment. I returned

to

Dallas and began to

meet

with

other members of the leadership team to determine if there was a place within the office for

Ms. Stormer. Each Administrative Chief within the Criminal Section, and the Felony Trial Bureau Chief,

Kevin Brooks, agreed th t Ms Stormer would

be

a liability wherever we placed her. After these

deliberations I made the decision

to

terminate Ms. Stormer.

Kevin Brooks and I had the conversation with Ms. Stormer in the morning on September 18, 2015. Ms.

Stormer

was

emotional and stated repeatedly This

is

going

to

be so bad for Judge Hawk. This

is

going

to

be

so

damaging. The comments were odd and afterwards Mr. Brooks and I discussed their

threatening nature.

I was the decision maker in Ms. Stormer's termination and I stand by th t decision.


Exhibit 1 - Page 5

PAGE 25


26/53

In October Judge Hawk returned to the office. After my visit with her on September 4,2015 we had

communicated regularly to update her on office events. Her firs t morning back she began by

participating in the weekly Administrative Meeting.

She

addressed our leadership team and then

addressed the press. From the moment that

she has

returned she has shown the same level of

commitment to the job, but has added better communication and management.

liOn October 4th Judge Hawk led a meeting

with

Lynn Richardson, the Public Defender in Dallas County,

two public defenders assigned

to

the mental health division, members

of

the probation department,

and mental health care professionals from etro care (Crystal Garland, Marilyn Buchanan and Dr. Judith

Hunter). During this meeting Judge Hawk outlined our new Mental Health Flow chart and discussed her

S.E.T.

program. This was the project

that

she spearheaded.

She

presented a complicated flow chart in a

precise and easy to understand manner.

Each

of these professionals would be able to comment on her

capabilities and are objective sources outside the District Attorney's Office.

liThe office

has

had many transitions in the last year, however, it

has

continued

to

adjust and improve.

Even when Judge Hawk was struggling the most, the office was competently managed. She is able

to to

serve

as

District Attorney and at no time did

the

daily operations falter because

of

her mental illness.

In terms of office production we have only increased production and efficiency. Jury trials are up 14%

from the same time last year, we have reduced cost per disposition by

50

per case this means that we

have spent 880,000 less than the previous year to dispose of the same number of cases. Our office has

obtained nearly

2

million

in

grant funding allowing

us

to double our

Sexual

Assault Unit and bring a

Protective Order Attorney and Victim Advocate to

the

Family Courts to assist Victims' of Domestic

Violence free

of

charge.

Judge Hawk has been back at the office for over two months. She is an active part of all decision

making and meetings.

She

is now bette r at delegating, however, we continue our morning meetings

and she has addit ional ly asked to

be

briefed on the agenda

for

our weekly leadership meetings the day

before. We share calendars so

that

she can pick and choose what meetings she will attend. We have

settled into our professional roles and the office is running extremely well. We are currently meeting

with the Leadership Staff to set

2016

goals and address how we can assist in their

success

both

in

their

goals and in our expectations

of

them. Morale is high. While this

has

not been a comfortable

experience for the leadership team, it

has

forged a strong relationship and the office has become closer

through the experience. We are now functioning better than ever.

FURTHER AFFIANT SAYETH

NOT.


Exhibit 1 - Page 6

PAGE 26


27/53

Subscribed and sworn to before me th undersigned authority on this 7

TH

day

of

January 2016

to

certify which witness my hand and official seal.

ELLEN CLESSEM

My

Commission

Expires

July 25

2 17

Affidavit

of

Messina Madson Pampilionia -

Page

7

Notary Public in and for the State ofTexas

Exhibit 1 - Page 7

PAGE 27


28/53

FFID VITOF KEVIN BROOKS

STATE OF TEXAS

*

COUNTY

OF DALLAS

*

Before me, the undersigned authority, on this day personally appeared

KEVIN

BROOKS who,

being by me first duly sworn, on oath deposes and states as follows:

My

name

is

Kevin Brooks. I am over the

age

of 18 and have never been convicted

of

a crime. I have

personal knowledge

of

the statements contained in this affidavit and they are true and correct. I

am

giving this affidavit freely and voluntarily.

I am the Felony Trial Bureau Chief for the District Attorney's Office.

In

that role I supervise the ADA's in

the 17 Felony District Courts and the 11 Misdemeanor Courts. I also help in the formulation

of

Policy and

Procedures for the District Attorney's Office. I have held this position since January

1,

2015.

I also was the Felony Trial Bureau Chief during the first 4 years

of

the Craig Watkins Administration.

Having served in that capacity for

two

elected District Attorneys, I think gives me perspective

that

others

don't

have.

I am aware

of

most

of

the events depicted in the Balido and Wirskye affidavits. Despite the personal

turmoil among and between Ms Hawk, Mr Wirskye and Ms Balido, the functions

of

the District

Attorney's Office continued uninterrupted. At no time were the duties of the

DA not

performed

Since District Attorney

Susan

Hawk's return, I can state unequivocally that the day to day operation

of

the office has never been smoother. The morale within the ADA's

is

very positive and high. If Judge

Hawk were to be removed at this t ime, I can't emphasize enough how damaging that would be to

operation

of

that

Office and

to

the morale

of

those ADA s in the Court Rooms.

I have also been present at

the two

Town Hall meetings

that

Judge Hawk

has

participated in since her

return. Her presentation and interactions

with

the Public

has

been nothing short of Professional. I

FURTHER, AFFIANT

SAYETH

NOT.

EVIN

OOKS

Affidavit of Kevin Brooks - Page 1

Exhibit 2 - Page 1

PAGE 28


29/53

Subscribed and sworn to before me the undersigned authority on this 7

TH

day o January 2016

to certify which witness my hand and official seal.

ELLEN L SS

M

My ommission Explrn

July

25 2017

Affidavit

o

Kevin Brooks -

Page

2

Notary Public in and or the State o Texas

Exhibit 2 - Page 2

PAGE 29


30/53

FFID VIT OF GLEN FITZM RTIN

STATE

OF

TEXAS

*

COUNTY OF DALLAS

*

Before me, the undersigned authority, on this day personally appeared

GLEN

FITZMARTIN

who,

being by me first duly sworn, on oath deposes and states as follows:

My name

is

Glen Fitzmartin. I am over the

age

of 18 and have never been convicted of a crime. I have

personal knowledge of the statements contained in this affidavit and they are true and correct.

I am an Assistant District Attorney at the Dallas County District Attorney's Office. I am currently the

Administrative Chief of Division A, which means that I supervise eleven felony courts and the thirty-

three assistant district attorneys that are assigned to my division. I have had the pleasure of working for

and have been promoted by the last

four

District Attorneys. I started in the misdemeanor division of the

Dallas County District Attorney's Office (DA's Office or office) in 1997. In 2002 I left the office from a

number

two

spot in the felony division

to

start my own law firm. In December

of

2005 I

was

appointed

by the Dallas County Commissioner's Court

to

fill the unexpired term

of

a vacated county court bench,

County Criminal Court 3. In 2007 I returned to the

DA's

Office as a number

two

felony prosecutor. In

2008 I was promoted to Chief of a felony court. In 2009 I was made the deputy chief

of

the

Misdemeanor Section. I returned

to

my role as a felony court chief in 2010 where I stayed unti l I was

promoted January 2, 2015, to my current role by Susan Hawk (Ms. Hawk) the newly elected District

Attorney.

I

am

giving this affidavit to give my account of the incidents I was involved in that are contained in the

State's Petition for Removal, and Motion to Suspend the Defendant from Office and Appoint a

Temporary Replacement Pending Trial and the supporting affidavits.

The State's Petition alleges, The defendant frequently made or attempted to make improper and

unauthorized

use

of

such

(restricted) funds to pay for personal political activities (such as associated

with the celebration of Martin Luther King Day in January of 2015.) This is false. In the weeks before

the Martin Luther King Jr. Day Parade Jennifer Balido (Mrs. Balido) who was the Financial Administrative

Chief came into my office and said

that

Ms. Hawk wanted the

DA's

Office

to

participate in the MLK

Parades. The office participated in these events in the past and I saw

it as

continuing the tradition. We

did not have a public relations department yet and the Community Prosecution Unit was being

dismantled. Therefore I took on this project. I got to work on the planning immediately. Another

Administrative Chief had a connection with the Garland Parade and

she

took point on that while I

organized the Dallas Parade. We decided to use a county vehicle and a county trailer. Another

employee was going to drive

his

personal vehicle to pull the trailer. I got with the organizers of the

parade and they were going to charge us $40 to enter the vehicles. As I recall I paid for this out of my

personal funds. This is not too unusual. Over the years I have paid for numerous items or events for the

office out of my pocket to avoid the nuisance of submitting for reimbursement. We were under time

constraints and decisions were being made fast.

Affidavit

of

Glen Fitzmartin -

Page

1

Exhibit 3 - Page 1

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31/53

I participated in this parade in the past and remembered handing out candy along the parade route.

brought this idea to Mrs Balido. I knew that some expense would

be

involved with this so as the

financial advisor I thought she should

be

consulted.

She

and Bill Wirskye, the then First Assistant,

agreed that we should pass out candy. I estimated two to three hundred dollars. Mrs. Balido approved

the purchase. Remembering

that

the office was being audited

for

Mardi-Gras beads purchased

by

the

previous administration for a parade, I asked Mrs. Balido if this was something the office could

legitimately pay for. She said that she would look into it and that ifthe office could not pay for it that

she would have access to Mrs. Hawk's campaign funds and that she would pay for it out ofthat I

asked

if this was a campaign event or an office event. I was concerned that if this was a campaign event that

we should not

be

using county resources

to

plan and execute it. She assured me

that

this was

an

office

event but if she did not think the money should come out

of

one of the office's account

she

would get it

paid though Ms. Hawk's campaign account. I viewed this as similar to my own out

of

pocket expenses

of

the past.

I bought approximately $250

worth of

candy. On Saturday Jan. 17,2015 we went

to

the Garland

Parade. Mr. Wirskye and Ms. Hawk were at this event. By the end ofthis parade we were out of candy.

I met with Mr. Wirskye af ter this event to discuss the Dallas Parade, which was to take place on Monday.

He told me to buy more candy for the Dallas Parade and that if needed he would reimburse me. I

bought approximately $300 more worth of candy. We went to the Dallas Parade and gave it all out.

The week after the events Mrs. Balido asked how the parades went. I told her how it went. She told

me

to

bring in the receipts, that she and Mr. Wirskye would reimburse

me

for the candy. I did not ask

about the campaign funds. I

said

that it was okay I would cover the cost. She

said

something to the

effect that her husband makes a ton of money and

that

she would cover it. Mr. Wirskye also asked

about the receipts. I brought them in later that week and they each

took

a receipt and paid

me out of

their personal funds.

None

of

these conversations occurred in front

of

or in conjunction with Ms. Hawk. It did not appear

that

she was orchestrat ing this. These decisions were made at the spur

of

the moment due to the time

constraints. As a new administration team we were all working together to do what we thought

was

best for the office.

As for any other financial misconduct allegations I have no first hand knowledge. I

can

say that Ms.

Hawk's policy

has

been

and

continues to be one of fiscal responsibility and transparency.

As

a new

administration team we have had

to

learn how

to

appropriately

use

the funds

that

are put in our trust.

have

had

occasion

to

ask Mrs. Balido, Cindy Stormer, Mrs. Balido's replacement, and Kendall Castillo

the new Financial Administrative Chief about the appropriateness

of

some expenditure requests. I

believe that it

is

their role to become the expert in this field and advise

us

including the District

Attorney, as to what

is

and what

is

not

an

appropriate expenditure or how things should

be

funded. I do

not believe these request, no matter who they come from, should

be

viewed as demands, rather a

fulfillment of their duties as an advisor. To my knowledge no inappropriate expenditure

has

been made

by this administration.

Affidavit

of

Glen Fitzmartin - Page 2

Exhibit 3 - Page 2

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The State's peti tion alleges, These haphazard personnel changes were unnecessary and unjustified,

and wasted valuable time, talent and experience./I I was involved in only one personnel change and

th t

was the decision to fire Cindy Stormer. I agreed with the decision. Ms. Hawk decided to promote Ms.

Stormer to the Financial Administrative Chief spot without consulting the Administrative Team, which

is

her pleasure. I was surprised but willing to keep an open mind. I started to become concerned early in

her tenure. We were entering in to our budget cycle. Ms. Hawk and Mr. Wirskye stressed th t they did

not want to ask the Commissioner's Court for too much in the way of increased expenditures for

personnel or equipment.

The

idea was

to asses

what we had, redistribute where necessary then

ask

for

additional resources where absolutely necessary. I saw this as another example of their policy of fiscal

responsibility. We had a meeting as a team

to

discuss our approach to this. Ms. Stormer's plan was for

us

to

submit

to

her our formal requests and th t

she

and Ms. Hawk and Mr. Wirskye would decide what

they would submit

to

Commissioner's Court. Filling

out

these requests is tedious and very time

consuming. We discussed th t the better plan would be for each of

us to

determine what we needed

for our respective sections of the office. We would then meet to discuss informally what we needed

and decide as a group what was the true needs for the office keeping in mind the directive of Ms. Hawk

and Mr. Wirskye. About a week later Ms. Stormer scheduled a meeting, but she did not show up to it.

Ms. Stormer scheduled another meeting, we thought this would be the time

th t

we would do our

informal discussion. Ms Stormer led this meeting and basically said to fill out the formal paperwork for

what we wanted and th t she would submit them. This was back to her first plan th t we all agreed was

the wrong method. After some confusing, non-committal statements about what she wanted she left

the room. The rest

of

the Administration team stayed behind shocked, confused and frustrated at what

we just heard. We decided to do or own informal discussion to decide what were the essential needs

for the office. This kept more in line with the idea of fiscal responsibili ty and efficiency.

I

was

involved in

other

conversations and meetings where Ms. Stormer gave vague answers about the

budget process and our spending abilit ies. I lost all confidence in her abilities. When Ms. Madson

consulted

with

me about her decision to fire Ms Stormer I told her I would support th t decision.

The State's petition alleges,

liThe

combination of these physical defects and addictions and these

mental defects help explain the Defendant's erratic and grossly careless behavior in 2015 While

she has

attempted to serve as the Criminal District Attorney of Dallas County, Texas More important, these

defects and the manner in which they have become manifest have rendered the Defendant unfit and

unable to discharge her official duties./I This

is

false. The State

as

far

as

I can tell

is

relying solely on

accounts of Ms. Hawk's behavior from before her treatment. I am not aware of their attempts to

investigate her actions after her return.

The

State alleges

liThe

prospect

of

producing evidence against

their employer would undoubtedly place these employees in

an

untenable position. The potential for

the possibility of

such

undue influence can

be

avoided only by the temporary suspension of the

Defendant as requested by the State./I To my knowledge the State has not reached out to any of the

current employees

to

ascertain the veracity of thei r own allegations. I know

th t

no one tried

to

contact

me. I was informed soon after this process began by Messina Madson, the current First Assistant,

th t

we were free to and encouraged to participate in this process as needed by anyone involved.

Affidavit of Glen Fitzmartin -

Page

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Exhibit 3 - Page 3

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I

have been in numerous meetings with Ms. Hawk before and after treatment . I

can

agree with a

number of the accounts of her erratic behavior prior to treatment. I did not know what was causing her

to

behave the way she was. Ms. Hawk and I were working on a case together. She

was

preparing

to

take the case to trial. This was a case th t I was very familiar with and I was getting her up

to

speed. I

could tell in our meetings th t she was easily distracted. It was a dif ficult position to be in to try to get

her

to

focus. She

was

comfortable with the legal concepts and

issues

th t we would face in the trial; her

vast experience had prepared her for that. It was getting her

to

focus

on

what was right in front

of

us

th t

I had diff icul ty with. I was always prepared

to

step in and take over the

case

if needed.

As

we got

closer

to

trial she called me in her office and told me that she needed

to

step away from the

case.

I told

her th t I was good with th t decision and th t I will resume my previous role

on

the

case as

lead

counsel for The State of Texas.

I was

in a number of meetings in the spring of 2015 where Ms. Hawk's actions were confusing or not on

point. Again I

was

at a

loss

for the cause of these actions. I knew her since 1997 when I started at the

office. I would watch her in trial and was friendly wi th her at work. When I was a defense attorney I had

cases

in her court. When I returned to the office I was never assigned to her court but I did handle some

cases

in front of her. But I had never dealt with her on a daily basis. I had no way to account for the

behavior I

was

observing leading up

to

her treatment. When I heard th t she was in treatment for a

mental illness it all started to make sense. Although this t ime did cause me personal anxiety it did not

affect my job performance. We

as an

administrative team for the most part kept working hard

to

the

best of our abilities. We continued Ms. Hawk's vision for the District Attorney's Office. I believe th t we

worked well under the leadership of Mr. Wirskye and Kevin Brooks, the Felony Trial Bureau Chief and I

believe we have continued to work well under the leadership of Ms. Madson and Mr. Brooks.

Since her return from treatment , Ms. Hawk

is

engaging, vibrant and focused. She had led meetings and

attended others contributing where necessary. I watched a good portion of a murder

case

she led and

noted

th t

she

was prepared, legally sound and very polished. Ms. Hawk

has

continued

to

implement

programs and

hawk's response to motion for temp removal

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