Opposing Counsel

County attorney candidate Mike Fleming brands his opponent a traffic-court jockey. Sylvia Garcia labels him a special-interest pawn. You be the judge.

Fleming earned a B.A. from the University of St. Thomas, where he met his wife, Natalie Jackson. (Interestingly, Natalie's sister is Lilly Warden, the former court clerk for Democratic judge Lupe Salinas who helped provoke a long-running and inconclusive prosecution of the judge for campaign report violations. An acquaintance of Warden claims that she bragged that her in-laws had helped push the investigation against Salinas. Fleming denies he played any role in the Salinas matter, and there's no evidence he did.)

After graduating from the University of Houston law school, Fleming went into private practice with his brother Harry. He has been sued once for breach of contract in his representation of a couple seeking to adopt a baby. The suit was dismissed, and Fleming describes it as frivolous litigation without merit.

Fleming joined the County Attorney's Office as a delinquent tax suit attorney nearly five years ago and quickly moved into the federal trial division. Assistant county attorney Terry O'Rourke describes it as one of the most sensitive assignments in the office, because in civil rights cases, potential damages against the county are unlimited.

County Attorney Mike Driscoll picked Fleming for perhaps the most volatile assignment of his tenure: prosecuting the removal from office suit Driscoll brought against county judge Jon Lindsay. Fleming handled a blistering deposition of Lindsay, repeatedly forcing the judge to admit to lies concerning his involvement with the corrupt developer and S&L scammer Robert Corson. Within the County Attorney's Office, that assignment established Fleming's reputation as an independent prosecutor who would not let his Republican allegiance stand in the way of pursuing wrongdoing. When Lindsay voluntarily chose not to run in 1994, the suit became moot.

Lindsay repeatedly charged that the suit was a Democratic plot, but Fleming insists, "I had no political motivation at all." Of the prosecution, he says simply, "Mike asked me to do it, and I did it." Would he have brought the suit had he been county attorney? "I think so," he replies. "If I didn't think there was any basis for the suit at all, that it didn't have to be some litigation of it, then I wouldn't have done it."

Driscoll also invited Fleming into a complicated environmental lawsuit involving the Sheldon Reservoir area, noting that he needed to be grounded in environmental concerns if he wanted to be county attorney. It's just one of a number of indications, say Driscoll subordinates, that the incumbent wants Fleming to be his replacement.

Perhaps the most emotionally taxing case Fleming handled was defending the sheriff's department policy of using deadly force to prevent the escape of prisoners, even if those prisoners were not jailed for violent crimes. In November 1988, two sheriff's deputies fatally shot Roland Brothers, a 28-year-old prisoner, three times in the back as he tried to escape from them at the downtown jail. Fleming defended the sheriff's department against a federal court challenge to its deadly force policy. A co-worker of Fleming says he was obviously troubled by the case. An anonymous note posted on his office door questioned how the attorney could in good conscience defend the policy.

"Terrible incident, but the issue involved is interesting," says Fleming. "The way I looked at it was, that was the only way they could stop him. And that was the sheriff's policy, and there was an argument whether that was legal. And that's the way I pursued it."

But was it right to shoot an unarmed, non-violent prisoner in the back simply because he ran?

"Like I say," replies Fleming with a trace of impatience, "it was a tragic circumstance. Okay? It's unfortunate that he had to be shot and he died. Terrible." As for being troubled by the case, Fleming is blunt. "I can't imagine anybody that wouldn't be troubled over the fact somebody had to be shot. As far as the issue itself, dealing with the legal issues of whether or not it's justified, is sort of separate from the circumstances of how unfortunate it was .... I didn't have any problem with defending the case, if that's what you're asking." Fleming won a summary judgment in federal court in Houston, and a split appeal before the Fifth Circuit. The Supreme Court refused to hear the case.

Perhaps the most surprising element of the campaign is the almost unbroken phalanx of support for Fleming from the Mike Driscoll-appointed staff at the County Attorney's Office. Part of their motivation is undoubtedly the feeling that Fleming, an insider, would not upset the office's status quo.

Driscoll business partner Jim Edwards contributed $5,000 to Fleming's campaign. Through a company spokesman, Edwards -- often described by intimates as Driscoll's closest friend -- says he's supporting Fleming because both are Republicans and because Fleming "pledged to maintain the practices and staff of the office as it's been under Mike."

Garcia has promised to make no major staff changes for at least six months, but allows that the office's management may need tightening up. She notes that when she asked Driscoll's first assistant Floyd for a printout of cases and contracts being handled by the County Attorney's Office, Floyd could not provide it. Garcia also says that when Floyd gave her a guided tour of the office, some employees appeared not to recognize the assistant.

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