After Oprah

The audience of The Oprah Winfrey Show was incredulous. Barbara Davis was telling them about the judge who had just let her husband's killer out of jail -- and she was defending him.

Winfrey explained the background: Michael Hubacek Jr., 18, had slammed into the Davis family's minivan on the eve of Thanksgiving, 1996. The crash virtually bisected the van, killing Davis's husband and their nanny. It almost killed Davis, too, who was catapulted across four lanes of traffic.

Police estimated Hubacek had been driving his Mustang Cobra convertible nearly 100 miles per hour on Westheimer. He'd stashed a half-empty bottle of Stolichnaya in the backseat, along with two emptied Miller Lites and a bottle of Bacardi. Hubacek said he'd had only two beers, but his blood alcohol content was twice the legal limit. Experts say that's more like 11 beers, in two hours.

Hubacek pleaded no contest to intoxicated manslaughter the following May and was sentenced to ten years in prison. But after six months in jail, state District Judge Ted Poe granted Hubacek shock probation.

Even then, Poe was famous for his shame-based "creative sentences." He claimed they helped to rehabilitate offenders -- and they didn't hurt Poe in getting media coverage, either. The punishments made for great TV: A teenager who stole a Nintendo game was forced to ring bells for the Salvation Army. The guy who stole pistols from actor Clayton Moore, famous as TV's Lone Ranger, spent 600 hours cleaning the Houston Police Department stables.

Hubacek's probation terms were classic Poe: four months at boot camp. He had to keep the victims' pictures in his wallet and speak to students about the dangers of drunken driving. Poe also ordered him to carry a sign telling people what he'd done. And Hubacek would do no driving for ten years.

The idea, Poe told Winfrey during the December 1997 show, was to get Hubacek to show remorse. The Hubaceks seemed to blame everyone but themselves: The boy's mother said in her deposition that she thought the wreck was Davis's fault. After all, she'd been eating french fries as she drove. Gina Davis, who was 13 when her father was killed, recalls that when Michael Hubacek finally sent the family a letter of apology, it referred to "Richard Davis." Her father's name was Steven.

Winfrey had introduced Poe as a judge who was "trying to make a difference." Poe, dapper in a navy suit and striped tie, smiled. But, Winfrey added, "many people feel six months is not enough time to serve for taking two lives."

The audience agreed. "If this was my father who was killed, I'd be furious," one woman said. "I hate to think that Texas would even allow this!"

But Davis leaped to Poe's defense. A petite five feet, with serious dark eyes, she explained that she'd originally wanted Hubacek to do a full year in prison, to be forced to spend Thanksgiving without his family.

"I lost my best friend for 22 years," she said. "I cry every day. But I want his life and death to have some purpose…And this will have more impact on other youth." Also important, she explained, were the terms: "A big one was him not being allowed to drive for the full ten years."

One woman asked who would see that Hubacek lived up to the agreement. Poe said his court would. Another asked if Poe had been merciful just because Hubacek was young.

"It depends on the facts of the case," Poe said. "It depends on the input from the victim. In this case, unlike many other cases across the country, I got input from the victim's family." He would make the point about "victim's input" three times more before the show ended.

But that "input" would quickly fade.

Four years later, Davis was at a bridal shower when another guest casually voiced her surprise -- Hubacek was driving again. Davis hadn't known that.

She was shocked. "It was like somebody stabbed me in the back," she says.

In time, she learned the details.

In January 2000, Hubacek asked Poe to amend his probation. He wanted permission to drive to work. (According to court records, he was working at his dad's business, just two miles from his home.) He also wanted to drive to community college and Alcoholics Anonymous meetings.

Poe never even contacted Davis.

He just said yes.

Three years after that, Hubacek asked Poe to let him remove the interlock device that prevented him from driving after drinking. He also asked to be allowed to travel outside Texas. If that was too much freedom, Hubacek suggested an alternative: permission to visit in-laws in Mississippi for one week.

Again, Poe never contacted Davis. And he didn't go for the more restrictive alternative. So long as Hubacek checked with his probation officer, Poe ruled, he could leave the state whenever he wanted. Davis learned of that new freedom only when contacted by the Houston Press last week. The Department of Public Safety says Hubacek now has no restrictions on his license, though Poe says he's kept the locking device.

Last January, Hubacek made his boldest request. He asked to be taken off probation entirely.

Finally, the judge said no. But it wasn't Poe who turned him down. By then, Poe had left the bench to run for Congress; the denial came from his successor, Judge Marc Carter.

Davis still has a scar that cuts across her chest, the outline of the seat belt that couldn't fully protect her. She wears her hair in bangs to hide the scar on her temple, although she displays it with little prompting. She talks to the county's DWI offenders once a month; her scars, she knows, help tell her story.

After the crash, she spent five days in the trauma unit at Ben Taub. She had a broken collarbone and sternum, crushed thighs and a torn rotator cuff. Her toes, fingers and hands were all fractured or broken.

She thought about killing herself. "I wanted to do it," she admits.

But she decided to live. "I was being so selfish," she says, crying a little. "I had been saved for some greater reason." She started speaking to drunk-driving offenders and was thrilled that Hubacek would be doing the same.

Poe had recruited Davis for The Oprah Winfrey Show. They even shared a limo on the trip. "And then he just dropped me in a crack because I didn't fit his purpose," Davis says.

By then, Davis's anger over the change in probation terms was old news. TV stations wouldn't take her calls. Attorney Stanley Schneider, who represented Hubacek, says probation officers complained about Davis: "She was constantly calling them, getting involved and wanting to know what was going on in Mike's life." And a spokeswoman for Poe suggests Davis has been "shopping" her story, as if she somehow hopes to profit from her grief.

Schneider acknowledges that the sentence "probably would not have happened" without Davis. But he can't understand why she's angry today: "The only story here is about a young man who succeeded."

Now 26, Hubacek still works for his father. He has a wife and child, Schneider says. "In seven years, he has not stubbed his toe, not spit on the sidewalk, not jaywalked. This is a poster child for what probation can do. No one can criticize Judge Poe for this. Not even Barbara Davis."

Poe resigned last winter to challenge U.S. Representative Nick Lampson, a Democrat from Beaumont, hoping to parlay a newly gerrymandered district and his reputation as a creative judge into a Republican seat in Congress. Davis tells her neighbors and everyone at her synagogue not to vote for him: "If he will lie and break a promise to a victim, what promises will he break to his constituents? He's totally self-serving."

But Poe says he has nothing to apologize for.

"The defendant had more conditions of probation than anyone I ever sentenced, and he's abided by all of them," he says. He suggests that Davis's criticism might be political: "I think it's suspect that she's now complaining, four years after the event."

In 1999, Jose Martinez, a 35-year-old El Salvadoran immigrant, turned too sharply on the Gulf Freeway. His 18-wheeler keeled over and crushed an SUV, killing a father and his three children. Their mother survived.

Like Hubacek, Martinez found himself assigned to Judge Poe. But unlike Hubacek, there would be no talk of rehabilitation or creative sentencing. A jury convicted Martinez of intoxicated manslaughter, sentencing him to 15 years in prison for each death.

It was Poe who twisted the knife: He decreed that the terms should run back to back instead of concurrently. Martinez would have to serve 60 years in prison.

Martinez was the breadwinner for an extended family and an aging mother in El Salvador. His blood alcohol content after the crash was .11 -- about half of Hubacek's.

Martinez is still doing time in Huntsville. Michael Hubacek has been rehabilitated.

Davis's daughter, Gina, is still angry. "I think [Hubacek] is the scum of the earth to make the decisions he did and take two people's lives. For him to be able to drive again -- that's a privilege he didn't deserve after abusing it." Gina, now 21, says she's learned her lesson: "You can never trust judges or politicians."

Poe says the cases were different. "Certainly Hubacek's remorse, and the input from the victim in that case, made it different." He doesn't seem to remember that, one year after the crash, he told Winfrey that he imposed Hubacek's creative sentence to trigger that remorse. "It's extremely different."

Then Poe repeats his line from The Oprah Winfrey Show. "None of this would have ever happened without the input of Barbara Davis," he says. His voice is pleasant, but completely without irony.

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