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 Legal Battle Won But War Ahead

Victim got a copy of record sought, but a second
lawsuit looms over new public information request

by Ken Martin
© The Austin Bulldog 2017
Part 9 in a Series
Posted Monday August 7, 2017 11:39pm
Updated Tuesday August 8, 2017 9:51am (to link to Settlement Agreement)

David EscamillaDavid EscamillaThe public information request that gave rise to a lawsuit in which Travis County Attorney David Escamilla sued Texas Attorney General Ken Paxton has been withdrawn. And with it the litigation over whether the County Attorney must provide the document at issue, as ordered in the AG’s open records ruling.

The matter was put to rest when a Settlement Agreement was reached today that allowed the requestor to have an unredacted copy of the Deferred Prosecution Agreement (DPA) the County Attorney entered into with her abuser.

Bill AleshireBill AleshireEscamilla declined to comment until a copy of the Settlement Agreement is filed. The Austin Bulldog filed a public information request for a copy of the Agreement and it was not immediately received. (It will be linked at the bottom of this story when obtained.)“We settled,” Austin attorney Bill Aleshire of Aleshire Law PC, told The Austin Bulldog in a telephone interview late yesterday.

The agreement requires the requestor not to publish or assist anyone in publishing the DPA. “But she may give it to her attorneys, counselor, or therapist. And it can be entered into any official court proceeding,” he said.

Tara CoronadoTara CoronadoThe ability to enter a copy of the DPA into court proceeding is important because the requestor, Tara Coronado, is in a custody dispute with her abuser and former husband over whether one of her four children will be sent to an out-of-state boarding school.

At the request of her attorney in that dispute, Coronado declined to personally comment on the Settlement Agreement.

One battle won, a war ahead

“This battle is a victory for Tara as a victim of family violence,” Aleshire said. “But it’s just a battle. There’s still a battle to be fought on next batch of public information requests when the county attorney sues the AG to prevent releasing copies of all family violence DPAs signed in the last couple of years.

Aleshire, on behalf of Coronado, on April 27, 2017, requested copies of each DPA executed with the County Attorney’s Office since April 1, 2015, in which charges against the defendant included domestic violence (assault).

The County Attorney referred that request to the AG for a ruling. The AG on July 18, 2017, ruled that some of that information must be released.

If the County Attorney  wants to challenge this ruling—and no doubt will want to do so given the scope of this public information request—he must file suit in Travis County within 30 calendar days, per Section 552.324(b) of the Texas Public Information Act. In this case his deadline is August 17.

According to statistics obtained by The Austin Bulldog through a public information request, over a 42-month period ending June 30, 2017, the County Attorney's Office on average signed 55 DPAs a month with criminal defendants involving family violence assaults. The period covering by Coronado’s latest request would involve about 1,300 DPAs.

What prompted this lawsuit?

Ed CunninghamEd CunninghamLate on May 10, 2013, Coronado was assaulted by her then-husband, Chet Edward “Ed” Cunningham, police records indicate.

He is a former professional football player who stands six-foot-seven and weighs 260 pounds. She is five-foot-nine and weighs 130.

She arrived at the Bee Cave Police Department about 1am the next day and told police she had been assaulted by her husband, police records state.

The Affidavit for Warrant of Arrest and Detention prepared by police states that she said he struck her on the right side of her face and dragged her along the driveway. Lacerations were visible on her right knee, left elbow, and right ankle. Her right eye was bruised and swollen. She had red marks on her neck and chest, and lacerations and bruises on her back that appeared to be more serious than the wounds on her face and legs. Police photographed the injuries. She was examined by EMS but refused transport.

Cunningham was charged with Assault Family Violence, a Class A misdemeanor under Penal Code 22.01(a)(1). Bee Cave Police Department records show that he was arrested by the May 24, 2013. The next day he posted a cash bond of $3,500. An emergency protective order was issued the same day.

Nearly three years later, on April 26, 2016, Cunningham and the County Attorney signed his DPA. Court filings in the County Attorney’s lawsuit against the AG stated that Cunningham’s DPA “contains his written confession.”

Assistant County Attorney Neha Naik sent emails to Coronado on April 8, 2016, and April 11, 2016, that contained somewhat different information about the conditions imposed on Cunningham by the DPA.

The first stated among other things that Cunningham’s DPA required “stay away/no contact with you except per court ordered child custody agreement.”

The second stated, The terms of the stay away/no contact are: “Ed is to have NO CONTACT with you through any means and to stay at least 200 yards away from you, except per the court ordered child custody agreement terms.”

Coronado said that when she participated in the County Attorney’s process leading up to the DPA entered into with Cunningham, she understood that he must stay at least 200 yards away from her, as stated in Naik’s second email. But when she provided video evidence of a violation she learned that the DPA required him to stay 200 yards away from her home and place of work. It did not otherwise restrict him from being near her.

Coronado said that she needed a copy of the actual DPA so she would would be certain of the specific terms of Cunningham’s restrictions and be able to notify the County Attorney if those conditions were violated.

After two of Coronado’s public information requests for a copy of the Cunningham DPA were rebuffed, a lawyer on her behalf filed a public information request July 12, 2016, to get a copy of it along with other information related to the criminal case.

In response to Coronado’s third request for a copy of the DPA, the County Attorney asked for a ruling from the Texas Attorney General. The AG ruled that a copy must be released to her. The County Attorney sued the AG to contest the ruling, as provided for in the Texas Public Information Act.

That was the matter pending before the court in County Attorney David Escamilla v. Texas Attorney General Ken Paxton (Case No. D-1-GN-16-004769), which is now moot.

The whole point of filing the lawsuit was to prevent release of the information that—by the Travis County Attorney’s longstanding policy and even previous AG rulings—would never be made public.

In court filings in the case, the County Attorney asserted that releasing the DPA “will interfere with prosecution of crime because it could result in a violation of Mr. Cunningham’s due process right to a fair trial.”

Why this case is important

The case is significant because the publicity surrounding it, including reports by both The Austin Bulldog and the Austin American-Statesman, made the public aware that the County Attorney has a policy of entering secret deals with criminal defendants in a program that lacks transparency and public accountability.

Aleshire, who got no attorney’s fees from the settlement agreement, said, “This open government case for Tara Coronado Cunningham has caused me to be deeply concerned about whether, in family violence cases, the County Attorney’s Oath “to see that Justice is done,” includes enough protection of victims as opposed to the sweetheart deals these secret DPAs give criminal abusers. I know for a fact, that in this case—until this settlement today—the County Attorney had not accurately or completely revealed the terms of the Cunningham DPA to Tara. It is unconscionable to ask victims to endorse a prosecutor’s deal with their abuser and mislead them about the complete contents of that deal.

“I honestly don’t know if there is sufficient justification for this DPA prosecution tactic, but there is zero justification for keeping secret from victims the Agreements the prosecutor makes with defendant abusers. Apparently, the County Attorney’s DPA program has never been subject to a performance audit or even rudimentary reporting of insightful statistical reports.

“Secret dealings in the criminal justice system will never be justified, and I’m committed to fighting it for as long as I can. … County Attorney Escamilla will sue the Attorney General again to try to keep secret every DPA he has signed in family violence cases in the last two years instead of following the AG ruling and disclosing those agreements or any part of them.

“I relish the war ahead for transparency, and am delighted that Tara now has a copy of the deal the County Attorney cut with her abuser. The rest of the family violence victims deserve no less.”

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit for investigative reporting in the public interest. You can help support this independent coverage by making a tax-deductible contribution.

Links:

Assistant County Attorney Neha Naik Emails Regarding Terms of Deferred Prosecution Agreement, April 8 and 11, 2016 (2 pages)

Bee Caves Police Department Records regarding Tara Coronado’s Assault of May 10, 2013 (12 pages)

Settlement Agreement of Travis County Attorney and Tara Coronado, executed August 7, 2017 (2 pages)

Related Bulldog coverage:

Must Deferred Prosecution Deals be Secret? County attorney denies victim of domestic violence right to see the deal her abuser got, July 5, 2017

County Attorney Escamilla Wants to Close the Courtroom, Seal Records: ‘The Austin Bulldog’ intervenes to oppose this unusual action to deny public access, February 25, 2017

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