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Fact-checking ads in the race for DA

By Gabe Semenza
Oct. 28, 2010 at 5:28 a.m.


FINAL NOTE Why did the Advocate here analyze two allegations made about Branch, but only one allegation aimed at Tyler?

The Advocate focused this story on allegations made in political ads, a forum in which candidates cannot directly rebut claims. In the race for district attorney, Tyler simply made more allegations in his ads than Branch has in hers.

To report a questionable allegation made in a political advertisement linked to a local race, call Gabe Semenza, Advocate public service editor, at 361-580-6519, or e-mail gsemenza@vicad.com.

With an election only days away, some Victoria County candidates advertise potentially damaging allegations about opponents.

This is especially true in the race for Victoria County district attorney.

Here, the Advocate examines political ads by incumbent Steve Tyler and challenger Deborah Branch.

THE ATTACK

Tyler claims in a broadcast ad and elsewhere that Branch once dismissed a case against a suspect, who, once out on the street, then committed two aggravated sexual assaults and multiple aggravated robberies.

In dismissing the case, Tyler says Branch discounted input from the sexual assault victim's father.

THE SUMMARY

Authorities in 2005 charged Dennis Stone, then a 42-year-old Victoria man, with indecency with a child. Branch was a Victoria County assistant district attorney assigned to the case.

Branch dismissed the case against Stone because the victim, then a 12-year-old girl, and the victim's mother refused to testify, court records show.

"The complaining witness has requested dismissal," records note.

The victim's biological father, a police officer, was separated from the mother. The father testified years after the dismissal, during the punishment phase of a separate trial for Stone, that Branch told him he couldn't help with his daughter's case.

"She told me that I was not the custodial parent and that I didn't have any say so in the matter," the father testified, according to court documents.

Stone eventually pleaded guilty to two counts of aggravated sexual assault and multiple robberies, and Tyler's office persuaded the first child victim to testify.

Stone was nicknamed the Underwear Bandit because he robbed convenience stores while wearing underwear as a mask.

THE ANALYSIS

George Filley is a former 16-year Victoria County district attorney. His office prosecuted 9,300 felonies, 65 murders and 36,000 misdemeanors during his four-term stint.

Filley said it's common for victims - especially child victims - to refuse to testify for sexual assault cases.

That the case Branch dismissed lacked DNA evidence and eyewitnesses made prosecuting it without the victim's testimony "extremely difficult," Filley said.

"Many times, prosecutors are very reluctant to force people to testify," Filley said. "You'll lose the jury if you're perceived as causing the victim more pain by forcing them to get up on the stand. If the victim gets on the stand and doesn't testify, then the court could hold the victim in contempt. That's not a position anyone wants to be in."

During Tyler's first months in office, he declined 68 cases from January to August 2007 alone because victims refused to prosecute, according to an Advocate analysis of cases declined by Tyler during that period. The Advocate published that information in 2008.

Branch said she chose not to "re-victimize" the child by forcing her to testify and that she had no case without the testimony.

Tyler said the victim's outcry, the father's willingness to help and Stone's prior record were enough to prosecute. His office later persuaded the victim to testify, he notes.

The victim was 12 when Branch interviewed her; the victim was 17 when she testified for Tyler's office.

As for the father's claim that Branch refused his input before dismissing the case, she denies it.

Branch said she had no reason to tell the father his opinion didn't matter, and that just because he made those statements on the record doesn't make them true.

Without an audio or video recording of the exchange between Branch and the father, the Advocate is unable to independently verify this claim.

THE ATTACK

In ads, Tyler claims Branch is not the guard dog he is; she barks but doesn't bite, he says.

Tyler also suggests Branch lacks experience as a prosecutor. To support this, he says Branch presented only 23 felony cases before a jury during her years as a Victoria County assistant district attorney.

THE SUMMARY

Branch was a Victoria County assistant district attorney for seven years ending in December 2006.

While Tyler contends Branch was part of only 23 felony cases in which a jury was selected, the Advocate counts 30.

Additionally, 30 is the same number of felony cases Tyler brought before a jury during his four years as an assistant district attorney from 2000 to 2004.

To determine this, the Advocate searched the Victoria County district clerk's database for felony cases in which a jury was selected. The newspaper then found, within records, which prosecutors led the case.

In this respect, both Tyler and Branch boast the same number of felony jury trials - at least during the time period Tyler points to.

THE ANALYSIS

To create a level playing field, the Advocate aimed to compare Branch's assistant district attorney experience to Tyler's - during the period Tyler refers to.

To determine a fair yearly average comparison becomes difficult.

A straight comparison of Branch's 30 felony jury trials in seven years to Tyler's 30 felony jury trials in four years shows a 4.3 to 7.5 average-per-year difference, respectively.

But during Branch's seven years as an assistant district attorney, she spent a year away from the office for active military duty, and another nine weeks out while battling breast cancer.

If you subtract one year and nine weeks from her seven years in office, she prosecuted on average 5.2 felony jury trials per year compared to Tyler's 7.5.

If bringing felony cases before a jury is the sole measure of a prosecutor, Eli Garza, Tyler's assistant district attorney, garnered more experience than his boss during the past four years.

Since Tyler took office in 2007, according to court records, Garza brought 36 felony cases before a jury; Tyler brought 33.

Assistant district attorneys, of course, don't spend all their time prosecuting felony jury trials. Vanessa Heinold, one of Tyler's assistant district attorneys, boasts only six felony jury trials in Victoria County.

Assistant district attorneys prosecute narcotics cases, misdemeanors and felonies - and not all are done so in front of a jury.

Branch, for example, spent much of her final year on the job in Victoria County performing supervisory - and not prosecutorial - duties.

THE ATTACK

In Branch's ads, it is suggested Tyler does not get along with law enforcement. Branch could provide law with order, her ads suggest.

THE SUMMARY

Since Tyler took office in 2007, he maintained a contentious relationship with many local law enforcement managers.

For months, he refused to accept cases unless officers also turned in a signed affidavit - a rare request, by most standards.

Finally, a local judge said the courts were backing up, and she pleaded with both sides to hash out differences.

To add fuel to the fire, Tyler also indicted the police chief, a police sergeant, the former city attorney and the mayor, although a judge dismissed many of those charges.

THE ANALYSIS

The Advocate can't feasibly interview every single law enforcement officer and manager in the area - and then record whether or not each person feels they get along with Tyler.

To determine whether Tyler gets along with law enforcement, then, becomes difficult at best.

On one side, the Victoria Police Officers Association gave this year its first-ever endorsement of a local candidate - Branch.

On the other side, Tyler boasts a prosecutorial record, which he supplied, that is worth reviewing.

Since 2007, his office filed, in part, more than 3,000 felony and 9,000 misdemeanor cases, Tyler reports.

Tyler suggests this shows he gets along with others because filing cases requires cooperation between agencies and employees.

Finding the truth in political allegations, and in the counter-arguments, can be difficult. National experts, however, suggest they witness a pattern.

"The overall pattern we see from nearly every campaign ad is they take a germ of truth and exaggerate it or twist it in some way," Bill Adair, Washington bureau chief for the St. Petersburg Times, said in a Poynter Institute newsletter. Poynter Institute is a journalism school and think tank.

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