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Saturday, April 17, 2021

Dallas DA faces hearing on whether she’s unfit for office

DALLAS — Just a year after becoming the first female district attorney of Dallas County — and later admitting she struggled with mental illness — Susan Hawk faces a rare legal battle over whether she is fit to keep her job.

In a hearing Friday, a judge will hear arguments on whether the case, initiated by one of Hawk’s fired employees, can move forward – and possibly fuel debate over whether mental illness can be used to remove a public official from office.

The civil procedure pivots on a state law enacted in 1879, and rarely used since. It allows a private citizen to request a jury trial to determine whether an elected official has become unfit for office. The unusual case has left lawyers on both sides confounded.

“Some of the language is archaic – it uses the words ‘mental defect.'” said Douglas Alexander, an Austin attorney on Hawk’s defense team. “That’s not a term we would use today for depression or mental illness.”

“Frankly, we don’t know what exactly is going to happen,” said Patrick M. Wilson, the district attorney of neighboring Ellis County who was tapped to try the case. “We’re not even certain who has the burden of proof. Or which side goes first in court.”

Hawk’s attorneys are prepared to argue that the lingering stigma of mental illness has unfairly fueled the removal attempt, and that her condition should be viewed like a heart attack or cancer — health concerns that are treatable. If she had taken 11 weeks off to have chemotherapy or recover from heart surgery, her lawyers ask, would she be fighting for her job? Local mental health advocates have lined up in support of Hawk, opposing the ouster attempt.

“We’re dealing with a subject that makes people very uncomfortable,” said Alexander. “If Susan Hawk is terminated in this case, we’re essentially saying that she should be fired because she suffered from mental illness. What message does that send to other professionals who may encounter depression – that they should keep it under wraps? Not get treatment?”

Alexander said Hawk, a Republican, has received treatment and is able to serve, and that her mental health issues should afford the same protections outlined in the Americans with Disabilities Act, which prohibits discrimination against disabled individuals.

With all due respect to her mental health, Hawk’s opponents say, if she cannot do the job, she should step down or be removed.

Wilson argued in a 15-page petition to the court that Hawk has met the statutory definitions of “incompetency” and “official misconduct,” and asked that the judge allow the case to move forward to jury trial, and that Hawk be immediately suspended from her post.

In his petition, Wilson did not dwell on the causes of Hawk’s erratic behavior, he argued that she simply appeared incapable of doing her job. Voters had elected her to the high-stress position of overseeing roughly 450 attorneys, investigators and office staff responsible for prosecuting thousands of criminal cases every year, as well as managing an annual budget of about $50 million.

“This action is necessary to guard the public welfare and to protect the interests of the people of Texas,” Wilson wrote.

The hearing caps a tumultuous year for Hawk, whose secrets seemed to steadily leak out just weeks after she took office.

First, in early spring, Hawk forced out two top lieutenants, a public sign of an office in private turmoil. Then news broke that Hawk had spent a month in drug rehab during her campaign and had lied to cover it up.

Word spread across the courthouse that Hawk seemed wild-eyed, paranoid and delusional, convinced that political opponents were tapping her phone and following her. According to one former employee quoted in Wilson’s filing, Hawk ordered her to shut down her computer while they talked, saying “People can hear us.”

Then, in late July, Hawk disappeared.

Her best friend and political consultant told reporters that Hawk was on “summer break.” When Hawk finally resurfaced, she revealed that she had checked herself into a psychiatric hospital for treatment of severe depression. She confessed she had made plans to kill herself, first by overdosing on a bottle of Trazodone sleeping pills, later by strangling herself with a blow dryer cord.

After a two-month stay at the Menninger Clinic in Houston, Hawk returned to Dallas with prescription medications and a plan to reclaim her post as DA. She acknowledged that she had been paranoid as her mental health deteriorated, but said she stood by the decisions she had made on the job.

She worked to remind voters that she was still the woman they had elected to office, a highly regarded former prosecutor of the year, a judge who had championed mental health programs while on the bench, a seasoned lawyer who could effectively run the district attorney’s office, if just given a chance to get back to work.

Since her return in October, Hawk resumed her duties, appearing at a town hall meeting, and helping to prosecute a murder case.

Yet calls for her resignation — and questions about her mental state — persist.

Along with his petition, Wilson submitted another 37 pages of sworn statements from former employees at the DA’s office, several of them high-ranking, who recounted in detail their experiences with Hawk. They offer a disturbing portrait of a boss who appeared to have unraveled before their eyes.

Hawk’s former second-in-command, Bill Wirskye, wrote in an affidavit that he saw signs in late February that Hawk might be abusing drugs.

“When Ms. Hawk would enter my office and sit directly in the morning sun coming in through a window, her pupils were not responsive to the light. Her mood and demeanor was becoming almost exclusively agitated and manic. Her ability to grasp simple issues and concepts was diminishing. Ms. Hawk would fail to remember important recent events and important items of relevant information.”

Wirskye said Hawk began calling employees into her office for bizarre, disjointed conversations, where she would question their loyalty. Wirskye said he discussed with colleagues the possibility of staging an intervention, or possibly contacting the state bar, the governor’s office or the Texas Rangers.

Hawk and Wirskye had been friends for decades, and he had been one of her biggest supporters during the campaign. In March, shortly after Hawk accused Wirskye of breaking into her home and stealing a compromising photograph of her taking a shot off a bartender during a bachelorette party, she fired him. Hawk later said she did not believe Wirskye had broken into her home.

“I have no desire to injure Ms. Hawk or the Dallas County District Attorney’s Office,” wrote Wirskye, now a prosecutor in a neighboring county.

One fired division chief, a longtime prosecutor named Cindy Stormer, who initiated the action, wrote that she observed Hawk in a “floridly psychotic state or what appeared to be a drug induced psychosis on countless occasions.”

Stormer, who was in charge of finances, said Hawk seemed unable to comprehend basic concepts about how the DA’s office could spend money from its multiple accounts, regulated by various statutes.

Stormer says Hawk often ordered her to spend public funds in ways that Stormer believed were illegal – for example, to pay Hawk’s personal Rotary dues. Another high-ranking attorney who also had been forced out, Jennifer Balido, echoed Stormer’s allegations, saying she had paid some of Hawk’s expenses out of her own pocket – for repainting her office, buying candy to toss at a parade – because she feared breaking the law by using taxpayer funds.

Hawk’s attorneys filed a response on Thursday afternoon, arguing that the state’s case is a “stigmatizing and improper attack based on the notion that individuals suffering from depressive disorder cannot meaningfully contribute in our society.” Her lawyers go on to invoke the high numbers of lawyers who suffer from depression and addiction, arguing that, “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.” They cast the allegations against Hawk as “quibbling criticisms” and “inter-office personality conflicts,” and say the calls for her ouster are an attempt by disgruntled employees to overcome the will of the voters.

Hawk’s attorneys note that the state’s case rests on the testimony of five former employees, who have not been employed at the district attorney’s office for months. Instead, Hawk’s attorneys offered affidavits from 11 current division chiefs who insist the office is running smoothly and efficiently.

“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,” Hawk’s lawyers argue. “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.”

On Friday, those questions will be in the hands of state Judge David Peeples. Although these ouster cases are rare, Peeples, of San Antonio, has handled a few of them in recent years. The law contains a few provisions to protect public officials from frivolous attacks, and one of them requires a judge to sign off on the petition before it can even be served on the elected official. That’s what Peeples is scheduled to hear arguments about Friday.

If Peeples does not allow the case against Hawk to move forward, it’s over. His decision cannot be appealed. If he gives it the green light, lawyers will move into the discovery phase, toward a jury trial.

For the attorneys, used to the carefully choreographed scripts of courtroom procedure, walking into court on Friday feels like a trip into the unknown.

“I’m one of those people who usually has no discomfort whatsoever at talking about my odds on a particular case,” said Hawk’s lawyer, Alexander. “But on this one? I honestly have no idea. We’re walking into very lightly charted territory. It’s a head-scratcher.”

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