Judge who was vindicated in e-mail controversy faces possible misdemeanor DWI count

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by By DEBRA DENNIS / The Dallas Morning News

wfaa.com

Posted on August 15, 2009 at 4:44 PM

Updated Friday, Oct 16 at 11:48 AM

FORT WORTH - When state District Judge Elizabeth Berry was accused of writing a racist e-mail this year, lawyers and friends offered support as the allegations made their way through court.

Many of those supporters followed her from Tarrant County to a Dallas courtroom, where she was vindicated after all sides conceded that the e-mail was a fake.

But now the popular criminal judge has found herself awash in another public relations debacle, this one with possible career-threatening consequences.

Alvarado police said they clocked Judge Berry last Saturday driving her gray Volvo SUV at 92 mph in a 65-mph zone. When she was pulled over, an officer detected the odor of alcohol on her breath and saw beer cans - some of them empty - in her car.

She refused to cooperate on a field sobriety test and was taken into custody under suspicion of driving while intoxicated, said Alvarado Police Chief John Allen. She refused to submit to a Breathalyzer test, so authorities obtained a warrant to take a blood sample, Chief Allen said.

Judge Berry declined requests for an interview but issued a statement this week in which she indicated she would not step down and would continue hearing cases in her court, where she has presided since 2003.

Her attorney, Mark Daniel of Fort Worth, also declined an interview but in a statement said his client eventually would be exonerated.

"Judge Berry is a very highly respected judge," Mr. Daniel said. "We are presently doing our own investigation. It is my belief that this matter will likely be determined to be unfounded."

Judge Berry, 43, could face a misdemeanor charge when the blood tests are returned, officials said. The results are expected next week, and Johnson County officials will decide then whether to pursue the DWI charge, which is a misdemeanor.

But a misdemeanor conviction does not warrant immediate removal from the bench, as a felony would, said Seana Willing, executive director of the Commission on Judicial Conduct in Austin.

"Judges are put on a pedestal, and people forget that they are human beings," Ms. Willing said. The state has filed no charges, and the judge is presumed innocent, she said.

"The commission looks at these types of incidents seriously," she said. "But they also weigh the fact that it's an arrest and no charges have been filed and no case has been proven."

Following agency policy, Ms. Willing refused to say whether a complaint has been filed or the commission has launched its own investigation.

The Tarrant County district attorney's office could decide to pull cases from Judge Berry's court pending the outcome of the case, but most legal observers do not believe that will happen. Robert Gill, deputy director of the Tarrant County district attorney's criminal division, declined to comment.

Defense attorney Trey Loftin said Judge Berry, a former Tarrant County prosecutor and defense attorney, should continue to enjoy her reputation as a fair-minded jurist.

"Elizabeth Berry has the capacity to separate herself from her personal turmoil including her DWI and continue to be a judge," he said. "DWI is not a crime of moral turpitude. DWIs are quasi-crimes in that there is no intent. This will not disqualify her to sit as a judge or to practice law."

Judge Berry, a Republican, is up for re-election in 2010. Even before her arrest, there had been murmurings in some Tarrant County courthouse circles that she might face opposition from within her own party, as well as from Democrats.

Tarrant County Republican Party Chairwoman Stephanie Klick declined to comment this week about any potential challengers to Judge Berry's bench, saying it's too early to speculate on the judge's future.

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