Violating the public trust
The longtime Rockwall County Criminal DA was convicted in two trials of theft by a public servant and several other charges. Here, the special prosecutors who tried the cases tell how they did it.
It is not your typical day when the district attorney walks into your office and informs you that you will be prosecuting the neighboring county’s DA. Right after “Yes, sir” leaves your mouth, you wonder where this assignment might lead you.
Rockwall County Criminal District Attorney Galen Ray Sumrow had been indicted only weeks before by a Travis County grand jury for abuse of official capacity concerning $68,000 of apportionment funds (state money provided to cover office expenses) he diverted into his personal bank account. Our job was to investigate separate allegations that Sumrow embezzled from his hot check fund to reimburse himself for trips he never made and for airline tickets he bought his girlfriend to travel to TDCAA’s Annual Update. Little did we know that 16 months later, after conducting a grand jury investigation in Rockwall, analyzing 22,000 documents, and enduring five weeks of litigation in two separate trials with 37 witnesses and more than 300 exhibits, Ray Sumrow would be on his way to prison in Huntsville.
Sadly, public corruption is so frequent in our society today that we seem to have become desensitized to hearing about yet another corrupt politician. But this time it was different. It was one of us—not only an elected official, but a man who swore to uphold the Constitution, seek justice, and prosecute those who break the law.
Galen Ray Sumrow (he goes by Ray) seemed an unlikely target of an investigation. He was the longtime criminal district attorney for Rockwall County, who before that served as a police officer. Sumrow was first elected DA in 1985. Throughout his tenure, he accumulated many honors, among them State Bar Prosecutor of the Year in 2001. He also served on the TDCAA board of directors and as president of the board in 1996; additionally, he sat as chairman of the board of trustees of Lake Pointe Medical Center in Rockwall. One thing was clear: We knew our evidence had better be strong before any case was filed against Ray Sumrow.
Sumrow’s downfall was linked to a 2006 criminal investigation into Rockwall County Treasurer Sheree Jones. Jones stole over $3,000 of public money which she used to pay her mortgage. After the money was discovered missing, the county sheriff’s investigators confronted her and she eventually confessed. During her interrogation, Rockwall Chief Deputy David Goelden asked, “Is there anyone else in the county that you know of that is engaging in criminal’s activity?” Her answer: “You need to look at Ray Sumrow.” Deputy Goelden told Jones that when her case was over, he would revisit her revelation about the DA.
Sumrow’s office prosecuted Jones for abuse of official capacity (ironically one of the same charges that would ultimately be filed against Sumrow himself). Once Jones was indicted, she resigned from office, pled guilty in an open plea, and was placed on deferred adjudication. In the wake of her plea, Sumrow was quoted in the Dallas Morning News: “It’s a blight on us all. All public officials, myself included, should realize that they take an oath, and they have a responsibility to live up to that oath.” Sumrow also stated, “As officeholders and public employees, we’re entrusted with those funds and have a duty to see that they’re handled appropriately.”
After disposing of her case, Jones returned to the sheriff’s office to tell investigators that in 2003 and 2004, Ray Sumrow diverted $67,980 of state comptroller apportionment funds into his personal bank account.1 The state comptroller had been encouraging offices to use a new direct deposit system, and Sumrow filled out the direct deposit form so that state apportionment funds would go into his personal bank account starting in December 2002. The county was finally alerted to his misappropriations in 2004 when an outside auditor noticed the funds were missing and Treasurer Jones was tasked with locating the funds. In May 2004, Jones asked Sumrow if he knew anything about the missing money, and Sumrow denied any knowledge, telling Jones he would “look for the checks,” as if they had simply been misplaced or lost. Within a few weeks, Jones determined that the missing money had been direct-deposited into Sumrow’s personal bank account. She asked him to return the money, to which the DA offered excuses and promises to pay it back: “It was a banking error”; “it was the comptroller’s fault”; “the bank is going to send the money back.” It was excuse after excuse.
Start of the investigation
After Jones told Chief Goelden about the apportionment funds and her case was disposed of, Rockwall County Sheriff Harold Eavenson decided to include outside law enforcement agencies in the investigation. Texas Ranger Chris Clark and FBI Special Agent Brent Chambers responded to help. Because of the obvious conflict for the Rockwall County Criminal District Attorney’s Office, investigators turned to the Travis County District Attorney’s Office, which had venue over the apportionment case because the funds were sent from the state comptroller in Austin. Gregg Cox, the chief public integrity prosecutor for that office, agreed to examine the case, and he started to subpoena bank records.
Meanwhile, on February 8, 2007, Ranger Clark and Special Agent Chambers visited Sumrow at his office. Sumrow, who knew both men, gave them statements that we later used in court to show he was lying to investigators. (Unbeknownst to Sumrow, Ranger Clark had a digital tape recorder in his shirt pocket and recorded the conversation.) Sumrow said he knew of only one errant direct deposit but didn’t know why or how the money got into his account. Once Sumrow learned that there was money in his account, he said he called the comptroller’s office and “ate that lady’s *#% out” for the mistake. At the end of the interview, the investigators gave Sumrow a letter from Mr. Cox, inviting him to testify before the Travis County grand jury on April 10, 2007.
The day after his interview with Chambers and Clark, Sumrow borrowed a key to the county storage barn and secretly moved computer parts and electronics components from his house to “hide them in plain sight” in the barn. About two weeks later, the pile of 58 computer parts was discovered and Chief Goelden was able to match 11 parts to those purchased at Fry’s Electronics with DA hot check fee funds. Among the items found was a hard drive purchased in 1999 that appeared to have been used exclusively by Sumrow’s daughter and his girlfriend for non-governmental purposes.
This wasn’t the only action Sumrow took after he discovered an investigation was underway. Within two weeks of the meeting with Chambers and Clark, Chambers took Sumrow’s office computer to Rod Greg, Senior Forensic Examiner for the FBI in Dallas, who discovered a program called Evidence Eliminator, an electronic file-shredding program that obliterates files so they can never be recovered. Further investigation showed that within a week of Ranger Clark and Agent Chambers’ visit and within 48 hours of Gregg Cox telling Sumrow that the Travis County grand jury would take up the matter of the missing apportionment funds, 18,697 electronic files had been shredded on Sumrow’s office computer during a seven-minute window.
Travis County grand jury
Weeks later, Sumrow testified before the Travis County grand jury. Unlike the interview at his office, he claimed that he had never talked to anyone in the comptroller’s office about the apportionment funds. He also said that the Rockwall County Commissioners knew the apportionment money was in his own account. (The commissioners from that time period would later prove that statement false.) The grand jury indicted Galen Ray Sumrow on three counts of abuse of official capacity soon after he testified.
The Travis County investigation had uncovered a person in serious financial straits. As bank records and other financial data were accumulated and analyzed, investigators saw that Sumrow was constantly behind and juggling just to make ends meet. It was not uncommon for him to be $2,000 to $3,000 in the red every month. As a frame of reference of his trouble, during a 23-month period, Sumrow accumulated 309 non-sufficient fund (NSF) charges. Over a 48-month period, he took out 24 bank loans. It was only during the five months following the apportionment fund deposits that his account went in the black. Without the apportionment funds, his personal account would have dropped more than $30,000 into the red. Paying back the funds required six months and a home refinance loan. Sumrow had needed money, and the apportionment fund was an easy, quick fix.
All of this financial turmoil begs the question: How was Sumrow spending his salary? There is no answer to that. We saw a regular spending pattern of $300–$400 cash per day, and he was rarely at work. But despite the intense investigation, we could not conclusively prove what he spent the money on.
Collin County investigates
Investigators looking into the apportionment fund matter had developed evidence that Sumrow also stole money from his office’s hot check fund. They believed Sumrow “repaid” himself for trips he and his girlfriend never took. There was no venue in Travis County for those charges, so they approached Rockwall County District Court Judge Brett Hall, who in turn appointed Collin County Criminal District Attorney John Roach as attorney pro tem to look into the case.
District Attorney Roach appointed us as special prosecutors. The two of us had never met before; the Collin County Criminal District Attorney’s Office works out of two buildings (one for felonies and one for misdemeanors), and prosecutors from one office rarely see the prosecutors from the other. But we were a perfect match. Schomburger was a career felony prosecutor, and Skinner was a misdemeanor prosecutor who happened to have 20 years of law enforcement experience as a criminal investigator in New Mexico and six years’ experience as a civil attorney in Dallas. As a team, we were experienced in felony trial work and investigation of complex corruption cases.
We were in absolute agreement that a quick indictment was the wrong way to go and that because we were dealing with a public official who had been in office for 20 years, we had to be thorough and not leave any stone unturned. Jim Skinner was in charge of running the investigation. He set up base in the Rockwall County Sheriff’s Office, where he was given a conference room to work in and where he had close access to the investigators on the case. Skinner and his team collected, indexed, and bates-stamped2 more than 22,000 documents, identifying trial exhibits and preparing demonstrative exhibits that proved useful during grand jury and both trials. Skinner ran the discovery in the case as if it were a complex civil litigation matter. Items identified as trial exhibits were cross-referenced to respective witnesses and over 18,000 bates-stamped documents were filed with business record affidavits and copies turned over to the defense immediately following the first indictments. (As we neared trial, Justin Johnson, a Collin County Assistant Criminal District Attorney, was added to assist in preparations and brief any issue that might come up during trial.)
Besides working up the travel fraud, investigators reviewed computer purchases from Fry’s and compared them to the county property inventories and the items recovered at the storage barn. The investigative team could not locate several computer items purchased with office discretionary funds, so we decided to run a search warrant at the DA’s office to find out what missing components were in the office computers (Sumrow had worked on them in the past). A team of 20 FBI agents and investigators searched the office, took apart every computer, and photographed every component and each step of the process. We found some items on our missing parts list, and we knew after the search what items remained missing. We then compiled detailed charts identifying the components by description, serial number, invoice number, and the corresponding fee fund check number that paid for it. We carefully catalogued these invoices and checks because each pair would be introduced at trial to prove our case. We never did locate thousands of dollars of software and disposables such as CDs and DVDs that had been purchased with fee funds, but we had more than enough evidence to charge and prove Sumrow had misused the funds entrusted to him.
The “Blue Alien”
One item that showed up in Sumrow’s office after the investigation began was a computer that became known as the Blue Alien. Sumrow had brought this PC from home, where it had been for two years. We discovered that the blue aluminum chassis and the components inside were bought with fee funds. It contained a high-end graphics card, superior sound card, seven cooling fans, glow-in-the-dark cables, and a glowing ultraviolet blue light. From the front, this computer resembled an alien and was adorned with skull-and-crossbone vent decorations. It was built to handle games, although it could be used for other purposes as well.3 This computer was seized during the search warrant and was a perfect trial exhibit: When it was plugged in, it glowed neon blue in the courtroom.
There was one more important detail on the Blue Alien: On its back was a wireless antenna. The DA’s office didn’t have a wireless Internet system, but Sumrow had one at his house that had been purchased with fee funds from Fry’s Electronics. The Fry’s installer recalled the transaction and specifically remembered the Blue Alien at Sumrow’s house. Chief Goelden examined every Fry’s invoice and every check from Sumrow’s account and discovered that the invoice from the Wi-Fi purchase and installation had been altered. In the description of the installation, Sumrow had covered up the words “in home” with a felt-tip pen.
What else could we find?
The discoveries did not end with the Blue Alien itself. Fee fund checks were required to have two signatures, and the check for the home wireless system appeared to have been countersigned by Sumrow’s first assistant, Craig Stoddart. But close examination revealed the signature to be a forgery.
As we reviewed thousands of bank records, a business check for $1,000 captured David Goelden’s attention when he saw “computer” written on the memo line. The check was written by Rockwall County Commissioner Jerry Wimpee to Ray Sumrow. Goelden and two of his investigators quickly visited Commissioner Wimpee, who consented to a computer examination that revealed computer parts purchased with DA fee funds. We then quickly located two other computers that Sumrow sold to other people, both of which contained parts purchased with fee funds. We now had overwhelming proof that Sumrow had been misusing office funds for his own gain.
The summer of 2007 took us to the Rockwall County grand jury. After several meetings the grand jury returned five indictments charging Sumrow with two forgeries, one count of tampering with a government document, and an aggregated theft indictment with 75 counts. As the scope of our investigation widened, we worked closely to coordinate our efforts with the Austin team members, Gregg Cox and his lead investigator, Matthew Langan. We carefully scrutinized their abuse of official capacity case and decided to add a theft count to our indictment because our financial analysis led us to believe that what Sumrow had really done was steal those apportionment funds. The theft case would be our highest charge as a second-degree felony (because of Sumrow’s status of a public servant). The grand jury indicted on the apportionment cases, giving us abuse of official capacity counts as well as the theft count we wanted.
Getting ready for trial
Pre-trial on the case was with a new judge. Judge Brett Hall of Rockwall County recused himself, and Judge John Nelms was appointed. In the pre-trial hearings, Judge Nelms determined there would be a change of venue to Dallas County. He also heard complaints from the defense concerning discovery. Immediately following the indictments, we had given the defense a copy of every document in the case—not in response to a discovery motion; we simply didn’t want to give the defense room to complain about anything. They complained anyway, saying the documents were not in an order they could understand. Consequently, we bates-stamped and indexed every document produced during the investigation. This early decision to manage our discovery as if this prosecution were a complex civil litigation matter paid huge dividends: We had no discovery disputes during our weeks of trial in these cases.
FBI Forensic Financial Analyst Gil Kerry was indispensible as he put every financial aspect of the case into a spreadsheet and helped us turn a mountain of evidence into a presentation that was compelling and easy for the jury to understand. Kerry created a series of graphs, three of which are printed on these pages, that clearly demonstrated that when the apportionment deposits increased Sumrow’s bank account balance, his spending habits changed dramatically, his ATM withdrawals increased, and his NSF charges disappeared. This evidence also demonstrated another amazing coincidence: Sumrow’s only two consecutive-day ATM withdrawals coincided with the first two apportionment direct deposits, proving that he knew the money was coming and used ATM machines, rather than call the bank and potentially leave a witness, to learn when the funds hit his account. All of this financial evidence led to one conclusion: Sumrow knew the $68,000 was in his account, contrary to his claims that he was a bad bookkeeper and didn’t know the money was there.
Pre-trial hearings consisted of attacks on our indictments and a motion to sever the apportionment case from the rest of our prosecution. Responding to complaints that the defense had not received proper notice from our 75-count aggregated theft indictment, we agreed to plead the computer parts with more specificity. In preparing this new and more specific pleading, we converted it into a large trial chart that we used repeatedly in the courtroom. The chart grouped the counts by type of theft and helped the jury stay on track, easily matching the testimony and evidence with the different counts, whether they related to the travel fraud, the Blue Alien, airline tickets, or components for building PCs for sale. It was also useful from the standpoint that we easily matched the forgeries and the tampering counts with those parts listed on our trial chart.
The judge granted the defense motion to sever the apportionment case from the other indictments. We needed that evidence to show that Sumrow was in dire financial straits and to explain why an elected district attorney making over $100,000 a year would steal a $50 computer part, so we immediately gave notice in open court that we would offer the apportionment funds direct deposit matter as 404(b) evidence in the computer parts trial.
There were never any meaningful plea negotiations prior to the first trial. From day one, Sumrow’s position was that he would consider only misdemeanor probation on the apportionment case. Based on the scope and depth of the corruption we had uncovered, misdemeanor probation was out of the question. The defense was willing to concede only that there might have been misuse of a misdemeanor amount of money. Their position was that Sumrow was a bad bookkeeper and had so much loan money coming into his account, he didn’t realize that he had received $68,000 of public money. As to the fee fund charges, Sumrow maintained that all expenses were at the sole discretion of the DA and all of the expenditures he made from the fund were legitimate.
The first trial
The first trial was scheduled to begin March 3, 2008, in the George Allen Sr. Courts Building, the civil courthouse in downtown Dallas. Judge Nelms brought in 100 potential jurors; he wanted a big pool to account for publicity and to deal with jurors’ potential scheduling problems. One veniremen had read about the case and couldn’t understand why a district attorney would have to steal something as inexpensive as computer parts, only reinforcing our belief that for all of this to make any sense to the jury, we had to explain Sumrow’s upside-down financial condition and how he tried to avoid detection in the apportionment case. It was a long day. We lost a lot of jurors, but by 7:30 p.m., we had a jury seated.
We started the trial with a hearing outside the jury’s presence on the apportionment evidence issue. We argued that it was contextual 404(b) evidence and also admissible under §31.03(c)(1) of the Texas Penal Code.4 The judge ruled in our favor, allowing us to show the jury the motivation behind Sumrow’s thefts and allow the jury to make sense of what the defendant had done.
How we told the story
The trial began with the county auditor and Special Agent Chambers telling the jury of the apportionment fund deposit into Sumrow’s personal bank account. We then called members of the Rockwall County DA’s Office to prove up the fee funds account records and to show that Sumrow requested reimbursement for some trips without providing supporting documentation. Members of the auditor’s office confirmed this fact and also described the unforgettable look on First Assistant Craig Stoddart’s face when he was shown his forged signatures on the checks.
We enlarged the forged checks to poster size for trial. Stoddart testified that the signatures were not his. These checks purchased most of the internal parts for the Blue Alien as well as the installation of the wireless system. The invoice for the wireless system was tampered with to hide that the system was installed in Sumrow’s home. Although he would eventually make a weak claim that it could have been used for work purposes, Sumrow never showed any work he ever did from home with this computer.
We showed multiple trips for which Sumrow requested and received reimbursement that he never actually took. Several times, Sumrow claimed he attended TDCAA or TDCJ-CJAD (Texas Department of Criminal Justice’s Community Justice Assistance Division) board meetings, yet the meeting minutes did not reflect his attendance. In one instance, investigators recovered an email thread between a TDCAA staff member and a Rockwall DA’s office employee where they discussed the fact Sumrow should have been at a meeting but was not. During the trial, we also brought evidence showing that Sumrow directed an employee to purchase airline tickets for his girlfriend that were ultimately paid for with hot check funds. Evidence admitted at trial included photographs of Sumrow and his girlfriend sitting on the plane and at a restaurant during one of the trips.
Eleven of the 58 computer parts that Sumrow had taken from his house and placed in the county barn were brought into court. Witnesses testified that many of the other items also belonged to the DA’s office as well, and that historically, they found it hard to get equipment and electronics support at their office, yet Sumrow was constantly purchasing PC parts and electronics from Fry’s.
The heart of the case came in through Chief David Goelden, using his testimony to tie the computer parts to the Fry’s invoices and the hot check fund, describe how the investigation unfolded, and prove up the stolen computer parts in the PCs Sumrow built and sold for personal gain. Goelden’s quiet, unassuming demeanor and unequivocal knowledge of the case’s facts paid off in front of the jury.
The defense strategy was layered, intended as an explanation for everything. In sum, it was: 1) Ray Sumrow liked to use cash and kept poor records; 2) the DA had the sole and absolute discretion for how fee funds were spent, and his lack of accurate bookkeeping did not make him a criminal; and 3) the State could not prove that the electronics and PC components they recovered had been purchased by Sumrow with fee funds. To put on their defense, they flooded the courtroom with computer parts that were close in description to, or identical models of, those charged in the indictment.
It was clear their strategy was to confuse and exhaust Goelden during cross-examination and hope that he would agree that the parts they brought to court could be the actual items Sumrow was charged with stealing. Unfortunately for them, we had realized from the beginning that to get one item wrong in our cataloguing could be a disaster, so we had spent months cross-referencing invoices to parts and fee fund checks, then listing the parts by serial number and description. Our endless hours and diligence in organizing all of these elements paid dividends on cross.
As one example, defense counsel presented Chief Goelden with a photo of a floppy drive recovered from a computer Sumrow had built and sold. Goelden identified the photo and testified that Sumrow had purchased that drive with fee funds. Goelden was then shown a second photo, which the defense represented as the back of this particular floppy drive. This second photo showed the item had been manufactured in 2002, after the sale of the computer in question, which certainly made it look like we had made a mistake in our cataloguing. But, because we had bates-stamped all the documents (including photos), we quickly determined that the defense had presented a picture of the floppy drive that had been recovered, then presented a photograph of a different floppy drive. Pointing this out to the jury on re-direct was a blow to the defense’s credibility.
The State rested in a strong position. The defense then put on some character witnesses and called the defendant to the stand. Sumrow offered excuses for each and every allegation. Trying to explain away the travel fraud, he claimed that if he accepted “reimbursement” for a trip that he didn’t take, then he would just “make it up next time,” and not turn in a voucher for the next trip. Sumrow also testified that he thought he had his first assistant’s permission to forge his signature; that he planned to use the Blue Alien as a backup server for his office; and that he obliterated the “in home” notation on the invoice for Wi-Fi installation because he feared that it would be unclear to the store that this item should not be taxed as it was for government use. He also claimed that all of the parts he bought were in computers in the DA’s office or just unaccounted for and that anything he brought from home was at his house only so he could fix it or store it there. Apparently, to the jury, he just didn’t sound believable.
We spent several hours crossing Sumrow. He and the defense pounded the jury throughout the trial with the theory that the elected DA had the sole and absolute discretion to purchase whatever he wanted for the office as long as it wasn’t for his own enrichment. One of his character witnesses testified that Sumrow was so careful with county money that he had repaired an office car himself rather than take it to a mechanic. Sumrow, wishing the jury to recognize his dedicated stewardship of public funds, was only too happy to agree on cross-examination that he did this to save Rockwall County money. However, once he committed to this story, we presented Sumrow with checks showing that he paid himself as the mechanic out of the fee fund account. What Sumrow stated as something virtuous became another misuse of discretionary funds.
After both sides closed, the jury deliberated into the following day and then came back after a weekend off. Interviews with them after the trial indicate that one juror hung them up on the two forgeries and tampering case. Eleven of them had decided to convict quickly, so they spent the next day arguing with the lone holdout, ultimately convicting Sumrow on the theft case and hanging on the two forgeries and tampering.
Apparently the judge was convinced as well. After hearing some additional evidence at punishment, he denied the defense’s request for probation and sentenced Sumrow to four years in the penitentiary. Judge Nelms’ comments before pronouncing the sentence were brief, eloquent, and memorable.5 Sumrow was then taken into custody and transported to the Rockwall County jail where he bonded out.
Our next job was to remove Sumrow from office. The law seemed straightforward: According to Local Government Code §87.031, when a county officer is convicted by a jury for any felony, the conviction operates as an immediate removal from office, and the court shall include an order removing the officer in the judgment. If the officer appeals the judgment, the appeal supersedes the removal order unless the court finds that it is in the public interest to suspend the officer pending the appeal. Therefore, we asked Judge Nelms to enter an order of removal in the judgment and to make an affirmative finding that it was in the public interest to suspend Sumrow from office, pending appeal.
The defense countered with a curious argument. They claimed that a criminal district attorney is a state officer, not a county officer, and therefore not subject to removal under §87.031. Judge Nelms called a recess until the next day to give each side an opportunity to find some law on the issue. Unfortunately (or fortunately!), there is very little caselaw out there that deals specifically with removing a DA from office following a felony conviction, but we did find some in support of our argument that a DA is in fact a county officer for some purposes.6 After briefing the issue and making a quick argument, Judge Nelms entered the order of removal and suspended Sumrow pending appeal.
The second trial
The apportionment trial was set to begin two months after the first trial. We approached Sumrow’s counsel with a plea offer of four years in prison to run concurrently with the first four-year sentence. He would also need to resign and waive his appeal. Sumrow declined our offer.
Only 10 days before trial, the defense filed a motion to recuse Judge Nelms. We believed it was an attempt to delay the trial and filed our response, requesting an expedited hearing. The motion was eventually denied.
In this second case we called ex-treasurer Sheree Jones to detail the discovery of the apportionment money in Sumrow’s account. Because she had embezzled money, been charged with abuse of official capacity, and been prosecuted by Sumrow, we believed it was risky for the defense to attack her. In spite of her bad deeds, she could have been anyone’s grandmother. She was believable and extremely remorseful for what she had done. She violated the public’s trust and was so ashamed of it, it was a perfect contradiction to the district attorney who would never admit he was wrong and had an excuse for everything. Jones was very sympathetic. We also put on witnesses from the comptroller’s office who explained how apportionment funds were transmitted and who testified they had never spoken to Ray Sumrow about direct deposits into his account—contrary to what he told Special Agent Chambers.
The key witness at the second trial was again Gil Kerry, the FBI financial analyst. Sumrow’s defense was that he didn’t need the money and didn’t know the funds had been deposited into this personal bank account. Kerry’s testimony was devastating, as it showed that Sumrow not only knew when the money was deposited but also that his spending habits increased dramatically after the deposits. Kerry used a series of PowerPoint slides and posterboard trial exhibits to explain Sumrow’s financial condition and activity. As he put it: “In my business, numbers tell a story, and the numbers in this case tell me that Sumrow knew the apportionment money was in his account.”
In spite of Kerry’s testimony, the defense still ran with the “I didn’t know the money was in my account” defense. They also claimed that if Sumrow were guilty of abuse of official capacity, it was only of a misdemeanor amount, based on the theory that the “value of the use of the thing used” was the amount of interest that should have been charged for the time period that Sumrow possessed these funds. (The defendant elected not to testify this time around.)
Sumrow had three problems with his defense. First, the $68,000 was not a loan; the State of Texas doesn’t make loans to publicly elected officials. Second, Sumrow actually spent the money—it wasn’t just sitting in his account. So the “value of the use of the thing used” was the portion of the money he spent, and that was a felony amount. Third, because we had decided to focus on the second-degree felony theft by public servant count, the “value of the use of the thing used” was not even an issue. The defense was fighting the wrong battle.
The court’s charge allowed only a conviction of either theft by public servant or abuse of official capacity. We asked for a verdict on the theft charge, and the jury agreed with us. For punishment we put on an abbreviated version of our first trial and argued for 15 years’ confinement. The jury agreed on that too after only a couple hours’ deliberation. The judge again put Ray Sumrow in custody, but this time he could not bond out during his pending appeal because the prison sentence exceeded 10 years. Once again, Sumrow was removed from office and suspended in the event of an appeal. He sat in the Rockwall County jail for a month before he tendered his resignation.
We began this endeavor with allegations of misappropriated state funds and saw the case widen into a major investigation resulting in a 15-year prison sentence for a sitting criminal district attorney. Our successful prosecution began with Collin County Criminal District Attorney John Roach understanding the commitment and resources necessary to conduct a proper corruption prosecution. We also had the right people with the right abilities who could devote the time required to get the job done. The collaboration between the Rockwall County Sheriff’s Office, FBI, Texas Rangers, Travis County District Attorney’s Office, and Collin County Criminal District Attorney’s Office was truly a team effort. No one on the team was too proud to do the little things necessary to secure a successful outcome. Preparation, preparation, preparation! That was the key.
As Gil Kerry said, “Numbers tell a story,” and in these cases, the numbers said, “Guilty.”
1 Every district attorney’s office is entitled to $34,350 dollars a year from the state to reimburse certain office expenses. To receive the funds, the elected DA submits a voucher detailing the expenses, and the state comptroller judiciary section either mails a check or direct-deposits those funds into the office bank account.
2 Bates-stamping is a method that numbers each piece in a certain order so all parties can ensure that every document is accounted for.
3 Editor’s note: When news got out that Sumrow had a Blue Alien, it made a ripple in the gaming world. Go to www.penny-arcade.com/comic/ 2008/03/12/ to see a cartoon about the case.
4 §31.03(c)(1) of the Penal Code states that “evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty.”
5 “I don’t believe that anyone can have a serious doubt that faith in public officials may be at an all-time low in our country. You can hardly pick up a newspaper these days that you don’t read about some disgraced public official. It’s very sad. A public official, like Caesar’s wife, must be above suspicion.
“Certainly, a great deal of suspicion hung over your tenure in office, Mr. Sumrow. You’re held … to a much higher standard. I expect over your 22 years as district attorney, you have sent people to prison … for less than the charges against you in this particular case.
“The purposes of the penal laws of our state … [are] to punish the offender, to deter others from committing similar crime,s and for rehabilitation. Mr. Sumrow, in spite of the crime that has been proven beyond a reasonable doubt against you, I do not think that you are a bad person, but I have learned in 45 years of criminal justice that sometimes good people do bad things. I believe that you have done some bad things.
“The evidence that we have heard over these past three weeks has suggested that to me, you were less than candid in your testimony. That means, basically, perjury. I believe that that evidence also showed that you had indirectly or obliquely attempted to get some of your employees to perjure themselves. The evidence suggested that you tampered with evidence during the trial, not to where it was at a level that it would be proven beyond a reasonable doubt, but it certainly raised a suspicion.
“And there has not been any evidence of remorse in the case. You have blamed your troubles on others, basically slandered the sheriff and some of his employees. I don’t know whether you have enemies in the sheriff’s office; possibly, maybe even probably you do, but they were in no way responsible for your acts. And being a whistleblower and raising the hue and cry so that an investigation will be done is certainly one of the duties of a sheriff.
“I don’t really have any doubt at all that you would be as good a probationer as any court ever had. I don’t think you’re any danger to the community. But that’s not to say that you’re deserving of it. The court is not going to place you on probation.…
“I do not do this with any great feeling of joy or satisfaction. It’s kind of like watching somebody injured in an automobile accident or something. It’s what you have done to yourself. And I have to say I feel sympathy for you because I know that although you did wrong, I think you were just swept up perhaps in personal problems. But that in no way excuses it.
“I think that your conviction, your sentence here, will I hope send a message to others who hold offices such as you, not to be tempted to feed themselves from the public trough.…”
6 Crane v. Texas, 766 F.2d 193 (5th Cir. 1985), cert. denied sub nom. Dallas County v. Crane, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (holding that a Texas district attorney is properly viewed as a county official); In re Guerra, 235 S.W.3d 392, 405 (Tex.App.—Corpus Christi 2007, orig. proceeding) (“a district judge may remove a county officer [e.g., a district attorney] from office for … official misconduct”).