Chapter 16

I Got the Nod

BY THE SECOND week after the McLellands’ murders, my personal life and my work life still had not returned to normal. I realized that a “successful” week now was judged by much different standards than before: success meant no slaughter of additional county officials and progress in the capital murder investigations. For me, there was also the anticipation of the governor’s decision about the appointment of the new Kaufman County District Attorney. For a position that I had not originally wanted, I truly wanted the appointment.

My strongest competition for the appointment? Brandi Fernandez.

She had the experience. As stated before, prior to the murders, she had served as Mike McLelland’s first assistant. Before that, she had worked for McLelland’s predecessor, Rick Harrison.

When McLelland had assumed the position of District Attorney in 2011, there had been questions about Fernandez staying on at the DA’s office. But McLelland wanted to be fair and he wanted to make his own decision. To accomplish that, he consulted the judges individually. When asked, I gave him my opinion. I was honest about my limited interaction with Brandi as a judge, but told Mike that the few times she did appear in front of me, she was prepared and more than competent. Further, Fernandez had unhesitatingly accepted the job when Judge Wood appointed her after Mike’s murder. Still, Judge Wood’s appointment was temporary, lasting only twenty-one days, and a full appointment would have to come from the governor’s office.

But now she was seeking the full appointment. The rumor mill in the courthouse was running rampant, with scuttlebutt about the letters of recommendation and the defense attorneys complaining about working with her. There also seemed to be a widespread concern that she wasn’t a Kaufman County native, having had moved to Kaufman less than ten years ago for a job. In Kaufman County, ten years still made you a new resident. None of that weighed in her favor.

I had never publicly announced that I was seeking the position as District Attorney. Throwing my name into the rumor mill now would only keep the courthouse frenzy going strong. As the governor was considering the appointment, the uncertainty of his decision was unnerving. I began questioning my decision to seek the appointment. My plate was already full with my family and my job. The thought of becoming a hunted Kaufman County official seemed daunting.

And then I got a call from my brother, Autry, which helped me remember why I had thought about the appointment.

“Sis, how are you doing?” Autry asked.

Autry was the oldest child of our sibling group of five. He was the consummate older brother, a born leader. I was the fourth child and the only girl.

“I’m fine,” I responded, with a little sigh.

“You don’t sound fine,” he said. “What’s going on down there? You know I’m always prepared to come home.” He lived in Minnesota and was a successful salesman for an international cement supplier.

“No need to come home,” I said, trying to sound convincing. “We’re all fine.”

He had offered many times over the last couple of weeks to “come home” in the face of an emergency. Translation: to sit on the front porch with his shotgun, prepared to kill any would-be assassins. Some people might think that was just bravado, an older brother talking tough. I knew my brother meant it.

He was tough, pure and simple. He always had been.

He had graduated from high school early, at sixteen. A scrawny defensive player, he had made a name for himself in small college football in the early ’70s. He was an All-American for four years at the then East Texas State University (now Texas A&M University-Commerce). He went on to play professional football after getting drafted by the Vikings in 1975.

“You’ve said ‘fine’ twice, so I’m going to assume you are fine,” Autry said. “But I think that you are not okay about something. So I woke up this morning and I knew I had to call and tell you something. Aunt Fern—”

He stopped, his voice getting lost in his throat. The mention of my mother’s name still choked him up. She had been gone for almost twenty years. Even though she and my dad raised him and his brother from babies, they always referred to my parents as Aunt Fern and Uncle Homer. When my mother died, we all took it hard but Autry seemed to take it the hardest.

Growing up, Mom had an ability to make everyone feel special and Autry was her golden boy. It never mattered what mistakes he made. She encouraged him to do better and he would do better because he never wanted to disappoint her.

“Aunt Fern was tough and she was always for doing the right thing,” he said. “You know when you called me and talked to me about what you were thinking about doing … this appointment?” I held my breath, as he searched for his words. I thought he was going to blast my decision like he did when I initially called him.

“Well, I was wrong,” he continued. “You are Aunt Fern’s daughter. You are tough and you know what is right. This is right. I feel that now. If she were here, she would tell you to do it. If the governor offers you the appointment, you need to accept it.”

“Well, it’s funny that you are calling,” I said. “I was just beginning to wonder if I am nuts for even thinking about this. Maybe I’m going from the fat to the frying pan.”

Autry chuckled.

“Nah, Sis,” he said. “You’re pretty much ‘in the grease’ wherever you go.”

We both chuckled. Suddenly, everything felt better.

We talked about a few more things. Family, work and vacation plans, when he would be home again. We hung up, with a parting “good luck” from my brother. Everything was really fine again.

ON WEDNESDAY, APRIL 10, 2013, I walked into my office a little later and more ruffled than usual. I had had to run an errand after dropping Jacob off ; I had forgotten a fruit tray that I had to bring to the school for the teacher’s appreciation party. So I had to double-back and deliver it to the teacher’s lounge at the school, after making a quick dash to the local grocery store. One agent waited in the car and one accompanied me inside; the second car had already headed to the courthouse. They were good-natured about it, but I knew they didn’t like making unplanned stops.

“Sorry I’m late,” I said to Katie, glancing at my watch.

“Anything happening?” I asked. “Anybody ready in the courtroom yet?” It was almost 9:30.

I stopped for a breath as I breezed through the outer offices into my chambers.

Katie looked up. She had a yellow sticky note in her hand, as I stuck my head back around the corner of my door, craning my neck to look at her.

“The attorneys have checked in, but went to other courts,” she said. “I told them that you would start the motion hearing at ten and told them to be back, but this seems like it may be more important. He just called and asked me to have you call him as soon as possible.”

She handed me the note. I looked at the name: it read Darrell Davila, with area code 512, the area code for the city of Austin.

My stomach did a little flip. Was he calling to tell me that I had it or to politely tell me the governor had gone another way?

I looked at Katie. Her face was expectant.

“Let me call him and then I will fill you in,” I told her.

Through the years, regarding work and our personal lives, Katie and I had kept few secrets between us, but I had kept her out of this decision. I knew she would support me in whatever I wanted to do, but she was going to be hesitant about losing me as a boss.

I shut my office door for privacy and dialed the number.

“Darrell,” I said evenly. “Erleigh Wiley. How are you?”

“Fine, Judge,” he said. ”How are you?”

We exchanged pleasantries and then he cut to the chase.

“Judge Wiley, the governor would like to appoint you as the Criminal District Attorney of Kaufman County,” he said.

My mind went blank, and the call went silent. I heard the words but I was still surprised. I’d had a good interview, I knew my colleagues supported me, but nothing was ever a done deal.

“Judge, the governor needs to know if you will accept,” Davila said, interrupting my mute reverie. “This appointment has to go to the Senate for confirmation. We have a small window, as you know the interim appointment expires soon.” He was referring to the twenty-one days.

I took a breath.

“Yes, I will accept the appointment,” I said.

Then I remembered my manners. “Please convey to the governor how much I appreciate his confidence in me in making the appointment and my sincere thanks.” I added, “And thank you, Darrell.”

“Judge, I will let the governor know,” he said. “I know he has confidence in you. Have a great day. I’ve got some more calls to make.”

MY HEART WAS pounding, but I had to turn my thoughts to the courthouse, and the hardest part would be talking to Katie. As the Criminal District Attorney, I could ask Katie to become my administrative assistant, but I thought with all the turmoil that had occurred in the DA’s office, changing anything wouldn’t be fair to the staff. Every employee in the DA’s office had earned the right to stay. Also, Katie would be an asset to whoever became the new judge; they would be foolish to not keep her on as their court coordinator.

When I talked to Katie, she reacted exactly as I expected: excited for me personally, but sad for the loss of our working relationship. We had on occasion talked hypothetically about if I left my position as judge, either by running for another position or going into private practice, but it was different now that the once nebulous notion of “leaving” had a looming, very real deadline.

The rest of the morning was typical. I finished the hearing in court, but I knew I needed to call Aaron to share my good news, before the story was released and he heard about it on the news.

“Aaron, this is Erleigh,” I said to my husband of nearly a decade.

“I know who this is,” Aaron said, chuckling. “What’s up?”

“I heard from Darrell Davila,” I said, hesitating a bit. “I got it. I’m the new DA.” I could hear the smile in his voice.

“I’m proud of you and the county is lucky to have you,” he said.

“You are such a homer for me,” I said, meaning that I was his favorite home team and he pulled for me at every turn.

“I am,” he said. “I’m an Erleigh fan. Make no mistake. It takes nothing away from my masculinity.”

He spoke in a funny-sounding voice that he often used to mock himself.

“Whatever,” I said, smirking. “I’ve got stuff to do. I have to get this office ready for the transition for the next judge and start planning for my new job.”

New job?! My mind was reeling as the words were being uttered.

“Stop, baby,” he said. “Give yourself a minute. Enjoy the moment. It’s all going to be there for you. How’s Katie?”

“She is the best,” I said. “Happy for me, sad for herself. You know she is the number two member of the Erleigh fan club. So she’s a little uncertain, but already getting into the transition mode for the next judge. Whoever the new judge is, they will certainly keep her on as their court coordinator. I’ve assured her anybody would be a fool to get rid of her.”

“You are right about Katie,” he said. “Have a good day, DA Wiley!”

I could tell he was enjoying my moment and successful appointment. He had thought this was the job for me, even before I did.

As the morning moved into afternoon, the courthouse teemed with the news. There were almost only well wishers, save a disappointed candidate who made her feelings known. Overall, I knew I had made the right decision.

Now, I had to get my court ready for the transition, do the work on the bench, and prepare for a new job. And that was just at work.

At home, things took an unanticipated turn between the detail and me. The agents had always been polite with me, but after the news hit of the governor appointing me to Kaufman’s top spot, I think their politeness grew into admiration.

Before the appointment, when we returned home most evenings, Aaron shared camaraderie with the agents that I did not. Even though law enforcement respected judges, we were not part of their team. He and the agents talked about cases that they had together, and they sought his opinion on other criminal matters.

Even though the Kaufman County Criminal District Attorney was not a federal position, the agents that worked in the Northern District of Texas worked with the various DA’s offices within their district. When an agent investigates a case that does not merit federal interest, the agent typically goes back to the State’s prosecutor at the district level and requests that the State prosecute the case.

So, post-appointment, the agents on my detail were now full of questions about matters that I might be interested in as the new district attorney. I didn’t have many answers yet, but I liked being part of the “campfire discussion” with the agents that were part of the detail.

I was starting to feel like the newly minted district attorney.