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Paxton files his first indictment appeal

And on we go.

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Texas Attorney General Ken Paxton continues to fight to get out from under three felony indictments, arguing anew before a Dallas appeals court that he is innocent of accusations he repeatedly violated state securities laws.

“We argue that the entirety of all three indictments should be dismissed,” Bill Mateja, one of Paxton’s attorneys, said Tuesday. “We feel confident that we’ll be able to prevail on appeal.”

[…]

In the 77-page brief filed with the court on Monday, Paxton’s lawyers argued state law is too vague for the indictments to hold water.

Specifically, they said the definition of “investment adviser representative” in the Texas Securities Act is vague and conflicts with federal law. The state law also “unconstitutionally regulates free commercial speech” also doesn’t define how such a person would “solicit” business, they argued.

Repeating the arguments they made before the district judge last year, Paxton’s team also accused the judge who empaneled the grand jury of improperly handling the process by asking for volunteers instead of picking the members at random. Paxton’s lawyers are asking for a hearing before the appeals court.

Paxton’s indictments were upheld by trial judge George Gallagher in December, and the 5th Court of Appeals called for briefs in January. Prosecutors have until March 14 to submit theirs. As noted in that last link, the appeals court could issue a ruling based on the briefs, or it could schedule and hear oral arguments, in which case we will all need to settle in and get comfortable, because we’ll be in for the long haul.

As for the merits of Paxton’s appeal, Texas Lawyer asked a bunch of experts and got some interesting answers:

“These are all interesting things—good legal questions—but on the whole, they are all post-trial questions and not pretrial issues,” said former CCA Judge Cathy Cochran. “It’s a hard row to hoe to bring them in the pretrial context, when there is just no evidence of anything yet.”

Criminal procedure expert John Schmolesky explained that courts will only grant pretrial habeas corpus relief when a defendant proves that a law is unconstitutional on its face rather than arguing it’s unconstitutional as applied to him.

“He has to be convicted and then he can raise his complaint about the statute,” said Schmolesky, a professor at St. Mary’s University School of Law. “The appellate court may very well say, ‘There might be merit to the claim, but we will wait.'”

Hilder & Associates principal Philip Hilder of Houston wrote in an email, “Mr. Paxton is entitled to relief because the statute under which he is charged does not regulate the conduct of representatives of federally filed investment advisers, which applied to Mr. Paxton. Further, we maintain that the statute is vague and unconditionally regulates conduct. Additionally, the indictments are void because they were returned by a grand jury of volunteers improperly selected.”

But attorney pro tem Brian Wice wrote in an email, “His arguments that these prosecutions should end before a jury can pass upon his guilt or innocence are creative. But Mr. Paxton’s appellate brief has provided the court of appeals with no additional argument or authorities that his creativity is a compelling, principled, or reasoned substitute for legal merit.”

[…]

One of Paxton’s claims applies to all three of his charges. He claimed that 416th District Judge Chris Oldner improperly impaneled the grand jury that indicted him. Oldner called a panel at random, but then he asked who was willing to serve. Paxton argued that “willingness to serve” isn’t a lawful qualification. He claimed that the U.S. Court of Appeals for the Fourth Circuit dismissed an indictment under identical circumstances.

Cochran, [former Third Court of Appeals Chief Justice Woodie] Jones and Schmolesky all said the argument is new and interesting.

Cochran said that the U.S. Supreme Court has held that if grand jury law is violated, a defendant must show the violation substantially influenced the grand jury’s decision to indict him. Paxton will have to prove that he wouldn’t have been indicted if the judge impaneled the grand jury correctly, she said.

Jones said, “I would be curious to know if federal grand jury law is the same as Texas grand jury law—there’s a very good chance it is not the same.”

Jones added that his 18 years as an appellate judge taught him never to judge a case based on one side’s briefs.

“I read this one and think to myself, ‘That’s a really interesting issue. I’m going to be curious to see what the state’s response is to the issue,’ or, ‘Once I dig deeper, I’m going to be curious to see what the law is,'” he said. “You really can’t take what is said in a brief at face value.”

So the general (though not unanimous) consensus is that Paxton will not succeed, though he will have some good arguments to make in the event he gets convicted. Team Paxton also thinks the Rick Perry ruling is good for them, though it was noted in that story that the ruling in the Perry case was pretty narrowly tailored. So who knows? In short, prepare for the long haul.

Don’t hold your breath waiting for the Paxton appeals process to play out

Better settle in and get comfy, because this could take awhile.

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An appeal by Attorney General Ken Paxton, who is seeking to dismiss charges that he violated state securities laws, will extend at least into spring, with a strong chance of a ruling being delayed until summer or later.

The Dallas-based 5th Court of Appeals has given Paxton’s lawyers until Feb. 22 to file a brief arguing why they believe the felony charges should be thrown out.

Prosecutors will have until March 14 to counter the arguments.

This type of pretrial appeal is expedited under state law, making it less likely that either side will seek a deadline extension.

But if the court decides to hear oral arguments instead of ruling based solely on the briefs, resolution of the appeal would be pushed further back.

[…]

Defense lawyers have informed the Dallas appeals court that their challenge will focus on four arguments that Gallagher had rejected in December:

  • The charge of failing to register as an investment adviser representative should be dismissed because Paxton was registered with the U.S. Securities and Exchange Commission, trumping the state registration requirement.
  • The state failure-to-register law should be thrown out as unconstitutionally vague because it does not provide sufficient notice about what acts are prohibited.
  • The failure-to-register law should be thrown out because it unconstitutionally infringes on commercial speech by “regulating who and when a person may solicit clients for an investment adviser.”
  • All three charges should be tossed out because the Collin County grand jury that indicted Paxton was improperly formed.

Paxton’s indictments were upheld by trial judge George Gallagher in December, so this is the next step in the process. If the 5th Court rejects the appeal just on the briefs then things may speed up, but if not then remember we are potentially measuring the time frame in years before we get a resolution. The trial itself is on hold until these appeals have played out. Stay patient, we’ll get there eventually.

This week on “As Collin County Turns”

I swear, the Ken Paxton case is a giant vortex of political suck, absorbing everything in its wake.

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The Collin County district judge who oversaw the grand jury indictment of state Attorney General Ken Paxton is now facing a complaint before the State Commission on Judicial Conduct.

Chris Oldner – whose comments about the politically charged case have drawn attention – was accused in a filing dated last week of judicial misconduct for “disparaging” Paxton, failing to recuse himself sooner, and potentially prejudicing the proceedings.

The campaign for Oldner, a Republican who is now running for the Texas Court of Criminal Appeals, said the “complaint is completely without merit.”

“It’s just another just another example of how dark-money special interest groups seek to bully and intimidate ethical, conservative judges who strictly follow the law,” the campaign said. “It has to be humiliating that they had to resort to a young, low-level political operative to do their bidding.”

The grievance was filed by Aaron Harris, a North Richland Hills politico who’s worked on anti-bond efforts and other Tarrant County campaigns. Empower Texans, a conservative group that supports Paxton, first posted Harris’ complaint on Wednesday.

Harris laughed off the Oldner campaign’s response, adding that “if I’m the boogieman, that’s great.”

“It’s very telling that he doesn’t address the merits of the complaint,” he said. “And I have no idea where he gets ‘dark money’ or anything like that. … I’m not sure how a concerned citizen is a special interest group.”

[…]

They asked Tarrant County District Judge George Gallagher, who’s now overseeing the case, to quash the indictments over issues with how Oldner selected the grand jury. They also accused Oldner of leaking information about the indictment to his wife.

Oldner has said previously that he didn’t do anything wrong. And while Gallagher did not address the claims against Oldner, he denied a motion last month which raised Oldner’s actions as a reson to throw out the indictments.

Harris’ complaint echoes the concerns outlined by Paxton’s legal team. He focused on an interview that Oldner gave to WFAA-TV (Channel 8) in which the judge accused Paxton’s defense team of having “reached a desperate place.”

“As citizens, we have to hold our elected officials – judges or not – accountable,” Harris said. “And Judge Oldner’s behavior in this case is troublesome.”

See here for the background. You have to admire Aaron Harris’ ability to keep a straight face while hilariously casting himself as just plain ol’ folk doing the good work of keeping an eye on government. I mean, I could hear him twirling his mustache from here. I have no idea whether Oldner – who I remind you is a candidate for Court of Criminal Appeals in the GOP primary – crossed any lines in that WFAA interview or not. The State Commission on Judicial Conduct will sort that out in a few months. But man, this whole Paxton case is a cancer. Who else will wind up going down with his ship?

More special prosecutors for Paxton

Uh, oh.

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Two additional special prosecutors have been appointed to look into other allegations of criminal misconduct involving Attorney General Ken Paxton, News 8 has learned.

The two Fort Worth attorneys – Miles Brissette and former state district Judge Bob Gill – were appointed Nov. 13 to investigate “criminal allegations” involving Paxton and others, according to filings obtained by News 8. The filings do not state who the “others” are.

News 8 has learned that the two men are looking into a 2004 land deal involving Paxton and other investors including Collin County District Attorney Greg Willis. That land would later become the site of the Collin Central Appraisal District.

[…]

Brissette and Gill were appointed by Tarrant County Judge George Gallagher, who was appointed to oversee the criminal cases already pending against Paxton.

The appointment of Brissette and Gill came after Ty Clevenger, a Collin County lawyer and blogger, raised questions about the land deal involving the site where the appraisal district was later built.

“The value of the property increased dramatically,” he told News 8 this past summer. “It appears there was some kind of insider information.”

Clevenger has previously sent letters to a Collin County grand jury asking that they investigate the land deal. He’s also alleged that Willis stymied the investigation of Paxton, his one-time friend and business associate.

See here for some background. Clevenger, who has been beating this drum for some time now, was calling for another special prosecutor to investigate this back in October; he has quite a bit more detail on what this is all about, if you want to take a deeper dive. For now, both Team Paxton and Collin County DA Willis are saying what you’d expect, that this is all routine, they’ve been fully cooperating, yadda yadda yadda. These things take time to develop, and it’s entirely possible that nothing will come of it. Still, this can’t be a good feeling for either of those gentlemen today.

Also, too:

Paxton is currently under indictment for two first-degree counts of securities fraud and count of failing to register as an investment advisor. He has denied any wrongdoing. Two other special prosecutors – Brian Wice and Kent Schaffer – are heading up that investigation.

Wice, Shaffer and a third special prosecutor are being $300 an hour. They have already turned in legal bills in excess of $250,000, with more to come.

Collin County Judge Keith Self has accused Wice and Schaffer of fleecing the county. He has called on them to resign.

However, with the appointment of Brissette and Gill, it means that the legal bills facing Collin County will continue to mount.

Suck it, Collin County Commissioners Court. The Trib, PDiddie, and Trail Blazers have more.

UPDATE: The Lone Star Project and the Chron have more.

Collin County agrees to pay Paxton prosecutors

Grudgingly. For now.

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The special prosecutors handling the criminal case against Texas Attorney General Ken Paxton will be paid for their work so far at the rate they were promised.

Commissioners voted 3-2 on Monday to pay the more than $254,000 in legal fees and expenses that have accumulated since April.

[…]

“We have very little discretion over the orders by the judiciary,” said County Judge Keith Self, who questioned the need for “gold-plated justice.”

The fees have come under scrutiny because they far exceed the $100,000 that the county budgeted for the case. They also exceed the amounts set out in Collin County’s rules, which call for a flat $1,000 fee plus $1,000 a day during trial for lawyers appointed in first-degree felony cases. The county’s rules also state that appointed attorneys will be paid only after the case has concluded.

In his orders for payment, Gallagher cited a section in the county’s rules that allows for variances “in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

Self called for the special prosecutors to resign from the case so that a regional district attorney’s office be appointed to take over with guidance from a local investigator who works on securities law.

The move, he said, would substantially lower the costs without jeopardizing justice.

See here, here, and here for the background. Handing this case off to some county DA’s office might not jeopardize justice, but it sure would delay it, as it would take whatever poor attorneys that got saddled with this colossus months just to read through all the documents that have been generated so far. Maybe that wouldn’t seem so just to the guy who’s trying to clear his name, I don’t know. Anyway, if the good people of Collin County don’t like this arrangement, they should petition their legislators to come up with a better solution. But let’s be honest, Collin County is just complaining about the cost, and I’m afraid I have no sympathy for them. The good news for them is that the lawsuit to limit the prosecutors’ fees is still ongoing, and may wind up capping them from this point forward. But until then, pay up, y’all.

Paxton motion to cap prosecutors’ fees rejected

Sorry, Kenny.

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A state district judge Wednesday rejected Attorney General Ken Paxton’s attempt to drastically cut legal fees for prosecutors in the criminal case against him.

District Judge George Gallagher issued two orders overruling Paxton’s objections to the prosecutors’ fees and ordering Collin County to honor an agreement to pay $300 an hour to Kent Schaffer and Brian Wice, Houston defense lawyers who were appointed as prosecutors in Paxton’s case after Collin County District Attorney Greg Willis — a friend and former business partner of Paxton — stepped aside in April.

Paxton’s lawyers had filed a late-December motion arguing that state law and Collin County rules limited payments for appointed lawyers, including prosecutors, to $1,000 each for pretrial work and $1,000 per day of trial.

According to Paxton’s filing, state District Judge Scott Becker agreed that Collin County would pay Schaffer and Wice $300 an hour. Becker later stepped aside, and the case was transferred to Gallagher.

“Judge Gallagher’s order does no more than honor the agreement we entered into with Collin County regarding the rate of compensation for our work as special prosecutors,” Wice said Wednesday.

I must have missed the filing of this motion, since I don’t appear to have anything on it in my archives. It’s not the same as the lawsuit that was filed to limit the prosecutors’ fees, which could take some time to be fully resolved. I’m hard-pressed to think of a non-petty reason for Team Paxton to do this – I mean sure, it might have made the prosecution do less, which certainly has strategic value for the defense, but come on. The only reason this is an issue at all is because there were no non-Paxton crony options for handling this case in Collin County. Whose fault is that? The Chron has more.

Another attack on the Paxton prosecution

If at first you don’t succeed

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A prominent real estate developer has filed a lawsuit seeking to stop payments to the private attorneys appointed to prosecute Attorney General Ken Paxton — the latest twist in the Republican’s securities fraud case.

Jeff Blackard, a Paxton donor, filed the lawsuit in Collin County District Court, arguing that the county was paying too much to the attorneys prosecuting Paxton, violating local rules for such payments.

“This lawsuit seeks to halt a threatened expenditure of public funds that would unlawfully serve to enrich private attorneys at the expense of taxpayers in Collin County, Texas,” says the complaint, filed on behalf of Blackard and “similarly situated taxpayers.”

Blackard says he lives in Hopkins County but pays taxes for two parcels of property in Collin County, along with local sales taxes.

The lawsuit names as defendants District Judge George Gallagher — who is presiding over Paxton’s case — as well as Collin County Judge Keith Self, County Auditor Jeff May and three county commissioners.

Blackard argues that promised payments of $300 per hour to the special prosecutors “would constitute an illegal expenditure of taxpayer funds” because they would eclipse fees typically paid to attorneys appointed to represent poor defendants.

See here and here for some background. Personally, I think this is bush league. This is a big case, it’s going to require that the prosecutors involved spend a lot of time on it, and they should be compensated fairly. I really don’t see what’s so controversial about that. The law may see it differently, however. I’m not at all clear on what that is, but I know what it ought to be. We’ll see if this suit has any merit. I won’t be surprised if this litigation has a life span as long as the Paxton case itself does.