This Chron story goes into some detail about how we ended up with the deferred adjudication deal that brought an abrupt end to the Ken Paxton securities fraud trial.
Still a crook any way you look
Special prosecutors assigned to the case said years-long procedural delays made it especially hard to win at trial. One of the alleged victims died while the case was ongoing.
“Criminal cases aren’t like fine wine,” said special prosecutor Brian Wice. “They do not get better with age.”
The case was “makeable,” said Kent Schaffer, who withdrew from the prosecution last month, but he and Wice estimated their odds of winning had been about 50-50. That’s why Schaffer said he resurfaced a discussion about a deal with the defense six weeks ago, just before he left.
In recent weeks, Wice and his new co-counsel, Jed Silverman, had narrowed their focus to two more severe felony charges after a key witness, appeared ready to side with Paxton on a third, which accused him of failing to register as an investment adviser.
Wice said they started reading interviews and re-interviewing nearly a dozen witnesses last month, some of whom “hadn’t been interviewed since the Obama administration.”
“As a result of that intensive interviewing and re-interviewing process, we had a sense of what these cases were — more importantly, what they weren’t,” Wice said.
The key witness, Paxton’s former friend and business associate Frederick “Fritz” Mowery, had already testified a decade ago to the Texas State Securities Board that he was the one who erred in not registering Paxton as a security adviser. Following a 2014 investigation, the board reprimanded Paxton and fined him $1,000 for the violation.
Wice acknowledged that testimony was technically public record but said they didn’t learn of the details until a month ago when Silverman re-interviewed the witness. Silverman said the interview elicited a “level of detail that would make it considerably harder for a jury to believe” Paxton knowingly broke the law.
Silverman and Wice described in interviews how the investment-related charges had a clear victim and a clear path to justice, unlike the registration charge, which Silverman described as “really an administrative matter.” Silverman said the victims told prosecutors their top priority was being made whole financially, and as lawyers, they were obligated to take that to heart.
Schaffer said most of the witnesses in the case were hostile to the prosecution and friendly with Paxton. He said the prosecution planned to show in court that Paxton had excelled in a securities course when he was licensed as proof that he should have known better.
Still, he said, there was no knowing if a jury might take pity on Paxton — that they would know he’s guilty but decide that the punishment doesn’t fit the crime.
“To not fill a form out from the state because you thought your federal form was sufficient? And it was (sufficient) up until three months ago?” Schaffer said. “You know, some jurors may feel kind of like look, nobody got harmed. You didn’t do it correctly. He did pay a civil penalty. He’s been punished enough.”
Schaffer added that the charge accusing Paxton of misleading investors might also have been difficult to prove because the law isn’t “crystal clear” about what a person soliciting investments is supposed to tell a potential investor, and Paxton allegedly didn’t lie outright, he lied by omission.
In his view, pretrial diversion was a way prosecutors could make sure there were some guaranteed consequences for Paxton, and it also implied guilt.
“It sends a signal to anybody who is paying attention that this guy obviously did what he’s accused of doing or he wouldn’t be entering into that agreement,” Schaffer said.
See here for the previous update, about the deal being made. This subsequent story has more details.
The lead prosecutor in Ken Paxton’s securities fraud case was scrambling in recent months to push back the trial date and find local district attorneys who could help him present a convincing argument to the jury.
The April 15 trial date set by Harris County Judge Andrea Beall was quickly approaching after years of delays and an attempt by Paxton’s team to have the charges dismissed for lack of a speedy trial was still pending.
Brian Wice, the lead private attorney appointed to prosecute Paxton, told Hearst Newspapers he and defense attorney Dan Cogdell agreed they were not going to be ready by that date and decided to set a meeting with Beall on Valentine’s Day to ask to move the trial to September. The judge flatly rejected them.
[…]
As Schaffer considered leaving the case in February, he approached Cogdell about a possible deal allowing Paxton to have the charges dropped.
At the time, restitution payments to the victims were not part of the discussion, Cogdell said, though he expected it likely would have come up if negotiations with Schaffer had continued. Wice was adamant that restitution be included.
Without a consensus and with his compensation still in question, Schaffer, an experienced trial and criminal defense lawyer who has represented high-profile clients like music artist Travis Scott, withdrew from the case.
That left Wice in a bind. Though also a veteran criminal defense lawyer, his expertise is in appellate law, and he hasn’t tried a case on his own in decades.
“That’s not my skillset,” Wice said. “That’s Kent’s skillset. Pound for pound, he’s one of the best trial lawyers in the Western Hemisphere.”
That was the point at which Wice began reaching out to various DA’s offices for assistance, according to the story. There are some disagreements with those offices about how that all went, so read for yourself. There were a lot of factors that led us to this conclusion, none of which should be confused for Paxton being anything but the crooked little shit that he is. In that first story at the end, Attorney Schaffer expressed his optimism in that San Antonio grand jury, to which all I can say is from your lips to God’s ear, sir. Read both of these or read this Reform Austin summary and see what you think.
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