Judge George Gallagher ruled Thursday that the trial of Attorney General Ken Paxton should be moved out of Collin County.
The move was an extraordinarily rare decision, with Gallagher deciding to change venue to a county to be named later, not to protect the defendant’s constitutional right to a fair trial, but based on a request from prosecutors.
The decision was a blow to Paxton but also raises issues under both the Constitution and Texas law.
The Sixth Amendment guarantees a defendant the right to trial in the “district” in which the crime is alleged to have taken place, but it is one of the few rights in the Bill of Rights which the Supreme Court has not “incorporated” into state law.
Texas law assumes that it does not and federal appellate courts have split on the issue.
A potential issue in state law is whether Gallagher has abused his discretion in deciding to hold the trial somewhere other than Paxton’s home turf.
Still, Texas case law holds that trial judges have wide discretion on changing venue, and “it would be difficult to envisage a state of facts” in which the appellate court would find “that an abuse of discretion has occurred.”
The appellate courts impose just one condition on the trial judge: “The court is only required to state in its order the grounds for its decision to change venue.”
Gallagher did not state a reason for changing venue. Indeed, few if any of his orders in the case so far have included explanations.
Professor Brian Serr, an expert on criminal procedure and appellate law at Baylor University, said that it was “rare, but not unheard of,” for prosecutors to seek a change of venue.
“Ninety-nine times out of 100, it’s the defendants making a motion for change of venue on the grounds that pretrial publicity has prejudiced the community against the defendant,” Serr said.
While the defendant has a constitutional right to a fair trial, Texas law also establishes that the state has an interest in impartial proceedings. In most states, prosecutors cannot seek a change of venue.
The Texas standard creates a fine line — jurors are supposed to presume a defendant’s innocence, but they’re not supposed to prejudge it.
There’s a huge volume of case law going up to the Supreme Court on when a defendant is entitled to change venue because a jury would be prejudiced, but there’s not much law setting the standard for when prosecutors would have that right.
“You’d be looking at the same thing, it’s just the other party,” Serr explained.
Both federal and state law set extreme standards for requiring a change of venue.
Texas statute spells out the conditions in which judges should grant a motion by prosecutors to change venue, and they all have a Wild West air.
If “by reason of existing combinations or inﬂuences in favor of the accused, or on account of the lawless condition of affairs in the county, a fair and impartial trial as between the accused and the State cannot be safely and speedily had; or Whenever he shall represent that the life of the prisoner, or of any Witness, would be jeopardized by a trial in the county,” then a transfer should be granted.
As Paxton’s lawyers have pointed out in legal briefs, “Combinations’ in the statute means several people joining together specifically to undermine the fairness of the trial, i.e. a conspiracy.”
The court-appointed prosecutors — Brian Wice, Kent Schaffer, and Nicole DeBorde — have argued that those politicians, journalists, and citizens who have defended Paxton are engaged in a conspiracy to taint the jury pool in Collin County.
As evidence, they gave the court a flyer for a Paxton fundraiser hosted by many Collin County politicians. Paxton’s lawyers submitted a pile of similar flyers showing that such events are commonplace. Gallagher said in open court that the flyer represented an “ethical problem,” which he did not explain further.
The court-appointed prosecutors have also singled out reporting from the news site Watchdog.org as evidence of detrimental publicity. Watchdog.org, a national, conservative news site, is no longer covering Texas.
Paxton’s lawyers presented polling data that showed “(a)mong those jury-eligible Collin County residents who were aware of the Paxton indictment, three-fourths of them did not have an opinion as to Paxton’s guilt or innocence.”
Gallagher imposed a gag order on both sides this week, so neither team of lawyers has been talking to the press.
Paxton’s former spokesman Anthony Holm issued a statement, which he said was his own, on the ruling.
“Today’s ruling is the latest in a pattern of injustice against Ken Paxton and his family,” he wrote. “The examples are too great to list yet include an activist showing up at the home and work places of grand jurors in an effort to help secure an indictment, or the original judge’s recusal due to judicial misconduct…”
Gallagher’s order granting the prosecutors’ motion states that the trial will be held in an “adjoining district” at a date to be determined later.
Any appeal of the decision to change venue would presumably come after a verdict is rendered.
As it stands, Paxton will be prosecuted by private attorneys from Houston, who are overseen by a judge from Tarrant County, in a trial held in yet another county.
Collin County taxpayers, however, will still get the bill.
Jon Cassidy can be reached at [email protected]