A mysterious mailer slamming the judge who is overseeing the prosecution of Attorney General Ken Paxton is full of distortions, misquotations, and outright fabrications.
The anonymous mailer accuses District Judge George Gallagher of “(r)igging the system, abusing power, playing politics… all on our dime.”
It claims that “Gallagher has a long history of abuse & manipulation,” citing four appellate court decisions, and purporting to quote from them.
All but one of the quotations are completely misleading.
The flyer repeatedly employs the idea of “abuse of discretion.” This is a standard of review by which appeals courts decide whether or not certain trial court decisions are grounds for reversal.
In all four of the cases cited, the appellate court upheld Gallagher’s decisions. In two of the cases, the flyer is simply wrong. In another, the judge made a mistake found to be harmless.
The lone exception was when an appeals court found that Gallagher was wrong to exclude some testimony as hearsay when it should have been admitted, but even then, the mistake wasn’t serious enough to reverse the conviction.
Gallagher declined to comment on the case earlier this week.
The mailer also misquotes a Texas Monitor article from March 30 that discusses whether or not Gallagher’s decision to move Paxton’s trial from Collin County to Harris County would count as abuse of discretion.
The flyer presents the Monitor story as concluding that it would, when the Monitor actually reported that “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.’”
Joseph Larsen, a media lawyer, said there were too many unknowns about the matter to say whether Gallagher would have grounds for legal action.
“You see absolutely false things being published all the time,” Larsen said.
The mailer was first reported by columnist Bud Kennedy of the Fort Worth Star-Telegram Saturday, but it’s unclear how much distribution the piece actually received,
Michael Quinn Sullivan of Empower Texans reported on it Monday after copies showed up at his homes in Austin and Lewisville.
“There were several folks in my neighborhood asking about it,” Sullivan said, and he’d seen it mentioned on social media over last weekend, and received texts from friends.
Sullivan was immediately accused by the Capitol newsletter Quorum Report of promoting a “smear campaign” meant to taint jurors.
Whether or not such a “smear campaign” exists could prove key to the resolution of the Paxton case.
In March, Gallagher ordered the trial moved from Paxton’s home turf of Collin County down to Harris County after prosecutors alleged that stories in conservative media, a few radio ads, and public statements by a former US senator were all part of a secret campaign to taint the jury.
The mailers could be cited as evidence of such a campaign should Gallagher’s highly unusual decision to change venue become the basis for an eventual appeal.
Anyone who wanted to argue that Gallagher is an unfair judge could find plenty of cases in which he’s been reversed through a simple Google search, such as here and here and here and here, which makes it all the more curious that the mysterious figure behind the mailer chose not just false claims, but provided footnotes that would expose them as such.
The mailer identifies one actual “abuse of discretion” that had any impact on a case. Gallagher failed to allow a witness in a molestation case to testify about an alleged threat the victim made, but the jury heard about the threat in other ways, so the verdict was upheld.
In another case, a man convicted of murdering his son argued Gallagher had been unfair to him on 10 issues; the appeals court sided with Gallagher on all 10.
In a third case, a man convicted of stabbing the mother of his children in the chest complained that his lawyer hadn’t been allowed to ask a routine question during jury selection. The appeals court agreed that the lawyer should have been permitted to ask how potential jurors defined “reasonable doubt,” but that the error was harmless, much less reason enough to ignore the man’s admission of the crime.
Here’s how the flyer described the events in a fourth case:
“After GALLAGHER was overruled for sentencing a man to 50 years, he DOUBLED DOWN in the retrial, sentencing the man to 100 years for the same crime. [GALLAGHER] RETALIATED against him for successfully prosecuting an appeal of his prior conviction. We overrule the issue.”
In the first case, the defendant had been convicted of mistreating a baby, whom paramedics had found “malnourished, dehydrated, lethargic, unresponsive, and limp while in appellant’s home. The infant’s muscles had started to atrophy ‘to the point that we could see bone structures . . . he was covered in a rash or eczema.’”
Gallagher had refused to allow the man to represent himself at trial and was reversed. After the man was convicted a second time, he appealed, arguing that Gallagher had failed to warn him of the dangers of representing himself.
FILE – In this July 29, 2015, file photo, Texas Attorney General Ken Paxton speaks during a hearing in Austin, Texas. (AP Photo/Eric Gay, File)
Jon Cassidy can be reached at [email protected]