In the battle of first impressions before Judge Robert Johnson, Attorney General Ken Paxton’s defense team played a bit of jiu-jitsu, letting the force and momentum of the prosecution’s own introductory argument work against it.
Just like the defense predicted, the prosecution offered a highly detailed account of why it should get paid.
The defense, for its part, offered a stripped-down account of events that posed just one clear question for the judge to ponder: if an alleged criminal offense took place on June 25, 2012, and the statute of limitations was three years, then why was Paxton indicted on July 7, 2015?
Both sides submitted a timeline of the case on Friday to Johnson, who had requested the briefing in order to get up to speed on the last two years of wrangling in a case he has just inherited.
There was no specific legal issue that the sides were supposed to be arguing, but the request presented an opportunity to begin shaping Johnson’s impression of what’s been going on these last two years.
One thing that’s been going on is that the court-appointed prosecutors haven’t been getting paid — at least not since they collected some $370,000 a year and a half ago. That was clearly foremost on their own minds, as much of their initial 12-page filing dealt with how it came to be that their payment was halted by the commissioners of Collin County, who have filed a lawsuit challenging the legality of their compensation arrangement.
Team Paxton called it, too.
“We suspect that the State will include in their timeline numerous motions, hearings, commissioners’ court rulings, and deadlines having to do with” lawsuits about their pay, Paxton’s attorneys predicted in their filing, before pointing out that, in their own timeline, “(a)ll matters having to do with the prosecutors’ fee arrangement have been intentionally omitted, as they are completely irrelevant…”
Paxton faces three criminal charges — one alleged failure to put his name on a list of people in the securities business, a third-degree felony, and two first-degree counts of securities fraud.
It is the failure-to-register charge that the prosecution wants to try first, and then possibly proceeding to “the other two, if they get tried,” as prosecutor Brian Wice phrased it in court June 29.
For one thing, the flaws in the securities fraud case have already been made manifest in federal court, where a judge dismissed the case after finding that no conceivable argument for fraud could be concocted from the factual allegations at hand.
Conventional wisdom might hold that the failure-to-register charge would be a sure thing since Paxton already admitted to it before the state securities board, but Paxton’s attorneys have argued that his admission there was simply a matter of convenience in a routine regulatory matter. Nobody in Texas has ever been criminally prosecuted after making such an admission, they say, citing the securities board.
Also, they argue that the adviser in that matter was actually still registered with the Securities and Exchange Commission until October of 2012, which would have superseded the requirement for state registration.
Rather than get into the merits of the cases, Paxton’s attorneys simply presented in a prominent footnote the curious and overlooked matter of the three-year statute of limitations.
There’s no easy way to introduce a new judge to a case in which the conduct of prior judges was so often questioned, but the simple question could go some distance in convincing Johnson that this isn’t just another case of “blame the refs.”
While the question of the statute of limitations has no bearing on the issues before Johnson, it’s clearly meant to persuade him of Paxton’s sincere desire to exercise his right to a speedy trial. The prosecutors are portraying Paxton’s early appeals, regarding the statute of limitations and irregularities with the grand jury, among other things, as nothing more than delay tactics. Therefore, they argue, Paxton has no right to insist on a speedy trial now, so Johnson ought to delay the trial further until they get paid.
In a filing from March, Wice and the other court-appointed prosecutors argued in vain to hold up the case until they got paid. They argued then that “this case could be tried… certainly no later than September 1, 2017.”
They’ve worked for free in other cases, they wrote, “where the facts, circumstances, and client compelled the conclusion that it was a worthy endeavor. This is not such a case.”
The next hearing in the case is scheduled for July 27.
Johnson had also asked the two sides what outstanding motions there were for him to issue rulings on.
Both sides agree that there are just a half-dozen motions from Team Paxton from early February, requesting among other things, that prosecutors turn over any evidence favorable to Paxton and any lists of expert witnesses the prosecutors plan to call.
The defense also noticed that prosecutors failed to turn over a four-page document from the Travis County District Attorney’s Office detailing the first complaint made against Paxton, which came from a Republican rival in the 2014 primary in the race for Attorney General.
Even after the defense team caught the omission, the prosecutors are insisting that they shouldn’t have to surrender it, which suggests that the document could prove illuminating.
In a case where the political context has so often remained subtext, it could prove fateful that the first question presented to Johnson is this: who has it out for Paxton?
Jon Cassidy can be reached at [email protected]