Nos.416-81913-2015 416-82148-2015 416-82149-2015 THE STATE OF TEXAS IN THE DISTRICT COURT v. 416th JUDICIAL DISTRICT WARREN KENNETH PAXTON, JR. COLLIN COUNTY, TEXAS RESPONSE TO STATE's MOTION FOR CONTINUANCE To THE HONORABLE GEORGE GALLAGHER, PRESIDING JUDGE: Now comes Warren Kenneth Paxton, Jr., by and through his attorneys of record and pursuant to the Texas Code of Criminal Procedure presents this Response to State's Motion for Continuance of Trial. The State's motion should be and as grounds therefore we would show the Court as follows: I. INTRODUCTION "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." TEX. CODE CRIM. PROC. ART 2.01 It appears the attorneys pro tern missed this vital portion of the Code of Criminal Procedure while they were too busy emulating Cuba GoodingJr.'s incessant shouts of "show me the money!" in Jerry Maguire. 1 Unfortunately for them, they did not "have us at hello." Their request for continuance on the sole basis that they, as 1 JERRY MAGUIRE, TriStar Pictures (1996). 1
state employees, have not been paid their asking price of thirty pieces of silver is as offensive to the conscience as it is irrelevant to our proceedings. There is one thing, however, that the Defense will agree on with the Attorneys Pro Tern on this case: this continuance is a matter of first impression. Never before has a Texas prosecutor submitted a bill to the county he or she serves for over $500,000.00 for a single case. Never before has a Texas prosecutor's payment for a single case been so outrageous as to be stayed by the Court of Appeals. And never before has a Texas prosecutor's response to that stay been an attempt to delay the proceeding for which they were hired because a quarter of a million dollars wasn't enough to get them in the courtroom. There is, as they say, a first time for everything. II. PAXTON'S AsSERTION OF RIGHT TO SPEEDY AND PUBLIC TRIAL Every citizen is entitled to their prompt day in court, and the fact that Mr. Paxton holds political office should make him no different. Paxton has endured eighteen months of public attacks, political backlash, and cries for blood from those politically opposed to him. He has been forced to attend meetings with counsel, pretrial hearings, and countless phone conferences, all the while doing his duty representing the citizens of Texas as their Attorney General. While the stress accompanying any criminal charge cannot be understated, Paxton continues to fully serve the people of this State and carry out all duties incumbent upon the Attorney General. Thus the people of the State of Texas, likewise, have an interest in a speedy trial in this cause. Paxton is ready for the opportunity to clear himself of these 2
baseless allegations at trial. That the prosecutors hand-picked to pursue the matter are not regularly employed public servants should not work to Prejudice Paxton in this matter. Paxton's own attorneys have worked diligently to ensure that justice is served in this case. It would have been imprudent for his counsel to request an immediate trial without the opportunity to review the countless documents in discovery. Indeed, the attorneys pro tern have continually provided discovery to defense counsel as late as February 2nd, 2017. Paxton's assertion of his right to a speedy trial comes not at a late hour, but as soon as practically possible. Paxton requests the Court grant him that right which he is guaranteed by Sixth Amendment to the Constitution of the United States. See Barkerv. Wingo, 407 U.S. 514 (1972); Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)2. To do so is his right. The State's request for a continuance to ensure their coffers are filled 3 dives headfirst outside the conventional realm of Texas jurisprudence, common sense and procedure, and should therefore be denied. III. THE PROSECUTORS' PRO TEM REQUEST IS AS MERITLESS AS IT IS MOTIVE-REVEALING In order to determine the lack of "sufficient cause shown" as required by Art. 29.03, this Court need look only to the difference between the attorneys' pro tern statements to the media before and their 'sufficient cause' after the realization that 2 It is important to note that one of the Barker factors is "the State's reason for the delay." While reasons such as locating a witness or being unable to serve an arrest warrant on a defendant have been found to satisfy this factor, a lack of a payment on a prosecutor's request certainly does not. 3 Surely being "some of the most respected and veteran lawyers in Texas" they continually self-gush about, the Attorneys Pro Tern know well and good that 'I haven't been paid yet' has never been good cause for a continuance and never will be. 3
this prosecution may not be as financially lucrative as when they agreed to undertake it: Pro Tern Media Sound Bites ''While one of Mr. Paxton's prominent supporters has filed a groundless and gratuitous civil suit attempting to tell Judge Gallagher how to run his courtroom, that is no concern to us." 4 'Sufficient Cause' alleged "[I']his Court could not, indeed, should not expect or order [Attorneys Pro Tern] to work for free." ''Because our statutory mandate as special prosecutors is not to convict, but to see that justice is done, our commitment to these bedrock principles remains inviolate."5 "At some point in their legal careers, the Special Prosecutors have taken on pro bono cases where the facts, circumstances, and client compelled the conclusion that it was a worthy endeavor. T his is not such a case." It's certainly not going to have any impact on the actual criminal trial. My clients are going to continue to prosecute, regardless."6 "No one in a democratic society should be expected to work for free." Indeed, throughout this litigation their motto has certainly been 'do as I say, not as I do.' T hey have consistently proclaimed that the litigation would remain undeterred by the lawsuit regarding their fees. Now, having been paid hundreds of thousands of dollars for two court appearances, they suddenly claim hardship proceeding to try the case... which is what they were hired to do. In another case in which Mr. Schaffer and Ms. D eborde were appointed prosecutors pro tern, Harris County 4 Miles, "Taxpayers Billed $240k+ for Special Prosecutors in Texas AG Case." www.dfw.cbslocal.com,january 7'h, 2016. 5 Florek, "Texas Attorney General Ken Paxton Indicted by Grand Jury in Collin County." www.dallasnews.com, August 2015. 6 Krochtengel, "Dallas Court Blocks Suit Over Pay for Paxton Prosecutors." www.law360.com, January 19'h, 2017) To be clear, this statement was made by Pro Tern's Hired Counsel to defend their fees (which costs have also been paid by Collin County). 4
District Clerk records reveal the fee bills for $175.00 per hour were submitted only after the conclusion of the case, not before. 7 Similarly, in a case in which Mr. Wice has served as an attorney pro tern since May, 2014, no fee bills have yet been submitted for his $175.00 per hour, though the case has concluded.s When one looks to how the attorneys pro tern have dealt with this issue in the past, one must wonder why should this case be any different? It is clear that while the prosecutors pro tern have consistently denied any motivation for this prosecution other than 'truth and justice' in the public view, they sing a very different tune when their purse strings are tightened by the taxpayers of Collin County. As the saying goes, if you give a mouse a cookie, he's going to ask for a glass of milk. In other words, enough is enough. IV. $254,908.81 IS NOT 'SUFFICIENT CAUSE SHOWN." Article 29.03 provides that a criminal action may be continued "upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Art. 29.03. Paxton acknowledges that the granting or denial of a motion for continuance rests in the trial court's sound discretion. Wha/on v. State, 725 S.W.2d 181, 185 (fex. Crim. App. 1986). However, a continuance "shall not be granted as a matter of right." Heise/betz v. State, 906 S.W.2d 500, 511 (fex. Crim. App. 1995). It is therefore telling that the sole portion of the Code of Criminal Procedure that 7 State v. Antho'!J Chiofalo, Case No. 1350388 in the 339'h Criminal D istrict Court of Harris County, Texas. See records available at http://www.hcdistrictclerk.com/edocs/public/search.aspx. 8 State v. Dustin Deutsch, Case No. 1449535 in the 183n1 Criminal District Court of H arris County, Texas. See records available at http://www.hcdistrictclerk.com/edocs/public/search.aspx. 5
specifically addresses continuance by motion of the state discusses continuance for the absence of a material witness. Tex. Code Crim. Proc. art. 29.04. In a defense counsel moved for continuance on the grounds that he did not have near enough time to review a large amount of medical records containing potentially mitigating evidence. 906 S.W.2d at 511. The court held that, absent a specific prejudice shown to the ability to present a defense, the trial court was within its sound discretion to deny a continuance. Id. The bare assertion of defense counsel did not rise to a showing of harm, and certainly not "sufficient cause" as required in art. 29.03. Id. Here, the State doesn't complain of a lack of time -they complain of a lack of money. They make no showing of how the presentation of their case will be actually prejudiced by a lack of interim payments. And, to be clear, the State of Texas is not lacking in funds. The State of Texas has merely decided, through the 5 rh Court of Appeals, that these attorneys have had their fill. Indeed, no case in the history of Texas courts has a budget of this magnitude ever been proposed for a single prosecution. No Texas prosecutor has ever been paid even remotely close to this amount for an entire docket's worth of cases, let alone one single matter. 9 Yet despite being paid thus far the equivalent of the sum of an Aston Martin V8 Vantage (Mr. Schaffer), a Mercedes GT (Mr. Wice), and a BMW 328i 10, they claim that they 9 The yearly salary of the Collin County District Attorney is $140,000. This is to run an entire office of attorneys, not for one single case. https://salaries.texastribune.org/statecomptroller-payroll/gregory-willis/830139 / 10 Ms. DeBorde's initial invoice was far more reasonable than Mr. Schaffer's or Mr. Wice's. 6
cannot possibly 'pursue justice' without the benefit of an additional fortune. Seriously? Each Texas County must adopt a fee schedule "stat[ing] reasonable fixed rates or minimum and maximum hourly rates" in regards to payment of appointed counsel. Tex. Code Crim. Proc. art. 26.0S(c). The amount and manner of this payment under said schedule applies equally to attorneys pro tern. Tex. Code Crim. Proc. art 2.07(c). At all times, the Local Rules adopted by Collin County allow the payment of fees only upon disposition of a case. 11 Save for the obscene amount the prosecutors pro tern have billed the County, there is absolutely nothing about this case dictating it should be treated any differently. And certainly not to the detriment of Paxton, who is eager to proceed to trial. What the attorneys pro tern ask the Court is ludicrous: that they be treated special, have their cake, and we be obliged to sit idly while they ensure they are able to eat it too. The State begins their plea by noting that "most criminal defendants don't have millionaire pals, supporters, and donors." State's Motion for Continuance at 1. It becomes incumbent upon us to note that neither do most prosecutors. 12 The State goes on in their motion to state that they have not been paid since January 14th, 2016. 11 2016 Local Rules to Implement the Texas Fair Defense Act at 4.02. Accessible at http://www.collincountytx.gov/indigent defense/ Documents IF elonv T FDA.pdf 12 It would not appear that Mr. Schaffer's client base is void of those who have "millionaire pals." According to Mr. Schaffer's firm website, he has represented people "from all walks of life," including: R. Allen Stanford (currently serving a 110-year sentence for one of the largest Ponzi schemes in history), Kevin Hannon (imprisoned for his role in the Enron matter), James Prince (CEO and Founder of Rap a Lot Records), and rappers "Slim T hug," "Scarface," and "Pimp C".. http://www.biresandschaffer.com/attornevs/kent-a- Schaffer.shtml 7
The irony in this statement lies in its reasoning. T he attorneys pro tern did not submit any bills on the matter for almost a year's time in order to avoid the inevitable and justified backlash of the citizens o f Collin County. V. A CONTINUANCE ON THESE GROUNDS WILL RESULT IN FURTHER DELAYS There is no reason to believe the fee litigation \vill be complete by September 1, 2017, or within sixty days o f a ruling by the Fifth Court o f Appeals. Even an immediate ruling by the Fifth Court of Appeals in No. 05-17-00094-CV is likely to be the subject of a motion for rehearing by the losing party, followed by a petition for review by the Texas Supreme Court - to say nothing o f the underlying proceedings in the trial court. T he Appellant's brief in that case was filed on February 27, 2017.13 T he Appellee's brief is due within twenty days or Monday, March 20, 2017. See Tex. R. App. P. 38.6(b). O ral argument has not yet been scheduled and the cas'e has not been set for submission. T here is no reason to believe the Fifth Court of Appeals \vill issue an opinion an opinion any time soon or that it \vill end the fee litigation. Even were the Court of Appeals to ultimately rule in the Special Prosecutors' favor this Spring, under the Texas Rules of Appellate Procedure and two generous assumptions: i) no extensions of time; and ii) swift rulings denying relief from those Courts, the continuance requested would be inadequate and their payment issue \vill 13 See 5 h Court of Appeals Docket in Case No. 05-17-00094-CV (consolidated) at http: II www.search.txcourts.gov I Case.aspx?cn =05-17-00094-CV &coa = coa05 (last viewed March 10, 2017). 8
remain unresolved. 14 The parties then have the right to seek review in the Texas Supreme Court who may or may not grant review or take an unpredictable amount of time deciding. Id. In sum, the fee litigation could go on for months while Paxton's criminal case remains stagnant. Whether the Attorneys Pro Tern will prepare for trial during the interim or withdraw in the face of an adverse ruling remains unanswered. VI. WHAT THIS IS REALLY ABOUT The truth of the matter is that the attorneys pro tern know their case is crumbling. This motion comes fresh off the heels of a federal judge twice dismissing the closely analogous securities fraud charges in federal court. See Ser,: & Exch. Comm'n v. Mapp eta/, 4:16-CV-246, 2017 WL 823559 (E.D. Tex. Mar. 2, 2017). After nearly two years of publicly touting Mr. Paxton's supposed fraud, the attorneys pro tern have already pushed back trial of the fraud charges in favor of the most benign and the least punishable (under any statute alleged) -the failure to register count. Even as to that charge, it appears the attorneys pro tern are desperate to get trial out of the Collin County venue. Despite their continued assault on Paxton who they accuse as being a master manipulator of some giant scheme to taint both the jury pool and control the defunding of their case, they have yet to come close to a scintilla of evidence to that effect. After filing a fifty-page motion to change venue and flying in witnesses at Collin County's expense, the attorneys pro tern proved nothing of the sort. Worse 14 See Tex. R. App. P. 49 and 52.9 (15 days for either party to file a motion for rehearing); Tex. R. App. P. 53.7(a) (45 days to file a petition for review in the Texas) Supreme Court); Tex. R. App. P. 53.7(d) (30 days to file any response to a petition for review). 9
yet, even after the Court made an express statement on the record that jury selection would begin in Collin County on April 2Qth, 2017, the attorneys pro tern continued their assault on taxpayer resources by filing a superfluous motion after the matter had been decided. Their concern for "justice, fairness, and equity" and the allocation of taxpayer resources seems to be solely contingent on their ability to continue to get paid at historically high amounts. CONCLUSION and REQUEST FOR RELIEF The attorneys pro tern have already been paid approximately two hundred and fifty thousand dollars. Whether or not they another quarter of a million in interim fees should not affect the scheduling of this trial. If over the quarter of a million dollars that has already been paid is not enough to garner their services, fine. We invite them to withdraw from the case so that a more reasonably-priced prosecutor may continue. Perhaps then, as a new prosecutor might not be paid to prosecute by the hour, they may view the facts of this case in a more neutral light. Regardless, the State's motion for continuance should be denied. It is neither justified under the Code of Criminal Procedure nor by any basis allowed by Texas law. 10
Respectfully submitted, Dan Cogdell Co-Lead Counsel Cordt C. Akers Cogdell Law Firm, L.L.C. 402 Main Street Fourth Floor Houston, Texas 77002 Telephone: (713) 426-2244 Facsimile: (713) 426-2255 dan@cogdell-law.com cordt@cogdell-law.com Terri Moore 300 Burnett St., Ste. 160 Fort Worth, TX 76102-2755 Telephone: (817) 877-4700 moore@terrimoorelaw.com Heather J. Barbieri Barbieri Law Firm, P.C. 1400 Gables Court Plano, Texas 75075 Telephone: (972) 424-1902 Facsimile: (972) 208-2100 hbarbieri@barbierilawfirm.com Isl Dan Cogdell Philip H. Hilder State Bar No. 09620050 Co-Lead Counsel Q. Tate Williams State Bar No. 24013760 Stephanie K. McGuire - of Counsel State Bar No. 11100520 819 Lovett Blvd. Telephone: (713) 655-9111 Facsimile: (713) 655-9112 philip@hilderlaw.com tate@hilderlaw.com stephanie@hilderlaw.com Bill Mateja Polsinelli LLP 2950 N. Harwood St., #2100 Dallas, Texas 75201 Telephone: (214) 397-0030 mateja@polsinelli.com J. Mitchell Little Scheef & Stone, LLP State Bar No. 24043788 2600 Network Blvd., Ste. 400 Frisco, TX 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150 mitch.little@solidcounsel.com OF COUNSEL 11
ATTESTATION THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned authority, personally appeared Dan Cogdell, who, after being by me first duly sworn, on oath stated: "My name is Dan Cogdell and I am the Attorney in this case. I have read the foregoing motion, and all information contained therein is true and correct." SUBSCRIBED AND SWORN to before me, the undersigned authority, on this 13th day of March, 2017. lu?fi,,, BELEN VARA MY COMMl.SSION EXPIRES Apnl 18, 2019 BELEN VARA Notary Public In and for The State of Texas 12
CERTIFICATE OF SERVICE This is to certify that a true and correct copy of Defendant's motion has been delivered to the District Attorney Pro Tern, Collin County, TX, by email, fax, or hand delivery on the 13th day of March, 2017. Isl Dan Cogdell DAN L. COGDELL 13