Frontier Justice, Texas Republican Style
by

Houston

Frontier justice was a staple of the Westerns.

In High Noon, the judge tells the marshal, Gary Cooper, he’d best get out of town before the villain returns, then flees himself.

Director Howard Hawks hated that film so much that he made two pictures as a response, with Rio Bravo and El Dorado both starring John Wayne as a sheriff guarding a bad guy until he can be taken away for trial.

With Rio Lobo, we still get Wayne holed up in a jail surrounded by a gang trying to bust out the boss, but in this one, Hawks gave the bad guys badges.

Texas Attorney General Ken Paxton is out on bail, so we won’t be having any shootouts in his hometown of McKinney, a booming suburb north of Dallas, but plenty of folks thereabouts would tell you the bad guys in his case have badges, and that a couple of ’em might even be wearing black robes.

I won’t monger any theories here, but I will say that the decisions of one judge in particular, George Gallagher, have been so irregular that Paxton’s lawyers insisted this week that he be replaced.

Gallagher has sided with the prosecution on issue after issue in a securities fraud case that could see Paxton imprisoned for 99 years, but this week, he sent the case down to Houston for trial at the request of the prosecutors, after deciding that Collin County, pop. 782,341, was unlikely to produce 12 jurors willing to convict Paxton. Not that he actually tried to seat a jury.

Since state law requires him to give a reason in order for the decision to stand, Gallagher offered two: “Harris County was selected because the lead counsel for the state and the defense are located there,” and “Harris County also has the facilities to accommodate the trial.”

McKinney, for what it’s worth, has a gleaming, recently expanded courthouse that would put many federal courthouses to shame. What’s really going on? Well, McKinney is Tea Party country, while Houston is as diverse as Los Angeles. Democrats swept countywide elections here last fall, including all two dozen judgeships.

And if you were wondering why the prosecutors in a case from north Texas are private attorneys from Houston, that’s a whole other story. Those attorneys, one of whom was recently named an unindicted co-conspirator in a murder and racketeering case, have had their six-figure paydays frozen by an appellate court examining the legality of the arrangement by which they were hired. State law calls for fixed rates for court-appointed attorneys, not custom deals.

The short of it is you’ve got private prosecutors from one county, a defendant from another, a judge from a third who is now sending the case to a new jurisdiction. For context, the Securities and Exchange Commission already accused Paxton of the exact same thing, and the case was laughed out of federal court. The judge there was required to consider everything the SEC alleged as true and still found that the government hadn’t found a law that Paxton could have broken. So it’s hard to avoid the appearance of an entirely bespoke prosecution cut to fit Paxton, whose socially conservative views stand out even in Texas.

Now, Gallagher is a Republican, as is the judge before him who recused himself after his wife was caught gloating over secret grand jury proceedings, as is Paxton’s main accuser, state Rep. Byron Cook. But the Republican Party in Texas is split into warring camps — an insurgent tea party wing represented by Paxton and Lt. Gov. Dan Patrick, and the old-money wing based in the toniest zip codes of San Antonio and Dallas. That camp is represented by Cook’s patron, state House Speaker Joe Straus, who won his job in a coup led by Democrats, and it also includes some of the names from former President George W. Bush’s orbit. In fact, I’m told Paxton learned of his indictment two years ago after bumping into Karl Rove.

Whether or not there is any conspiracy to railroad Paxton, his attorneys have lost confidence in Gallagher, advising him Wednesday that state law requires their consent for him to keep the case on his docket, and they wouldn’t be signing off. But Gallagher went ahead and set trial for September, as he apparently intends to stay on.

Ironically, the bit of statute that allows Gallagher to change venue is itself a vestige of frontier justice, dating back to 1876. Reading it, it’s easy to picture Wayne holed up in jail, waiting for the U.S. Marshal to come take the villain away for trial (or, I should say, it’s easy so long as you know that “combinations” is an archaic term for conspiracy).

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 judge may transfer a trial to another venue.

The judge cited a flyer from a 2013 fundraiser for Paxton, which listed many local officials, by way of suggesting some sort of undue influence on… somebody, somehow. He didn’t say. It couldn’t have been himself, or his own pay, as he’s visiting from another county.

It is, of course, extraordinarily rare for a judge to grant the prosecution a change of venue; only a handful of states even permit it. The Sixth Amendment requires trials to be held in the jurisdiction where the crime is alleged to have taken place, but that happens to be one of only guarantees in the Bill of Rights that hasn’t been applied to the states, simply because the Supreme Court has never taken up the issue. It’s got a proud heritage, though. The First Continental Congress, angry that King George started yanking Yanks back to England for trial after the Boston Tea Party, insisted on the “great and inestimable privilege of being tried by their peers of the vicinage.”

It is almost always the defense attorneys insisting that jurors have been unfairly inflamed against their client by prejudicial coverage in the media. In this case, the prosecutors argued that jurors had been unfairly inflamed against them by a pro-Paxton conspiracy consisting of me, Rick Santorum, a local real estate developer, and a couple of others.

The real estate developer is the one who sued to block their payment. Santorum said unkind things about them in an interview with local TV. And I wrote about the secret investigative reports of the Texas Rangers for Watchdog.org, a small operation that is closing up shop.

Defendants dealing with hundreds of negative news stories are routinely denied a change of venue. So how could a news story on a little-known website imperil a criminal prosecution? It’s pretty simple, actually: with the facts.

The prosecutors know that a juror who read that story wouldn’t just presume Paxton to be innocent. He’d know it to be true, absent the appearance of some smoking gun.

For all the vagaries of securities law, fraud cases come down to the question of whether one person defrauded another. That requires not just some sort of gain; it requires someone to mislead another, either by lying, or by omission, by telling a half-truth.

Prosecutors allege that Paxton received $100,000 worth of paper in a company called Servergy for soliciting others to invest in it. They argue he should have disclosed that compensation. But they must prove he misled those investors, and they haven’t been able to point to any lie he told, to any half-truth, or to any positive obligation in state or federal law to disclose the matter.

Of all the investors Paxton talked to, Cook and his longtime business partner Joel Hochberg are the only ones to accuse Paxton. So the case comes down to what Paxton said or did to give them the idea that he wouldn’t be paid. In the accounts of their interviews with investigators, both admit Paxton never discussed compensation, and even their attorney said they “assumed Paxton was also investing in Servergy based on past business investments,” not anything he said or implied.

I took that and put it right in a headline, because it doesn’t take a legal expert to figure out there’s something dreadfully wrong with sending a man to prison for life because of what another says he assumed.

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