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Commentary: Prosecutors’ motion effectively an admission of Paxton’s innocence

By   /   February 14, 2017  /   No Comments

Part 15 of 17 in the series The Problematic Paxton Prosecution

Courtesy of Annenberg ClassroomThe court-appointed attorneys trying to imprison Attorney General Ken Paxton effectively admitted last week that he is innocent.

In filing a motion to move his trial to another county, Brian Wice, Kent Schaffer, and Nicole DeBorde blamed Watchdog.org for ruining their chances to convict Paxton in Collin County.

It is a first principle of American criminal justice that the accused should be presumed innocent, that any fair and impartial trial begins with this presumption, and that it is the responsibility of the prosecution to overcome the presumption by assembling enough evidence to convince the jury of the guilt of the accused.

Wice, Shaffer and DeBorde do not have any evidence of Paxton’s guilt, so they have already started blaming the presumption of innocence. If jurors believe Paxton to be innocent, why then they must be “tainted,” according to these lawyers.

Now, this presumption of innocence is often a formality, a principle we acknowledge while also recognizing that the accused usually do turn out to be guilty. The problem for the prosecutors is that some of the jurors may have read Watchdog.org’s report on the Texas Rangers’ Paxton investigation.

They would know that this fraud case comes down to the question of whether Paxton misled anyone, and that not one of the prosecution’s witnesses claims to have been misled by Paxton.

Or at least they didn’t when they first talked to investigators. It remains to be seen what they say at trial, or if they even dare to take the stand.

Now, if Paxton were guilty and if the prosecutors had proof, none of the words written by Watchdog.org or anyone else would matter. You just show everyone the email where Paxton agrees to lie, or tells a lie, or whatever it may be, and bam, there goes your presumption of innocence.

As for those words we’ve written, it’s worth noting that the prosecutors don’t even try to point to any factual inaccuracies in our reporting, relying instead on alliteration and sick burns from the 17th Century.

“Cassidy was a Team Paxton partisan, patron and most of all, propagandist,” they write in one place, elsewhere referring to this reporter as a “tub-thumper.”

At one point, we reported that “two well-paid special prosecutors and a judge who later recused himself got Paxton indicted,” as Wice, Schaffer and former judge Chris Oldner all took an active part in getting a grand jury to indict Paxton before a statute of limitations expired.

It was Schaffer, in fact, who leaked the sealed indictment to the New York Times, back before he decided that media coverage was prejudicial.

The attorneys try to dispute the phrase by insisting that “anyone who squeaked through high school civics class would readily recognize: trial judges and prosecutors do not indict defendants; grand jurors do.”

Which is why we’ve all heard the popular expression: If a ham sandwich gets indicted, the prosecutor surely had nothing to do with it.

There’s a reason the prosecution’s argument about its right to a trial free from public discussion sounds so peculiar.

The right to a fair trial is a right the Constitution guarantees to the accused, not the state.

It’s extremely rare that courts anywhere agree to move trial to another jurisdiction, but when they do, it is usually on the grounds that the defendant couldn’t receive a fair trial, owing to widespread prejudice.

When a defendant has been practically convicted of a sensational crime by newspapers running inaccurate reports, courts have found good reason to delay proceedings, letting passions cool, before seeking out 12 jurors willing to set aside their preconceptions. If they still can’t find an impartial jury, then they might accommodate the defendant’s request to move.

Wice and Schaffer want Judge George Gallagher to transfer venue before he even tries to seat a jury, egging him on with the assurance that his decision wouldn’t be reversed unless an appellate court found he’d abused his discretion.

In most states, the prosecutors can’t even request a change of venue, either because the state constitution forbids it, or the state courts pay heed to the Sixth Amendment, which reads (with emphasis added):

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

So, naturally, one asks how it’s even possible for the court to entertain a motion to violate Paxton’s constitutional rights.

The Supreme Court has never ruled on this “vicinage clause” in the Sixth Amendment, as it’s known thanks to its origins in English common law, and state and federal courts have come to conflicting opinions about whether it requires states to seat juries from the jurisdiction where the crime is alleged to have taken place.

The Bill of Rights was originally understood as restricting just the federal government, but since 1925, the Supreme Court has interpreted the Fourteenth Amendment as incorporating protections in the Bill of Rights as binding upon the states.

Over the next 40 years, the courts went about incorporating those protections in one case after another. Some weren’t fully incorporated until much later, such as the individual’s right to bear arms, in 2010. (Heck, Texas didn’t get around to upholding the defendant’s right “to be informed of the nature and cause of the accusation” until the Michael Morton Act became law in 2013; even now, the state attempts by law to obstruct a defendant from speaking publicly about anything he has learned about the “nature and cause” of the charges against him.)

A handful of those rights still haven’t been incorporated, mainly because the issues rarely come up.

The principle that the courts try to follow was set out in an opinion by Justice Benjamin Cardozo in 1937 that “immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.”

The idea, pushed primarily by Justice Hugo Black, was that all of the specific protections in Amendments One through Eight ought to be incorporated against the states, but that the vague “unenumerated” rights of the Ninth Amendment ought to be forced on the states only when they implicated a “fundamental” liberty.

That’s just how it worked out, with a few exceptions, one of them being a Fifth Circuit case from 1986, in which the court decided the “vicinage” clause didn’t apply to the states.

That case focused on the “fundamental” language, which is the criteria for unenumerated rights, and somehow missing all of the precedents holding that “specific pledges” in the Bill of Rights should be upheld.

The short of all that is that if Judge Gallagher does somehow decide to grant the prosecution’s motion, Paxton would have another avenue to appeal a conviction all the way up to the US Supreme Court, now that his constitutional rights are implicated.

Texas might have a hard time explaining how empowering judges from one county to pick private attorneys from another county to argue before a judge from yet another county that the case should be moved to still another county squares with the simple requirement in the Bill of Rights.

Contact Jon Cassidy at [email protected] or @jpcassidy000.

Part of 17 in the series The Problematic Paxton Prosecution


Jon Cassidy was a former Houston-based reporter for Watchdog.org.