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Paxton files his first indictment appeal

And on we go.

Best mugshot ever

Best mugshot ever

Texas Attorney General Ken Paxton continues to fight to get out from under three felony indictments, arguing anew before a Dallas appeals court that he is innocent of accusations he repeatedly violated state securities laws.

“We argue that the entirety of all three indictments should be dismissed,” Bill Mateja, one of Paxton’s attorneys, said Tuesday. “We feel confident that we’ll be able to prevail on appeal.”

[…]

In the 77-page brief filed with the court on Monday, Paxton’s lawyers argued state law is too vague for the indictments to hold water.

Specifically, they said the definition of “investment adviser representative” in the Texas Securities Act is vague and conflicts with federal law. The state law also “unconstitutionally regulates free commercial speech” also doesn’t define how such a person would “solicit” business, they argued.

Repeating the arguments they made before the district judge last year, Paxton’s team also accused the judge who empaneled the grand jury of improperly handling the process by asking for volunteers instead of picking the members at random. Paxton’s lawyers are asking for a hearing before the appeals court.

Paxton’s indictments were upheld by trial judge George Gallagher in December, and the 5th Court of Appeals called for briefs in January. Prosecutors have until March 14 to submit theirs. As noted in that last link, the appeals court could issue a ruling based on the briefs, or it could schedule and hear oral arguments, in which case we will all need to settle in and get comfortable, because we’ll be in for the long haul.

As for the merits of Paxton’s appeal, Texas Lawyer asked a bunch of experts and got some interesting answers:

“These are all interesting things—good legal questions—but on the whole, they are all post-trial questions and not pretrial issues,” said former CCA Judge Cathy Cochran. “It’s a hard row to hoe to bring them in the pretrial context, when there is just no evidence of anything yet.”

Criminal procedure expert John Schmolesky explained that courts will only grant pretrial habeas corpus relief when a defendant proves that a law is unconstitutional on its face rather than arguing it’s unconstitutional as applied to him.

“He has to be convicted and then he can raise his complaint about the statute,” said Schmolesky, a professor at St. Mary’s University School of Law. “The appellate court may very well say, ‘There might be merit to the claim, but we will wait.'”

Hilder & Associates principal Philip Hilder of Houston wrote in an email, “Mr. Paxton is entitled to relief because the statute under which he is charged does not regulate the conduct of representatives of federally filed investment advisers, which applied to Mr. Paxton. Further, we maintain that the statute is vague and unconditionally regulates conduct. Additionally, the indictments are void because they were returned by a grand jury of volunteers improperly selected.”

But attorney pro tem Brian Wice wrote in an email, “His arguments that these prosecutions should end before a jury can pass upon his guilt or innocence are creative. But Mr. Paxton’s appellate brief has provided the court of appeals with no additional argument or authorities that his creativity is a compelling, principled, or reasoned substitute for legal merit.”

[…]

One of Paxton’s claims applies to all three of his charges. He claimed that 416th District Judge Chris Oldner improperly impaneled the grand jury that indicted him. Oldner called a panel at random, but then he asked who was willing to serve. Paxton argued that “willingness to serve” isn’t a lawful qualification. He claimed that the U.S. Court of Appeals for the Fourth Circuit dismissed an indictment under identical circumstances.

Cochran, [former Third Court of Appeals Chief Justice Woodie] Jones and Schmolesky all said the argument is new and interesting.

Cochran said that the U.S. Supreme Court has held that if grand jury law is violated, a defendant must show the violation substantially influenced the grand jury’s decision to indict him. Paxton will have to prove that he wouldn’t have been indicted if the judge impaneled the grand jury correctly, she said.

Jones said, “I would be curious to know if federal grand jury law is the same as Texas grand jury law—there’s a very good chance it is not the same.”

Jones added that his 18 years as an appellate judge taught him never to judge a case based on one side’s briefs.

“I read this one and think to myself, ‘That’s a really interesting issue. I’m going to be curious to see what the state’s response is to the issue,’ or, ‘Once I dig deeper, I’m going to be curious to see what the law is,'” he said. “You really can’t take what is said in a brief at face value.”

So the general (though not unanimous) consensus is that Paxton will not succeed, though he will have some good arguments to make in the event he gets convicted. Team Paxton also thinks the Rick Perry ruling is good for them, though it was noted in that story that the ruling in the Perry case was pretty narrowly tailored. So who knows? In short, prepare for the long haul.

DeLay gets off

Bummer.

Do YOU feel safe with me out on the streets?

Former U.S. Rep. Tom DeLay’s political money laundering conviction was overturned by the state’s 3rd Court of Appeals on Thursday.

“Based on the totality of the evidence, we conclude that the evidence presented does not support a conclusion that DeLay committed the crimes that were charged,” the judges ruled. “The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity.”

The decision reversed DeLay’s trial court conviction.

[…]

Two of the three appellate judges said the state failed to prove that the money being laundered was the result of any criminal activity. In a dissent, Justice J. Woodfin Jones disagreed on that point, saying the money came from illegal corporate contributions. “A rational juror hearing the evidence presented in this trial could have found that the relevant corporate contributions… were made with the intent that they be used to support individual candidates or be put to other purposes not authorized” by law, he wrote.

You can read the majority opinion here and the dissent here. If you believe this decision was influenced by politics, you will be unhappy to learn that Justice Woodie Jones, the only Democrat currently on the 3rd Court of Appeals, is not running for re-election next year. Personally, I’m shaking my head at the fact that DeLay’s appeal has vindicated the ridiculous checks aren’t cash argument. The good news is that DeLay’s win might be short-lived.

However, Thursday’s victory for DeLay does not end the long-running case _ dating back to the 2002 elections _ because Travis County District Attorney Rosemary Lehmberg promised to appeal to the Texas Court of Criminal Appeals.

“We are absolutely going to appeal it,” she said. “We strongly disagree with the opinion.”

Lehmberg, a Democrat, said she was particularly concerned that two appellate justices substituted their judgment on the facts of the case that twelve jurors heard for weeks.

The CCA has previously swatted down the “checks aren’t cash” defense, making it one of the few times that its rabid pro-prosecutor bias was applied for a good purpose. We’ll see if history repeats itself. In the meantime, gird your loins for DeLay’s victory lap/comeback tour, which is sure to be every bit as ugly as his appearance on “Dancing With The Stars” was. BOR, Juanita, Texpatriate, Political Animal, and Burka have more.

Appeals court upholds strip club tax ban

Score two for the state’s strip clubs.

The 3rd Court of Appeals panel sided against the $5 per-patron fee, passed by the Legislature in 2007 with the goal of raising sexual-assault prevention funds, in a divided 2-1 opinion released Friday.

The split decision, which contained a dissent by the panel’s only Republican justice, rejected the state’s argument that the fee is a lawful alcohol regulation. The justices, rather, said the charge amounted to a content-based tax on protected speech at sexually oriented businesses.

“Differential taxation based on content is subject to strict scrutiny,” the justices wrote in the opinion, referring to a legal standard for such cases that allows speech regulations only if there is an compelling government interest in protecting the public.

Advocates for sexual assault programs were heartened, though, by a strongly worded dissent by Justice David Puryear and by a concurring opinion by Chief Justice J. Woodfin Jones that seemed to open the door to similar regulation in the future.

“We’ve always known that this case would end up at the Texas Supreme Court, no matter how the 3rd Court ruled,” said Torie Camp, deputy director at the Texas Association Against Sexual Assault. “We look forward to pressing those very same arguments before the Texas Supreme Court.”

Puryear wrote that the law should stand because it isn’t aimed at preventing or suppressing topless dancing, but rather seeks to combat a possible correlation between alcohol, erotic expression and sexual assault.

“The statute seems concerned with the regulation of alcohol or the regulation of alcohol and erotic entertainment rather than the suppression of any specific erotic expression,” he wrote.

The original suit was filed in December 2007, three months after the law took effect. The law was struck down last March. You can find the court’s opinion upholding the ruling, written by Justice Henson, here, Chief Justice Jones’ concurring opinion here, and Justice Puryear’s dissent here. I tend to agree with Ms. Camp that the Third Court has given the state hope going forward. Having said that, given the glacial pace at which the Supreme Court operates, I think there’s an excellent chance that the 82nd Lege will be able to address this before they issue a ruling.