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February 9, 2008
Full
Employment for Lawyers?
By Jack D.
McNamara
Every so
often I cruise the Internet to check on the status of the Texas Open
Meetings Act (TOMA). I look for several markers — is the particular
TOMA contest in the news because journalists put it there? Is it in the
news because there is a real political contest between elected
officials on county commissioners courts, city councils, school and
hospital districts? Or is the conflict alleging TOMA violations a
situation in which the hired hands at city hall or elsewhere are
challenging the elected officials? Lastly, is the thing reported a
symptom of overactive litigation syndrome and is the Texas Attorney
General involved?
Currently,
there are only four TOMA contests underway in the press.
In Easton
the police department has investigated and charged the majority of the
city council who voted to do away with the police department on January
19. Another meeting was held January 31 but a majority of the council
boycotted the meeting. The Gregg County District Attorney is involved
and he has requested a Texas AG investigator to determine if the
January 19 meeting was properly posted.
In
Brownsville (on the Rio Grande where the U.S. Homeland Security
Department is suing for access to survey for The Border Wall), the
citizenry is upset because the city manager signed a form to permit
U.S. Government access to city land during an executive session.
Citizens hope to invalidate the action thereby revoking permission.
In
Friendswood, as reported by the eagle-eyed Galveston Daily News, the
city manager has accused the council of violating the TOMA after they
narrowly voted 4-3 to retain him even though the manager was criticized
for delaying important projects, failing to act quickly on requests and
causing lawsuits against the city.
And in
Nueces County the Corpus Christi Caller Times complains about
inadequate agenda items as to “who gets to be in charge of redeveloping
Naval Station Ingleside.”
As usual,
the Freedom of Information Foundation is quoted in several of the
stories.
We of
course like all lawyers, but after a couple of years’ close observation
we conclude the TOMA is in reality a phase of the Full Employment for
Lawyers Act (FELA).
Of course
we journalists receive some compensation as tribunes of the people
ferreting out corruption and incidentally selling newspapers.
Also, when
we complain to bureaucrats and elected pooh-bahs that they have just
violated an open government law they tend to listen — whether they
understand or not.
Interestingly,
perhaps, we checked the Texas Attorney General’s website for press
releases announcing the bringing-to-justice triumphs of successful AG
litigation.
The AG has
maintained silence on his TOMA victories for the entire 2007 year, ever
since two Alpine city councilpersons took him to federal court for a
violation of their First Amendment rights to email each other. Hmmmm.
Surely it
is only coincidence that the AG has become less zealous in pursuit of
wrongdoing local government officials. After lengthy preparation the
case of Dr. Avinash Rangra and Anna Monclova vs. 83rd District Attorney
Frank Brown and the State of Texas was heard at the 5th Circuit Court
of Appeals in New Orleans Wednesday, January 29. Rangra and Monclova,
represented respectively by Dick DeGuerin and Rod Ponton, are suing
against the criminal provisions of the TOMA as unconstitutional.
The
decision will be a long time coming, but Frank Brown is running for
reelection and his conduct of the office in this TOMA case deserves
scrutiny before the March primary.
It is the
lawyers of these remote Last Frontier counties who bear the
responsibility for the functioning and the integrity of the justice
system. The lawyers are the “officers of the court.”
An
Innocent Woman
At the
corner of U.S. 90/Holland Avenue Eastbound and Highway 118 North 5th
Street in Alpine there is a huge sign in a small parking lot —
“Re-elect Ken DeHart,” the incumbent 394th State District Judge for
Brewster, Presidio, Jeff Davis, Culberson, and Hudspeth counties. The
district was created in the 1995 session of the Texas Legislature.
A few
doors down 5th Street there is a large sign in the Elms bookkeeping
office window which says “Elect Jesse Gonzalez, Jr. District Attorney
of the 83rd District” — Brewster, Presidio, Jeff Davis and Pecos
counties. Gonzalez is currently the County Attorney for Pecos County
and he is challenging the incumbent District Attorney Frank Brown, a
resident of Brewster County and the elected DA of the 83rd District
since 2001.
Late last
week Mrs. Elms placed a sign in her office window promoting the
candidacy of Antonio Rodriguez of Presidio for the 394th District Court.
The
district judge and the district attorney are the senior, most
influential officials in the judicial system of this part of the Big
Bend.
After
several years of stress and expense in the Texas court system we infer
that Elms does not hold Judge DeHart responsible for her troubles. The
incumbent DA Brown is another matter.
Mrs. Katie
Elms-Lawrence’s implied support is significant because she is the only
person in the District who is a declared innocent person — even though
she was indicted by a Brewster County grand jury in early 2005. The
grand jury of 12 persons was supervised and directed by 83rd District
Attorney Frank Brown and she was indicted for a violation of the Texas
Open Meetings Act (TOMA).
Shortly
after the indictment of Mrs. Elms and another Alpine City Council
representative Dr. Avinash Rangra, DA Brown was interviewed in the
monthly Big Bend Gazette. The story, “District Attorney, Dedicated in
Both Work and Play” by Dallas Baxter, was published in September 2005.
DA Brown
described the criminal justice system as like “a conveyor belt.” He
said there was a “case agent — the primary investigator from the law
enforcement agency investigating the crime” who “presents the case” to
the grand jury. DA Brown also said his policy was to “allow the
defendant and his lawyer into the grand jury room” and that he, DA
Brown, “keeps his files open.” Brown then went to great length in
discussing plea bargains and the desirability of resolving cases
economically and efficiently while avoiding the expense and difficulty
of lengthy appeals — plea bargaining.
There was
no police investigation of the TOMA indictment. Only DA Brown and
perhaps the grand jury did any investigating at all.
There were
no confirmed pleas bargains in the TOMA case. There were indeed and
still continue lengthy appeals.
In early
May 2005 DA Brown went to the 394th District Court and asked Judge
DeHart to dismiss the indictments against both Elms and Rangra. Both
had hired attorneys to defend them but Brown did not notify those
attorneys of his intention to dismiss.
The
defendants protested and demanded trials; but the two district judges
upheld Brown’s “prosecutorial discretion” to dismiss the indictments.
After the
indictments were dismissed, both defendants then asked the court to
“expunge” the indictments; that is, to remove all the records of the
grand jury’s indictments. Judge DeHart granted the motion for Katie
Elms and Judge Peter Peca granted the motion for Avinash Rangra after
hearings in open court.
The
expunction approved by Judges DeHart and Peca included a “finding of
fact” that there was “no probable cause” for the indictment.
District
Attorney Frank Brown then surprised most court observers by appealing
the judges’ decisions to the 8th Court of Appeals in El Paso. At the
hearing in El Paso Brown’s representative Steve Houston told the court
that the DA did not want the indictments expunged because DA Brown
might want to re-indict the defendants at some time in the future.
At the
time of his appeal, Brown was in possession of more than 100 emails
obtained under the Texas Public Information Act (TPIA) by a dissident
city councilperson Nancy DeWitt. Only one of those emails was cited as
evidence of a violation in the original indictments.
A
three-judge panel of the 8th Court of Appeals led by Justice Ann
Crawford McClure and including Judges David Chew and David Guaderrama
upheld the two trial courts and directed the expunction proceed.
None of
our faithful readers will be surprised to learn that DA Brown then
appealed to the Texas Supreme Court to support him, Brown, in his jihad
to maintain the records of the indictment in the court system. And
Brown lost at the Supreme Court. Eight justices (one was ill and did
not participate) declared the expunction of the absurd Brewster County
indictments a fact in the Texas judicial system.
Unless
Frank Brown decides to pursue the matter into the federal court system,
that is that.
Mrs.
Elms-Lawrence is not only “not guilty” in the eyes of any reasonable
person she is innocent — at great expense to her and the public, an
expense encumbered by Frank Brown’s incomprehension of the American
system of justice.
No wonder
DA Brown favors plea bargains. A prosecutor can use his control over
the grand jury to intimidate and to control the political system by
indicting first and asking questions afterwards.
The above
is a continuing example of a phenomenon in contemporary America called
the “criminalization of politics.” Ordinary, customary and common sense
actions by well-meaning Americans are criminalized by other Americans
in pursuit of their own political and economic interests. The TOMA
indictments were pure political payback.
Indeed, at
a bench trial in federal court in Pecos challenging the
constitutionality of the criminal provisions of the TOMA, Brown
testified he would do the same thing again; i.e., indict innocent
Texans in the 83rd District for the political advantage of Brown’s
friends and their interests. He has never phrased it that way though.
DA Frank Brown says he was just following the law.
So how is
the DA’s pursuit of evildoers going? In order to discover that, we must
look at the records of the courts. Working backwards we first looked at
the records for 2006-2007. That is where we at first discovered that
Case file #3829, a case of sexual assault of a minor, was missing. We
detailed that below ("Case #3829 on 1/30/08). •
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