The Collin County Observer™

"This matter has been mired in politics, speculation, and allegations of conflicts of interest since its inception. Regardless of the existence of actual conflicts of interest, this prosecution is cloaked in the appearance of impropriety and should not continue on its present course."
District Attorney Greg Willis

The previous DA was recused, but Willis files a motion in Wooten case.

Judge Suzanne Wooten	DA Greg Willis

Today, District Attorney Greg Willis has filed a motion in Judge Suzanne Wooten’s bribery case. Willis is asking the judge to remove the special prosecutors, Assistant Texas Attorneys General Harry White and Brian Chandler.

Judge Suzanne Wooten has been indicted on nine charges, including bribery and money laundering. Former DA John Roach began the investigation in 2008 before she took the bench in the 380th District Court. For two years, Roach office’s and two Assistant Attorneys General presented the case to four different grand juries -- a grand jury indicted Wooten and 3 other defendants in October, 2010. Roach then recused himself and asked Judge Mark Rusch to appoint the Texas General Attorney to act as a special prosecutor.

Willis wrote, “The citizens of Collin County deserve to have an impartial and disinterested attorney appointed by this Court to assess and determine how this prosecution should move forward. To that end, the undersigned District Attorney, also requests permission to recuse himself and requests that this Court appoint an impartial and disinterested attorney pro tem…”

Willis argues that White and Chandler may find themselves defending themselves.

Willis wrote, “This matter has been mired in politics, speculation, and allegations of conflicts of interest since its inception. Regardless of the existence of actual conflicts of interest, this prosecution is cloaked in the appearance of impropriety and should not continue on its present course.”

Wooten’s attorney has charged that an FBI report refers to, “Defendant Wooten as ''the victim," named members of the Collin County District Attorney's Office as targets and subjects, and confirmed that the FBI questioned White and Chandler regarding their involvement in the investigation and prosecution of Defendant Wooten. Willis then admits that, “The undersigned District Attorney does not know the status of the FBI investigation.”

Since John Roach recused himself, Willis argues that he is the current elected County Criminal Attorney and he is not disqualified to prosecute the case. Willis has stated that, he too, will recuse himself, but he still believes that he can require the judge to terminate the special prosecutors, and re-appoint a new one. “A prosecutor should be independent, unbiased, without conflicts of interest, and not witnesses to any of the concerns presented to the grand jury.”

Willis states that, “In view of his decision to voluntarily recuse himself, the District Attorney further moves the court to appoint an impartial and disinterested attorney pro tem pursuant Texas Code of Criminal Procedure article 2.07. Upon granting the recusal, the trial court may appoint any competent attorney" to perform the duties of the district attorney,”

Willis ends his arguments slamming the previous DA, “The citizens of Collin County must trust in the integrity of countywide elections, and also in the integrity of those who investigate and prosecute allegations of public corruption in the same manner. The proximity of the Texas Attorney General 's Office and that of the former Collin County Criminal District Attorney to the allegations which are at the heart of the indictment, and to the related federal investigations into the same, have placed that trust in jeopardy.”

Wooten’s attorney ask the Attorney General be removed from the case.

Last week Peter Schulte, Judge Suzanne Wooten’s attorney, has filed a motion to remove the Attorney General from the case.

Schulte charges:

“The Attorney General's Office must be disqualified in this matter due to the
fact that they have placed themselves in the dual role of ‘attorney-witness.’.” White has told the court he will, ''Notice of State's Intent to Introduce Extraneous Offenses, Unadjudicated Offenses, Bad Acts, and Punishment Evidence." White charges that Wooten tries to, “impede the grand jury’s investigation” that she requested, “the District Judges to refuse to sign grand jury subpoena requests issued by the grand jury investigating the Defendant.”

Schulte points out that White and other Assistant Attorneys General were the only witnesses to the charge of impeding the grand jury. They cannot serve as both witness and prosecutor.

“The Attorney General's Office must be disqualified due to the fact that actual conflict exists based on violations of due process. Schulte’s charges that White has willfully and intentionally withheld exculpatory evidence from the defense.” White, failed to promptly give the defense an FBI report. At the last hearing, White told the judge he ‘forgot’ to give the report to Schulte. Harry White then gave the defense a 47 page ‘redacted’ report. The judge then told White to provide the defense a complete and redacted FBI report, “On August 1,2011, it was discovered by Defendant's Counsel when he went to the FBI office that White and Chandler intentionally withheld from Defense counsel approximately 35 additional pages from the FBI Report the Attorney General's Office had received on July 6, 2011, when they provided to Defense Counsel the redacted 48-page report on July 28, 20ll. Most of the approximate 35 pages withheld were summaries of the investigation by the FBI and correspondence with the United States Attorney's Office. In these withheld documents, the Defendant, Judge Suzanne Wooten, was listed as the "victim" with the suspects listed as John R. Roach, former District Attorney of Collin County, Texas, Gregory Davis, former First Assistant District Attorney for the CCDAO and Christopher Milner, former special crimes chief for the CCDAO. Undoubtedly, this information was exculpatory and intentionally withheld from Defense Counsel.”

And third, Schulte writes, “The Attorney General's Office must be disqualified due to the fact that actual conflict exists based on violations of due process.

“In this proceeding, there is a prosecuting agency (Attorney General's Office), represented by the same attorneys (Harry E. White and Brian Chandler), that has served in two separate and distinct roles involving the same matter: 1) as "Special Prosecutor" - assistant prosecutors of and under the direction and authority of John R. Roach, the then District Attorney of Collin County, Texas, and now 2) as "Attorney Pro Tem" pursuant to Article 2.07 of the Texas Code of Criminal Procedure after the District Attorney was disqualified in this matter."

Judge Kerry Russell visiting judge from Tyler has not scheduled a hearing on Willis’ and Schulte’s motions.

District Attorney’s Office in furor

Coincidentally? On the same day that DA Greg Willis filed the motion on the case of Judge Suzanne Wooten, several of the top Assistant District Attorneys resigned.

The Collin County Observer has been unable to confirm the names and reasons at least two of the DA managers have given their notice.

Our knowledgeable sources have told us that David Waddill, the First Assistant District Attorney and Jim Skinner, the Chief of the Special Prosecution Division have resigned.

The Observer has tried to reach Willis, Waddill and Skinner; none have returned our messages

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[Update] Valerie Wigglesworth at the Dallas Morning News has added more information on the resignations. Wigglesworth writes,

"The top two prosecutors in the Collin County district attorney’s office resigned Monday.

"David Waddill, the first assistant district attorney, and Jim Skinner, the second assistant district attorney and chief of the special prosecution division, are headed back to private practice.

"Both joined the prosecutors’ office when District Attorney Greg Willis took over in January. Willis said Monday he was grateful for their service, adding that the pair “had been very helpful getting things established here.”

"Skinner confirmed that he was returning to private practice but declined to discuss his reasons further. Waddill could not be reached for comment.

"Both Willis and Skinner said the resignations had nothing to do with the case involving state District Judge Suzanne Wooten."[subscription may be needed to read the article at The Dallas Morning News]

Bill

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Notes:

DISTRICT ATTORNEY'S MOTION FOR THE APPOINTMENT OF A NEW, IMPARTIAL AND DISINTERESTED ATTORNEY PRO TEM, Greg Willis - dated August 29, 2011

DEFENDANT'S MOTION TO DISQUALIFY TEXAS ATTORNEY GENERAL'S OFFICE AS "DISTRICT ATTORNEY PRO TEM", Peter Schulte - dated August 22, 2011

Who You Gonna Call When The Courts Break The Law?

The courts of Texas are allowed a certain amount of discretion in making their judgments and in formulating their own local rules of the court. However, the courts have no discretion in choosing to obey or to not obey the law.

The Collin County State District Courthouse selectively provides the benefits of Texas Labor Code 207.007 to some, but not all of those who file lawsuits under Texas Labor Code 212. In doing so the District Courthouse violates the civil rights of some of the citizens of Collin County. The violation of constitutionally guaranteed rights of even a small group of people is of concern to everyone. Once this kind of judicial abuse is tolerated, no one is immune from its effect and there is no limit to its magnitude. [Add photo 1]

Texas Labor Code 207.007(a) states in pertinent part,

“An individual claiming (unemployment insurance) benefits under this subtitle may not be charged a fee in a proceeding under this subtitle by a court or an officer of a court. A person who violates this section commits an offense. An offense under this section is punishable by:

1. a fine of not less than $50 and not more than $500;
2. imprisonment for not more than six months; or
3. both a fine and imprisonment.”

In passing this law [hyperlink to entire text of law] the State of Texas took the U.S. Constitution’s First Amendment right to seek the redress of grievances in the courts one step further by giving the unemployed the right to obtain access to the courts free of charge. When this law was passed in 1985, the Texas Legislature effectively declared the unemployed to be “poor” for the purposes of filing lawsuits to overturn a ruling by the Texas Workforce Commission denying an individual unemployment benefits.

The law not only makes it a criminal act to charge a fee for filing a petition, it is also a crime to charge a fee for transcriptions of a court hearing or a trial; or a fee for a court record prepared for appellate review. No person claiming benefits "shall be charged fees of any kind" by an officer of the court. [hyperlink appellate Court ruling]

Who pays and who doesn’t

In reviewing the public court records of twelve of the most recent cases involving the Texas Workforce Commission and the application of Texas Labor Code 207.007, a pattern of abuse emerges. Different groups of litigants get different results.

Attorneys, in their own cases against the Texas Workforce Commission to obtain benefits, either do not pay the fee or receive a refund. In case number 416-01007-2008, lawyer Grace Soo Way Liang, paid no fee. In case number 429-01477-2010, lawyer Scott Horner paid the fee and later requested and was granted a refund.

One attorney always obtains a wavier of fees. Attorney Raul Loya includes a copy of the law with his original petition and his clients pay no fees. Those cases are 416-03541-2009 and 199-01593-2009.

Texas Labor Code 207.007 has no “catch 22” requirement that a person must request the waiver before obtaining a waiver of fees. The elements of the crime are simple, first an eligible individual asks to file their case and second a court official charges a fee. Civil litigation cover sheets are required to file lawsuits and the clerks need only to look at the 107 boxes provided to see if any are marked “Employment.”

In five other cases, attorneys had their clients’ pay the fee. It is hard to imagine that lawyers taking labor and employment cases would not know the Texas Labor Code. This is especially true of an attorney who is board certified in labor and employment law. Other than ignorance, one possible explanation is these lawyers fear judicial retaliation for failing to “go along to get along.” These five cases are 401-03809-2010, 199-01657-07, 366-01383-2009, 199-01841-2011, and 401-03340-06. One attorney, who asked not to be named, stated because Texas Labor Code 212 cases must be filed within strict time limits, “it was easier to pay the fee” rather than risk having the case dismissed because of missing a deadline caused by the “hassle” of getting a waiver. The waiver should instantaneous and without any hassle at all.

Think of it as a form of judicial euthanasia

Pro se litigants, those representing themselves, are in the final group. These individuals are asked to pay a an unlawful fee that they cannot afford and then are forced to humiliate themselves by filing affidavits of indigence in order to present their case in court.

Ms. Camilla Thornton (429-01908-2010) jumped through all the hoops created by the administrative review process of the Texas Workforce Commission in order to preserve her right to seek a judicial review of the TWC’s denial of benefits. Ms. Thornton stated when she attempted to file her complaint she was unable to afford the fee and was turned away. The clerk offered no assistance or did she suggest Ms. Thornton file an affidavit of indigence. The clerks are forbidden from offering any legal advice, which begs the question, are they also forbidden from obeying the law?

In a chance conversation with a friend, Ms. Thornton was told she could file an affidavit of inability to pay. Her affidavit was approved and she was able to file her complaint in the 429th State District Court.

Other individuals were not so fortunate. In the review case number 296-00367-08, Mr. Jay Cooper was forced to file an affidavit of indigence that was challenged by the court reporter of the 296th State District Court. Ms. Jan Dugger filed a Contest of Affidavit of Indigence and Inability to Pay Costs. A hearing was held before Judge Chris Older in which Mr. Cooper was afforded yet another opportunity to humiliate himself in a public hearing by truly proving he really was too poor to pay the criminally requested fees. Mr. Cooper prevailed in the hearing.

Others are even less fortunate. Ms. Sandra Parker (401-01641-06) filed the unnecessary affidavit of indigence only to have it denied. Ms. Parker paid the filing fees.

And most unfortunate group is individuals who could not pay the fee and who just walked away. With his or her case never filed, there are no records or proof of the crime committed against them. These unknowns may number in the hundreds and the fact they were not allowed to file their cases without paying filing fees suggests a possible motive for the for the violation of Texas Labor Code 207.007(a).

The courts simply to not want to hear these cases and violating the law is an easy way to keep them out of the courthouse because they always lose. Think of it as a form of judicial euthanasia for lawsuits not likely to survive anyway, but do we really want the courts to have this kind of power?

Of the twelve cases reviewed, only one individual seeking benefits prevailed and this was a case that never went to trial. Attorney Scott Horner’s case was withdrawn by the Texas General’s Office and was remanded back to the Texas Workforce Commission were it was most likely decided in Mr. Horner’s favor.

Almost all cases brought by individuals (with or without legal representation) seeking to overturn a final decision made by the TWC are lost. The reasons vary. First of all the courts are required to provide the ruling of the TWC with a “presumption of validity.” Another reason is some judges possibly look at cases from the point of view of estimating who has the most resources to prevail on appeal.

Filing a lawsuit is a zero sum game and no matter how fair a judge may be, there is always a loser, usually a sore loser at that. Given the fact a judge is going to be criticized fifty percent of the time, the only meaningful benchmark to judicial performance is how many times is a judge overturned on appeal.

The Office of the Texas Attorney General, representing the Texas Workforce Commission, holds a blank check provided by the taxpayers and this gives the lazy judge a clue as to who has the most resources to prevail on appeal.

Ignorance of the law

The District Court may claim ignorance of the law, but the fact some individuals obtained waivers and others did not demonstrates a pattern of abuse. There is little doubt entry-level clerks charging and collecting filing fees don’t know the law. If they did, why would they risk a conviction and six months in jail or even risk the minimum $50 dollar fine? These clerks have little more than on the job training and know only what their superiors want them to know. In fact, the new clerks have large signs posted on their bulletproof windows, “In Training.”

The administrative leadership of the courthouse is legally obligated to properly train, supervise and control its employees to prevent the violation of the constitutional rights of those seeking access to the court.

In 1985 the Texas Legislature passed a law to give a small break to a small group of litigants. The Texas Legislature has a reasonable expectation that the courts will enforce the laws they pass.

So whom do you call when the courts break the law and criminally deny access to the courts based on judicial expedience?

John

The multiple count felony case against Suzanne Wooten, Judge of the 380th State District Court in Collin County, was first set to go to trial on the 20th of June and then moved to the 20th of August. Judge Wooten’s legal team filed a motion for a speedy trial and the trial date was moved to the 15th of August. Now the case has completely fallen off Collin County’s judicial radar. Judge Kerry Russell, the visiting judge from Tyler hearing the Wooten matter, speculated the trial might not begin until “perhaps 2012” due to the filing of a new indictment with two new charges and the surprise introduction of a Federal Bureau of Investigation report.

During Wooten’s pre-trial conference hearing held on the 29th of July, it was unclear if any of the many trial dates were ever more than tentative. However, one thing was made perfectly clear, Judge Wooten’s desire to obtain an acquittal on all charges before her 2012 re-election bid was crushed by the new indictment and by a last minute discovery release made by Harry White, the special prosecutor from the Office of the Texas Attorney General.

The day before July’s pre-trial conference, prosecutor Harry White provided Wooten’s defense team of Peter Schulte and Toby Shook with a 48-page FBI report he planned to use as potential evidence. This report was in Mr. White’s possession since the 6th of July. Mr. White denied the report was held back for the purpose of delaying the trial, but claimed he was too busy to send it to Wooten’s lawyers until the day before the pre-trial conference. The report was the result of a complaint made by Wooten and Schulte to the FBI in April 2010. The report most likely concerned the actions of former District Attorney John R. Roach and his nearly non-stop grand jury proceedings against Judge Wooten since her election in 2008.

The FBI report was heavily redacted and Mr. White volunteered some of the redactions were made by the Attorney General’s office. On hearing this, Judge Russell ordered the FBI report be given to Wooten’s lawyers just as the Attorney General received it. In discussing the report both sides speculated it might result in Mr. White and/ or Mr. Schulte being called to testify. Judge Russell stated he “hoped that would not happen.” Such an action could result in Schulte and White being removed from the case and cause further delay.

Wooten’s attorney, Peter Schulte, said he was “ready for trial on the original indictment” and wished to go to trial on the 15th of August, but would not be able to do so on the new indictment. Because the new indictment was timely filed, Judge Russell asked Schulte to provide a citation to law as to why the case shouldn’t go to trial under the new indictment. Schulte had nothing to cite. Judge Russell acknowledged Mr. Schulte’s frustration with the new indictment and discovery being made so late in the process and then dismissed the old indictment and ordered all records transferred into the new case number. Mr. Schulte said due the new developments in the case and also because of his own trial date conflicts, he would not be ready go forward until late October. Judge Russell ordered all attorneys to provide him with their trial schedules making it seem he would personally find a date that works for everyone. Judge Russell also ordered there be no new discovery “unless it was for a very good reason.”

The lengthy hearing was broken into morning and afternoon sessions and was sparsely attended by the public. Non-party observers included two Wooten supporters seated with her; a staff reporter from the Dallas Morning News who attended the morning session; Mr. David Waddill, Collin County’s First Assistant District Attorney, and seated in the back of the courtroom as was Mr. Michael P. Gibson. Dallas attorney Mike Gibson is one the top white-collar criminal defense attorneys in America and outside the courtroom during the lunch break he was surrounded like a rock star by the lawyers in the case. It is unknown if Mr. Gibson has or will have any connection with case against Wooten or her co-defendants David and Stacy Cary, and James Stephen Spencer.

Harry White stated he was “shocked to learn that the deliberations of the grand jury had been secretly recorded.” White’s comment was without context and seemingly came straight out of the blue. Judge Russell stated he “was not from around here, but back home in Smith County, grand jury deliberations were absolutely privileged.” From the back of the courtroom Mr. Waddill spoke to the practices of the Collin County District Attorney’s office back in 2008, stating he did not believe there were any audio recordings, but he was not in the DA’s office at the time of the several Wooten grand jury hearings. While there was a court reporter present during the hearings, the consensus of opinion was there were no audio recordings.

After establishing the non-existence of audio recordings, Mr. White’s faux ‘shock’ seamlessly set the stage for an extensive debate over grand jury witness summaries that had or had not been provided to Wooten’s lawyers.

Mr. Schulte asked if an auditor from the Office of the Attorney General, Kyle Swihart, had given grand jury testimony and if so why wasn’t he given a summary of his testimony. Harry White stated Swihart had testified, but it was the Attorney General’s policy to not give testimony summaries of their own employees to defense attorneys. White further stated no court reporter was present when Kyle Swihart testified. Not deterred by this information, Judge Russell ordered Mr. White to provide a summary of Swihart’s testimony to Wooten’s lawyers.

David and Stacy Cary’s attorney, Barry Keith Gore, filed a motion to withdraw representation. Stacy Cary’s new lawyer will be Heather Barbieri of Plano. However, David Cary had no new attorney and Judge Russell would not grant Gore’s motion to withdraw until Mr. Cary has representation and all of the case files were transferred to the new attorney.

Even if withdrawing from the case wasn’t Mr. Gore’s idea, it is no small wonder Mr. Gore would be happy walk away as he may be a little too close to the fire that underlies the case against Wooten and her co-defendants. Last year Keith Gore’s primary campaign for the right to hold the gavel in the 296th State District Court was in part funded by David Cary and Gore’s campaign consultant was none other than James Stephen Spencer.

Wooten’s numerous supporters claim the case is nothing more than a politically motivated witch hunt. Wooten successfully ran and won the first ever-Republican primary challenge against a sitting State District Judge in Collin County. The defeat of District Attorney John Roach’s long time friend, Judge Charles Sandoval, is said to have motivated the six or more grand jury investigations against Judge Wooten.

If former District Attorney John Roach is as vengeful as detractors claim, then having the same cast of characters mount the second only Republican primary challenge against his own son, Judge John Roach, Jr., could only add fuel to his alleged fury over the defeat of Judge Sandoval. Roach’s son won the March primary contest by less than five points over Gore. Judge Wooten, the Cary’s and James Stephen Spencer were finally indicted six months later.

The most bizarre event of the hearing took place when an attorney for Judge Jill Willis, the wife of Collin County’s current District Attorney, requested a ruling on a motion to quash a subpoena issued to Judge Willis. The subpoena requested testimony from Willis regarding a closed door meeting with a dozen senior Collin County judges sometime before September 2009. When informed that no record of the meeting was made, Judge Russell stated the idea of a closed-door meeting between judges with no record being made of it was “foreign” to him. Other judges, Rusch and Roach, Jr., had cooperated with Mr. White, but Judge Willis has refused to speak with him. Judge Willis’ attorney, Mr. Michael Pezzulli is an expert on attorney-client privilege and has co-authored a book on the subject for the American Bar Association. Pezzulli argued the subpoena for Judge Willis’ testimony should be denied on the grounds that an attorney-client privilege existed during the meeting of the judges. Judge Russell seemed baffled by Mr. Pezzulli’s claim that attorney-client privilege would exist in a meeting with other judges. When he asked for some citation to statutes or case law in support of the motion to quash the subpoena, Mr. Pezzulli was stumped for an answer. Harry White opposed the motion to quash and stated, “We believe there is a personal relationship between Wooten and Willis.” Judge Russell took the motion to quash under review and made no ruling on it.

No speedy trial for Judge Suzanne Wooten means no speedy relief from the burden this case has created for the taxpayers. On October 18, 2010, the State Commission on Judicial Conduct suspended Wooten with pay and she has collected $12,000 dollars a month for the past ten months for staying home.

If denied the opportunity to clear her name prior to March 2012, it is unlikely any Collin County Republican would challenge Judge Wooten in a primary race for fear of looking like a vulture. However, she would likely draw a Democratic challenger on the chance she might be convicted and removed from the bench between the primary and general election resulting in the Democratic candidate being elected by default in November 2012.

John

I am thrilled to introduce our readers to John Pitchford. John will be joining the Collin County Observer as a writer.

John is a military retiree and a Plano small business owner. While John and I do not necessarily politicly agree on many issues, we do share a passion for good government. John has been very knowledgeable of Collin County justice, and has been a keen observer who is able to write with insight. I know John will add an intelligent perspective that we hope our readers will be informed and intrigued.

BIll