MRT: Wice Sought More Time, New Partner Before Trial; Tx Trib: Paxton’s Political Power Grows; Harris County Approves $115M for 18 Housing Projects

Here's What You Need to Know in Texas Today.

Matt Mackowiak

Mar 28, 2024

MustReadTexas.com – @MustReadTexas
BY: @MattMackowiak

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THURSDAY – 03/28/24

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TOP NEWS

“Prosecutor in Paxton case sought more time, new partner ahead of trial,” Houston Chronicle's Taylor Goldenstein, Neena Satija and Nicole Hensley -- “The lead prosecutor in Ken Paxton’s securities fraud case was scrambling in recent months to push back the trial date and find local district attorneys who could help him present a convincing argument to the jury.

The April 15 trial date set by Harris County Judge Andrea Beall was quickly approaching after years of delays and an attempt by Paxton’s team to have the charges dismissed for lack of a speedy trial was still pending.

Brian Wice, the lead private attorney appointed to prosecute Paxton, told Hearst Newspapers he and defense attorney Dan Cogdell agreed they were not going to be ready by that date and decided to set a meeting with Beall on Valentine’s Day to ask to move the trial to September. The judge flatly rejected them.

The previously unreported meeting came as one of the longest cases in Texas history, at nearly nine years, was suddenly fast-tracked. It ended on Tuesday in a deal that allowed Paxton to avoid any admission of guilt in exchange for community service and restitution payments.

Paxton had been accused of soliciting two friends to invest in a North Texas technology company without disclosing he was getting a cut and failing to register as an investment adviser

Prosecutors said they faced an uphill battle after so many years of procedural delays. But Wice’s problems began to pile up early this year, including when his co-counsel, Kent Schaffer, appeared ready to back out of the case because the two were not being paid amid an ongoing dispute with Collin County, where the case originated.

Beall had told the lawyers on the case in October that she planned to hold the trial regardless of whether the pay issue was resolved. The Texas Court of Criminal Appeals in late January declined to intervene to settle the compensation issue, dragging it out further.

As Schaffer considered leaving the case in February, he approached Cogdell about a possible deal allowing Paxton to have the charges dropped.

At the time, restitution payments to the victims were not part of the discussion, Cogdell said, though he expected it likely would have come up if negotiations with Schaffer had continued. Wice was adamant that restitution be included.

Without a consensus and with his compensation still in question, Schaffer, an experienced trial and criminal defense lawyer who has represented high-profile clients like music artist Travis Scott, withdrew from the case.

That left Wice in a bind. Though also a veteran criminal defense lawyer, his expertise is in appellate law, and he hasn’t tried a case on his own in decades.

“That’s not my skillset,” Wice said. “That’s Kent’s skillset. Pound for pound, he’s one of the best trial lawyers in the Western Hemisphere.”

Not a slam dunk

Wice picked up an effort he’d started months earlier when it seemed like Schaffer was about to leave: reaching out to local district attorneys — about a half dozen in total — to find a seasoned prosecutor who might be able to join the case. No one signed on to help.

Wice said it seemed like most of the attorneys didn’t want to get involved because of the political risks. Paxton spent the run-up to the recent primary election campaigning against his political enemies in the Texas House and judiciary and supported a new law that allows citizens to petition for the removal of elected district attorneys.

“Look, nobody wants to pick a fight with the schoolyard bully,” Wice said. “They didn't want to get into a rumble with Ken Paxton.”

Harris County District Attorney’s office spokesman John Donnelly said Wice reached out “years ago” and the office declined to help, but he did not say why.

Fort Bend District Attorney Brian Middleton said Wice approached him about the case in early 2023, at some point showing him evidence and explaining his theory. Middleton said he had concerns about the merits of the case.

“The decision to decline his request had nothing to do with fear,” he said. “It was a decision based on the law and the evidence presented at the time."

The years-long delay in trying Paxton had created issues with witnesses, Middleton said. He declined to join in October of last year.

"When cases get old, it gets harder to prove," Middleton said. "If it was a slam dunk, I would have been more inclined to accept it."

After that, Bexar County District Attorney Joe Gonzales said Wice reached out to him, and Gonzales said he told him he would “keep an open mind.” He said he never heard back from Wice.

A spokesman for Jose Garza, the top prosecutor in Travis County, said lawyers there were also approached. Members of Garza’s staff first met with Wice on Feb. 6, just weeks before the trial was supposed to begin, and asked him for more information to make a decision.

The prosecutors also told Wice they wouldn’t consider signing on unless the judge agreed to delay the trial further, which Wice assured them wouldn’t be a problem, said the spokesman, Ismael Martinez. After that, they never heard back.

“Our office would have evaluated the Paxton matter the same way we assess all cases received by our office – on the merits,” Martinez said in a statement.

Eventually, Wice brought on Jed Silverman, the former president of the Harris County Criminal Defense Lawyers' Association.

A last-minute pivot

Initially, the special prosecutors planned to focus the entire case around the least severe of the three charges – the third-degree felony accusing him of failing to register as an investment adviser.

But Wice and Silverman quickly realized they were up against a wall.

On March 2, Wice and Silverman re-interviewed a key witness, Paxton’s former friend and business associate Frederick “Fritz” Mowery, and learned he was going to take the blame for not having registered Paxton as an adviser.

“Everyone assumed – and I was one of them, Kent, maybe the [Texas] Rangers – that because Paxton had acknowledged the underlying conduct in April 2014 that it was a slam dunk,” Wice said, referring to Paxton telling the Texas State Securities Board that his failure to register was a “paperwork error.” “I know now it was anything but a slam dunk.”

After the realization, Wice and Silverman pivoted to anchoring the case around the charges related to misleading investors. But one of the alleged victims had died since the charges were announced, and other witnesses appeared unlikely to testify against Paxton.

The law also isn't "crystal clear" about what a person soliciting investments is supposed to tell a potential investor, Schaffer said, and Paxton allegedly didn't lie outright, he lied by omission.

Ultimately, Wice said they decided to reach out to Paxton’s team for a deal.

“I was a little surprised, given how stringent he was earlier,” Cogdell said about Wice returning to his team to reopen discussions about a deal. “But I’m not going to look a gift horse in the mouth.”

Silverman said the victims, through their lawyer, indicated their top priority was recouping their money and that “would translate into justice” for them.

Wice and Silverman said they had an obligation to abide by their clients’ wishes.

“I try cases. That’s what I’ve been doing for 25 years. That’s where I’m comfortable: in a courtroom,” Silverman said. “But it isn’t a collegiate event; it’s not a sporting event. You’re dealing with human beings and their lives, and in the event Ken Paxton had been found not guilty, these people get no restitution.”" Houston Chronicle

HOU CHRON: “Harris County backs new housing developments with COVID recovery funds” Houston Chronicle

DMN: “City approves Alto rideshare agreement with Dallas Love Field” DMN

FW REPORT: “Tarrant County homeless population sees first dip in numbers since 2021” Fort Worth Report

SA REPORT: “Digital display ads could be coming to San Antonio -- and the city wants your opinion” SA Report

TX TRIB: “Once the Texas GOP's 'weak link,' Attorney General Ken Paxton is growing more popular and powerful” Texas Tribune

HOU CHRON: “Biden's DOE awards hundreds of millions for Exxon, Gulf Coast plants” Houston Chronicle

EXTRA POINTS

Last night's Texas sports scores:
> NBA: Rockets 132, Thunder 126 (OT) Houston Chronicle
> NBA: Spurs 118, Jazz 111 SAEN

Tonight's Texas sports schedule:
> 3:10pm: MLB: Yankees at Astros SB Nation preview
> 6:35pm: MLB: Cubs at Rangers (ESPN) DMN preview
> 9pm: NHL: Stars at Canucks (ESPN+)

HOUSTON TEXANS: “Cal McNair approved as Houston Texans' principal owner for NFL" Houston Chronicle

TEXAS WOMEN'S BASKETBALL: “Texas vs. Gonzaga: Scouting report, prediction for 2024 NCAA Tournament Sweet 16 round" AAS