Defense lawyers pull brief backing prosecutors in Ken Paxton case


Defense lawyers association says rules not followed for submitting legal briefs.

Prosecutors and Paxton lawyers trade barbs after brief is withdrawn.

A leading organization of criminal defense lawyers on Tuesday withdrew its legal brief in support of prosecutors who are fighting to get paid for work on the criminal case against Texas Attorney General Ken Paxton.

The friend-of-the-court brief, which argued that the payment fight could endanger the system for ensuring that indigent defendants are properly represented at trial, was withdrawn because it did not follow proper procedures by the Texas Criminal Defense Lawyers Association, the organization said.

David Moore, president of the association, said the brief to the Court of Criminal Appeals was pulled because it had not been approved by the group’s executive committee, which unanimously voted Monday to withdraw the document.

That committee will now examine the issue to determine if the brief should be approved or if the matter should be decided by the full board of directors, said Moore, a lawyer in Longview.

RELATED: Court halts ruling that blocked pay for Ken Paxton prosecutors

“I fear,” said Brian Wice, one of the prosecutors, “there may be other issues in play driving its decision to withdraw its brief other than a purported ‘failure to follow proper procedures and policies.’”

“The larger question is why Mr. Paxton’s defense team does not want the Court of Criminal Appeals to consider” the brief, Wice said, adding that it raised compelling points about the payment fight’s impact on public policy and proper legal representation for indigent defendants.

Dan Cogdell, one of Paxton’s defense lawyers, said he expected further action to be taken against “the parties responsible for its filing.”

“I will not have any further comment on the matter now except to express my grave disappointment in the impropriety of the filing of such a pleading in a case of this magnitude and am gratified that the proper steps to correct the situation have begun,” Cogdell said.

Austin lawyer David Schulman, one of the brief’s authors, said he and others involved believed they had followed the organization’s bylaws, but he declined to discuss specifics.

“This wasn’t any kind of guerrilla action. We thought we were authorized, but we were wrong,” he said.

A Collin County grand jury indicted Paxton in 2015 on two counts of securities fraud and one count of failure to register with state securities regulators related to private business deals in 2011 and 2012.

The fight over payments to the three prosecutors — appointed to the case after the district attorney, Paxton’s friend and former business partner, stepped aside — has long been a side issue in the case.

Separate legal challenges by Paxton, a political donor and Collin County commissioners objected to the $300-an-hour negotiated fee for the prosecutors, arguing that state law and county rules limited payments to $1,000 per lawyer for pretrial work.

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The prosecutors have said they would be forced to step aside if they are not paid and have questioned whether the payment fight is a back-door strategy to protect Paxton from the criminal charges.

Wice and the other prosecutors, Kent Schaffer and Nicole DeBorde, were paid $242,025 for work done in 2015, but Collin County commissioners moved to block future payments after being presented with a 2016 bill for $205,191. In August, the Dallas-based 5th Court of Appeals agreed with the county, saying state law barred judges from setting higher fees for complex cases like Paxton’s.

The withdrawn brief argued that the ruling, if allowed to stand, would make it harder to attract top lawyers for appointment in complex criminal cases, hurting the cause of justice.

Collin County has argued that judges should not have the authority to set excessive rates but should be held to pre-established fee schedules that allow for no surprises when setting budgets.

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