Trial of the 21st Century, The TOMA Trial: Profile of Prosecutor Downey, Doyal files motion to dismiss claiming law is unclear and vague

Christopher Downey of Houston, the Special Prosecutor in the TOMA Trial.

Conroe, March 21 – The Texas Open Meetings Act (“TOMA”) criminal trial, the “Trial of the 21st Century,” of Montgomery County Judge Craig Doyal, Precinct 2 Commissioner Charlie Riley, and political consultant Marc Davenport is set to begin on Monday, March 27, 2017, at the Montgomery County Courthouse in Conroe. Two sources who have requested anonymity have confirmed that Visiting Judge Randy Clapp of the 269th District Court of Wharton County has indicated that he will likely hold a pretrial conference, by telephone, late in the morning on Wednesday, March 22.

The March 9 deal between Precinct 4 Commissioner Jim Clark to turn “state’s evidence” and cooperate with the prosecution against Doyal, Riley, and Davenport has certainly made the trial far more interesting. The State of Texas has also subpoenaed both Commissioners Mike Meador and James Noack to testify at the trial as witnesses at the trial, although the subpoenas were not yet served as of press time.

The Prosecutor Pro Tem: Christopher Downey

Renowned downtown Houston criminal defense attorney Christopher Downey is the Prosecutor Pro Tem in the case. Montgomery County District Attorney Brett Ligon declined to become involved in prosecution of the criminal matter because his then-First Assistant District Attorney Phil Grant (now 9th District Judge) had retained Davenport as a political consultant for his judicial campaign.

Downey provided an exclusive interview to The Golden Hammer Monday evening.

“I think this case presents some interesting issues about the Texas Open Meetings Act and its application to local government. I look forward to prosecuting this case next week,” Downey told The Golden Hammer during the interview. “I assume we’re going to trial on Monday but we’ll hammer out the details and logistics during the pretrial conference.”

Downey explained that he believes it’s likely that jury selection will begin on Monday, March 27. “It would be logistically difficult to get more than one witness done before the end of the first day of the trial,” Downey said. “I assume the trial will take at least the full week or even possibly longer, depending upon the length of the defense evidence. Of course, I also don’t know how long the defense will take cross-examining the State’s witnesses.”

Downey grew up in Dedham, Massachusetts, south of Boston. He attended a private preparatory school there and then received his undergraduate degree from Duke University in 1990 and his law degree from SMU School of Law in 1993.

Downey served as a prosecutor from 1993 to 1998 under renowned Harris County District Attorney Johnny Holmes. “I went through the felony trial bureau and then worked in the civil rights division as a prosecutor,” he explained.

Since he left the District Attorney’s office in 1998, Downey has worked as a criminal defense attorney primarily in Houston in the state and federal courts. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Downey lectures across Texas on criminal law matters and has been an instructor at the State Bar of Texas Advanced Criminal Law Seminar.

Downey explained that he was reluctant to discuss the merits of the TOMA case because he believes he has “an ethical obligation to ensure a fair trial.”

Doyal files motion to dismiss his indictment due to claimed vagueness of statute

Doyal filed a motion to dismiss his indictment during the afternoon of March 20, 2017. Doyal contends that the Texas Open Meetings Act is unconstitutionally vague. His attorney, Rusty Hardin, clarified in the motion, “Judge Doyal is not attacking the constitutional of TOMA’s civil procedures or civil remedies, only the prosecution of a public official for a purported criminal conspiracy charge under Section 551.143,” the section under which Doyal, Riley, and Davenport are charged.

Doyal’s motion includes the following argument:

“Section 551.143 is unclear and vague on its face by making it a crime for a member (or members) of a governmental body to ‘conspire’ to meet in numbers of less than a quorum for the purpose of ‘secret deliberations’ that violate the open meetings act.

“First, what is the meaning of conspire in this statute? Conspire as in Section 15.02 of the Penal Code? Some sort of common law meaning of conspire? Merely an agreement to meet? Or an agreement to meet with the purpose to have ‘secret deliberations’? Or to meet with the purpose to violate the law?

“Second, what is a ‘secret deliberation? Only the members of the official entity are present? Or hundreds of members of the public but less than a quorum of the present and giving speeches about buying school buses, knowing that the press and public will circulate their words to the other 3 council members before the open meeting the next day). Simultaneous meetings of less than a quorum which, collectively make up a quorum, with a runner between them? Serial meetings of individual members with each other until the quorum is reached? Serial meetings with individual members by the lobbyist or member of the public who garners support for a project and then moves on the next member, telling him that the first member has already agreed and seeking his support, etc.?

“Third, what kind of ”deliberations are covered? Suppose the county judge calls up the commissioners and he does all the talking; the others just listen. Is that a deliberation? Suppose the county judge sends an email to all commissioners–has he committed a crime at the time he sent it? At the time the other commissioners read it? At the time any one of them responds? A quorum responds?”

While Constitutional vagueness arguments are somewhat common, they are rarely successful in trial courts. In this instance, Doyal’s motion is far more interesting because it reveals the factual basis of his defense: that his actions were justified by his interest in proceeding with the development of roads in Montgomery County. It’s also worrisome that Judge Doyal now seems so confused about his legal duties, even though he proclaimed on June 28, 2016, that “I understand the Texas Open Meetings law” during a press conference he held after his indictment.

The Golden Hammer will continue to provide up-to-the minute coverage and details of Montgomery County’s Trial of the 21st Century.

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