Conroe, March 22 – A flurry of activity from all three of the defendants’ attorneys has marked the period before today’s pretrial conference, which Visiting District Judge Randy Clapp of the 269th District Court of Wharton County will hold by telephone at 11:30 a.m in the Trial of the 21st Century, the Texas Open Meetings Act (“TOMA”) trial set to begin on Monday, March 27. On Monday, March 20, County Judge Craig Doyal filed a motion to dismiss the criminal indictment against him. On Tuesday afternoon, March 21, Precinct 2 Commissioner Charlie Riley filed a joinder with Doyal’s motion to dismiss concerning the indictment of Riley.
Meanwhile, political consultant Marc Davenport on Tuesday afternoon filed an emergency application for mandamus and a stay of the entire case because Davenport believes the District Court trying the criminal cases does not have jurisdiction over him. Additionally, Davenport designated Austin attorney Jennifer Riggs as an expert on the on the Texas Open Meetings Act and its application.
Davenport: fear of “finger pointing”
Most of the recent filings have come from Davenport’s attorney, highly-respected criminal defense attorney Steve Jackson of Conroe. After Judge Clapp denied Davenport’s motion to dismiss the criminal case against him, Jackson filed a motion to sever Davenport’s trial from the trial of Doyal and Riley. Interesting, a rationale for Davenport’s requested severance of his trial from his co-defendants is:
“If the cases are tried together it will result in finger pointing between the defendants causing inconsistent and conflicting defenses…a joint trial will be prejudicial to Defendant Davenport.”
When defendants are indicted for engaging a conspiracy, as the indictments for Doyal, Riley, and Davenport allege, it is very common for the co-conspirators to go to trial together in criminal cases. The Prosecutor Pro Tem filed a response to Davenport’s motion to sever within a few hours after Davenport filed the motion. In it, Downey, the prosecutor, argued that Davenport has failed to show any prejudice from a joint trial and has failed to provide any actual basis for any “finger pointing.”
Judge Clapp has already rejected Davenport’s argument that the District Court does not have jurisdiction over him. Normally, district courts only have jurisdiction over felony cases and over misdemeanor cases involving criminal allegations of “official misconduct. Davenport argued in his motion to dismiss that, because he is not a “public official,” he is not subject to an “official misconduct” allegation and cannot go to trial in a district court. Rather, the proper court for the case against Davenport, his attorney Jackson argued, is in a county court at law, which has jurisdiction over misdemeanors of which violating the TOMA is one.
On Tuesday, Davenport filed an emergency application for a writ of mandamus with the Ninth Court of Appeals at Beaumont and has argued that Judge Clapp abused his discretion by refusing to dismiss Davenport’s case. He also requested that the Court of Appeals stay proceedings on his criminal case in the trial court pending the outcome of his request for appellate relief.
Doyal’s and Riley’s motions to dismiss
Doyal filed a motion to dismiss on Monday, March 20, arguing that TOMA’s criminal provisions are unconstitutionally vague and unclear. For further coverage, please see “Trial of the 21st Century, The TOMA Trial: Profile of Prosecutor Downey, Doyal Files Motion to Dismiss Claiming Law Is Unclear And Vague” (The Golden Hammer, March 21, 2017).
On Tuesday, March 21, Riley filed a very brief pleading in which he joined with Doyal and requested dismissal of his own case on the same grounds of vagueness and lack of clarity.
Nationally-renowned criminal defense attorney Rusty Hardin representing Montgomery County Judge Craig Doyal
After his temporary suspension by the Texas Judicial Conduct Commission, Doyal hired nationally-renowned criminal defense attorney Rusty Hardin of Houston to represent him in these criminal proceedings. Hardin provided an exclusive interview with The Golden Hammer on Tuesday afternoon. Hardin is passionate about the propriety of all of Doyal’s conduct under scrutiny in this case. “I don’t believe anything Doyal did was remotely against the law,” Hardin told The Golden Hammer.
Hardin said, “I find it very disturbing that the way the State is reading the Open Meetings Act would prevent a group of citizens from meeting with their elected official to try to persuade him, then agreeing to allow the official to announce his position after the meeting publicly, and then following up with those agenda items in a formal open meeting.” Hardin noted that “the concept of a ‘walking quorum’ has never led to a criminal conviction reported anywhere in the entire country. The State’s theory in this case has never been used successfully in any criminal prosecution.”
Hardin criticized the application of the TOMA in this case, because it has “made other public officials throughout the state of Texas scared to death even to have a conversation with constituents about matters likely to come before their governing board.”
Hardin garned substantial publicity for his defense of Adrian Peterson two years ago before 9th District Court Judge Kelly Case where Hardin locked horns with District Attorney Brett Ligon and then-First Assistant District Attorney Phil Grant in several pretrial hearings and press conferences. The State and Peterson resolved the case through a plea agreement.
Hardin has represented baseball pitcher Roger Clemens, evangelist Victoria Osteen, Rudy Tomjanovich, Warren Moon, Wade Boggs, and former Harris County Commissioner Jerry Eversole among others. His representation of J. Howard Marshall, II, the “stepson” of Anna Nicole Smith, resulted in substantial critical acclaim for Hardin’s work prosecuting the former exotic dancer turned heiress.
Hardin graduated from Wesleyan University in 1965 and from SMU School of Law in 1975. He served in the U.S. Army and was honorably discharged with the rank of Captain after five years of service and 15 months in Vietnam. After law school, Hardin worked for 15 years as an Assistant District Attorney in Harris County. During that period, he never lost a felony jury trial. Hardin left the District Attorney’s Office in 1990 after he was named Texas Prosecutor of the Year the previous year. In 1991, he started his own law firm. He and his wife Tissy have been married 47 years and have two grown sons.
Hardin’s Secret (!)
The Golden Hammer asked Hardin point-blank, “What makes you one of the best trial lawyers in America?”
Hardin’s response was telling both for the reader and for any aspiring trial attorney.
“First, I’m not willing to concede that I have any greatness. I’m not brighter than the average person, so I hear things the way real people hear them. When I hear a fact situation, I look at them and hear them like the average person. That helps me relate to juries and understand what they want to know about when I present facts to them in a jury trial.”
With his astounding record of success, Hardin’s modesty in and of itself is mighty impressive.
Hardin is known for thorough preparation and stunningly-entertaining presentation in jury trials.
His representation of Craig Doyal will certainly increase the interest in Montgomery County’s Trial of the 21st Century.