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Uncertainty over DA’s conduct

San Antonio Express News, April 17, 2017

By Elizabeth Zavala and Bruce Selcraig

In reluctant testimony, a state district judge said it was “chilling” to hear District Attorney Nico LaHood threaten to destroy the practices of defense attorneys during a heated exchange in her chambers in February.

But experts disagree on whether the behavior constituted official oppression, as Judge Lori Valenzuela described it in a hearing last week.

The lawyers, in a defense motion and in their own testimony, said LaHood’s office waited too long to tell them about a sexual relationship between a prosecutor and a witness and that LaHood erupted when, as they agreed to a mistrial in the murder case, they told him they would use the misconduct allegation to try to prevent another trial.

An enraged LaHood said he would “shut down” their practices and “make sure they never got hired on another case again in Bexar County,” the motion states. In testimony and in several public statements, LaHood has denied making the threat.

Valenzuela recused herself from the murder case and, compelled to testify Wednesday at a hearing on the defense motion, agreed that LaHood threatened to destroy the lawyers’ practices. She also said she considered it official oppression, a Class A misdemeanor, punishable by up to a year in jail.

The lawyers who alleged it have not filed a complaint with law enforcement or the State Bar of Texas, one of them said Monday. Valenzuela has not responded to requests for comment.

Susan Criss, a retired state district judge and former prosecutor based in Galveston who has tried or presided over hundreds of cases, said the described behavior could be considered official oppression.

“The defense was ethically and professionally obligated to seek to remedy” the failure of LaHood’s office to tell them about the prosecutor’s prior relationship with a witness, Criss said in an email.

However, Gerald Reamey, a law professor at St. Mary’s University, said making the kind of threat attributed to LaHood is not, by itself, official oppression under Texas’ statute — but it would be if LaHood attempted to carry it out. Nobody has accused LaHood of that.

A judge is free to refer suspected criminal activity, including by elected officials, for prosecution or to law enforcement agencies, but isn’t required to do so, Reamey said, adding, “It would have been premature for Judge Valenzuela to refer that matter for investigation or prosecution, based only on a threat, and not on action.”

George Dix, a law professor at the University of Texas at Austin, said such a threat might be official oppression but that prosecuting it “would be far from a ‘slam dunk.’”

If it could be proved that LaHood made the threat, a court might agree that he subjected defense lawyers to “mistreatment,” but that term is not defined in the law, “so it is hard to know whether the threat constitutes it,” Dix said. Such a threat “also might constitute impeding … the client’s exercise of his right to representation by counsel,” but proving that would present its own problems, he said.

“The apparently unsuccessful threat may be only an attempt to commit official oppression in this manner and thus a Class B misdemeanor,” Dix, who has written extensively on criminal procedure, said by email Friday.

To make it stick in either case, though, “the prosecution would have to prove that Mr. LaHood acted ‘knowing his conduct was unlawful.’ This is an unusual requirement and might present difficulties,” Dix added.

The lawyers are defending Miguel Martinez, 29, who is accused of shooting Laura Carter, 33, five times in the head as she sat in her vehicle Jan. 11, 2015.

Senior District Judge W.C. Kirkendall of Seguin took over the case and finished testimony on the defense motion Monday. Much of it centered on the argument between LaHood and defense attorneys Joe D. Gonzales and Christian Henricksen in Valenzuela’s chambers — their voices loud enough to be heard by the clerks and court coordinator who sit outside.

“In response to media reports, I respectfully disagree with Judge Valenzuela’s opinion,” LaHood said via email Thursday, repeating the same assertion in an interview Monday.

He released a separate statement Thursday declaring that his office “will not cower to defense spin tactics that try to divert attention from seeking justice for Laura Carter and her family.”

In the motion, defense lawyers said Martinez should not be tried again because LaHood “goaded” them into agreeing to a mistrial when they learned, after a day of testimony, that a prosecutor had read the Martinez file and was then pulled off the case because she reported having a sexual encounter with a key witness years earlier.

LaHood and another prosecutor did not believe that they needed to tell defense attorneys about it. They told Valenzuela, however, and she ordered its disclosure, which led to the argument in her chambers.

“I think if there was a threat made, the judge (Valenzuela) probably did the right thing. She was right to recuse herself from the murder trial. If this incident is to be reported to the State Bar of Texas, the judge would be the one to do it,” said Josh Marquis, a member of the board of the National District Attorneys Association. “Most judges I know would want to bring it before the bar.”

The association does not investigate these types of cases and doesn’t sanction prosecutors, said Marquis, the district attorney for Clatsop County, Oregon, who speaks internationally on the death penalty and lectures on prosecutorial ethics.

“You should not get angry with another lawyer in front of the jury. But this applies much less for comments made in the judge’s chambers. It is less of a danger then,” “But I wouldn’t call what (LaHood) is accused of doing simply, ‘Boys will be boys’ stuff.”

The State Bar of Texas does not acknowledge whether it has received a complaint. State law requires that all disciplinary actions stay confidential unless they result in a public sanction, said Claire Mock, the public affairs administrator of the bar’s Chief Disciplinary Counsel’s Office.

Anyone can file a grievance with the bar, and the bar can initiate its own grievance procedure based on news media reports, she said. In the 2016 fiscal year, it received 7,760 grievances and meted out its most severe penalty, disbarment, 22 times.

On Monday, Gonzales become the third person, after Valenzuela and Henricksen on Wednesday, to testify that LaHood made the threat.

“We haven’t made any decisions about where to go from here,” Gonzales said afterward. “We haven’t gotten to the point of any formal complaint or charges.”

Lawyers and other Bexar County Courthouse regulars grimaced at the ongoing drama and called the episode embarrassing. None who were approached for comment wanted to publicly criticize LaHood’s temper or behavior.

“There’s a decency aspect,” an observer said. “Part of being a public official is that you have to have the proper temperament …(and not) take things personally.”

Many described Valenzuela as credible and honest. A Republican, she spent 11 years as a prosecutor in Bexar County before her election in 2010 to the 437th District Court.

“I have known Judge Valenzuela since she served as an assistant district attorney, I have practiced in her court as a defense attorney, and know her to be a judge with an impeccable reputation,” said Patrick Hancock, one of only a handful of observers willing to speak publicly about the matter. “In my opinion, this view is shared by both the criminal defense bar and the prosecution alike.”

He didn’t want to talk about LaHood.

One courthouse observer who spoke on condition of anonymity questioned whether LaHood could follow through on the alleged threat, asking, “Really? How could he actually shut down someone’s practice?”

“I really don’t feel like there’s anything he could do, unless he actually ordered it, and that would be foolish. I know Nico wouldn’t do that,” the observer said.