Suspended Smith County Judge Joel Baker entered a plea of “not guilty” on Thursday in his arraignment hearing on charges of violating the Texas Open Meetings Act, as lawyers wrangled over access to emails and information about campaign contributions.
The court also outlined a schedule for Baker, including setting a tentative trial date for Oct. 31, with a pre-trial hearing scheduled for Oct. 6. Visiting Judge Jack Carter also advised the parties to get together to work out arrangements regarding a subpoena from the Texas Attorney General’s Office.
Daniel Brody, with the Attorney General’s Office, is seeking emails regarding Smith County’s dealings with American Traffic Solutions in 2014 and 2015, regarding a contract to put unmanned speed cameras in county school zones.
“There could be a whole bunch of emails I never got that are highly relevant,” Brody told Carter.
Carter told Brody to work with county employees to narrow down his initial request, which Smith County District Attorney Matt Bingham said could involve up to 150,000 emails. County employees have said it amounts to 24.2 gigabytes of data.
In an hour-long recess, the lawyers outlined a set of keywords to narrow down the email search. Any emails that have questionable privilege will be submitted to Carter for a review.
“We understand Mr. Brody has a case to try,” Bingham said. “We understand he wants communications regarding ATS. We’re happy to help narrow down the request.”
Attorneys also argued several other pretrial motions. Baker’s defense counsel, Joe Murphy, is seeking information on political donations made by JoAnn Fleming to Texas Attorney General Ken Paxton.
“JoAnn Fleming is the main complainant, the person who is driving this bus,” Murphy said. “I believe it is very important. Mrs. Fleming has been the one who has dictated the terms of what they will call an investigation.”
Murphy also asked for information from the AG’s office about other open meetings cases. Carter granted Baker’s defense access to indictments and cases that were no-billed over a two-year period, but declined to allow all open meetings violation complaints into discovery.
“I have the feeling that if this information is provided to me, it will show that this is the only case prosecuted like this in history,” Murphy said. “It will show it’s a politically motivated witch hunt.”
Along those lines, the defense requested any email submitted to the Texas Attorney General’s Office from 14 people, primarily members of Grassroots America, over a year time frame.
Contacted after the hearing, Ms. Fleming, who is executive director of government watchdog group Grassroots America-We The People, denied Murphy’s depiction of the investigation and resulting indictment.
“I have had zero influence beyond the complaint narrative we filed and the documents we turned over to support our belief that the Texas Open Meetings Act had been violated,” Mrs. Fleming said. “In addition, the Texas Attorney General’s Office took this case as a response to a written request made by Smith County District Attorney Matt Bingham after Mr. Bingham asked to be recused.”
She said she donated $100 to Paxton’s campaign on May 21, 2014.
Mrs. Fleming, who did not attend the hearing, also denied that the matter is a political witch hunt.
“This matter is not about whether or not we like the idea of traffic cameras to catch speeders,” she said. “This is not about personalities or differences in political philosophy. Our interest in an investigation was - and continues to be - solely about our local government officials’ sworn duty to comply with the rule of law.”
That’s a reasonable expectation, she said. She pointed to the Texas Government Code, which says “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
For a look at how the story unfolded:
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UPDATE: 11:55) Baker’s defense requested almost a year’s worth of emails between Texas Attorney General Ken Paxton’s office and 14 people, including Grassroots America-We the People.
UPDATE: 11:50) Judge Carter signs an order allowing executive session tapes to be viewed by certain witnesses.
UPDATE: 11:43) There is a list of key terms and dates agreed upon between the parties. Any documents deemed privileged will be submitted to Judge Carter.
UPDATE: 11:40) Court has now resumed.
UPDATE: 10:29) Court is now in recess so that emails can be looked over. Court is scheduled to start back by 11:30 a.m.
UPDATE: 10:23) The trial date has been set for Oct. 31, which also happens to be Halloween.
UPDATE: 10:22) Judge Carter allows all Texas Open Meetings Act indictments/no bills into discovery, does not allow TOMA complaints. The scheduling of a trial date is now being discussed. The judge will not be available to hear it until early November.
UPDATE: 10:19) “I’m trying to try this case based on facts,” Carter said. “We have to decide the case based on the jury charge.”
UPDATE: 10:17) Baker’s defense has also asked for all investigations into open meetings violations by the state. Wants to show it’s politically motivated.
UPDATE: 10:16) Baker’s counsel plans to call JoAnn Fleming, director of Grassroots America-We the People, as a witness.
(UPDATE: 10:05) Bingham argues that witnesses help gather case information all the time.
(UPDATE: 10:04) “Let’s give it a try today to get a list,” Carter said. “The majority of it is public information. Very little of it should be privileged.”
(UPDATE: 10:03) Brody asked that the DA’s office not be involved in filter emails. He refers to them as “witnesses” in the case. Asked for a week to review the emails.
(UPDATE: 9:59) Judge Carter asked Brody and DA to sit down and come up with a list of keywords to search for in the system. “I’m asking you to cooperate,” Judge Carter said.
(UPDATE: 9:56) “That’s not going to happen,” Carter said in regards to Brody’s email request. “No one is going to look at 150,000 emails. There has to be a better way than that.”
(UPDATE: 9:54) Judge Carter asked if there is a better way to filter emails for more relevant information. Judge Carter said he can review the 19 emails.
(UPDATE: 9:53) “We have Gary Barber who would have to turn over emails with tax info,” Bingham said.
(UPDATE: 9:51) Bingham wants to narrow down the scope of the AG’s request. Wants a court order relating certain emails. Bingham said there are 19 emails they want to assert county-attorney privilege over.
(UPDATE: 9:47) Daniel Brody with the Attorney General’s Office said he issued two subpoenas to the county. The judge wants to narrow down Brody’s request for 150,000 emails. Judge said it was too large.
(UPDATE: 9:44) The requested review process would determine what emails would fall under “attorney client privilege” and therefore not subject to inspection.
(UPDATE: 9:37) DA Matt Bingham is stepping up to argue in regards to the emails. The county is protesting releasing 150,000 emails to the AG. Baker’s Attorney Joe Murphy said the only request they have is the emails be reviewed in an in camera review process. This discussion is between the county and the AG’s office, not Baker’s counsel.
(UPDATE: 9:31) Baker waived his arraignment and is seeking to enter into a plea of not guilty. The judge will set out a schedule on this case. Baker’s attorney, Joe Murphy requests to table scheduling after resolving the emails issue.
