Jay Norton was stunned when he learned that Angus McGinty—a former client, friend and San Antonio judge—was accusing him of taking part in an alleged courthouse corruption scheme in an effort to avoid a two-year prison sentence for bribery.
“I had been a friend of Angus for a very long time,” Norton said. “We rode bikes together. I went to his wedding. I’ve known the guy a long, long time.’’
It was the first time Norton had heard of McGinty’s allegations—reading about them in an Aug. 17 decision by the U.S. Court of Appeals for the Fifth Circuit.
“I was literally leaving a PetSmart getting dog food and I get a message from a friend saying, ‘you should see this decision,’” said Norton, a former criminal defense attorney who now serves as a top prosecutor in the Bexar County District Attorney’s Office. “I sat in the parking lot in 100 degree weather reading the opinion, just shocked.’’
That Fifth Circuit decision flatly dismissed McGinty’s contentions that Norton and his former law partner, Alan Brown, had a conflict in representing McGinty in a criminal case because they were allegedly suspects in the same corruption investigation that lead to McGinty’s conviction.
“I think it’s an unrealistic play by a very desperate man,’’ Norton said of McGinty’s allegations.
McGinty, who served as state district court judge in San Antonio from 2011 until his resignation from the bench in 2014, pleaded guilty to one count of honest services wire fraud in 2015 and was sentenced to two years in prison.
He is currently incarcerated in a Memphis federal penitentiary and is scheduled to be released on May 4, 2019. McGinty could not be reached for comment.
According to the Fifth Circuit’s decision, the investigation that lead to McGinty’s conviction began with a tip from an FBI informant that former San Antonio criminal defense attorney Albert Acevedo Jr. was paying for repairs to McGinty’s car in exchange for favorable rulings. Acevedo in 2015 pleaded guilty to bribery and was sentenced to one year in prison.
Acevedo provided McGinty with $6,655 in car-related services, and intercepted communications showed that McGinty agreed to remove alcohol monitoring for one of Acevedo’s clients and recalled an arrest warrant for another, according to the decision.
Acevedo later agreed to cooperate with the FBI and later alleged that he was not the only attorney with influence in McGinty’s court. Acevedo named defense attorneys Brown and Norton as examples, the court said.
The decision noted that Acevedo’s and McGinty’s allegations against Brown and Norton “are nothing more than allegations,” and that the FBI investigated and could not substantiate them.
After McGinty’s indictment in 2014 on numerous bribery-related charges, McGinty retained Brown and Norton—the same two lawyers Acevedo had identified to the FBI—to represent him. While McGinty’s case was pending, the government filed a notice of potential conflict of interest, explaining that Brown also represented another defendant whom Acevedo had previously represented in state court.
According to the Fifth Circuit, the district court judge personally addressed McGinty during a status hearing and told him the government had raised a potential conflict, and said McGinty had a right to conflict-free counsel. McGinty said he understood and wanted to proceed with Brown and Norton. He later signed a plea agreement stating that he was fully satisfied with the attorneys’ representation.
In 2015, McGinty requested an interview with FBI agents, in which he stated he had received other favors from several lawyers while serving as a judge, singling out Brown and Norton, and alleging that the two attorneys had given him cash and free legal representation, the decision said. McGinty also alleged that he initially wanted to cooperate with the government, but that Brown and Norton had convinced him not to. McGinty also speculated that Brown and Norton advised him to plead guilty to protect themselves.
The FBI was unable to substantiate McGinty’s allegations against his attorneys, and a search of McGinty’s text messages turned up nothing incriminating, and ultimately the government declined to bring charges against Brown and Norton, the court said.
McGinty later sought to vacate his guilty plea on the grounds his defense counsel had discouraged him from the cooperation that would have been beneficial to him. Specifically, McGinty argued that Brown and Norton were suspects in the FBI’s corruption investigation and that this conflict violated his Sixth Amendment right to counsel.
The trial court denied McGinty relief, holding that his ineffective assistance claim failed to meet the standard announced in the seminal 1984 Supreme Court ruling in Strickland v. Washington. He appealed to the Fifth Circuit.
On appeal the government argued that even if McGinty’s attorneys were constitutionally deficient, he waived his right to nonconflicted counsel. McGinty argued that the conflict he alleged was unwaivable.
But the Fifth Circuit sided with the government, concluding that McGinty “knowingly, intelligently, and voluntarily waived the purported conflict.”
In his decision, Judge Stephen Higginson noted that McGinty’s case appeared to be the first time the Fifth Circuit has considered an implicit waiver of an attorney conflict, but they had upheld analogous waivers.
“The uncontested record also shows that McGinty was aware of the alleged conflict. The government asserts, relying on an affidavit from an FBI agent, that McGinty told investigators that Brown and Norton had given him favors in exchange for rulings in the past,” Higginson wrote. “McGinty cannot create an issue of fact by dancing around his own statements.”
“Because McGinty failed, despite ample opportunity, to contest the veracity of his own prior statements of collusion with Brown and Norton, the district court and we are entitled to rely on them,” Higginson wrote. “We therefore have no trouble concluding that, if McGinty’s attorneys had a conflict, the uncontested facts show that McGinty opportunistically knew, even took advantage of, that fact better than anyone.”
“Whether or not that approach was ultimately wise, the record shows that it was intelligent, knowing, and voluntary,” Higginson concluded in the decision. “Accordingly, we hold that McGinty waived Norton and Brown’s purported conflict.”
David Gonzalez, an Austin attorney who represents McGinty, said his client will likely appeal the Fifth Circuit’s decision. Gonzalez said his primary concern with the court’s ruling is the finding that McGinty implicitly waived his right to conflict-free counsel without a formal hearing on that issue from the trial court.
“Now for the first time they are saying because he is a judge and he is smart and sophisticated, we don’t go through the same hearing process as other defendants to ascertain whether there is a conflict,” Gonzalez said.
“It was not disclosed to McGinty that his lawyers were mentioned by several witnesses to have exposure in the same criminal investigation. That’s the problem,” Gonzalez said.
“McGinty’s lawyers never did anything wrong. That’s really clear,” Gonzalez added. “But at the beginning of the investigation when they were named, can that create a conflict? That’s the issue. They really worked hard and helped him. They were mentioned as suspects, but McGinty didn’t know that.’’
Norton said the allegations that McGinty leveled against him and his former law partner in attempting to overturn his criminal conviction have no merit.
“All of the allegations are completely false,” Norton said. “For example, throughout the duration of our representation, he didn’t want to meet with the FBI because he didn’t have anything to tell him. He said ‘I don’t know of any public corruption.’ ’’
Brown also denied McGinty’s allegations, noting that he wished his former client had decided to pursue a trial instead of pleading guilty.
“That’s the big mistake: he should have gotten a trial,’’ Brown said. “I think it would have been better for the courthouse and the whole system if he had a trial. That way, everybody would have known what happened. He said it was a big scandal, but it was an isolated incident.’’
Like Norton, Brown said he only learned of McGinty’s allegations when reading the Fifth Circuit’s decision.
“It sounded like psychobabble when I read it,’’ Brown said of McGinty’s claims.