Dallas County DA Craig Watkins
Dallas County DA Craig Watkins (Mark Graham)

A lawyer representing Dallas County District Attorney Craig Watkins told Dallas’ Fifth Court of Appeals that a trial court had no authority to dismiss indictments that the DA had brought against a wealthy oil heir—charges that the trial judge concluded Watkins filed “to assist” plaintiffs lawyer Lisa Blue.

Blue, of Dallas’ Baron & Blue, is involved in a multimillion dollar attorney fee dispute with the heir, and both Blue and Watkins deny they’ve done anything wrong.

In 2012, Albert G. Hill III filed a motion to quash several mortgage fraud indictments, alleging that Blue, a prominent donor to Democrats, exerted influence on Watkins to bring the charges. Blue had represented Hill in a dispute over a family trust that was litigated in federal court, and Hill later refused to pay all of Blue’s legal fees [See " BAM! Counsel Win $21 Million in Fees From Clients Who Wouldn't Pay," Texas Lawyer, Jan. 30, 2013, page 1.]

Hill strongly denied the allegations in connection with the mortgage fraud indictments. And Lena Levario, judge of the 204th District Court, dismissed those indictments against Hill on March 7, 2013, partly because Watkins refused to testify about why he prosecuted Hill. [See " State Judge Dismisses Fraud Indictments Against Albert G. Hill III, Holds Dallas DA Craig Watkins in Contempt," Texas Lawyer, March 8, 2013, page 1.]

Watkins appealed to the Fifth Court Levario’s decision to dismiss the indictments in State of Texas v. Albert G. Hill III.

During the Feb. 18 appellate arguments in the case, Chad Baruch, a Rowlett solo who represents Watkins, told the Fifth Court that Levario abused her discretion by holding an evidentiary hearing that allowed Hill to explore Watkins’ motives for bringing charges.

“Under federal law a prosecutor is presumed to act in good faith. It’s a mandatory presumption. And by its very nature it demands evidence to displace it,” Baruch said. “It is, in fact, the sole purpose of a presumption to say that one thing will be assumed true until displaced by evidence.” And Hill did not have the evidence to warrant such a hearing, Baruch said.

Justice Michael O’Neill asked Baruch, “It does not matter what type of procedure was being sought? If it was vindictive, prosecutorial selection, prosecutorial misconduct—every one of those you say would require the same prima facia case to be provided before any evidentiary hearing?”

“Correct,” Baruch replied, noting that allowing the hearing into why Watkins prosecuted Hill was a violation of the separation of powers and a “judicial intrusion into a core executive function.”

While the parties do not dispute that Watkins received political donations from Blue, Justice David Bridges asked Baruch what impact the donations might have on the case.

“Does that add to your stature that someone has given you $100,000, $120,000?” Bridges asked Baruch.

“I think the bottom line to that argument, the impartial prosecutor [argument], is there is not one case ever in the history of the legal universe in which a prosecutor has been held to have a conflict based on a claim like this,” Baruch argued.

Marshall Camp, a partner in Los Angeles-based Irell & Manella who represents Hill, told the Fifth Court that Watkins’ argument—that there was no evidence to support an evidentiary hearing to quash Hill’s indictments—was “wrong factually and that’s wrong legally.”

In urging the Fifth Court to uphold Levario’s rulings, Camp argued that there were 44 exhibits attached to Hill’s motion to quash his indictments, including sworn depositions, 11 pleadings related to the fee dispute filed in federal court, and six documents that Watkins’ office provided in the case.

O’Neill asked Camp if any affidavits were attached to those exhibits proving their authenticity.

“No. But to clarify, your honor, the documents that were attached to the motion were a proffer of evidence. There is nothing unusual about this in criminal procedure,” Camp said.

He explained that state law allows a defendant to proffer evidence in some instances to show “what he will put into evidence if he’s allowed to come in the courtroom.”

“It’s a very reasonable rule in criminal cases because there isn’t a way, for most cases, a way for criminal defendants to obtain—outside of the courtroom—evidence of third parties,” Camp said, noting that evidence such as Watkins’ campaign finance reports and Blue’s emails had to be authenticated in Levario’s courtroom.

“I think the question, somewhat, from us is not whether you can come to court but, ‘What kind of evidence does he have to bring before a hearing is held?’” Bridges asked Camp.

“That’s right, and I think it’s clear that he can proffer facts. He can proffer evidence,” Camp said.

The justices also noted during argument that Watkins had been held in contempt by Levario for refusing to answer questions during the case—a finding later overturned by a visiting judge. [See " District Attorney Craig Watkins Acquitted of Contempt" Texas Lawyer, Aug. 26, 2013, page 1.]

“She [Levario] concluded that Mr. Watkins’ testimony was essential and we were entitled to get it on the narrow question of his communications and relationship with Ms. Blue,” Camp said. “That’s what I wanted to underscore. This is not the end of the republic. This is not an order that we get to, sort of, freely sift through the secrets of the prosecutor.”

Watkins, who attended the arguments, which were held in the Rockwall County Courthouse, said the case is important to him and other prosecutors.

“The sanctity of prosecution. That’s what’s important,” Watkins said. “Not ever in the history of any district attorney has the elected DA been compelled to testify as to the reasons someone was indicted when there was no evidence to even ask the question.”

Camp declined to comment after the argument. Blue did not return a call for comment.