Attorneys for former Mayor Pro Tem Don Hill and Ray Jackson, who represented Hill during last year's City Hall corruption trial, argued in court Thursday afternoon that any violations of U.S. District Judge Barbara Lynn's gag order issued shortly before Hill's trial began were not willful, and therefore not criminal. While Hill did not take the stand, Jackson spent the significant part of the six-and-a-half hour bench trial walking Lynn through the events following a June 18 interview granted to WFAA-Channel 8's Gary Reaves.
Former FBI Special Agent and Assistant U.S. Attorney Terence Hart, appointed by Lynn to investigate the case, maintained that the interview was "replete with violations," but Lynn outshined his aggressive prosecution during her questioning of Jackson. And although she said it wasn't an indication of how she planned to rule in the case, Lynn closed the trial with harsh words for both Jackson and Hill.
"I am extremely disappointed in your conduct, and I feel compelled to tell you that," Lynn said, adding that their statements to Reaves jeopardized an impartial jury, which was "just wrong."
The direct examination from Jackson's attorney, Mark Werbner, intended to paint the picture of a negligent lawyer "blindsided" by a reporter. Jackson testified that he has thought about the interview "almost daily" and watched it several times.
"As I look back on the interview now, I had an error in judgment," he said.
Jackson claimed his gut feeling was to not grant interviews because he was busy preparing for Hill's trial and didn't want to risk violating Lynn's gag order. But he did it anyway because Victor Vital, Sheila Farrington Hill's attorney, had recently interviewed with a newspaper. Once the interview at his law office began, Jackson said it was clear that Reaves wouldn't stick to ground rules established by Ken Carter, Hill's consultant who had arranged the interview. Those ground rules, according to Jackson, were to not talk about the case. Jackson thought it would be a "fluff" piece.
As Reaves asked questions that Jackson said made him "extremely uncomfortable," he testified that he kicked and elbowed Hill, but admitted that he did nothing to stop the interview or verbally counsel his client. And although the gag order was only 30 feet away in his office, he didn't have a copy with him, despite concerns that some of Hill's statements may have violated it.
"I panicked," Jackson said. "I didn't know exactly how to stop the train once it was moving."
Werbner then had Jackson explain the three steps he took to rectify the situation: notify the court, contact Reaves and cancel his remaining interviews. Jackson testified that he immediately called Vital within a minute of the conclusion of the interview, but Vital would later testify under questioning from Lynn that no such conversation took place. Then Jackson said he went to Vital's office where Vital was meeting with Jon Mureen, a fellow Baker Botts lawyer who assisted him with Farrington Hill's defense, and one of Brian Potashnik's lawyers to ask them if they felt like any of the statements violated the order.
After a discussion, Jackson said it was agreed that he should notify the court, so he began composing an e-mail to Lynn's assistant on his iPhone. But in the middle of it, his battery died, and the e-mail was never sent. Vital would later testify that he didn't want to send an e-mail from Baker Botts because he didn't want to be associated with the situation. Jackson said he then told Ken Carter to talk to Reaves about using documents instead of some of Hill's quotes, and Vital also sent Reaves an e-mail, although it didn't tell him to hold off on the story. Finally, Jackson canceled the rest of the interviews he had scheduled prior to the trial.
"I probably should have found some way to stop the interview or got up and left," Jackson said.
After Hart's questioning of Jackson, Lynn posed one of many difficult questions to Jackson: "What in the world was going on with you that prevented you from crying foul when you realized he violated the terms of the interview?"
And then there was this one: "What was the source of your optimism that what happened in that interview wouldn't violate the terms of my order?"
Jackson didn't have a good answer for either question.
Lynn also established that Jackson conducted the interview without speaking to Reaves ahead of time (leaving it to Carter), without having the order with him, without knowing the terms of the order, and perhaps most importantly, without any experience with such an order and such a high-profile case.
Then she asked if he thought any of his statements violated her court order.
"I have not formulated an opinion," Jackson said.
After some pressing, Jackson admitted that he had "some ideas." Essentially, he said he didn't violate her order, but if he did, that wasn't his intent.
Lynn asked if he was concerned about getting in trouble with her or worried about what she was trying to prevent -- tainting a potential jury pool.
"I was worried about getting in trouble with you," Jackson said, admitting that he wasn't thinking about the jury.
"I'm just going to let you imagine what my reaction was," Lynn said, as Assistant U.S. Attorney Sarah Saldana, FBI Special Agent Allen Wilson and FBI Special Agent Don Sherman watched from the gallery. "Well, you don't have to imagine because it's consistent with being here today."
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During Werbner's closing remarks, he argued that his client was not acting willfully beyond a reasonable doubt. He claimed that Jackson simply was negligent and used poor judgment. Yet Lynn interrupted, asking a pertinent question: "He just gets to sit there with this cloud of concern and not do anything about it?"
Marlo Cadeddu, Hill's court-appointed attorney, argued that Hill was simply maintaining his innocence in his statements and anything else was already in the public record. She also noted that Lynn's order was ambiguous.
Lynn concluded the bench trial without ruling. She still has a briefing from the defense to read, which the prosecution has a week to respond to, after which she'll render a decision.
Jackson and Hill face up to six months in jail and up to a $5,000 fine, with Jackson also facing possible sanctions from the state bar, which could suspend or revoke his law license. Hill already faces a maximum of 95 years in prison for his convictions in the corruption trial and will be sentenced by Lynn on February 26.