WAXAHACHIE — Fortieth Judicial District Judge Bob Carroll found no merit in a motion to recuse Ellis County and District Attorney Patrick Wilson from the pending criminal case against Ellis County Pct. 4 Constable Mike Jones.

The opinion was issed by Carroll on Thursday.

Jones was on the charges of tampering or fabricating physical evidence with intent to impair and abuse his official capacity. These charges stem from Jones’ alleged misconduct during his time in office.

Carroll considered the motion made by Jones’s attorney, Mark Griffith, and argument from Wilson in his court-issued opinion.

Ruling on Motion

“A significant question raised by the motion under Texas law is whether a district attorney can be disqualified by the trial court judge in a pending criminal case from prosecuting a defendant because of the district attorney bias against the defendant,” Carroll wrote. “In an effort to arrive at a legally correct answer to the preceding question, the trial court observes the defense has not presented a single appellate court case in the history of Texas law, wherein a trial court judge has disqualified a district attorney strictly for bias against a defendant in a pending criminal prosecution.”

Carroll states in the order that bias is, by its very definition, highly subjective and is "inherently problematic to determine the state of mind or motive of a district attorney." He added that any procedure and any legal standard for evaluating the bias of a district attorney, in an intensely adversarial system, is not without significant legal repercussions.

“Common sense dictates that in pursuing justice, a DA possesses a generalized bias against all felony lawbreakers such as child molesters, serial rapists, burglars, drug dealers, those committing family violence and so forth. Allowing trial court judges to ‘define’ good bias, expected bias, acceptable bias, questionable bias and legally impermissible bias is bad policy,” Carroll wrote. “We currently face a polarized society at many levels – efforts to promote DA disqualification based upon DA bias will predictable elevate polarization to a new and unimagined height. The notion of applying within the adversarial system such a fluid and indefinite concept as personal bias to disqualify district attorneys in Texas, undoubtedly opens up a floodgate and provides a multitude of criminal defendants throughout Texas a new claim with unlimited litigation potential.”

Carroll continued that the basis of the bias claim does not fit into the historic legal framework for the district attorney disqualification and then denied the motion. He added that the court would guard all of Jones’ constitutional, statutory and due process rights during the pending criminal proceedings.

Motion for Recusal

The motion to recuse Wilson from the case was filed by Jones’ attorney Mark Griffith on March 7. In his motion, Griffith requested for Wilson to be removed from the case due to a conflict of interest and an attorney pro tem to be appointed in his place.

Griffith stated in the motion that, by not disqualifying Wilson, the court would violate Jones’ rights under the several laws — which include fifth, sixth and 14th amendments to the United States and Texas Constitutions, as well as the Texas Disciplinary Rule of Professional Conduct.

“Patrick Wilson, the elected County and District Attorney, has filed a civil lawsuit to remove the defendant (Jones) from his duly elected office as Constable. By filing this lawsuit Patrick Wilson has made himself a witness in the criminal matter and cannot proceed as the prosecuting attorney nor can any attorney in his office,” Griffith wrote in the motion. “He had made himself a witness in this case by filing the civil lawsuit showing a personal bias against the defendant. This violates due process and the proper ethical discharge of a prosecutor’s duty.”

Griffith stated in his motion that a personal email from Ellis County Judge Carol Bush to Wilson regarding a particular problem — between resident Roger Smotts and Jones — showed bias against his client. The email was forwarded from Bush to Wilson.

The complaint involved the placement of a political sign at a business and alleged threats made by Jones to Smotts and his family. Smotts stated that he was going to file a complaint against Jones due to the alleged actions.

Because of the email chain, Griffith stated that Wilson is already a witness in the pending criminal case against the defendant.

“No reasonable person looking from the outside in would believe that the defendant has been or will be afforded due process by the Ellis County District and County Attorney’s Office,” Griffith wrote. “Through this bias and the filing of the civil lawsuit, Patrick Wilson made himself a witness in the criminal case, and he and his office should be disqualified. And an attorney pro tem should be appointed immediately.

Carroll stated in the order that Griffith does offer any proof to the claims.

“The claim is dubious, but importantly, the district attorney nonsuited/dismissed the civil lawsuit on May 16," Carroll wrote.

Griffith also argued in the motion that county email accounts have been used for personal matters not associated with county business. One incident that Griffith cited in his motion was an email from Bush to Wilson regarding the Jones’ Facebook posts. The email Bush forwarded Wilson was dated Dec. 10, 2015, from resident Max Mills.

“Yesterday evening, Constable Mike Jones wrote an inflammatory political tirade on his public Facebook Page ‘Constable Mike Jones.’ The status was a reaction to the surge of South American refugee children coming to North Texas and, in particular, Ellis County,” Mills wrote in the email. “He notes how we should ‘be moving them closer to the border so we can kick their butts back across the Rio Grande.’ Again, most of these refugees are children. He writes that ‘I am told these illegal immigrants are NOT Syrians but are South Americans! Are you kidding me? Are we suppose to believe anything the Obama Administration tells us?’”

Carroll stated in his order that complaints on a broad range of topics are common to district attorney offices across the state.

“In a nutshell, the email registers complaints on the part of officer Smotts against Constable Jones, for slanderous and false statements allegedly made by the constable towards Smotts during Jones’ contested primary campaign election in February 2016,” Carroll stated. “It is relevant to note that Peace Office Smotts accuses Constable Jones of criminal abuse of office. This email by Smotts paints neither a professional nor favorable picture of Constable Jones, but the receipt of unflattering reports in different forms from a different person, concerning individuals who later become the subject of a criminal prosecution is certainly not an uncommon experience within a district attorney’s office.”

Other claims Griffith in the motion included Wilson allegedly violating the county policy on the use of public equipment for campaign purposes and emails set by the district attorney’s office to all public officials and staff regarding use of public computers.

The Daily Light reached out to Griffith for comment on the ruling by Carroll. Phone messages were left with his office but went unreturned as of 1:30 p.m. on Friday.

District Attorney’s Response

The State’s response to the motion for recusal writes that Griffith failed to allege any facts that could arguably provide grounds for disqualification.

“The legal ground for disqualification are extremely narrow and have not been alleged in the motion before the court. County and district attorneys have a constitutional and statutory obligation to represent the state in all criminal cases,” Wilson stated. “The Texas Court of Criminal Appeals, in a plurality opinion has held that a trial court has no authority to disqualify the elected prosecutor or to appoint an attorney pro tem. In a later plurality opinion, the court suggested that a trial court may have the authority to disqualify the elected district attorney for a conflict of interest that rises to the level of a due process violation.”

Wilson noted that the only exception to disqualification is if the prosecutor previously represented a defendant in the same matter, but that does not apply here. Wilson added that the burden is on the defendant to show an actual conflict and real harm that disqualifies the prosecutor. In this case, Jones has not alleged any conflict of interest that could give rise to disqualification, Wilson said.

“We are pleased with the ruling and we were confident that the law was on our side in this manner,” Wilson said. “There will be additional pre-trial and trial settings as determined by the court.”

History of the Case

According to the indictment on the charge of abuse of official capacity, Jones allegedly a used a county-issued smartphone, computer, email services, motor vehicle and employees of the county to operate and advertise his personal for-profit business and his political campaign.

The tampering or fabricating physical evidence charge stems from an investigation conducted by the Ellis County and District Attorney’s Office. The investigation found that Jones allegedly remotely purged his county-issued Apple iPhone and iCloud after it was seized as evidence. The two computers and smartphone remained in the secure possession of Wilson’s office until they were transported to a forensic laboratory for analysis. The three items were seized on May 3, 2016.

Next Step

According to the Ellis County District Clerk’s website, Jones' final pretrial is set to take place at 9 a.m. on July 13 in the 40th Judicial District Court. The case was initially being heard in the 443rd Judicial District Court, but, on May 9, Judge Cindy Ermatinger signed the order of referral to recuse herself.

The civil case against Jones was dropped on May 15 after the County and District Attorney’s Office filed a motion for nonsuit. The civil case was seeing to suspend Jones from office and appoint a temporary replacement pending a trial.

----

Contact Andrew at abranca@waxahachietx.com or 469-517-1451. Follow him on Facebook at www.facebook.com/AndrewBrancaWDL or on Twitter at www.twitter.com/AndrewBrancaWNI.