A notice filed by special prosecutors in the securities fraud cases against Texas Attorney General Paxton raises potentially exculpatory, as well as damaging evidence. Clint Broden, a lawyer from Dallas who is double-board certified in criminal law told Breitbart Texas, “The notice could be a double-edged sword.”
The notice raises credibility questions about a key witness, but also raises questions about whether Paxton used his position as a state senator to gain or provide a financial interest, a potential violation of criminal law.
Court-appointed District Attorney Pro Tem, Brian Wice and Kent Schaffer, filed a notice stating that William Mapp has given conflicting statements about what Paxton did for his company. Mapp is the former CEO of the McKinney technology firm that is at the center of the securities fraud allegations.
The document, entitled Brady v. Maryland Disclosure No. 1 was filed with the 416th District Court in Collin County, Texas, on Wednesday.
Texas law mandates that prosecutors “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” The United States Supreme Court in Brady v. Maryland held that suppression by the prosecution of evidence that is favorable to a criminal defendant violates constitutional due process where the evidence is favorable to the accused’s guilt or punishment. Prosecutors must provide any evidence to the criminal defense that is potentially exculpatory that is found during their investigation.
The Brady notice provides that on April 3, 2014, William Mapp who is the former CEO of Servergy, testified before the U.S. Securities and Exchange Commission (SEC). This testimony came during a federal fraud investigation of the company by the SEC. As reported by WFAA8 ABC in Dallas-Fort Worth, the SEC filed a lawsuit in 2014 accusing Mapp and his company of making “possibly fraudulent statements or omissions related to Servergy’s technology and purported business relationships.”
Mapp testified before the SEC that he paid Ken Paxton as an advisor and for referring investors to Servergy.
The Brady notice also states that Mapp was interviewed by Texas Rangers on July 28, 2015. At that time, Mapp told the Rangers that although he told the SEC that he was paying Paxton for referring investors and acting as an advisor, Paxton did not receive a commission in exchange for bringing in investors to Servergy. He said Paxton refused any commission.
Mapp admitted to the Rangers that he gave 100,000 shares of stock to Paxton but said he did so in exchange for Paxton serving as a political advisor to the company. He also testified that Paxton was given the stock, worth $100,000, in exchange for providing information about upcoming opportunities to market their servers to government data centers.
Paxton served as a Texas state senator from January 2013 until he took office as attorney general in January of 2015.
As reported by Breitbart Texas in August, Paxton has been charged with two first degree counts of securities fraud, and with a third degree felony for failing to register as a securities adviser with the Texas State Securities Board.
Clint Broden told Breitbart Texas, “The special prosecutors are fulfilling their constitutional duty to inform the defense of any evidence that is potentially exculpatory.” He continued, “In light of the public nature of this case, it appears they chose to make this disclosure in a court filing rather than by private notice in order to demonstrate their commitment to ensuring the defendant has a fair trial.” Brady notices are generally not filed with the court but are given to defense lawyers by prosecutors.
Houston area criminal defense lawyer Paul Looney said the Brady notice shows that a critical witness has given two versions of sworn testimony with regard to a key element of the offense.
He told Breitbart Texas that the CEO’s statements, if believed, could be another offense but concluded, “All you can really tell right now is that there are conflicting statements.”
Houston criminal defense lawyer Grant M. Scheiner told Breitbart Texas, “Conflicting statements from a witness will almost always cast doubt on the witness’ credibility. Mapp is no exception.” “If he keeps changing his story, who is going to believe him in court?,” Scheiner asked.
Scheiner added, “The allegations in the Brady notice, if true, may hint at an additional charge of misuse of official information but we do have to be careful about jumping to any conclusions. He said, “We will see what the actual evidence is and what the prosecutors do.”
The crime of “Misuse of Official Information” found in Texas Penal Code section 39.06 provides:
(a) A public servant commits an offense if, in reliance on information to which he has access by virtue of his office or employment and that has not been made public, he:
(1) acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by the information;
(2) speculates or aids another to speculate on the basis of that information.
(b) A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that:
(1) he has access to by means of his office or employment; and
(2) has not been made public.
Special prosecutors, Kent Schaffer and Brian Wice, have declined to comment on the Brady notice.
Breitbart Texas contacted the law firm of Dan Cogdell and a spokeperson from Blumenthal and Associates on Friday but no reply had been made as of the time of publication. Breitbart Texas spoke with the office of Paxton’s other defense lawyer, Terri Moore, who referred us to Blumenthal.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate judge in Texas. Follow her on Twitter @LanaShadwick2
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