This responds to the series of articles that have been published by the Tyler Telegraph Newspaper, the most recent of which was published on June 27, 2012 regarding Attorney Joel Mallory, Jr. It has become necessary for a public response to be made to the allegations. These comments are not to be interpreted as an all inclusive reply to all matters in controversy. I reserve the right to make subsequent changes or clarifications as necessary. I do not waive any legal rights.
Recently, the Tyler Telegraph published a poorly constructed article under the headline that “Lawyer who Lied to Judge Failed to Appear in Court ” for a June 16, 2012 hearing. As the Tyler Telegraph failed to contact me personally, this missive is prepared as an attempt to mitigate the harm your form of “journalism” has caused to me and my family. My character and professional reputation has been shattered.
The allegations made against me arise from my representation of Corey Webb, an African-American juvenile who was charged with aggravated assault in a particularly notorious case, State v. Corey Webb, Cause No. 07-1350-10, 7th District Court of Smith County Texas. My legal representation started on September 16, 2011. A few weeks prior to initiating my representation, Corey Webb had entered a guilty plea. Judge Kerry Russell was the presiding judge. This case concluded at the trial level with Mr. Corey Webb being assessed a term of 50 years incarceration.
Mr. Matt Bingham is the Smith County District Attorney. The Prosecutor responsible for the Webb matter was Mr. Richard Vance – a young and relatively inexperienced attorney who has been licensed for a total of 7 years. Mr. Vance launched the investigative search against me and my family because “the case had been subject to numerous resets” and his feeling that granting the motion to withdraw plea that I intended to file “would undermine the criminal justice system.” Based on his observations, he also believed that, when I made my initial appearance on September 16, 2011, I did not appear remorseful enough in my discussions with Judge Russell concerning my mother’s death. This investigative search was launched Immediately following my initial appearance. The allegations made against me all arise from that search. Ultimately, in addition to the death of my mother, I had to deal with unsubstantiated accusations that I lied about the circumstances of my mother’s
This search was intensive, Orwellian, and abusive. The prosecutor’s office used a proprietary law enforcement software to identify my family members and obtained highly personal information pertaining to each. Personal information was also compiled in the format of a “Mallory family tree.” The authority of the Smith County District Attorney’s Office was illegally used to obtain highly sensitive information such as birth certificates, death records, drivers licenses, and HIPPIA records.
Interestingly, Mr. Vance, during his cross examination under oath, denied conducting investigations of other lawyers. However, it was subsequently discovered that an investigation was indeed conducted of my attorney, Rosalind Kelly. In this regard, I am aware that records were obtained, at the very least, from the State Bar of Texas. Because of my concerns for her, I requested for her to tender a Motion to Withdraw.
To set matters straight, I never lied to gain any continuance. My initial involvement for the underlying case was to observe the sentencing of Mr. Webb on September 16, 2011. I was not the attorney of record at that time. I advised the Court that I intended to handle post trial and appellate matters. Judge Kerry Russell expressed he did not feel it would be fair for me to “remain on the sidelines while all of this is going on.” This case was continued because Judge Russell decided to pass on sentencing in order to take up some of the legal issues I intended to raise. If Corey Webb was sentenced, he would have been entitled to raise the same matters through a motion for new trial or by appeal. As an attorney, I am duly required to raise all matters which may have an impact on my representation. Upon information and belief, I told Judge Russell that my mother passed and made him aware of my travel plans. Any statement made to Judge Russell about my mother’s death was
based on my understanding of the information that I received around that time. I understood Judge Russell’s queries as relating to my travel plans. How this is material is questionable because my mother did in fact pass. He told me it was not necessary to provide further information. It was not a lie nor does it constitute a statement that was made with the knowledge or intention that it is false. There was no motivation for me to lie because Judge Russell sua sponte (on his own accord) decided to pass on sentencing matters.
Nevertheless, Mr. Vance took the highly sensitive and personal information and attached it to a Motion to Determine Truthfulness of Statement in an attempt to have me testify under oath about my mother’s death. This was requested because the investigative search failed to divulge proof of mendacity or statements made falsely and knowingly with the intent to deceive. In violation of my constitutional rights to counsel and against self compulsory testimony, Judge Russell granted the order and attempted to question me under the guise of determining what to do next. I was compelled to testify at Corey Webb’s plea withdrawal hearing that was scheduled for October 21, 2011. Judge Russell ignored my protests that my constitutional rights were violated by the investigative search. Judge Russell and Mr. Vance were well-aware that information obtained from an illegal search cannot be used, including information that is derived from such a search.
According the the Tyler Telegraph’s June 27, 2012 article, Judge Russell submitted himself to an interview with the Tyler Telegraph concerning the allegations. Mr. Vance likewise submitted himself to an interview, which was published with a photo of himself. The Motion to Determine Truthfulness of Statements state that I made disparaging comments about the prosecution. Any purported statement I made has yet to be substantiated. One may wonder what does this have to do with the Webb case and what does this have to do with my mother’s death? I would submit that other than to discredit me – absolutely nothing.
At the start of the October 21, 2012 hearing, Judge Russell attempted to make further inquiry into the circumstances of my mother’s death under the guise of “trying to figure out what to do next.” He did so without advising me of my rights. He attempted to take my response to query acknowledging a statement in my mother’s death certificate as an admission of culpability. This I immediately and emphatically denied. Mr. Bingham requested Judge Russell to drop the matter. Judge Russell refused this request while making an insinuation that I was a bald-face liar. Judge Russell referred the matter to the Presiding Administrative Judge. Judge Joe D. Clayton was assigned to hear further proceedings on the Motion to Determine Truthfulness of Statements.
Judge Russell, presumably with Judge Clayton’s permission, sealed all matters associated with the Motion to Determine Truthfulness of Statements on February 29, 2012. This occurred two days after the Smith County District Attorney was recused from this matter. Afterwards, the Motion to Determine Truthfulness of Statements has been attempted to be converted to a contempt action without legal authority and without having to satisfy long standing legal requirements. This includes a showing of how false statements were knowingly and intentionally made as well as demonstrating the obstruction of the administration of justice. More egregiously, Judge Clayton, the assigned judge, has appointed himself both as the “prosecuting or charging” judge and the “adjudicating” judge of guilt/innocence. As reason and common sense would dictate, the U.S. Supreme Court declared this to be totally impermissible because of the heightened potential for abuse of power. It is important for
you and your readers to know, in matters such as this, I do not have a right to a jury trial, nor do I have a right to an appeal any determination of guilt.
With respect to the accusation of “skipping the hearing,” Mr. James Hagan was quoted as stating “I don’t know why he has not appeared.” Taken in full context, he is being less than candid with this statement. Mr. Hagan and Judge Joe D. Clayton knew I had not received proper notice. The notice upon which I relied was a letter Judge Clayton issued to me that the hearing date was for June 28, 2012. (See attached letter). Accordingly, this date was reflected in my subsequent legal filings to both the Court of Appeals and the Supreme Court of Texas. All of this was filed before June 26, 2012. If this date was incorrect, Mr. Hagan failed to mention or otherwise address it in his responses. It has just been brought to me attention that a Texas Ranger, who was doing a favor for Mr. Hagan, attempted to pass off service of a subpoena upon my father as service to me for a hearing date of June 26, 2012. I have since discovered that Ms. Kelly, whose Motion to Withdraw was not
granted, was requested, presumptively at the urging of Judge Clayton, to make a “ post dated filing” of a notice of hearing motion in an effort to impute notice to me of a June 26, 2012 setting. Mr. Hagan was also aware of this request.
Regrettably, this is not an isolated incident. On February 23, 2012, Judge Clayton held me in contempt for a hearing for which I never received notice and without an opportunity to be heard. In as much as this action clearly violated my constitutional rights, I made a motion for him to set his order aside. Judge Clayton never made a ruling on my motion to set it aside. It was not until June 1, 2012 that Judge Clayton rescinded the order (after I made a challenge of that order to the Tyler Court of Appeals). In that regard, the June 27, 2012 article suggests that all proceedings to the Court of Appeals have been exhausted. Contrary to the article’s suggestion, the matters raised before the higher courts remain pending.
In this country we operate under the rule of law with equity, liberty, and justice for all. To accomplish this fundamental precept, the founding fathers implemented our justice system where those charged with crimes are entitled to a fair determination of guilt or innocence through an adversarial process. In an opinion rendered several decades ago, the United States Supreme Court noted the role of the prosecution as representative not of an ordinary party to a controversy, but a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, there, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Corey Webb, as any citizen charged with an offense, was entitled to fair proceedings with th effective assistance of counsel as exemplified through vigorous advocacy. A defense attorney’s obligation is not“get his client off,” but to ensure the integrity of the criminal justice
system and “let the chips fall as may lay.”
This matter has been pursued against me at great public expense. Considerable efforts have been made to prosecute a matter which is not actionable based upon evidence that cannot be used as a result of the illegal search. It arises from, I believe, and is in reprisal for my representation of a juvenile charged with aggravated assault. A blatant attempt was made to thwart my advocacy by subjecting me to ridicule even if it meant the thorough disregard of my constitutional rights. To this effect, the Tyler Telegraph played an instrumental role through its one-sided, tabloid style journalism. Those articles went through considerable lengths to justify the actions taken by the District Attorney’s Office, the Special Prosecutor, and the judiciary of this county. To the best of my knowledge, the Tyler Telegraph has made no attempt to contact me regarding my point of view.
The First Amendment was implemented by the right to a free press. The purpose of a free press is to ensure that governmental affairs are conducted openly and honestly. Unfortunately, this notion has been lost upon Tyler Telegraph publisher. To describe the articles as journalism, investigative or otherwise, would be misleading. Those articles simply constitute propaganda.
My only demand of you is that should you choose to print this letter, that you do so in its entirety. I specifically reserve and do not waive any rights arising from the editing of this letter.
Joel Mallory, Jr.
Attorney at law