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William Goyen 1915.1983 a Journaloffreevoices in Thisissue T December 9,1983 X AS BSERVER William Goyen 1915.1983 A JournalofFreeVoices In ThisIssue: (See page12) Photo by J. Gary Dontzig 75C • PAGE TWO • A Mattox McDade Preview Austin ATHER'S DAY, 1983, and Houston attorney Thomas R. McDade is honoring his with lunch at the River F Oaks Country Club. On the way in — or out — of the dining room, the elder Mr. McDade in tow, he spots in the practice-putting area a colleague, Wiley Caldwell, a Fulbright & Jaworski senior partner, head of the firm's government bond division. McDade steers his father toward Caldwell, but, as McDade testified in Austin recently, "Mr. Caldwell barely spoke to me. He was very, very upset. I had walked over to speak to him, and he said, 'You've done it; I need to talk to you. .!' " Tom McDade, in his mid-40s, is a tall, white-haired, imposing fellow — in the man-of-wealth/power/assurance mold, sort of a John Connally junior grade. He is, by all accounts, a no-holds-barred trial lawyer with a reputation for attacking opponents so aggressively they frequently settle out of court rather than endure the McDade treatment. And here he was on Father's Day, humiliated: "I was trying to introduce my father to a partner, and he would barely speak to me. I decided that maybe I better get busy and see if I could solve this problem." "This problem," the reason five months later he was in an Austin courtroom enduring with thinly concealed impatience the questions of an Austin defense attorney, was an enraged attorney general. Jim Mattox was enraged, from what McDade's colleague Caldwell understood, because McDade was doggedly trying to question the AG's sister, Janice Mattox, in connection with the $2 billion Mobil/Manges lawsuit. (Fulbright & Jaworski, of course, represents Mobil.) What frightened Wiley Caldwell was an apparent threat by Mattox to put the squeeze on the firm's lucrative bond business. With McDade on the stand in Travis County District Judge Mace Thurman's courtroom, Roy Q. Minton, Mattox's chief defense lawyer, said it appeared to him the telephone conversations between Mattox and Caldwell were no more than lawyers jawing back and forth. "I think it shows you have two or three or maybe four or five lawyers yelling and screaming at each other about a lawsuit," he said. "That's what they were doing, and I tell you that ain't illegal. I don't see how anyone can take it that seriously." To digress for a moment, it may be useful to recall that Mattox is charged with commercial bribery. The commercial bribery statute, adopted by the Legislature in 1973, is designed to protect those with fiduciary interests — lawyers, doctors, accountants, property appraisers, business executives, and others — from people who would seek kickbacks. The third- degree felony carries a maximum sentence of ten years in prison and a maximum fine of $5,000. According to the law, "a person commits an offense if he offers, confers, or agrees to confer any benefit" to a fiduciary in exchange for "violating a duty to a beneficiary" — a law client, for example. 9 to: 640.) West. • 7th Street. AitStia Ims 18701. According to the indictment, Mattox threatened to harm 2 DECEMBER 9, 1983 Fulbright & Javvorski's bond business if McDade didn't "cease Mattox's stand on capital punishment is undaunted by and desist from his efforts to question" Mattox's sister. Mattox statistics that show the inability to pay for your own lawyer allegedly agreed to "confer a benefit" on a fiduciary (Fulbright at a capital murder trial doubles your chances of drawing & Jaworski) by releasing the bonds — if Fulbright & Jaworski the death penalty (Observer 11/?/83). John Duncan of the would "violate a duty" to a beneficiary" (its client Mobil). Texas Civil Liberties Union uses those statistics to argue for The bitterness between Mattox and McDade was disclosed a proportionality review in death penalty cases. Duncan says in a May 26 letter in which McDade touted his lawyerly such a review would reduce the likelihood of a death sentence superiority over Mattox. McDade wrote a Mattox aide that resulting from one's race or inability to pay for top legal if he was being pitted against the attorney general — "aka assistance. `the people's laWyer,' " McDade added — it would be a Mattox contends the statistics are baloney. "I don't think "classic mismatch of lawyering ability." McDade suggested the statistics have anything to do with anything," he said. a public match between himself and Mattox that would be "Statistics can lie as you well know, and they do in that staged in a "large and public facility, and [we could] charge particular case." admission and give the proceeds to charity." As Mattox sees it, the poor occupy most of the bunks on That bit of schoolboy needling spiced an often interesting, death row because they are the ones that commit the truly occasionally tedious, two days of testimony from McDade heinous crimes. "You take the Autry case," he explained. and Caldwell. More intersting than the testimony itself was "It's a case of an individual, after having already been to the play of personalities. There was Mattox, of course, the penitentiary, killing two people in cold blood in the course uncharacteristically silent during the two day hearing, a yellow of a robbery. Rich folks don't commit those kinds of crimes. legal pad on his lap, an occasional sardonic smile on his lips Now that's the distinction that your statistics do not pick up." in response to McDade's discomfiture. And there was The rich know how to plan a crime to avoid prosecution, McDade, he of the well-endowed ego, the bone-crunching Mattox believes. "The crimes that are committed by upper handshake, the look-'em-straight-in-the-eye approach to life, income people," he said "are frequently much more well sparring with Roy Minton. a folksy trial lawyer known for thought out. They are, most of the time, committed by people him flamboyant courtroom oratory and his relentless cross- that have a higher intellect. They are crimes that are frequently examination style. far more difficult to prove. Prosecutors don't often seek the The portly, red-haired Minton is also an old hand at death penalty when they have a case that is not a very, very defending public figures. In 1980, he successfully defended good case." then-House Speaker Billy Clayton against federal bribery- In further support of the death penalty as it exists, Mattox conspiracy charges in connection with an FBI sting operation. said Texas prosecutors can be trusted. They are not about In 1982, he represented millionaire North Texas rancher Rex to seek the death penalty unless it is clearly warranted, he Cauble on federal charges that he masterminded an interna- said. "Because prosecutors are so cautious in asking for the tional drug-smuggling ring; that one he lost. In addition to death penalty you find that it is an extremely rare occurrence Mattox, he's presently defending Travis County Commissioner where there is a real question of the individual's innocence." Bob Honts who is charged with using his county mobile phone (But when it comes to his own felony indictment, he says to conduct private business. the judicial system has gone awry and the prosecutor acted Pre-trial hearings are scheduled for Dec. 8, although Minton out of political ambition.) says he may ask for another week's postponement. Meanwhile His indictment is an example, he said, of the "American he's preparing motions to quash the indictment, primarily on system of justice being used in a way that many of us would the basis that what Mattox did is not an indictable offense. object to." The Mobil people are "smart and very wealthy" Did he learn anything from the depositions? and have the capability to use the system unfairly, he added. "I think Caldwell learned a lot," Minton told the Observer. As for Travis County District Attorney Ronnie Earle, he "He found out what that boy he had [McDade] had been allowed himself to be used by Mobil to bolster his sagging doing." J. H. public image, Mattox said. Earle, Mattox maintains, was burned on a case earlier in the summer, and to prove his aggressiveness was still intact, fabricated the Mattox indictment. "I am very hopeful that his conscience will hurt EANWHILE down on the gurney, Jim Mattox is him now," Mattox said, "and that perhaps he'll recognize standing up for victims' rights. He's doing all he that what he has done is not right." M can to increase the traffic flow through Huntsville's A felony bribery charge against any politician is a serious Walls unit, and civil libertarians are left wondering what blow. This leaves some people wondering if Mattox is using happened to their boy. Mattox, who built his political career the death penalty to shore up his image as a protector of on his reputation as both a fiscal conservative and a civil law and order. Is there any connection? libertarian, has drawn criticism from the Texas Civil Liberties "None what-so-ever," Mattox said and repeated, "None Union for his stand on capital punishment. He recently talked about his capital punishment stance and his own felony what-so-ever." indictment as he shifted back and forth in the high-backed In fact, Mattox said the indictment is a boost to his swivel chair behind his crowded desk. popularity. "I think my popularity is probably higher now than ever.
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