BENNETT LAW FIRM

CAUSE NO. 2006-CR-2672-G & 2006-CR-2693
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STATE OF TEXAS                       )           IN THE DISTRICT COURT
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V.                                                                   )            OF CAMERON COUNTY, TEXAS
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ARTHUR DANIEL HAYES           )           404^TH JUDICIAL DISTRICT
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DEFENDANT ARTHUR DANIEL HAYES RESPONSE TO STATE’S MOTION TO RESTRICT PUBLICITY AND REQUEST FOR HEARING [1]

Comes now, the Defendant Arthur Daniel Hayes, requesting this court deny State’s Motion to Restrict Publicity, and to have a hearing prior to any ruling. The State filed a Motion to Restrict Publicity on December 22, 2006. The motion should be denied for numerous reasons and the Defendant would state as follows:

Defendant Arthur Daniel Hayes (“Pastor Hayes”) has provided extraordinary cooperation during the investigation of this case. In the summer of 2005, Agent Robles with the Medicaid Fraud Investigation Unit of the Texas Attorney General's Office contacted Pastor Hayes. Agent Robles was concerned how medical bills were submitted from the Family Medical Center (“Center”) where Pastor Hayes worked and the authority to provide these medical services. Pastor Hayes freely talked to Agent Robles about how the Center was structured and run, how billing was done, and the medical director whose medical license was used for billing purposes. After the initial investigation, Pastor Hayes had the impression that he was not being investigated but understood that the conduct of Dr. David Rutledge, a physician who worked at the Center, was under investigation. His belief was confirmed by a letter he sent to the Medicaid Fraud Control Unit-Austin on March 15, 2006. See letter attached as “Exhibit 1”.

Over the next several months, conversations and correspondence were exchanged between Pastor Hayes, the Medicaid Fraud Unit, and the Texas Attorney General’s Office. Almost a year passed when in March of 2006, a new investigator, Richard Hill (“Investigator Hill”), was assigned to Pastor Hayes’ case. On March 16, 2006, upon the request of Investigator Hill, defense counsel and Pastor Hayes traveled to McAllen and met with Investigator Hill and another investigator for several hours. See email correspondence attached as “Exhibit 2” and letter dated March 13, 2006 as “Exhibit 3”. At this interview, Investigator Hill indicated that Pastor Hayes was a target of a criminal investigation. Pastor Hayes did not answer any questions, but later, acting in good faith and in full cooperation with the investigation, provided Investigator Hill with the requested information and documents. This meeting was memorialized by letter dated April 13, 2006, attached as “Exhibit 4”

Information requested from Pastor Hayes at the March 16^th meeting was sent to Investigator Hill on April 18, 2006 and also on May 9, 2006. See letters attached as “Exhibit 5” and “Exhibit 6”. On June 15, 2006, defense counsel also sent an extensive three-ring notebook containing exculpating documents that proved Pastor Hayes was not involved in any criminal behavior. See letter attached as “Exhibit 7”. The documents included case law analysis, character letters, newspaper articles, letters of support, and other exculpatory affidavits that Pastor Hayes did not present himself as a medical doctor or engaged in any improprieties with patients. Also, a videotape and the lab coat that Pastor Hayes wore were offered to the investigators but these items were never requested or ever received by the investigators. It appeared their minds were already made up, regardless of the truth.

Over the entire course of the Attorney General’s investigation, Pastor Hayes was completely cooperative. His willingness to cooperate was commended by both Investigator Hill and Attorney General of the State of Texas Christen Sorrell (“Sorrell”). Pastor Hayes provided everything that was asked of him and often provided more than was requested. See email correspondence dated April 17, 2006 attached as “Exhibit 8” and letter dated May 1, 2006 attached as “Exhibit 9”.

On June 26, 2006, defense counsel had a telephone conversation with Sorrell regarding the status of the criminal investigation being conducted by Investigator Hill. Sorrell confirmed that the investigation was still pending and had not been presented to any state district attorney. During this telephone conversation, Sorrell also indicated that if and when any criminal case was presented to the state district attorney, the three-ring notebook of exculpatory information previously provided to Investigator Hill by Pastor Hayes would be included in any presentation to the prosecutor. It was also assumed that all correspondence to Investigator Hill or Sorrell would be included as well. See letter dated June 29, 2006 attached as “Exhibit 10”.

By mid September, 2006, defense counsel had begun contacting the Cameron County District Attorney Armando Villalobos’ (“Villalobos”) Office on a frequent basis. In several telephone conversations during the month of September 2006, Assistant District Attorney Mike Kiesel (“Kiesel”) assured defense counsel that Villalobos’ office had not been presented a case against Pastor Hayes from Investigator Hill. During these discussions, Kiesel double-checked and reaffirmed this fact by obtaining Pastor Hayes’ date of birth from defense counsel and checking it against his office’s internal database.

Kiesel, the prosecutor assigned to the “Hayes” case at that time, entered into an oral agreement with defense counsel that prior to any Grand Jury meeting concerning medical fraud and/or sexual assault allegations made against Pastor Hayes, defense counsel would be able to present exculpatory statements and evidence. This agreement was documented by defense counsel in an October 9, 2006 letter and sent to Kiesel. See letter attached as “Exhibit 11”. Kiesel never contaced defense counsel following the receipt of the letter, either by telephone, email, or U.S. mail- never refuting or denying the agreement.

During a telephone conversation on September 6, 2006 between Norma Jaramillo, Kiesel’s secretary, and defense counsel’s office, defense counsel was assured by Ms. Jaramillo that according to Kiesel, there was “nothing eminent” as far as Pastor Hayes’ case being presented to the Grand Jury. More importantly, however, Ms. Jaramillo confirmed the agreement between defense counsel and Kiesel would result in being contacted prior to any Grand Jury presentation and Pastor Hayes would be allowed to present exculpatory evidence. This was documented in a letter to Pastor Hayes on October 2, 2006, attached as “Exhibit 12[2]” and in a letter to Kiesel dated October 9, 2006, attached as “Exhibit 11”.

Apparently, Villalobos made the agreement in bad faith because no opportunity was ever afforded to meet with Kiesel or to appear before any grand jury. Nor was the opportunity to voluntarily surrender made available, although knowing that Pastor Hayes had counsel, and had requested information regarding the status of the investigation.

Defense counsel only became aware that Villalobos had reneged on the agreement on December 19, 2006, when Pastor Hayes was arrested in the morning in an ambush “surprise” arrest. This type arrest is usually used by law enforcement if a putative defendant is expected to flee or is a threat to the community. Even though Pastor Hayes and defense counsel had been cooperating with the government for almost two years and his home address and business address in Cameron County were well known, Villalobos lacked the integrity to honor his agreement and failed to extend the professional courtesy of a telephone call advising defense counsel of the December 13, 2006 Indictment. No opportunity was afforded for Pastor Hayes to turn himself in.

When Kiesel was called on the morning of December 19, 2006, he did not deny that an agreement had been reached. Nor did he dispute all the information that had been sent to him. His only response as to why he did not honor his agreement was, “I am no longer handling the case. It has been assigned to Assistant District Attorney Cynthia Maldonado (“Maldonado”).

In a telephone conversation with Maldonado, now the prosecutor in charge of the “Hayes” case, it was confirmed that when the case was turned over to her from Kiesel, she received the three-ring notebook of exculpatory documents Pastor Hayes had previously sent to Investigator Hill. If her file was complete, she not only had a plethora of exculpatory evidence regarding Pastor Hayes but also had the letter concerning the agreement with her office. In the same December 20^th telephone conversation, Maldonado confirmed to defense counsel, over speaker phone with witnesses present, that there was an agreement between Kiesel and defense counsel but not an agreement with her- thus, no agreement. Since no agreement, it was not necessary to contact defense counsel before presenting the indictment to the Grand Jury.

Principles of fairness and public policy have been relied upon to enforce agreements between the defense and the State.

If the State, through her officers, makes a solemn compact with her citizen, this contract should be enforced in the courts, in exact compliance with its terms. . . common honesty and public justice dermand that when such a contract is made and the party faithfully complies . . . the court in which the breach is attempted should interpose and prevent the breach by enforcing the contract . . . Hardin v. State, 12 Tex.App.186, 189 (1882).

The United States Supreme Court commented on fairness in securing agreements between the accused and the prosecutor: “The staff lawyers in a prosecutor's office have the burden of 'letting the left hand know what the right hand is doing' or has done. That the breach of agreement was inadvertent does not lessen its impact.” Santobello v. New York, 404 U.S. 257, 262 (19710). Although these cases concern plea agreements, the operation of the fairness principle is the same.

Villalobos now denies that any correspondence between defense counsel and any member of the District Attorney’s Office ever took place. DA Villalobos is quoted in the San Benito News as saying as to Bennett: “ . . . him being in contact with us is a falsehood.” The article also states that “[a]ccording to Cameron County District Attorney Armando Villalobos, Bennett’s office has not been in direct communication with his office regarding the Medicaid fraud charges.” See newspaper article attached as “Exhibit 13”. This is a deliberate dereliction of responsibility to be truthful by a public official. Defense counsel contacted Villalobos’ office on numerous occasions via telephone and written correspondence.

In summary, Villalobos made an agreement with defense counsel, did not honor that agreement, confirmed that an agreement existed but stated it was only binding on one member of the District Attorney’s Office, and now denies that an agreement was made and that any communication between defense counsel and Villalobos ever took place. Defense counsel requested Villalobos honor the agreement. See letter dated December 19, 2006, attached as “Exhibit 14”.

On December 21, 2006, two days after being arrested, Pastor Hayes was released on $75,000 bond. Texas Code of Criminal Procedure, article 17.15 states that bond should be “sufficiently high to give reasonable assurance that the undertaking will be complied with.” See Tex. Code Crim. Proc. art. 17.15. The nature of the offense and the circumstances under which it was committed, the ability to make bond, and the safety of the alleged victim and community should all be considered when determining the amount to set bond. Id. Article 17:15 makes it clear that the setting of bond should not be used as an instrument of oppression and yet Maldonado recommended to the Court a bond of $200,000, an amount that far exceeds the nature of the crimes of which Pastor Hayes is accused. Id.

Cameron County rape defendants don’t even have bond recommendations of $200,000. On January 3, 2006, a man charged with raping a sixteen year old girl in a shopping mall parking lot was being held at the Cameron County jail on a $25,000 bond. Even capital murder defendants do not have their bond set at $200,000. In a Texas capital murder case, the San Antonio Court of Appeals lowered the defendant’s pretrial bail from one million dollars to $75,000. Ex parte McDonald, 852 S.W.2d 730, 736 (Tex.App.-San Antonio 1993, no pet.). The defendant in McDonald was charged with the capital murder of his former wife, whom he allegedly stabbed to death in the course of kidnapping her. Id. At 735. Even though the defendant had a criminal record, faced life in jail or the death penalty, and the deceased’s son testified he would feel threatened if the defendant was released, the court held that one million dollar pretrial bail was oppressively high. Id. The court found that one million dollars was far more than was necessary to provide reasonable assurance the defendant would appear in court and reduced defendant’s pretrial bail to $75,000. Id. The average bond in Texas for a capital murder case is around $30,000.

Maldonado’s excessive bond recommendation is unimaginable given that: (1) Pastor Hayes has cooperated with investigators for almost two years; (2) no alleged victims in the matter had come forward at the time the alleged incidents occurred; (3) an agreement between defense counsel and Villalobos existed; (4) Pastor Hayes has numerous ties to the community- he owns a business and a home in the community and he is a minister at Corinth Community Baptist Church in Harlingen; and (5) Pastor Hayes is married and he and his family have numerous ties to Cameron County. There has been no showing that Pastor Hayes is a threat to anyone.

These facts clearly show that Pastor Hayes, who has no criminal record, is not a flight risk and poses no danger to the community.

This Court agreed that the government had provided no evidence that Pastor Hayes’ represented a danger to the community or that he would attempt to flee from prosecution and reduced bond to $75,000. And yet, First Assistant District Attorney of Cameron County Chuck Mattingly, Jr. (“Mattingly”) and Villalobos continue to issue statements including that they are “disappointed about the lowering of the bond,” and still believe he is a flight risk “in light of the fact that [they] have received additional complaints from other potential victims.” A copy of the news articles are attached as “Exhibit 13” and “Exhibit 15” and news broadcast transcripts attached at “Exhibit 16 and Exhibit 17”.

Villalobos is responsible for apparent multiple acts of witness intimidation, coercion, and manipulation. He has also given the media misleading statements and misrepresentations about the alleged victims. Since initial reports about the accusations against Pastor Hayes surfaced, Villalobos or his office has wrongly stated that victims have “come forward.” See news article attached as “Exhibit 15” and news broadcast transcripts attached as “Exhibit 16”, “Exhibit 17”, and “Exhibit 18”. In fact, none of the three women named in the indictment “came forward” at the time of the alleged incident until Villalobos or others in his office educated them about the “crimes”.

Amanda Alonzo (“Ms. Alonzo”) and Elizabeth Quiroz (“Ms. Quiroz”), two of the three women DA Villalobos continues to claim were victims of Pastor Hayes did not “come forward”, the investigators sought them out. Only recently have the two women “come forward” to provide statements, in support of Hayes, to set the record straight, and attempt to persuade Villalobos to dismiss the indictment. Signed and dated written statements confirm they were never injured by Pastor Hayes, never suffered physical or psychological harm, were always treated with respect, and never wanted to press charges. See written statements attached as “Exhibit 19” and “Exhibit 20”. Both women have also given interviews to local news stations.

In a KGBT Channel Four News broadcast, both women were interviewed by reporter Ryan Wolf (“Wolf”). See news broadcast transcript attached as “Exhibit 21”. Ms. Alonzo told Wolf “. . . he [Pastor Hayes] never did anything wrong to me. He was very nice to me. He never disrespected me. . . He’s a very nice man.” Ms. Quiroz also told Wolf, “I have nothing to complain about Mr. Hayes. I’ve said it since the beginning [i.e, since Villalobos first contacted her]. He’s always treated me with respect. There’s nothing bad to say about him.” Wolf asked both women if either had suffered physical or psychological harm from Pastor Hayes, and both women answered, “No.”

Also, in a Channel Five News interview, Ms. Quiroz told reporter Becky Medellin that she had nothing bad to say about Pastor Hayes. See news broadcast transcript attached as “Exhibit 22”.

But the exculpatory statements and interviews given by Ms. Alonzo and Ms. Quiroz should be no surprise to Villalobos since all of this information was initially given to Maldonado before the case went before the Grand Jury. In fact, Ms. Alonzo did not even know that she was named in the indictment until Pastor Hayes was arrested last week. Neither woman was aware of their role in the investigation and prosecution of Pastor Hayes-they were not even given copies of their statements.

Melba Rivera (“Ms. Rivera”), who is named as the victim of sexual assault in the indictment, never “came forward” as reported by Villalobos. Certainly not at the time of the assault. The indictment charges that she was sexually assaulted on September 18, 2002 and yet Pastor Hayes’ billing records show that Ms. Rivera returned to the Center several times after the alleged sexual assault occurred. The first report of this alleged sexual assault came after Ms. Rivera was visited by government investigators. Ms. Rivera certainly did not “come forward” until almost four and a half years after the alleged sexual assault took place.

A television interview with Ms. Quiroz suggests that Villalobos’ investigative procedures are underhanded. Ms. Quiroz is quoted in an interview with Channel Five News as saying that when she spoke to the attorney about the treatment of her cyst, “she [the attorney] told me, ‘maybe you never had one. . . . Maybe he was treating you for something that you never had.’” See new broadcast attached as “Exhibit 22”. Maldonado does not have a medical degree or a medical license. She should not present herself as one with medical expertise. This televised example of Villalobos and his office participating in improper treatment of witnesses is a perfect example of why defense counsel had to defend their client by issuing statements to the media to locate defense witnesses, and persuade Villalobos to dismiss the case.

In State’s Motion to Restrict Publicity, Villalobos states: “Almost immediately, the local media reported the story and began requesting that counsel for both the State and the Defendant provide interviews.” This statement is misleading. It was Villalobos or his office who immediately appeared at a press conference and provided newspaper reporters with false statements, misrepresentations, and innuendos about Pastor Hayes. Pastor Hayes was arrested on the morning of December 19, 2006 and by the six o’clock news Mattingly was on camera discussing the case. A copy of the news broadcast is attached as “Exhibit 23” According to Wolf of KGBT Channel Four News, Mattingly also held a press conference on the day of arrest and made false and misleading statements. On the December 19^th broadcast featuring an interview with Mattingly, Channel Five news reporter Lisa Cortez, who had “just learned more about the charges from the Cameron County District Attorney” stated: “Now that charge of sexual assault stems from one accusation that he possibly raped one victim.” A copy of the news broadcast is attached as “Exhibit 23”. This statement is unfounded. No allegation of rape is presented in the indictment against Pastor Hayes and no rape indictment was ever reported during the time the women were patients at the Center.

It was only after Mattingly held a press conference, gave television interviews and newspaper comments, and after a televised accusation of rape and that the women had “come forward”, that Pastor Hayes offered a response to the false statements and accusations leveled against him to show Villalobos what a mistake his investigation was.

By December 19, 2006, the same day of the Defendant’s arrest, over 21 media outlets had run the story regarding Pastor Hayes. Villalobos poisoned the air. He filed a motion to restrict publicity and sought an order to deny Pastor Hayes a chance to respond to false and inflammatory statements and accusations made against him.

In State’s Motion to Restrict Publicity, Villalobos cites a Press Release issued by defense counsel as the basis for restricting publicity. See Press Release attached as “Exhibit 24”. In his motion, the district attorney claims the Press Release sent by defense counsel contains “extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication” and that defense counsel knew or reasonably should have known that these statements “will have a substantial likelihood of materially prejudicing an adjudicatory proceeding” and thereby violates Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary R. Prof’l Conduct 3.07(a), reprinted in Tex. Gov’t. Code, tit.2, subtit. G, app. A (Tex. State Bar R. art 10 sec. 9). This claim is unfounded and lacks merit.

These so-called “prejudicial” statements include: (1) Pastor Hayes was a Viet Nam veteran (2) Pastor Hayes has cooperated fully with investigators; (3) Witnesses have provided exculpatory affidavits to the investigators; (4) A letter confirming an agreement with the Cameron County District Attorney was sent to Kiesel; (5) A notice has been sent to the NAACP and the Civil Rights Division of the Department of Justice; and (6) All persons who were treated by the Clinic or had agreements broken by the Cameron County District Attorney should contact Pastor Hayes or his counsel.

The great majority of the statements and information defense counsel released in the Press Release are a matter of public record and were provided to the Texas Attorney General’s Office and Villalobos’ office at the outset of the investigation. Furthermore, all information and statements contained in the Press Release are accurate and were made to show Villalobos what a mess he had made- to show how he had trampled on Pastor Hayes’ civil rights. Accordingly, the information and statements given by defense counsel are well within the limits imposed on attorneys by Rule 3.07. There is no evidence that the statements made in the Press Release, or any statements made by defense counsel for that matter, will materially prejudice an adjudicatory proceeding or Pastor Hayes’ right to a fair trial. It is absurd that Villalobos would find the Press Release unfair or prejudicial, especially in light of the misleading and false statements issued by his office. Defense counsel’s Press Release was issued in direct response to the negative media blitz initiated by Villalobos and his office in an attempt to stop the prosecutorial madness. The media is now the only available outlet for Pastor Hayes to offset the misleading statements and to seek defense witnesses.

In State’s Motion to Restrict Publicity, Villalobos states that defense counsel has violated Rule 3.07 of the Texas Rules of Disciplinary Conduct. However, he cites only one section of the rule. Statements made by defense counsel conform to Rule 3.07 by either including: (1) information contained in a public record; (2) information about the conduct of a judicial proceeding; (3) information about matters of public concern; and/or (4) information calculated to counter the unfair prejudicial effect of another public statement.

In section (c), the rule provides a list of permitted statements. See Tex. Disciplinary R. Prof’l Conduct 3.07(c). Permitted statements set forth include: “the information contained in a public record.” See Tex. Disciplinary R. Prof’l Conduct 3.07(c)(2). As noted above, the majority of statements defense counsel made contain information that is a matter of public record, or could be located by any competent investigative reporter.

Also, comment 1 of Rule 3.07 states that although a lawyer’s right to free speech is subordinate to the constitutional requirements of a fair trial,

[t]here are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy. See Tex. Disciplinary R. Prof’l Conduct 3.07 cmt. 1.

Because of a prosecutor’s vast discretion at all stages of the criminal process, the public has an interest in its responsible exercise. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1036 (1991). In the Gentile, the Supreme Court held that an attorney who held a press conference after his client was indicted on criminal charges did not violate a Nevada Supreme Court rule prohibiting lawyers from making extrajudicial statements to the press that he knew or reasonably should have known had a substantial likelihood of materially prejudicing adjudicative proceedings. Gentile, 501 U.S. 1030. Justice Kennedy acknowledged that “public awareness and criticism have even greater importance where . . . the criticism questions the judgment of an elected public prosecutor.” Id. at 1035-36.

Statements made by defense counsel regarding the motives behind: (1) Maldonado’s recommendation of $200,000 bond; (2) the improper investigative procedures used on witnesses by the prosecution; and (3) the agreement that was not honored by Villalobos’ office are all certainly matters of public concern. Defense counsel statements are classic examples of political speech in that they are critical of the government and its officials. The Gentile Court stated that, “speech critical of the exercise of the state’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034. Do we have a corrupt district attorney and an office that needs to be investigated? Whether corrupt or not, this is a matter of great public concern, and should be freely debated.

Most importantly, comment 3 of Rule 3.07 states that “ . . . an otherwise objectionable statement may be excusable if reasonably calculated to counter the unfair prejudicial effect of another public statement.” See Tex. Disciplinary R. Prof’l Conduct 3.07 cmt. 3. As noted above, statements made by defense counsel have been in direct response to the statements made to the media by the prosecution, and an attempt to educate Villalobos about how to run his office.

an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment , especially in the face of prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. Gentile, 501 U.S. at 1043 (emphasis added).

Villalobos and his office have released numerous statements reported by the media that are littered with misrepresentations and innuendos. These reports have cast Pastor Hayes in a false light. Pastor Hayes has built his reputation on helping people in his ministry and at the clinics that he helped run. People do not go to a church or a clinic where the person in charge is accused of committing rape. Free access to the press is the only way Pastor Hayes can counter the unfair prejudicial effect of the District Attorney’s Office’s statements, attempt to locate witnesses who have suffered a similar fate at the hands of Villalobos, and to try and bring an end to this miscarriage of justice. If the media is cut off, the public is cut off.

Villalobos and the Cameron County District Attorney’s Office have clearly violated Rule 3.07 of the Texas Rules of Disciplinary Conduct by providing numerous false statements and misrepresentations described above to newspaper and television reporters. The media has reported that Pastor Hayes posed as a doctor and that Villalobos’ office gave them this information. See news broadcast transcripts attached as “Exhibit 17”, “Exhibit 23”, and “Exhibit 25”. Additionally, Mattingly is quoted in several new reports as saying that Pastor Hayes presented himself as a doctor, was “posing as a doctor giving . . . exams” and “set up what looked like a doctor’s office”, despite the fact that signed affidavits were provided to his office stating that Pastor Hayes did not present himself as a medical doctor at any time. See news article attached as “Exhibit 26” and broadcast transcript attached as “Exhibit 18”. Mattingly is also quoted as saying that Pastor Hayes “opened fake clinics”, knowing full well that the two clinics owned by Pastor Hayes were legitimate clinics with medical doctors on staff. See news article attached as “Exhibit 27”.

Villalobos has given statements to the media that amount to improper commentary on the character, credibility, and reputation of Pastor Hayes. He is quoted as saying: “The defendant is clearly in violation of the law and because of that he has to face trial like everyone else.” A copy of the news article is attached as “Exhibit 13” (emphasis added). As Villalobos well knows, Pastor Hayes is presumed innocent until a jury has decided he is in clear violation of the law. One has to wonder where Villalobos earned his law degree or if he even understands the role of a prosecutor in our American Justice System. As former Supreme Court Justice Southerland stated,

The United States Attorney [or state prosecuting attorney], is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligations to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.) (emphasis added).

The statements of Villalobos and Mattingly are “extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication” that they knew or should have known would “have a substantial likelihood of materially prejudicing an adjudicatory proceeding,” clearly violating Rule 3.07. See Tex. Disciplinary R. Prof’l Conduct 3.07(a). More specifically, these statements have a substantial likelihood of heightening public condemnation of Pastor Hayes.

As noted above, Mattingly gave an interview and appeared on the same news broadcast that stated Pastor Hayes may have “possibly raped one victim.” See news broadcast transcript attached as “Exhibit 23”. This statement too created a substantial likelihood of heightening public condemnation of Pastor Hayes. Even though the statement was not made directly by Mattingly, it appears to be the result of Mattingly counseling and/or assisting the news reporter to make such a statement, in violation of Rule 3.07. See Tex. Disciplinary R. Prof’l Conduct 3.07(a). Pastor Hayes, while condemning these statements does not request a gag order.

Villalobos and his office have also violated Rule 3.09 of the Texas Rules of Disciplinary Conduct which requires prosecutors to “exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.” Tex. Disciplinary R. Prof’l Conduct 3.09, reprinted in Tex. Gov’t. Code, tit.2, subtit. G, app. A (Tex. State Bar R. art 10 sec. 9).

In the State’s Motion to Restrict Publicity, Villalobos states that defense counsel made statements that are “completely unfounded and made for the sole purpose of prejudicing potential jurors against the State.” As Villalobos well knows, if any prejudice or lasting impacts from statements made by counsel come about, the appropriate venue to address these concerns is Voir Dire, not with a gag order. Villalobos also states in the State’s Motion to Restrict Publicity that he is concerned with the Pastor Hayes’ right to a fair trial by an impartial jury. Pastor Hayes’ right to receive a fair and impartial trial is of the utmost importance to defense counsel and any request for a gag order should be left up to Pastor Hayes. Although Pastor Hayes fervently disagrees with statements made by Villalobos and his office, Pastor Hayes does not object to the ongoing media coverage of this case and does not request that this Court issue a gag order. The public has a right to know what goes on in Cameron County Courts. The Cameron County District Attorney’s Office has financial resources that are not available to Pastor Hayes. Pastor Hayes feels strongly that providing statements to the media in response to the numerous false and misleading statements made by Villalobos and his office is, at this point, especially necessary to provide a balance, and to educate the misguided and confused Villalobos.

Nothing defense counsel has said or done interferes with Pastor Hayes’ rights. Conversely, Villalobos and his office have not honored an agreement with defense counsel, have coerced and manipulated witnesses, have used bond as an instrument of oppression, and have initiated false and misleading media coverage, all in violation of Pastor Hayes’ rights. Accordingly, Pastor Hayes is not relying on the Cameron County District Attorney’s Office to protect his rights- he is relying on defense counsel. If Pastor Hayes is not worried about pretrial publicity tainting the case, neither should Villalobos. He should learn from this experience.

The Cameron County District Attorney’s Office filed a MOTION TO RESTRICT PUBLICITY on December 22, 2006, seeking to suppress pretrial publicity. The motion was filed after the prosecution made early and inflammatory remarks to the media which characterize Pastor Hayes as having sexually assaulted a woman, and making public claims that three victims had “come forward” though they knew this to be untrue. More importantly, Villalobos has filed a motion that his office has failed to abide by.

In State’s Motion to Restrict Publicity, the district attorney states that, “[i]f counsel for the parties continue to provide press releases and grant interviews to the media, the pre-trial publicity will likely interfere with the defendant’s right to a fair trial by an impartial jury.” After Villalobos filed the motion, he gave statements to the media about the need to restrict publicity. See news article attached as “Exhibit 28”. Mattingly also appeared in a newspaper article after the motion was filed and commented on statements made by defense counsel. See news article attached as “Exhibit 15”. Mattingly stated that, “Desperate men, use desperate tactics, when that is all they have to rely on.” Mattingly also made misrepresentations and unfairly characterizations Pastor Hayes as a flight risk. It is ironic that Villalobos sought a motion to restrict all pretrial publicity, and then after he filed the motion, both he and Mattingly appeared in the newspaper making inflammatory comments and characterizations about defense counsel and Pastor Hayes.

Villalobos’ office has taken further extraordinary measures to control public information by denying defense counsel’s discovery requests, though the County traditionally operates under an open file policy. Villalobos filed State’s Motion to Restrict Publicity without any explanation as to why the “Hayes” case would be handled differently than the hundreds of other cases handled by his office. Why is Villalobos trying to stifle public debate? This is an apparent attempt by Villalobos to deny Pastor Hayes his right to respond to misrepresentations made by the prosecution and an attempt to stop criticism of the way he and his office have handled the investigation. Villalobos filed a motion to restrict publicity because he could, not because he should.

Texas has a strong and long-standing commitment to free speech. Davenport v. Garcia, 834 S.W.2d 4, 7 (Tex. 1992). Throughout this state’s history, freedom of expression has been a priority. Id. The scope of Texas Constitution article 1, section 8, is broader than that of the First Amendment of the U.S. Constitution. See Davenport, 834 S.W.2d at 7-8. The presumption in all cases under Article 1, Section 8 is that pre-speech sanctions, or “prior restraints,” are unconstitutional. Ex parte Price, 741 S.W.2d 366, 369 (Tex. 1987) (Gonzalez, J., concurring) (“Prior restraints ... are subject to judicial scrutiny with a heavy presumption against their constitutional validity.”).

Limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant’s right to a fair trial. United States v. Salameh, 992 F.2d 445, 447 (2nd Cir. 1993). In Salameh, the United States Court of Appeals for the Second Circuit vacated a gag order barring any public statements by the parties in the infamous 1993 World Trade Center bombing case. The court said that “[a prior restraint on constitutionally protected expression, even one that is intended to protect a defendant’s Sixth Amendment right to trial before an impartial jury, normally carries a heavy presumption against its constitutional validity.” Id. at 446-47. The court continued that although “the speech of an attorney participating in judicial proceedings may be subjected to greater limitations than could constitutionally be imposed on other citizens or on the press . . . the limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant's right to a fair trial.” United States v. Salameh, at 447.

A court may issue a gag order only if, after a hearing, it finds (1) there is danger of an imminent and irreparable harm to the judicial process that will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Davenport, 834 S.W.2d at 10.

This Court should not issue a gag order because the State has not established there is danger of an imminent and irreparable harm to the judicial process that will deprive the litigants of a just resolution in this case. The State provided no evidence to support that the media coverage of this case will harm the judicial process. The State made no showing that any statements made by defense counsel have had any prejudicial impact on potential jurors. Defense counsel statements have been made well in advance of trial (not trial date has been set). Furthermore, the statements made by defense counsel were not formulated to prejudice potential jurors- they were made to defend Pastor Hayes’ reputation and reduce the adverse consequences of an unjust and improper indictment. They were also in criticism of Villalobos’ abuse of power.

The court should not issue a gag order because the State cannot establish that a gag order represents the least restrictive means to prevent imminent and irreparable harm to the judicial process. The test for granting a gag order, established in Davenport, balances free speech and press while holding each person responsible to the law for a misuse of that freedom. Davenport 834 S.W.2d at 9. When free speech is abused, the appropriate remedy is to punish the abuse, not to deny the right to speak. Id. Defense counsel asks that this Court make no publicity restrictions on Pastor Hayes, defense counsel, witnesses, or others involved in this case. Defense counsel needs access to the media to locate other witnesses who have suffered a similar fate as Pastor Hayes at the hands of Villalobos. A gag order restricting media publicity would disadvantage Pastor Hayes because Villalobos has already taken advantage of the various media outlets to call on and locate witnesses. Defense counsel should be given equal access to locate: (1) witnesses who have had their bond improperly used as an instrument of oppression; (2) witnesses who have been the victim of racially motivated investigative procedures; (3) witnesses who had agreements denied and run over; (4) witnesses who have been denied the right to evidence; and (5) witnesses who have been denied the right to view the district attorney’s file. Defense counsel also needs access to the media to defend Pastor Hayes’ reputation in the wake of an unjust an improper indictment. Most importantly, access to the media may help educate Villalobos as to why this prosecution is a raw abuse of power that does not serve the law or justice. All of these matters need to be brought to the attention of the public for debate and to show Villalobos that he should dismiss the case against Pastor Hayes.

A court should not grant a gag order that is overly broad. See Grigsby v. Coker, 904 S.W.2d 619, 620 (Tex. 1995). The court should deny the State’s motion for a gag order because the scope of the requested order is overly broad. Specifically, the order doesn’t provide notice as to what kind of statements would be in violation of the order or would be prejudicial to an adjudicatory proceeding. The order is also overly broad because it covers witnesses who have already given statements to the media and thus the order would be ineffective because it is not drawn to accomplish what it purports to accomplish.

For these reasons, the Defendant Arthur Daniel Hayes respectfully prays that this Court not grant the State’s Motion to Restrict Publicity, and to set the matter for hearing.

Hayes requests a hearing, before this court, regarding this motion in response to the State’s Motion to Restrict Publicity.

                               Robert S. Bennett
                                           State Bar No. 02150500
                                           515 Louisiana, Suite 200
                                           Houston, Texas 77002
                                          Tel: (713) 225-6000
                                           Fax: (713) 225-6001

I hereby certify a copy of the foregoing Defendant Arthur Daniel Hayes Response to State’s Motion to Restrict Publicity and Request for Hearing was served via U.S. mail and facsimile on this 8^th day of January, 2007 to:

Armando R. Villalobos,
District Attorney,
974 East Harrison Street,
Brownsville, Texas 78520-7123
Fax (956) 544-0869

[1] Nothing in this Response to State’s Motion to Restrict Publicity and Request for Hearing is intended to waive or supercede any assertion, argument, or claim proposed by Defendant’

[2] Disclosure of only this letter from defense counsel to Pastor Hayes is for the limited purposed of this Response and in no way indicates waiver of the attorney client privilege.