Legally Speaking: A Judicial Career Up in Flames? The Strange Case of David Medina

John G. Browning Jan. 22, 2008, 2:49pm

Justice David Medina seemed to have it all.

A rising star in the Republican Party, Medina was the first Hispanic Republican elected to countywide office when he won election as a state district judge in Harris County in 1996 (he had been appointed to the bench earlier that year by then-Governor George W. Bush).

Medina became Gov. Rick Perry's general counsel in January 2004, and then was appointed by Perry to fill a vacancy on the Texas Supreme Court later that year. Two years later he was elected to a term on the state's highest court that runs through 2012.

But the controversy swirling around a fire at the jurist's home in June 2007 has threatened to derail the career of Justice Medina.
On June 28, 2007, the 5,000-square-foot, $309,000 house in Spring, Texas, where the Medina family had lived for nearly 15 years burned down.

According to the Harris County Fire Marshal's office, the blaze that engulfed the Medina home originated in the three-car garage before spreading to two neighboring homes and causing over $900,000 in damages.

The official investigation ruled out accidental causes like electrical problems, and a dog detected an accelerant at the scene. As the authorities dug deeper into what was now being reported as a case of arson, the fire marshal's investigators identified six "persons of interest" in what they described as a "very suspicious" fire.

Justice Medina told the Houston Chronicle that he had "no idea" if he knew anyone who might have started the fire, and found the identification of six persons of interest "quite startling."

Besides the presence of an accelerant (frequently indicative of an intentionally set fire), what else did arson investigators consider suspicious about the fire? According to one source, Justice Medina and his wife gave differing accounts of the judge's whereabouts at the time of the blaze. Medina's wife and son were the only ones in the home when the fire broke out (both escaped unharmed); Justice Medina apparently didn't learn of the fire until the morning after and arrived at the scene that afternoon.

However, Harris County officials questioned enough of what they heard to subpoena cell phone records of Medina family members and friends. Investigators also subpoenaed Medina's financial records, a move prompted by a trail of financial difficulties for the jurist and his family.

In 2004, the Medinas failed to pay nearly $10,000 in county and school district taxes, resulting in a tax lien against the house that would not be resolved until 2005. In June 2006, their mortgage company initiated foreclosure proceedings after the Medinas missed five months' worth of mortgage payments. Public records indicate that the foreclosure lawsuit was resolved in December 2006.

The Medinas also owed nearly $2,000 in homeowner's association fees, representing six outstanding payments. In addition, at the time of the fire the home was not covered by homeowners' insurance, the policy for which had lapsed due to unpaid premiums. While Justice Medina's lawyer Terry Yates points to this fact as evidence contradicting any motive for arson, the fact is that the loan on the house was insured by the lender.

Medina's own explanations for his financial troubles are less than reassuring. He claims to have been unaware of the tax lien, attributes the foreclosure to a "miscommunication" with his then bank, and says that his homeowner's insurance lapsed because he couldn't recall exactly how he set up that policy and his personal auto policy.

And Justice Medina, who makes $150,000 a year as a Supreme Court justice, has previously acknowledged the financial pressures that often accompany public service. In 2000, midway through his second term on the Harris County district court bench, Medina left the judiciary to return to his previous position as in-house counsel at Cooper Industries. At the time, he said he did it to save money for college for his four children.

After the fire, Justice Medina and his family moved from the Houston suburbs to Austin, where they would try to "make the best of it" in a two-bedroom, one-bath home. But trouble would follow.

Following the arson investigation that was replete with what the fire marshal's investigators considered "red flags" such as the foreclosure filing, a Harris County grand jury returned indictments against Justice Medina of tampering with or falsifying evidence (a charge that carries with it a maximum penalty of 10 years in prison) and against his wife Francisca of arson (which has a maximum penalty of 20 years).

The justice and his wife, who have consistently denied any wrongdoing, were set free on bail; Medina said he was "very disappointed" by the grand jury's decision.

Apparently, the Harris County District Attorney's office was also disappointed at the indictments. Within hours of the indictments, Harris County D.A. Chuck Rosenthal said "We don't feel like there's sufficient evidence to proceed," and his office asked the court to dismiss the indictments. One day after the Medinas were indicted, state district Judge Brian Rains dismissed all charges on motions from the prosecutor's office.

Assistant D.A. Vic Wisner says that the move shouldn't be interpreted as special treatment or political cronyism, nor should it be construed as absolving anyone. He maintains that "the case is best handled at this point in time in an investigatory stage rather than a prosecution stage."

Attorney John Parras, a member of Francisca Medina's defense team along with noted criminal lawyer Dick DeGuerin, said there was nothing unusual about the prosecutors' decision, and that Mr. Rosenthal "was just exercising his discretion. It was a runaway grand jury indicting on no evidence."

But defense attorneys and legal observers unconnected with the case find the Harris County District Attorney's office's decision – and the timing of it – strange indeed.

University of Texas Law School professor and criminal law expert Steven Goode says that while a prosecutor certainly has discretion not to pursue a case, he finds it "very unusual for a prosecutor to decide so soon to seek dismissal of the charges in a well-publicized case."

District Attorney Chuck Rosenthal, 61, has a history of surprising people. The incumbent Republican, first elected as a religious conservative, had been pressured to resign after e-mails from him surfaced that included pornography, racist and sexist humor, campaign-related files (a possible violation of election laws) and about 130 romantic e-mails between Rosenthal and his secretary Kerry Stevens.

With Harris County GOP Chairman Jared Woodfill stating that the integrity of the D.A.'s office had been "completely compromised," Rosenthal abandoned a bid for re-election.

Perhaps the harshest criticism of the decision to dismiss the indictments came from the foreman and assistant foreman of the grand jury that handed them down in the first place. According to foreman Robert Ryan, after the jurors told prosecutor Vic Wisner to prepare the indictments, Wisner "slammed the door and left." Ryan, a 63 year-old Republican and veteran of five grand juries, maintains that the dismissal was politically motivated.

"The district attorney made it very clear to the members of the grand jury that if we handed up a true bill it would be [dismissed] today…. If this was David Medina, comma, truck driver, comma, Baytown, Texas, he would have been indicted three months ago."

Assistant foreman Jeffrey Dorrell labeled the process "theater of the absurd," saying "We knew before we handed the indictment down that the district attorney was going to refuse to prosecute, but we did it anyway."

Ryan has announced intentions to reconvene the grand jury and subpoena some witnesses who were not produced in the first session. Ironically, by speaking out about the proceedings, Ryan and Dorrell may have landed themselves in hot water; Justice Medina's attorney, Terry Yates, has filed a motion seeking a hearing as to whether contempt charges should be brought against the pair for purportedly breaching the secrecy of the grand jury proceedings.

Initially, it seemed that the dismissal of the indictments would spare Justice Medina further embarrassment. The State Commission on Judicial Conduct, which can suspend a judge who is under indictment, has already announced that no action would be taken.

However, it then surfaced that the troubled judge paid himself nearly $57,000 from his political campaign funds for commuting costs between his Spring home and Austin. According to reports obtained by the Houston Chronicle, Justice Medina paid himself between $1,000 and $3,000 during most months in 2005, 2006, and part of 2007 (the practice apparently stopped after the June fire).

Converting political contributions for personal use is a violation of state law. The Texas Ethics Commission has previously interpreted the law to ban appellate judges from using campaign funds to pay for the costs of commuting between a judge's home city and the city where the court is located.

On December 31, 2007, Justice Medina apparently returned $2,000 in mileage payments to his campaign account. At press time, there was no word as to whether the Travis County District Attorney's office would begin an investigation into these latest allegations, and Justice Medina has not commented publicly on them.

Was the June 28 fire at the home of a financially-troubled judge on Texas' highest court arson? Thanks to the actions of the Harris County District Attorney's office (which may or may not have been politically motivated) we may never know.

But with the surfacing of Justice Medina's latest problems involving possible misuse of campaign funds, this controversy appears more and more like a smoldering fire -- apparently out but capable of re-igniting at any moment.

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