Senior Judge Lynn Hughes Extrajudicial Blunder Results in Recusal Motion

Willey v. Harris County District Attorney (4:20-cv-01736)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ANDREW WILLEY,

Plaintiff,

v.

THE HARRIS COUNTY DISTRICT
ATTORNEY, in her official capacity,

Defendant.

Case No. 4:20-CV-1736

MOTION TO RECUSE DISTRICT JUDGE LYNN N. HUGHES

TABLE OF CONTENTS

I. INTRODUCTION 1
II. BACKGROUND 2
III. ARGUMENT 5
A. Judge Hughes’s Search Was Evidence of Extrajudicial Bias and Was Itself Extrajudicial 6
B. Judge Hughes’s Mistaken Concerns About Restoring Justice’s Tax Status Dominated the August 3 Hearing 8
C. An Objective Observer Would Perceive Bias 8
IV. CONCLUSION

I. INTRODUCTION

This case is about whether Texas’s barratry statute, Tex. Penal Code Ann.

§ 38.12(d)(2)(B), is unconstitutional as applied to attorneys who solicit clients for purposes other than pecuniary gain. Plaintiff Andrew Willey filed this suit because he is an attorney who, in his private, individual practice solicited clients for purposes other than pecuniary gain and who avers an intent to do so in the future. Defendant Harris County District Attorney concedes, as she must, that Willey meets the irreparable-harm standard for a preliminary injunction, that he has standing to sue, and that Section 38.12(d)(2)(B) is unconstitutional as applied to attorneys soliciting for non-pecuniary purposes unless it survives strict scrutiny. The only question before the Court is, therefore, whether that statute survives strict scrutiny.
At an initial pretrial conference and hearing on Willey’s motion for a preliminary injunction, U.S. District Judge Lynn N. Hughes did not address that question. Instead, he questioned Willey’s counsel about the tax compliance of a third-party nonprofit, Restoring Justice, of which Willey is founder and C.E.O. Judge Hughes had evidently researched whether Willey’s nonprofit had problems with the Internal Revenue Service; found himself on the website of a different non-profit, Restore Justice, which has a similar name and indeed had problems with the IRS; confronted Willey’s counsel about those problems; and indicated that he was “a little troubled [that] Mr. Willey . . . is also CEO of a defunct charity.” (Transcript at 19.)1 After Willey’s counsel explained that Judge Hughes had visited the website of the wrong nonprofit, Judge Hughes nonetheless indicated that he still had concerns about Willey’s nonprofit’s tax status. That status has no relevance to the issues before the court.

1 Restoring Justice is currently an active, compliant, tax-deductible public charity. See IRS, Tax-Exempt Organization Search, https://apps.irs.gov/app/eos/ (search: EIN 81-3279488) (listing Restoring Justice, of Houston, Texas, as public charity currently eligible for tax-deductible contributions) (last accessed August 6, 2020, 11:02 AM Central Time).

Willey respectfully moves for the recusal of Judge Hughes because his extrajudicial internet search for negative information on Willey’s tax status—and his continued suspicion that Willey ran afoul of the IRS even after learning that this information came from the website of an entirely different organization—is such that “his impartiality might reasonably be questioned.” 28U.S.C. § 455.

2 Regardless of whether Judge Hughes is in fact biased against Willey—which Willey cannot know, and does not allege—an objective observer would conclude that an appearance of bias exists. Judge Hughes could have found this faulty information only if he directly searched for it outside of the record prior to the hearing. Appellate courts have specifically held that where a district judge seeks extraneous information about a party and relies on that information to the party’s apparent detriment he must be removed from the proceedings. United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995). Because a reasonable observer would question the impartiality of a judge who affirmatively seeks out irrelevant, potentially prejudicial information about parties before the court, and because that information itself is an extrajudicial source of bias that appears to continue to influence Judge Hughes’s consideration of this case, Judge Hughes should recuse himself from further participation in this matter.

II. BACKGROUND

On August 3, 2020, undersigned counsel, Charles Gerstein, appeared before Judge Hughes on behalf of Willey. The first question that Judge Hughes asked Gerstein at the August 3 hearing was “[w]hy is the suit brought in Willey’s name rather than the name of the charity that he purports to run?” (Transcript at 3.) Gerstein responded that Willey was acting in his private capacity when the events in the Complaint occurred and that this is why Willey, and Willey alone, filed suit. Id. at 3–4. Nonetheless, Judge Hughes asked Gerstein, “[w]ould it surprise you to learn that the charity

2 Defendant opposes this Motion.

has lost its standing with the IRS?” Id. at 4. “According to the charity’s own website,” Judge Hughes said, “it says they lost in, I think it’s 2018, and they are in negotiations with the IRS to resume. Perhaps that’s why Mr. Willey is bringing it in his own name.” Id. Judge Hughes asked whether the charity had anything to do with this case and Gerstein confirmed that it did not. Id.

Roughly five minutes later, Judge Hughes raised the IRS issue again. After Gerstein again clarified that Restoring Justice, Willey’s organization, was not a party to this suit, Judge Hughes said, “[s]o you understand the charity says, the IRS automatically revokes tax exempt status for any nonprofit organizations missing three consecutive years of tax filings.

So the problem apparently was not they didn’t have any charity. It was they didn’t have any reports. You know how understanding the IRS is.” Id. at 7–8. Gerstein explained that he knew of no such IRS issues related to Willey’s organization.

In a further attempt to clarify that Willey was the only plaintiff before the court, Judge Hughes asked Gerstein:

“there’s Restore Justice Foundation, Pre[cious] Blood Ministry of Reconciliation, Restore Justice Illinois. None of those is here, right? We just— we just have Mr. Willey?” Id. at 8.3 Gerstein confirmed that “[t]he only parties before the Court are Mr. Willey and [the] District Attorney ” Id.

At the end of the roughly forty-minute hearing, Judge Hughes raised the IRS issue a third time: “I am a little troubled by Mr. Willey, being a lone wolf now, is also CEO of a defunct charity. . . shall I just assume that any cases he gets while he’s acting alone will be handled through the charity?” Id. at 19.

Gerstein responded that, to his knowledge, Willey’s organization was not defunct in any way. Id. To this Judge Hughes replied “counsel, just go on their website and there is a long explanation about their tax problems. They lost their standing with the IRS, which is not

3 None of these organizations has any relationship with or connection to Restoring Justice, Willey’s organization.

important, perhaps, to the people doing the work, but it is to the people funding it.” Id. at 19. Gerstein explained that there was no such notice on Restoring Justice’s website and spelled out the name of the correct website for Judge Hughes. Id. at 20.

After clarifying that he “didn’t submit any of this in the record, and do[es] not believe it is relevant to the case,” Gerstein read from the Restoring Justice website: “‘Restoring Justice is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent allowed by law.’” Id.

Judge Hughes responded, “Well there is a Restorejustice.org,” which is the website of the Illinois-based organization. See Restore Justice, https://restorejustice.org/ (last accessed August 7, 2020, at 12:01 PM Central Time). Gerstein explained “that might be the issue I think that is a different organization.” (Transcript at 20.)

This clarification did not extinguish Judge Hughes’s suspicion that Willey was in trouble with the IRS.

“Well,” Judges Hughes said, “the statement that they are fully deductible to the extent of the law doesn’t answer the question of are they deductible under the extent of the law which includes an IRS requirement that you file these annual reports?” Id.

The notice of Restore Justice’s tax problems, which was published on Restore Justice’s blog more than two years ago, is not easy to find.

See Restore Justice, Non-profit status information, https://restorejustice.org/restore-justice-foundation-non-profit-status-information/ (September 19, 2018).

To the best of undersigned counsel’s knowledge, there are only two ordinary ways for someone to find the blog post in which Restore Justice announced its troubles with the IRS. The first way is to navigate to Restore Justice’s website, restorejustice.com; click the “Commentary” tab in the top banner, which has no indication that the commentary would relate to IRS compliance; click through four pages of old blog posts, none of which contain information about IRS compliance, and many of which discuss criminal-justice reform in Illinois; and, finally, land on the 2018 blog post regarding Restore Justice’s tax problems.4 See generally Restore Justice, restorejustice.org (last accessed August 6, 2020, 10:02 AM Central Time).

The other way to find this blog post is to search for “Restore Justice IRS”: the post is the first result of such a search. See Google, google.com (search: “Restore Justice IRS”) (returning https://restorejustice.org/restore-justice-foundation-non-profit-status-information/).

Accordingly, an objective observer would be left with the firm conclusion that Judge Hughes was specifically searching for extraneous information about Restoring Justice prior to the hearing in this case, and an objective observer would likely conclude that he was searching for potentially negative information about Restoring Justice’s tax compliance.

III. ARGUMENT

Under 28 U.S.C. § 455(a), “[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” id. § (a).

Subsection (a) of Section 455 was added to the federal recusal statute in 1974 to serve as “a ‘catchall’ recusal provision, covering both ‘interest or relationship’ and ‘bias or prejudice’ grounds—but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994) (emphases added); Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (“These provisions afford separate, though overlapping, grounds for recusal. Subsection (b)(1) pertains to specific instances of conflicts of interest, while subsection (a) deals with the appearance of partiality generally.”). “Quite simply and quite universally,” the Supreme Court has explained, “recusal [i]s required whenever ‘impartiality might reasonably be questioned.’” Liteky, 510 U.S. at 548. See also United

4 Other possible internet searches, such as “Restore Justice non-profit,” “Restore Justice charity,” and “Restore Justice” return on the first page of results only Restore Justice’s homepage. See Google, google.com (search: “Restore Justice non-profit,” “Restore Justice charity,” and “Restore Justice”) (last accessed August 7, 2020, 12:05 PM Central Time) (returning restorejustice.org).

States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999) (“[R]ecusal may well be required even where no actual partiality exists.”).

Plaintiffs seeking recusal under §455 “must (1) demonstrate that the alleged comment, action, or circumstance was of ‘extrajudicial’ origin, (2) place the offending event into the context of the entire trial, and (3) do so by an ‘objective’ observer’s standard.” Andrade, 338 F.3d at 455.

Judge Hughes’s search for and use of information about Restore Justice’s troubles with the IRS satisfies each of these three prongs. First, the fact that Judge Hughes engaged in an extra- judicial search for potentially damaging information about a third party with a relationship to a party is evidence of extrajudicial bias against that party; and the information itself is both extrajudicial and has created the appearance of bias. Second, in the context of the proceedings before the court, the issue of Restoring Justice’s tax compliance subsumed the questions properly before the court. And, finally, an objective observer would conclude that the appearance of bias exists. Judge Hughes should recuse himself from this case.

A. Judge Hughes’s Search Was Evidence of Extrajudicial Bias and Was Itself Extrajudicial

Parties seeking recusal must ordinarily show that “the alleged comment, action, or circumstance was of ‘extrajudicial’ origin.” Andrade, 338 F.3d at 455. Here, there are two independently sufficient sources of apparent bias and both are of extrajudicial origin.

First, Judge Hughes’s in-depth search for information about Restoring Justice or his specific search for negative information about Restoring Justice would appear, to an objective observer, as evidence of an unknown source of bias. From an objective perspective, Judge Hughes could have acquired this information only by scrolling through two years’ worth of irrelevant blog posts on an Illinois non-profit’s website or by searching specifically for that non-profit’s IRS status. Either course would appear, to an objective observer, as evidence of extraneous bias.

Although Restoring Justice is not a party to this case, Willey—as explained in the Complaint, ¶ 3—was the non-profit’s founder and is currently its CEO. And so, a reasonable observer would conclude, Judge Hughes was specifically searching for information that may call into question Willey’s compliance with unrelated legal obligations. This is evidence of the appearance of an extrajudicial source of bias.
Second, the information Judge Hughes acquired in this search is itself an extrajudicial source of apparent bias.

In United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995), the D.C. Circuit concluded that a district judge manifested evidence of apparent bias when he made comments on the record inquiring about facts outside of the complaint that he evidently acquired from a book. Id. “We are deeply troubled by several aspects of the proceedings in district court,” the Circuit wrote. Id.

[A] review of the transcripts in this case makes it patently obvious that the reason for the judge’s broad-ranging inquiries was his acceptance of the accusations in the book

After reviewing the transcripts and the district judge’s opinion, an objective observer is left with the overall impression that the district judge had formed an opinion about [a party]’s practices based on [the book], and therefore [made decisions adverse to a party]. Id.

As a result, the circuit court concluded, the fact that the district judge investigated allegations beyond the complaint and relied on them in court proceedings required his recusal. Id.

Judges Hughes evidenced skepticism at the hearing that Restoring Justice was a legitimate nonprofit; explained that his skepticism derived from an extrajudicial source (“counsel, just go on their website,” Transcript at 19); and made specific comments, after Gerstein explained that Judge Hughes had investigated the wrong nonprofit’s website, that would cause a reasonable observer to conclude that he remained skeptical (“the statement that they are fully deductible to the extent of the law doesn’t answer the question of are they deductible under the extent of the law which includes an IRS requirement that you file these annual reports? So that’s one of those universal phrases,” id. at 20).

As in Microsoft, Judge Hughes’s views were formed from an independent investigation conducted beyond the record in the case and resulted in him appearing to “form[] an opinion about . . . practices based” on extraneous sources. Microsoft, 56 F.3d at 1463. Because a reasonable observer would conclude that Judge Hughes had viewed extrajudicial information that was not relevant to any issue before the Court, and that the information had influenced his decision of the matter at bar, he should recuse himself from this matter.

B. Judge Hughes’s Mistaken Concerns About Restoring Justice’s Tax Status Dominated the August 3 Hearing

Parties seeking recusal must next “place the offending event into the context of the entire trial.” Andrade, 338 F.3d at 455. The Fifth Circuit has elsewhere noted that a court’s analysis of claims brought under §455 “should entail a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents.” Patterson v. Mobil Oil Corp., 335 F.3d 476, 484 (5th Cir. 2003).

Judge Hughes’s mistaken invocation of Restoring Justice’s tax troubles was not an isolated incident and, compared to the straightforward issue of law before the court, completely dominated the proceedings.

The short August 3 hearing—which was scheduled as an initial pretrial conference and a hearing on Willey’s motion for a preliminary injunction, Docs. 7, 16—began and ended with pointed questioning about Restoring Justice’s supposed infractions and their effect on Willey’s behavior; in between these exchanges, Judge Hughes engaged Gerstein in an additional colloquy about Restoring Justice and the IRS. Because Judge Hughes allowed mistaken concerns about Restoring Justice’s tax status to dominate the August 3 hearing, concerns about apparent bias do not stem from an isolated incident, and thus the second prong of the Andrade test is satisfied.

C. An Objective Observer Would Perceive Bias

Finally, parties seeking recusal must demonstrate bias as it would be perceived by an “‘objective’ observer’s standard.” Andrade, 338 F.3d at 455.

Both possible explanations for how Judge Hughes found Restore Justice’s blog post (via a thorough comb of Restore Justice’s website or via a direct search for “Restore Justice IRS”) appear to explain searches for information that reflects negatively on Drew Willey and Restoring Justice.

And even if Judge Hughes acquired the information in question through some other, entirely coincidental means—which Willey need not, and does not, argue is impossible—an objective observer would question whether he was in fact searching specifically for that information, and either possible search would disturb an objective observer.

This faulty information was itself prejudicial, extrajudicial material that created a bias evidenced in court, and the fact that Judge Hughes was actively looking for this information in the first place is evidence of apparent bias that predates his actual reading of the blog post from Restore Justice’s website.

An objective observer would also be troubled by Judge Hughes’s apparent reaction to the fact that his information about Restoring Justice was incorrect. In Liteky, the Supreme Court established that judicial remarks in court “will” establish grounds for recusal if “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555 (emphasis in original).

Judge Hughes, confronted with the fact that his information about Restoring Justice’s tax status came from the website of an entirely different and unrelated organization, and with the unrebutted argument that tax status was irrelevant to the questions before the court, still questioned Restoring Justice’s compliance.

Judge Hughes said that evidence of Restoring Justice’s actual tax status, taken from its actual website, “doesn’t answer the question” of whether Restoring Justice had filed its annual tax reports as required by the IRS. (Transcript at 20.)

Regardless of whether Judge Hughes is in fact biased against Willey—which Willey cannot know, and does not allege—an objective observer would conclude that an appearance of bias

exists, and Judge Hughes should accordingly recuse himself from further proceedings in this case.

IV. CONCLUSION

For the foregoing reasons, Plaintiff Andrew Willey respectfully requests that United States District Judge Lynn N. Hughes recuse himself from this matter.

Respectfully submitted,

/s/ Charles Gerstein

Charles Gerstein
Attorney in Charge
(S.D. Tex. Bar No. 2998395)
Civil Rights Corps
1601 Connecticut Ave. NW, Suite 800
Washington, DC 20009
charlie@civilrightscorps.org
(202) 894-6128

/s/ Nathan Fennell
Nathan Fennell
(S.D. Tex. Bar No. 3547280)
Texas Fair Defense Project
314 E Highland Mall Blvd, Suite 204 Austin, TX 78752
nfennell@fairdefense.org
(512) 637-5220

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ANDREW WILLEY,

Plaintiff,

v.

THE HARRIS COUNTY DISTRICT
ATTORNEY, in her official capacity,

Defendant.

Case No. 20-CV-1736

COMPLAINT

1. Andrew Willey is a dedicated criminal-defense lawyer. He believes, based on his experiences representing criminal defendants and from his deeply held Christian faith, that he has a calling to protect the rights of people who are accused of crimes. For these reasons, he has undertaken, at personal expense and without compensation, several efforts to improve the indigent- defense system in Harris County.

One of these efforts involves providing free representation to criminal defendants for the limited purpose of helping them seek to replace their overburdened and underperforming court-appointed defense lawyers with any other court-appointed counsel who has sufficient time to adequately represent them.

Willey seeks an injunction preventing Texas’s criminal statute prohibiting barratry from being used to prosecute him for engaging in this endeavor.

Parties

2. Plaintiff Andrew Willey is a criminal-defense lawyer based in Houston, Texas, who practices primarily in Harris and Galveston Counties.

3. Willey is the founder of Restoring Justice, a 501(c)(3) nonprofit organization that seeks out people who have been neglected by their court-appointed defense lawyers and offers them free, high-quality, holistic criminal-defense representation. Through diligent fundraising efforts, Willey has been able to hire a full-time attorney and social worker to work at Restoring Justice to provide this representation.

4. Willey does significant pro bono work completely separate from his work building and supporting Restoring Justice. In this capacity, Willey works to secure a system of meaningful, independent oversight for private court-appointed attorneys (including himself) in Harris, Fort Bend, Chambers, and Galveston Counties.

5. Defendant is the elected district attorney of Harris County, Texas. She is sued in her official capacity as an enforcer of state law only.

Jurisdiction and Venue

6. This court has federal-question jurisdiction under 28 U.S.C. § 1331.

7. Venue is proper because all parties reside in Harris County, Texas, which is also where the complained-of behavior occurred previously and will occur in the future.

Willey Believes that Harris County Criminal District Courts Appoint Constitutionally Inadequate Lawyers to Represent Indigent Defendants

8. Willey’s commitment to improving representation for indigent defendants in Harris County began in law school, when he represented indigent defendants on death row whose lawyers had severely neglected their cases.

9. Willey believes that many defendants in Harris County do not receive the representation to which they are entitled because their court-appointed attorneys have too many cases to devote the requisite time to all of their clients.

10. This belief is supported by a rigorous study conducted statewide in Texas by the Public Policy Research Institute and the Texas Indigent Defense Commission (“TIDC”), which found that the maximum number of court-appointed cases an attorney can competently represent in one year, if they devote the entirety of their practice to this work, ranges from 236 Class B Misdemeanors to 77 First Degree Felonies.

11. According to analysis by Restoring Justice that relies entirely on TIDC’s reporting, 71% of Harris County defendants who were appointed private defense attorneys had a lawyer who exceeded these maximum case numbers in 2019.

12. In 2019, Willey received a complaint from a defendant that his court-appointed lawyer, Jerome Godinich, had done virtually nothing to represent him in over a year and that he wanted a new attorney.

13. This defendant had filed a motion to substitute Godinich, arguing that Godinich had done next to nothing in his case for more than a year.

14. Willey did not have the time to represent this defendant in his criminal case, but nonetheless agreed to represent this defendant on a limited-scope basis to try to secure new appointed counsel by filing a writ of mandamus with the Court of Appeals.

15. Willey began to research Godinich to prepare for filing this writ, and he learned that Godinich typifies the problems in the Harris County appointed-counsel system.

16. In 2018, Godinich was appointed by the Harris County Criminal Courts to more than six hundred felony cases. That is more than four times the recommended felony caseload for an attorney in a year.

17. For this work, Godinich earned $440,265 exclusively from appointed cases in Harris County.

18. Willey learned from publicly available sources that Godinich often provided abysmal representation.

19. In three cases, Willey learned, Godinich missed statutes of limitations to file papers in death-penalty cases. He used the same implausible excuse twice: “In at least one prior case,” the U.S. District Court for the Southern District of Texas noted in a federal habeas-corpus case that Godinich defaulted, “Mr. Godinich offered the same excuse—that his attempt to file the petition after hours on the due date was frustrated by a broken time stamp machine.”

20. In 2014, Willey learned, one of Godinich’s clients, Juan Balderas, was sentenced to death after his case had been pending for eight years during which, according to Balderas’s wife, “Godinich and his second chair attorney didn’t even meet with [their client] until just before the trial and conducted almost no investigation.”

21. Willey filed a writ of mandamus on behalf of Godinich’s client who had reached out to him. The writ was denied on procedural grounds unrelated to the quality of Godinich’s representation. The defendant chose to fire Godinich and proceed pro se rather than allow Godinich to continue neglecting his case.

22. After learning about many defendants whose court-appointed attorneys—like Godinich—are overburdened, Willey felt compelled to offer more systemic assistance to people whose lawyers clearly could not effectively represent their entire court-appointed caseload.

Willey Works to Improve the Lives of Indigent Criminal Defendants

23. In January 2020, Willey began to organize an effort to interview defendants represented by the most overloaded court-appointed attorneys and offer his personal, free services to represent them on a limited-scope basis. The scope of this representation was exclusively to file motions before the trial court to replace the overloaded attorney with a new court-appointed attorney whose caseload was at a manageable level and, if those motions were denied, seek appropriate review of such denials.

24. Willey’s ultimate goal for this project is both to ensure that individual defendants have court-appointed attorneys with the time to represent them effectively and to produce systemic change in how attorneys for indigent defendants are appointed and supervised.

25. Willey concluded that Godinich’s clients were likely to have particularly strong claims for replacement attorneys, and that those claims would be especially compelling, because Willey knew from public sources and from his experience with the defendant who contacted him directly that Godinich sometimes failed to do even the most basic work on his cases.

26. So Willey decided that he would first seek to assist Godinich’s clients through targeted motions to replace court-appointed counsel.

27. Because Godinich represents so many people, Willey asked for help from volunteer investigators to get in touch with prospective clients.

28. Willey created an intake questionnaire asking prospective clients about basic defense tasks Godinich had done or failed to do in their cases, and prepared a limited-scope retainer agreement that, if signed, would authorize Willey to file a motion to substitute counsel with different court-appointed counsel and seek mandamus if it is denied.

29. The limited-scope retainer agreement makes clear that all representation will be completely free of charge.

30. In February 2020, Willey’s team contacted 22 people Godinich has been appointed to represent to ask them questions about their representation and whether they wanted help requesting a different court-appointed attorney.

31. Willey does not seek to be the replacement attorney appointed by the court to represent these defendants.1

32. Willey stands to gain no money whatsoever from his efforts to assist overlooked defendants in requesting a new lawyer who has time to meet with them and perform the basic tasks necessary for competent representation.

33. Willey’s efforts involve learning about whether defendants are receiving any meaningful representation from their court-appointed attorneys, informing defendants of their right to adequate counsel, and offering to help them ask the trial court to appoint a lawyer who will meet their basic Sixth Amendment right to effective counsel.

1 Willey also does not have the time or resources to represent any of these people pro bono for their criminal cases at this time.

34. Willey is motivated to undertake these efforts by his legal, political, and religious beliefs.

Willey Is Threatened with Enforcement of the Texas Barratry Statute for His Work to Protect the Sixth Amendment Rights of Indigent Defendants.

35. In March of 2020, family members of two defendants interviewed by Willey’s volunteers called Godinich to see if he was still representing them.

36. Godinich reported this to the judge in their cases, Judge Amy Martin of the 263rd District Court in Harris County.

37. When Judge Martin learned that Willey had contacted two of Godinich’s clients, she promptly scheduled hearings to question the clients about their contacts with Willey.

38. Judge Martin did not alert Willey that these hearings were taking place.

39. At one of the hearings, after hearing from Godinich’s client and his family, Judge Martin declared that:

I can take whatever actions are at my disposal to make sure this [Willey’s contact of the client] never happens again. But let me assure you, I personally chose the lawyers [appointed] to your case. They have met the highest qualifications to be qualified to handle capital murder cases. They will not be removed unless I find that there’s a reason to do so. And no one should be coming to you soliciting information or even bothering you with any kinds of questions or allegations against your current attorneys. If those were valid allegations, they would be brought to me and I would take action. They are not, so they have not been. And I will ensure that [the client] still has the attorneys he has, who I know personally have been working on the case very diligently. I’ve seen them work in the courtroom.

40. Shortly after these hearings, Godinich subpoenaed Willey and his wife (who volunteers as Restoring Justice’s accountant but has no involvement with Godinich’s cases) to a hearing in the criminal case of Kermit Johnson, one of Godinich’s clients, for April 8.

41. Willey and his wife, represented by separate counsel, moved to quash the subpoenas.

42. Texas’s barratry law provides, in relevant part, that

A person commits an offense if the person is an attorney . . .[,] and with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, [or] advice . . . a written communication or a solicitation, including a solicitation in person or by telephone, that .
. . concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter.

The April 8 Hearing

43. Willey’s attorney met with Godinich and Judge Martin on April 6, 2020, prior to the hearing, to discuss the motion to quash.

44. At that meeting, Judge Martin said Willey’s speech to prospective clients “could be criminal.”

45. Godinich and Judge Martin then offered to quash the subpoena and cease any further attempts to compel testimony from Willey if he would agree to the entry of a sealed order forbidding him to (among other things) contact any prospective client whose case is pending in Judge Martin’s court or any other court in Harris County.

46. Willey declined.

47. An Assistant District Attorney attended the April 8 hearing along with the parties to the April 6 meeting.

48. At the hearing, Judge Martin quashed the subpoena against Willey’s wife, but upheld the subpoena against Willey and subpoenaed him for a second hearing on May 6, 2020.

The May 6 Hearing

49. On May 6, Willey appeared virtually in court pursuant to a subpoena, with counsel.

50. Godinich had retained counsel to represent him, despite the fact that the subpoenas were facially for hearings in a criminal case where Godinich represents the defendant.

51. An Assistant District Attorney representing the State was also present for this hearing.

52. Judge Martin questioned Willey on the record about his interactions with Godinich’s clients, including whether he had ceased communicating with Godinich’s clients.

53. Willey’s attorney represented to the Court that Willey has.

54. Next, Judge Martin sought assurance that Willey would never use any information from Godinich’s clients in the future, which Willey declined to give.

55. In response, Judge Martin said “I think we have to have an emergency hearing.”

56. Willey was subpoenaed for an emergency hearing on May 11, 2020, again in a criminal court docket setting before Judge Martin.

The May 11 Hearing

57. On the morning of May 11, 2020, Godinich, through counsel, submitted to the Court, informally by email, a “Memorandum of Law [Attorney Sanctions]” styled “In re Andrew Joseph ‘Drew’ Willey.”

58. That submission was, for all intents and purposes, an attempt at filing a motion for “this court [sic] to cite the Respondent to appear and to show cause why the Court should not sanction him under its inherent powers or ‘take appropriate action’ under Canon 3(D) of the Texas Code of Judicial Conduct.”

59. Counsel for Godinich served copies of this court document on the Harris County District Attorney’s Office, as well as to Willey’s counsel.

60. On May 11, Willey appeared virtually, with counsel, as required by subpoena.

61. At this hearing, the Court inquired whether Willey had formed an attorney–client relationship with one of Godinich’s clients.

62. Through counsel, Willey declined to answer such questions based on attorney– client privilege, attorney work-product doctrine, and the Fifth Amendment.

63. The Court responded to Willey’s intention to assertion of the Fifth Amendment privilege by saying “that makes all the sense in the world to me.”

64. The Court swore in the defendant in the underlying matter, and asked him whether there was an attorney–client relationship between Willey and the defendant. The defendant said there was not.

65. The Court then found that any attorney–client privilege was waived and ordered Willey to turn over anything Johnson signed that is in Willey’s possession, as well as anything kept in any file that Willey maintains for that defendant.

66. Willey did not object to providing Johnson with any documents related to him.

67. Godinich’s lawyer then renewed his request for sanctions against Willey.

68. In response, Judge Martin indicated that she intended to issue an order to show cause why Willey should not be sanctioned in her court.

69. Judge Martin demanded that Willey agree that he would not contact Godinich’s clients in the future, either personally or through any agent, including specifically Restoring Justice.

70. Willey, through his attorney, agreed not to contact Godinich’s clients in the future personally or through any of his agents.

71. Judge Martin admonished Willey by saying that Willey’s attorney should advise him that “[i]t is a very, very bad idea to continue to try and solicit business, whether paid or unpaid[,] from defendants he knows are represented by attorneys, particularly that have been appointed by the Court ”

72. Judge Martin said that “[i]f I find out that this behavior continues, we will — I will not be nearly so nice.”

73. Willey fears that the Court meant that he would face criminal sanctions for speaking with defendants represented by court-appointed attorneys in the future.

74. Willey complied with the Court’s order by turning over a questionnaire where the defendant had answered questions about whether his attorney had performed basic functions of representation.

The Prospect of Enforcement Against Willey Has a Chilling Effect on His Speech

75. Willey wants to continue his work to improve representation for indigent defendants in Harris County.

76. Willey believes that many of the people most in need of assistance can be reached only by direct contact because they are in jail and have extremely limited access to information and support.

77. Willey plans to represent future defendants in actions to replace their overburdened court-appointed lawyers as part of a larger-scale strategy to improve the lives of indigent defendants in Harris County.

78. He has already taken concrete steps towards this plan, including identifying specific defendants who had overburdened attorneys whom he would like to reach out to and offer his services, recruiting and training interns to help collect background information, developing template motions, writing limited-scope representation agreements, researching methods of appealing the denial of any such orders, and drafting template writs of mandamus to file in the event that his motions to substitute defense counsel are denied.

79. Willey has a demonstrated commitment to continuing this work. After Willey filed a motion to replace Godinich from one previous case, Godinich filed a bar complaint against Willey regarding a magazine article that describes Willey’s work.2 Willey did not stop pursuing his plans despite this threatened professional discipline.

80. Willey was still actively pursuing his reform strategy when he was threatened with criminal prosecution for talking to represented clients about their representation.

81. One district court judge has already demanded that he swear off any intention of pursuing this strategy to serve indigent defendants in Harris County.

82. Willey’s plans are currently on hold due solely to the threat of being criminally prosecuted if that strategy violates the criminal barratry statute in Texas.

Claim for Relief

Count One: Violation of First Amendment Rights under 42 U.S.C. § 1983

83. Willey incorporates by reference paragraphs 1–82 of this Complaint.

84. Willey is being threatened with prosecution under Tex. Penal Code Ann § 38.12(d)(2)(B) for speaking with prospective clients to advise them of their legal rights and to pursue potential civil-rights litigation.

85. Willey is not speaking with prospective clients for the purpose of earning any money.

Count 2:  The complaint was summarily dismissed as an “inquiry” for failure to state a violation of the Texas Disciplinary Rules of Professional Conduct. See Tex. Rules of Discip. Proc. 2.10(A); also 1.06(T) (“‘Inquiry’ means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel that, even if true, does not allege Professional Misconduct or Disability.”).

86. Section 38.12(d)(2)(B) violates the First Amendment as applied to Willey.

87. Willey, therefore, seeks an injunction forbidding prosecuting him for speaking with prospective clients when he does so without a purpose of pecuniary gain, and a declaratory judgment that he may do so without fear of sanction.
Prayer for Relief

Plaintiff Andrew Willey respectfully requests:

• An injunction forbidding prosecuting him for communicating with prospective clients without a purpose of pecuniary gain;
• A declaratory judgment that prosecuting Willey for communicating with prospective clients without a purpose of pecuniary gain violates the First Amendment;
• An award of reasonable attorney’s fees under 42 U.S.C. § 1988;
• And any other relief this Court considers appropriate.

Respectfully submitted,

/s/ Charles Gerstein Charles Gerstein Attorney in Charge
(S.D. Tex. Bar No. 2998395)
Civil Rights Corps
1601 Connecticut Ave. NW, Suite 800
Washington, DC 20009 charlie@civilrightscorps.org (202) 894-6128

/s/ Nathan Fennell
Nathan Fennell
(S.D. Tex. Bar No. 3547280)
The Texas Fair Defense Project
314 E Highland Mall Blvd, Suite 204 Austin, TX 78752 nfennell@fairdefense.org
(512) 637-5220

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