Recall: Judge Allows ‘Smoking Gun’ Document On The Record

Mayor John Cook’s lawyers contend Word of Life pastor and recall leader Tom Brown, intentionally did not turn in a “smoking gun” document which he was subpoenaed to submit to court, during a hearing.

Cook’s lawyers filed a motion for Judge Javier Alvarez to allow what they called a “concealed document” into evidence and to sanction Brown for not turning in the document on time.

Brown was subpoenaed to turn in all minutes of Word of Life board meetings that pertained to the recall efforts. He did turn in some documents during that hearing. But the minutes of the June 27, 2011, board meeting were not submitted until after that recall hearing.

The minutes show that on that June day, 22 pastors gathered at Word of Life to discuss and pray about the recall. In a section of the minutes titled “Plan to Recall”, it states “All pastors prayed over Pastor Tom Brown and most of them gave him words of encouragement to continue with the recall and promised that, ‘They will stand with him and help him.'”

In the motion, Cook’s lawyer, Mark Walker, argued the document is the most important one so far in their case and that Brown “effectively disobeyed the subpoena, played games with the evidence and the court … and purposely concealed this ‘smoking gun.'” Walker also said the document proves Word of Life Church and Tom Brown Ministries are the same entity.

Brown’s lawyers said there’s a more practical explanation.

“It was late in the day (when we got the subpoena), and it said that we had to produce all of these documents the very next morning. This is like an 18-paragraph request for documents. There was not enough time to file all of these documents, so we filed a motion for a protective order. Under Texas law, when you file a protective order, you don’t have to produce the documents unless the court says you have to produce the documents. Once the court said to produce the documents, we produced the documents. Where’s the controversy?” said Brown’s Alliance Defense Fund lawyer, Joel Oster.

In Walker’s motion, he wrote Brown had more than a month to search for the subpoenaed documents. On the stand Wednesday, Brown admitted he kept church documents at his home.

Brown and other defendants were in court Tuesday because Cook’s lawyers tried to prevent the same lawyers from representing all of the defendants and even witnesses. The mayor is suing Brown, Word of Life Church, Tom Brown Ministries and other recall organizers because he said they broke the state election code, which explicity forbids nonprofit corporations, including churches, to circulate recall petitions.

Brown’s lawyers contend that state law is unconstitutional because it limits free speech. They point to a Supreme Court ruling that states the governement cannot suppress political speech on the basis of corporate identity.

During Tuesday’s hearing, Oster called to the stand all of the defendants in the case, who said they had agreed to be represented by Theresa Caballero, Stuard Leeds and Oster. Alvarez denied Cook’s motion and allowed for the three lawyers to represent all of the defendants in the case. Walker said it is uncommon and generally questioned when the same counsel represents several parties in a lawsuit, especially if some of the parties are individuals and others are corporations, as is the case with Word of Life Church.

“Clearly, we represented our clients. It’s not even a close question. What more does a client have to do than to be represented in court? To suggest that a church cannot be represented by an attorney of its choice is an affront to the constitution,” Oster said in an interview on Tuesday.

Alvarez did not rule on the requests to sanction Brown. He did allow the minutes for the June 27 meeting to be added to the record. That means Cook, who is preparing to appeal, can use them then.