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Political race heats up

By Judith Pannebaker BCC Editor

Bandera attorney Stephen L. Schaefer has filed a civil lawsuit against County Attorney John Payne and a member of his staff, Linda James, on behalf of his clients, "Jane Doe" and her minor daughter, "Joan Doe."

Also named as defendants in the lawsuit are a trio of juvenile males accused of raping the minor female, and the father of one of the alleged rapists. The litigation stemmed from alleged "wrongful conduct" of Payne and James in regard to a purported rape that had apparently occurred in March or April 2011.

'Politically motivated'

For his part, Payne dismissed the lawsuit as being "politically motivated." After defeating Schaefer soundly in the 2008 race for county attorney, Payne now finds himself embroiled in a prosecutorial dogfight with challengers Janna Lindig and Daniel MacNeil.

"I'm only sorry that one of my employees was dragged into this," Payne added.

Interestingly, at the onset of the lawsuit filing, Schaefer sought to separate Bandera County from the lawsuit against Payne and James, writing, "The Plaintiff has no beef with the State of Texas or Bandera County. She is not suing them in this suit at this time, nor is she suing any employee of the county or state and claiming Respondeat Superior."

This Latin phrase is defined by http://legal-dictionary.thefreedictionary.com as "a common-law doctrine that makes an employer liable for the actions of an employee when the actions take place within the scope of employment."

However, as County Judge Richard Evans noted, "In a lawsuit of this type, it's difficult to separate Bandera County from an elected county official and an employee who were working for the county in their official capacities."

Attorneys with the Texas Association of Counties are reviewing the filing to determine if Bandera County's insurance provider will defend Payne and James in the civil litigation.

'Commit torts'

In part, Schaefer's filing reads: "This suit is against, among others, John D. Payne and Linda James, individuals who abused and misused their title, office and access to information to commit torts that proximately caused damages to the plaintiff."

The alleged rape of the then-11-year-old child was not reported to the Bandera County Sheriff's Office until September 2011, when an investigation was initiated.

According to Chief Deputy Richard Smith, no one has been charged in the case and investigators with the Bandera County Sheriff's Office have turned over the complete case file to Glen Muennik, juvenile probation officer. "Steve Schaefer has found a couple more witnesses that we're looking into, but, other than that, our investigation is complete," Smith said in an interview on Thursday, April 5.

According to Evans, the case file is now being reviewed by special prosecutor Jerry Phillips, a former Kerr County prosecutor.

After the civil litigation was filed against Payne, Evans appointed a prosecutor pro tem for the ostensible rape case at Payne's request.

Normally the county attorney prosecutes juvenile cases before Evans in county court.

Cover-up allegations

The civil lawsuit alleges that Payne used his role as county attorney to benefit a private-practice client and his son. The filing further states that Payne and James, "while engaged in a cover-up," used the office of the county attorney to "wrongfully, inappropriately and clandestinely" access confidential, privileged information from the Bandera County Sheriff's Office on the crime. The filing also accuses Payne and James of passing on the information to the accused juvenile male through his father, whom Payne was representing in a child custody dispute in his private practice.

Staff writer Zeke MacCormack broke the brewing brouhaha in the Nov. 19, 2011, edition of the San Antonio Express-News. At that time, BCSO investigators had raised questions about Payne's perceived conflict of interest in the case. In September, Sgt. Jose Barreto, supervisor of the Criminal Investigation Division, sent a complaint about the matter to 216th District Attorney Bruce Curry.

In response, Curry spoke with personnel with the Office of the Texas Attorney General and the Texas Rangers, who apparently felt Payne's recommendation to his client that his son be represented by an attorney during interrogations did not rise to the level of a criminal act.

Curry then advised BCSO investigators to file formal complaints against Payne with the State Bar Association or the Texas Ethics Commission. To date, no complaints against Payne have been filed with the agency and organization that serve as watchdogs over Texas attorneys.

No interrogation
without representation

Payne readily admits to advising his private practice client that he would be unable to represent that client or his son in the wake of a rape charge.

Payne also advised his client not to allow his son to speak to investigators without an attorney present.

In his filing, Schaefer interprets this advice that Payne "willfully and knowingly ignored the sworn duties to his office as county attorney and the loyalty he owed the citizens of Bandera and the State of Texas, turned his back on the glaringly obvious conflict of interest and began counseling his private practice client in a shocking and illicit, if not illegal, effort to directly aid the criminally accused."

The court document continued: "(Payne) did this in his capacity as a private attorney in order to safeguard and protect the rights of the criminally accused; not to protect, preserve or enforce the victim's rights in the case arising out of a violent sexual assault, a person to whom he swore an oath."
However, at the time of the attempted interrogation, the then 13-year-old boy had neither been accused directly of allegedly raping the minor nor detained for committing the alleged rape. Until that occurred, Payne's fealty must also be extended to that of the alleged criminal as well as to the alleged victim, according to the American judicial system.

'Irreparable damage to investigation'

When the alleged rape was reported to the BCSO on Sept. 6, 2011, Barreto assigned the case to Investigator Cherié Green, who contacted the alleged rape victim, her mother, the three suspected juveniles and their parents.

On Sept. 20, when Green contacted the father of one of the suspected rapists, he told Green his attorney, Payne, had advised him not to allow his son to speak to or provide a statement to investigators. Later that day, Payne also informed Green about the advice.

In her report, Green wrote: "Irreparable damage was done to my investigation by Mr. Payne advising the suspect's father not to allow (the juvenile suspect) to speak to me."

However, since the 1966 United States Supreme Court decision in Miranda vs. Arizona, criminal suspects - particularly minors - have been given the right to be represented by an attorney during custodial law enforcement interrogations.

Additionally, suspects are not required to cooperate during a criminal investigation nor are they required to incriminate themselves.

In Miranda v. Arizona, the Supreme Court held that the admission of elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel.

Payne explains

During an interview on Thursday, April 5, Payne affirmed that his client had consulted him about his son's possible involvement in a law enforcement matter.

"Because I was representing his father in a child custody case, I called sheriff's investigators to determine if their investigation involved something that might have arisen out of the custody case, possibly a temporary restraining order," Payne said. "After I found out it was a different matter altogether, I told my client I could not represent him. I also advised him to hire an attorney before allowing his son to speak to law enforcement officers. That's what's required of me as an attorney."

In the lawsuit, Payne has been accused of misconduct, conflict of interest, official misconduct and obstruction of justice.

The civil lawsuit accuses James, juvenile court coordinator, of wrongful conduct. Apparently she contacted the sheriff's office after being unable to find the alleged rape case in the county computer system. After speaking with investigators, James learned the case was pending and no criminal charges had been filed.