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Civil litigation against county attorney answered

By Judith Pannebaker BCC Editor

In his answer to a petition filed in a civil lawsuit against Bandera County Attorney John Payne and Linda James, juvenile court coordinator, attorney Michael Shaunessy of Sedgwick, LLP, of Austin, made no bones about what he believed precipitated the litigation.

Shaunessy wrote: "The claim was brought in bad faith for the purpose of harassment and primarily for the purpose of impacting an upcoming primary election in Bandera County."

Shaunessy is defending Payne and James through the Texas Association of Counties. Jonathan B. Cluck of The Nunley Firm, LLP in Boerne serves as local counsel.

Bandera attorney Stephen L. Schaefer's filed a civil lawsuit against Payne because he advised a private practice client not to allow his minor son to be interrogated by Bandera County Sheriff's Office investigators without being represented by an attorney.

In his private practice, Payne was representing the minor's father in a child custody matter. After learning that BCSO investigators wanted to interview the then 13 year old on a law enforcement matter unrelated to the custody dispute, Payne told the unnamed client that he was unable to represent that client in the new matter. Payne also advised his client to secure the services of an attorney for his son and not to allow the juvenile to be interviewed by BCSO law enforcement officers without legal representation.

Investigators had apparently attempted to interview the juvenile after he had been accused of raping an 11-year-old girl last year.
Schaefer's unnamed clients - the minor female child and her mother - are plaintiffs in the civil lawsuit.

To date, no one has been charged in the alleged rape although the civil suit also names the three male minors allegedly involved in the incident, as well as the father of the boy accused of the rape. According to BCSO Sgt. Jose Barreto, supervisor of the Criminal Investigation Division, none of the juvenile boys allegedly involved in the sexual assault were interviewed.

Payne defeated Schaefer in the 2008 Primary Election for county attorney and now faces two challengers in the current race, Janna Lindig and Daniel J. MacNeil.

In his answer, Shaunessy explains that plaintiff Jane Doe's allegations are based on the fact that Payne advised the parent of a juvenile being investigated in connection with an alleged crime that the juvenile had the right to counsel.

Additionally, Payne gave the juvenile an opportunity to obtain counsel and made certain that the juvenile did not waive his right to counsel prior to any interrogation by law
enforcement authorities.

"All prosecutors and-or law enforcement officers are obligated by law to take these actions before initiating the questioning of any minor," Shaunessy wrote.

In his petition, Schaefer wrote that Payne's actions "... thwarted, hindered, delayed and obstructed the good-faith and diligent efforts of the Bandera County Sheriff's investigators that the investigation was compromised and prejudiced; the true facts may now never come to light ..."

Schaefer's filing also postulated: "In these types of investigations, particularly with multiple actors, time is of the essence and becomes most important when it comes to interviewing the accuseds [sic] and obtaining early statements."

That contention is underscored by BSCO Investigator Cherié Green's statement: "Irreparable damage was done to my investigation by Mr. Payne advising the suspect's father not to allow him to speak with me."

In an interview on Wednesday, April 11, Jose Baretto, who served as Green's supervisor, concurred. As he explained, "If we had been able to interview the three suspects, the victims and the witnesses, this matter could have been taken care of by now. When the suspect refused to speak to us, it stopped our investigation." Barreto recently announced he would retire from BCSO effective Monday, April 30, according to Capt. Charlie Hicks.

The alleged sexual assault had purportedly occurred in March or April of 2011; however, the incident went unreported until September 2011.

As Shaunessy wrote: "Payne's actions did not prevent the investigation of the alleged events surrounding "Joan Doe's" (the then 11-year-old girl) attendance at the party.
Investigators could have gone forward with the investigation by various means, including questioning witnesses (including those who were present at the party and-or others who were shown the photos and videos allegedly taken at the time of the incident) and subpoenaing evidence related to the alleged actions (including phones containing photos and-or videos), as well as taking the case to the grand jury and having Joan Doe testify before the grand jury."

Regarding the allegations and resultant civil lawsuit against James, Shaunessy contends that her actions were taken "solely in the course and scope of her employment."

James apparently contacted the Bandera County Sheriff's Office after being unable to find the alleged rape case in the county computer system.

After speaking with investigators, she learned the case was pending and no criminal charges had been filed.
On Friday, April 20, Shaunessy filed a motion to dismiss the civil lawsuit on James' behalf and is waiting for a hearing to be set in 216th District Court on that motion.

"After that, we'll do what we have to do to prove that John Payne did nothing wrong and that this lawsuit was nothing more than a political gimmick," Shaunessy said.

After BCSO completed their investigation into the alleged rape, they turned the case file over to Glen Muennik, juvenile probation officer, said Chief Deputy Richard Smith.

According to County Judge Richard Evans, special prosecutor Jerry Phillips, a former Kerr County prosecutor, is now reviewing the case.

After the civil litigation was filed against Payne, Evans appointed a prosecutor pro tem at Payne's request. Normally the county attorney prosecutes juvenile cases before Evans in county court.

According to Smith, no charges have been filed as yet in the alleged rape.