CAUSE NO.

1997-C-103
THE STATE OF TEXAS

v.
BERNHARDT TIEDE, II

IN THE DISTRICT COURT

PANOLA COUNTY, TEXAS
123RD JUDICIAL DISTRICT

MOTION FOR APPOINTMENT OF PROSECUTOR PRO TEM AND INQUIRY

REGARDING CONFLICTS OF INTEREST AND BRIEF IN SUPPORT
Crime Victims Rod M. Nugent, Jr., Alexandria L. Nugent, Susan Nugent Jenull,
Shanna Nugent Cobbs, and Mathew Tod Nugent (collectively Crime Victims) file this Motion
seeking the appointment of a prosecutor pro tem in order to protect the Crime Victims rights,
and requesting that this Court conduct an inquiry regarding ethical conflicts which would result
from the Panola County Criminal District Attorneys Office participation in the re-sentencing of
the Defendant, Crime Victims would respectfully show the Court as follows:
I. STANDING
Crime Victims have standing to enforce their rights as provided in Section 30 of the
Texas Constitution.

Tex. Constitution, Section 30(e).

The Texas Constitution specifically

provides [a] victim or guardian or legal representative of a victim has standing to enforce the
rights enumerated in this section Id. Crime Victims additionally have standing pursuant to
the Texas Crime Victims Rights Act, which also extends as a matter of law certain rights to crime
victims. Texas Cr. Code Ann. Section 56.02.
II. FACTUAL SUMMARY
Marjorie Nugents story has not been told. The only procedure for assessing a fair and
considered sentence for Marjorie Nugents killer is for the facts surrounding Marjorie Nugents
murder to be fully told.

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 1

Defendant Bernie Tiede was engaged in an on-going, long-term scheme to defraud

Marjorie Nugent. Mr. Tiede, an assistant funeral director with no background or training in
financial advisory services, gained the confidence of Marjorie Nugent, an elderly widow, and
convinced Mrs. Nugent to trust him with the control, investment discretion and accounting of
Mrs. Nugents substantial estate and the trusts established for the benefit of her grandchildren.
Over the course of several years, Mr. Tiede stole between $3 million and $4 million
from Mrs. Nugent before murdering her. During that same time period, Mrs. Nugents son and
grandchildren became increasingly concerned about their mother and grandmother, and her
unusual relationship with Mr. Tiede. The grandchildren requested an accounting of the trusts that
had been established by their grandparents on their behalf. Mr. Tiede, who was managing Mrs.
Nugents finances, and who (it was later discovered) had stolen money from these trusts for his
personal use, refused to give the grandchildren such an accounting of the trusts. Eventually, the
grandchildren petitioned a local court for access to the books and records of the grandchildrens
trusts. Subsequently, Mrs. Nugent agreed to resign as trustee of the grandchildrens trusts and
the Court appointed the Longview Bank and Trust (currently known as the Texas Bank and Trust,
the Bank) to serve as the Trustee for the grandchildrens trusts. Upon becoming trustee of the
grandchildrens trusts, the Bank had Mrs. Nugents investment accounts closed and the funds in
those accounts transferred to the Banks control. This process quickly revealed the unaccounted
for funds that had been diverted by Mr. Tiede. A trust officer with the Bank scheduled a meeting
with Mrs. Nugent and Mr. Tiede, in order to obtain an explanation for the missing funds.
Within hours of the scheduled meeting between Mr. Tiede, Mrs. Nugent and the newlyappointed trustee from the Bank, Mr. Tiede shot Mrs. Nugent four times in the back. After
cleaning up the murder scene, and concealing Mrs. Nugents body, Mr. Tiede attended a rehearsal

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 2

of Guys & Dolls, treating the cast and crew to a post-rehearsal pizza dinner (which he paid for
using one of Mrs. Nugents credit cards). The next day, Tiede forged and cashed a personal
check to himself on Mrs. Nugents personal account for $20,000, an account to which he had
never previously had access. And for the next nine months, while Mr. Tiede concealed the
murder of Mrs. Nugent and lied to Mrs. Nugents family, friends and law enforcement, Mr. Tiede
continued to steal an additional $600,000 to $700,000 from Mrs. Nugents estate.
This story was never presented at the criminal trial in 1999. The District Attorney did
present evidence of Mr. Tiedes shooting the elderly widow in the back four times, and he did
present evidence of Mr. Tiede concealing the murder and lying to family and friends about Mrs.
Nugents whereabouts for nine months. But when the District Attorney attempted to introduce
the financial evidence in order to establish Mr. Tiedes motive for the murder, Mr. Tiedes
lawyers objected, arguing that motive was not an element to the crime. Ex. A, Tr. Vol. 8, pp. 72328; Vol;. 10. Pp. 164-167. And because Mr. Tiede never argued that he had experienced a
dissociative episode when he murdered Mrs. Nugent, the District Attorney was prevented from
raising this evidence in rebuttal. Id. Indeed, the trial judge specifically warned Mr. Tiedes
lawyers that he would consider admitting the financial evidence if this should become relevant
in rebuttal. Ex. A, Tr. Vol. 8, p. 727.
In the end, Mr. Tiede elected not to present any case in his defense. The States theory of
the case, that the homicide was committed to help conceal the theft, was never presented. Ex.
A, Vol. 10, p. 165. And the financial evidence that directly establishes that Mr. Tiede murdered
Marjorie Nugent in order to conceal his financial crimes was never admitted into evidence. The
Bank trustee who had identified missing funds never testified. The grandchildren whose trusts
had been pilfered were prevented from mentioning their losses. The law enforcement officers

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 3

who had conducted a forensic audit which documented Mr. Tiedes fraud scheme over the years,
and provided extraordinarily powerful evidence of Mr. Tiedes state of mind on the day of the
murder, never took the witness stand.
Fifteen years later, Mr. Tiede raised his newly-discovered evidence in the habeas
proceeding. However, the evidence of Mr. Tiedes fraud scheme and his motive to conceal that
theft scheme directly contradicts this newly-discovered evidence regarding dissociative
episodes. Mr. Tiede successfully excluded the financial evidence from the trial, and he was able
to exclude this financial evidence for the very reason that he never raised any suggestion of a
dissociative episode. Now that Mr. Tiede has indicated that he will introduce his experts
theories regarding his motive, justice requires any fact finder to consider this evidence of the
financial crimes that directly rebut these theories. If Mr. Tiede wants to present new evidence of
his motive, then Marjorie Nugents family respectfully asks that Marjorie Nugents entire story
be told. If Mr. Tiede wants to present new evidence of his motive, then this Court should also
consider the overwhelming evidence that Mr. Tiede shot Mrs. Nugent in the back four times in
order to conceal his financial crimes.

III. MOTION TO PROTECT CRIME VICTIMS RIGHTS BY APPOINTMENT OF A

PROSECUTOR PRO TEM

Crime Victims respectfully move this Court to find that the Crime Victims are entitled to
the rights guaranteed under the Texas Constitution and the Texas Crime Victims Rights Act, and
that the only procedure for ensuring the Crime Victims are extended those rights is the
appointment of a prosecutor pro tem. Given the unusual circumstance surrounding this case, the
Panola County Criminal District Attorneys Office (the District Attorney) should recuse itself

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 4

in order to protect the rights of the Crime Victims and the integrity of the District Attorneys
Office.
A.

Crime Victims are Entitled to Certain Rights Provided by the Texas

Constitution.

The Texas Constitution clearly provides that the victims of violent crimes have the right
to be treated with fairness and with respect for the victims dignity. Tex. Constitution, Section
30(a)(1).

Specifically, the victims have the right to confer with the prosecutor.

Tex.

Constitution, Section 30(b)(3). Victims have the right to notification of court proceedings and to
be present at all public court proceedings. Tex. Constitution, Sections 30(b)(1) and (2). Victims
are entitled to notice of trial settings, sentencings, and appellate proceedings. Id.
This Court specifically recognized that the Crime Victims had these rights, when the
Court inquired at the May 2014 hearing whether the District Attorney had provided such notice.
See Exhibit B, Hearing Tr., May 6, 2014, p. 10. At that time, the District Attorney represented to
the Court that he had conferred with the Crime Victims. Id.
B.

The District Attorneys Office Has Failed to Notify the Crime Victims
as Required by Law.

Notwithstanding the Courts inquiry on May 6, 2014 regarding the victims notification
rights, and the District Attorneys representation to the Court that he had made such notification,
the District Attorney has not notified the victims regarding any of the court proceedings since the
Defendant filed his habeas petition.

See Exhibit C, Affidavit of Roderick M. Nugent, Jr.

Subsequently, the District Attorney failed to notify the Crime Victims of several, subsequent
hearings, including the hearing before the Texas Court of Criminal Appeals, the hearing
scheduled for March 3, 2015, or the hearing now scheduled for March 31, 2015.
C.

The District Attorneys Office Has Failed to Show Respect for the
Dignity of the Victims.

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 5

Certainly a district attorney must evaluate the credibility of every witness, including
those witnesses who are victims of violent crimes. However, as a representative of the State, a
district attorney must exercise a modicum of discretion when discussing the victims of violent
crimes.

Aside from the professionalism and respect that is expected from public officers

representing the State, the Texas Constitution requires a prosecutor to treat victims with dignity
and privacy throughout the criminal justice process. Tex. Constitution, Section 30(a)(1).
In this case, the District Attorney has gratuitously and repeatedly insulted the Crime
Victims.

In a series of self-promoting speeches, the District Attorney has reinforced the

Hollywood version of the storyline surrounding the murder of Marjorie Nugent. The District
Attorney has flippantly portrayed the deceased victim as anti-social and universally despised,
and her family members, who also were victimized by the crime, as uncaring and motivated by
greed. See Ex. D (press reports of Mr. Davidsons speeches after the release of the movie,
Bernie).
The District Attorneys comments are inappropriate at multiple levels. The comments are
offensive to an innocent widow who was murdered and to her children and grandchildren. The
District Attorneys comments violate the constitutional duty to treat these victims with dignity.
But perhaps worst of all, the comments directly contradict the evidence that the District Attorney
introduced at the Defendants murder trial. Although not captured by the movie script, numerous
trial witnesses presented by the District Attorney testified that Marjorie Nugent was very
friendly, gracious and very honest. At trial, the District Attorney introduced evidence that Mrs.
Nugents son and granddaughter were searching for the deceased (after being lied to by the
Defendant), discovered the deep freezer bounded by duct tape, and reported the evidence of the
crime to the police.

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 6

However, in stark contrast to the evidence presented at trial, after the release of the
Hollywood movie version of this case, the District Attorney gave several publicity interviews
and speeches, demeaning Mrs. Nugent as friendless and temperamental. The District Attorney
misstated that the family was unconcerned about Mrs. Nugents welfare and made no attempts to
contact Mrs. Nugent for more than nine months. Id. One reporter wrote that the District
Attorney said with a shrug, Her family was not looking for her, but they got real mad when
they found out hed spent a bunch of her money after her death. Id.
The District Attorneys change of heart has been publicly documented. In March 2012,
before attending various receptions, screenings and fundraisers with celebrities, Mr. Davidson
told reporters, This movie is not historically accurate . . . The movie does not tell [Mrs.
Nugents] side of the story. Ex. E. In 2013 and early 2014, Mr. Davidson attended multiple
events with the celebrity director and actors associated with the movie. See Ex. F (pictures and
articles regarding Mr. Davidsons attendance at screenings, fund raisers, and other galas). By
April 2014, Mr. Davidson completely reversed his critical evaluation, stating For the most part,
Bernie . . . was accurate in its portrayal of the case. Ex. G. During the trial and up until 2012,
Mr. Davidson emphasized that the Defendant killed Mrs. Nugent in order to conceal his financial
crimes and repeatedly lied to minimize his culpability. In his 2014 interviews and in his affidavit
submitted in support of the Defendant, Mr. Davidson makes no reference whatsoever to the
financial evidence, no reference to Mr. Tiedes self-serving, false statements to law enforcement,
no suggestion of Mrs. Nugents side of the story.
These inaccurate and insensitive comments from a law enforcement officer are not only
offensive; these comments violate the rights of the Crime Victims.

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 7

D.

During the Crime Victims Attempts to Confer with the District

Attorney, the District Attorney Has Agreed to Recuse Himself and His
Office from these Proceedings.

Counsel for the Crime Victims has attempted to confer with the District Attorney to
convey the Crime Victims evidence and opinions. During these conversations, the District
Attorney repeatedly indicated that he had decided to withdraw from this case based on potential
conflicts presented by ethical rules (see Motion for Inquiry, below). See Ex. H, Affidavit of
Johnny Merritt, Counsel for Rod M. Nugent, Jr.
As a result, the Crime Victims have not conferred with the District Attorney regarding the
merits of the case or the States positions. Nor have the Crime Victims received an opportunity
to exercise their rights to discuss their beliefs and opinions with the prosecutor for the State.
Specifically, the Crime Victims have not conferred with the District Attorney regarding the
financial evidence that supports the theory of premeditation.
The Crime Victims file this Motion in an abundance of caution and to ensure their
constitutional and statutory rights are protected. If the District Attorney recuses himself, as he
represented he would, the Crime Victims specifically request that the newly appointed prosecutor
be directed to enforce these rights. The Crime Victims have thoughtfully considered remedies
other than recusal, but no other procedures reasonably appear to protect their dignity or ensure
consideration of their positions. If the District Attorney reverses his stated position and fails to
voluntarily recuse himself, the Crime Victims respectfully move the Court to order such a
recusal.
E.

This Court Should Appoint a Prosecutor Pro Tem in order to Protect

the Crime Victims Rights.

The Crime Victims rights to confer with the prosecutor will only be meaningful when the
prosecutor fully and fairly considers the Crime Victims factual evidence and personal opinions

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 8

before forming a final evaluation. In this case, the District Attorney has expressed his final
evaluation about an appropriate sentence, even though he has not conferred with the Crime
Victims. If the District Attorney were to confer with the Crime Victims at this time, there is no
guarantee the Crime Victims input would be considered. The only way for the Crime Victims
constitutional rights to be protected is to appoint an independent prosecutor who has no
preconceived conclusions, and who could incorporate the Crime Victims statements into his or
her evaluation.
Accordingly, this Court should appoint a prosecutor pro tem.
IV. MOTION FOR INQUIRY REGARDING ETHICAL RULES
This Court should inquire whether the District Attorney has actual or potential conflicts
of interest or other violations of the Texas Disciplinary Rules which would compel the
withdrawal of the District Attorney from representation of the State in this case.
A.

Conflicts of Interest Prevent the District Attorney from Representing

the State.

1.
Rule 3.08: A Lawyer Cannot Serve as Both the
Prosecutor and a Witness in the Same Criminal Prosecution.
a.

Ethical Rules Prohibit Lawyers From Continuing a

Representation of a Client if the Lawyer Will Likely be Testifying to Essential Facts in
Cases.

A lawyer cannot serve in the dual roles as a partys advocate and as a fact witness in the
same proceeding. The Texas Disciplinary Rules of Professional Conduct specifically prohibit an
individual serving as an advocate for a party and as a testifying witness in the same proceeding.
Tx. Disc. R. Prof. Conduct 3.08; see also Gonzalez v. State, 117 S.W.3d 831, 841 (Tex. Crim.
App. 2003).
Multiple Texas Ethics Opinions specifically recommend that an elected district attorney
decline to represent the State and seek appointment of a prosecutor pro tem if the district attorney
CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 9

is also a witness in the case. Tex. Comm. on Professional Ethics, Op. 399, V. 44 Tex. B.J. 201
(1981); Tex. Comm. on Professional Ethics, Op. 454, V. 51 Tex. B.J. 1060 (1988).
b.

The District Attorney Will Likely Be Called as a Witness at

a Contested Sentencing Hearing.

In this case, the District Attorney is likely to be a witness in an adversarial sentencing

hearing. Specifically, the District Attorney could be called as a testifying witness either (1)
because of his previous testimony in the habeas corpus proceeding, (2) because of his public
comments on the credibility of other fact witnesses, or (3) because he would be called as a
witness by the defense. If the District Attorney were to be called as a witness in the sentencing
hearing at which he was also representing the State, a clear violation of Rule 3.08 would occur.
First, the District Attorney could be called to testify regarding his testimony as a fact
witness in the habeas proceeding. See Exhibit I, Affidavit of Criminal District Attorney Danny
Buck Davidson. Specifically, the District Attorney filed an affidavit testifying to his view of a
proper disposition of this case -- a controversial position, an issue to which only this witness
could establish, a position that was previously contested by the State, a position for which the
District Attorney has personally stated to the Texas Attorney Generals Office that he possesses
evidence that rebuts or refutes, and ultimately, a position that should be decided by a jury. See
Ex. J (Letter to Attorney General in response to Public Information Act request). The District
Attorney also specifically comments on the weight of certain evidence and the veracity of the
Defendants statements regarding the motive for the murder. See Exhibit I, Affidavit of District
Attorney (I now believe child abuse ultimately led Mr. Tiede to kill Mrs. Nugent along with
other factors.) Going forward, the fact finder at the resentencing will have to determine the
Defendants motive and the proper disposition of this case, the exact issues that the District
Attorney addressed in his affidavit. If the State presented any evidence or argument that the fact
CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 10

finder should consider any other motive or disposition than those expressed in the District
Attorneys affidavit, then the District Attorney could be called to refute that position.
While the District Attorney is obligated to follow the Texas Disciplinary Rule 3.09, which
requires him to seek justice, the District Attorney must follow all of the ethical rules, and cannot
violate other ethical rules in the course of fulfilling such obligations to pursue justice. See
Landers v. Texas, 229 S.W.3d 532, 533 (Texarkana 2007), affirmed Landers v. State, 256
S.W.3d 295, 303 (Tex. Crim. App. 2008) (district attorney may not violate the ethical rules
regarding former representations, even if the district attorney is upholding ethical rules requiring
pursuit of justice).
Indeed, we recognize that there are situations in which a district attorney can be placed in
a difficult position, in which the prosecutor cannot fulfill all of these Rules at the same time. In
situations such as this one, the proper course is for the District Attorney to protect the integrity of
his Office and ask the Court to appoint an independent prosecutor. Tex. Comm. on Professional
Ethics, Op. 454; Ex Parte Spain, 589 S.W.2d 132 (Tx. Ct. Crim. App. 1979).
Second, and independent of the habeas testimony, the District Attorney could be called as
a witness to testify regarding his public statements about the credibility and character of several
witnesses and victims. In the wake of the publicity and interest created by the high-profile
Hollywood movie loosely-based on events in this case, the District Attorney has commented
publicly (and inaccurately) regarding the character and actions of Marjorie Nugent and the Crime
Victims. Specifically, the District Attorney has commented on the character of the deceased,
referring to the deceased victim as mean-spirited and not very nice.

See Exhibit D.

(Henderson Daily News article) and (Athens Daily article). Setting aside the appropriateness of
a public servant insulting a murder victim, the District Attorney has publicly commented on the

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 11

culpability of the victim and bolstered the opposing partys affirmative defense. Indeed, this was
a central issue in the trial and at the original sentencing, when the State introduced evidence
establishing that Marjorie Nugent was a sympathetic victim. See e.g., Testimony of Penny
Beason, Vol. 7, pp. 670-72 (describing the deceased as very friendly, very nice, a good
friend.)
Additionally, the District Attorney has publicly commented on the conduct and credibility
of the family members. The District Attorney stated that the family members did not make any
attempts to contact their mother and grandmother for nine months after the murder. See Ex. D
(Henderson Daily News article). The District Attorney has also suggested the Crime Victims
lacked compassion and were motivated by money. The District Attorneys comments are not
only inappropriate, but also are directly contrary to trial testimony of the witnesses. See Exhibit
K Tr. Vol. __, pp. __ (testimony of Alexandria Nugent, formerly known as Jennifer Nugent).
These issues issues on which the District Attorney has expressed personal opinions
are essential issues for the fact finder to evaluate at the sentencing. The Defendant will attempt
to establish that his actions were the result of sudden passion disassociation caused in part by a
mean-spirited victim. The State has substantial evidence to the contrary, and could present this
evidence to rebut this sudden passion defense. But the District Attorney, who knew the victim
personally and has publicly stated that she was mean-spirited, cannot credibly advocate for the
State and for the deceased in a fair light without being subject to cross-examination about his
own statements.
Because the District Attorney has provided previous testimony in the habeas proceeding,
and because the District Attorney has publicly commented on the credibility and conduct of the

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 12

States witnesses and victims, it is proper for a prosecutor pro tem to represent the State in any
future proceedings in this case.
2.
Rule 1.06: A Lawyer Cannot Continue a Representation
When the Representation Reasonably Appears to Be Limited by the
Lawyers Own Interests.
Texas Disciplinary Rules require a lawyer to withdraw from a representation if it
reasonably appears that the lawyers own interests are limiting his representation of his client.
Tex. Disc. R. Prof. Conduct, 1.06(b)(2) and n. 1, 4.

When a lawyers own interests or

responsibilities become impaired in a manner that the lawyer is unable to consider, recommend,
or carry out an appropriate course of action for ones client, the lawyer must withdraw from the
representation. Id.
The Crime Victims respectfully request this Court to inquire whether the District
Attorney has a personal interest in perpetuating the fictional version of the murder of Marjorie
Nugent as portrayed in the movie, Bernie. This request is based upon (i) the documented
benefits that the District Attorney has received from his association with the movie, (ii) the
documented changes in the District Attorneys positions since the District Attorneys
participation in the publicity events associated with the movie, and (iii) the District Attorneys
refusal to clarify whether he has received any personal or financial benefits in exchange for his
association with and support of the movie.
These circumstances, taken together, create a reasonable appearance that the District
Attorney lacks independence and may not be considering appropriate courses of action. For
example, before the release of the movie, the District Attorney argued forcefully at trial that the
murder was motivated by greed.

The District Attorney repeatedly attempted to introduce

financial records which indicated that the Defendant killed Marjorie Nugent as part of an attempt
to conceal a massive fraud and embezzlement scheme. Most of this evidence was excluded by
CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 13

the Court, in part because the Defendant never raised a defense that his motive involved sudden
passion.
But after the release of the movie (which does not include the massive embezzlement
scheme in the storyline), and during the District Attorneys participation in various promotional
galas, the District Attorney reversed his position. The District Attorney abandoned the stance
that the Defendant was motivated by greed and murdered Marjorie Nugent to conceal his
scheme. Indeed, the States expert psychiatric witness apparently changed his opinions -- that
the crime involved sudden passion, not greed -- without any consideration of the financial
records, or other evidence of the fraud and massive embezzlement scheme. See Ex. L, Affidavit
of Dr. Griphon (listing the documents he considered, omitting any reference to the financial
information or the confession). Similarly, the District Attorney limited his consideration of the
evidence that the Defendant killed Marjorie Nugent hours before she was scheduled to meet with
bankers and trust officers who would almost certainly have discovered the Defendants scheme.
Ex. H. (District Attorney failed to review any financial records prior to filing his affidavit in the
habeas proceeding)
This powerful evidence of motive and premeditation is not tainted or undermined by the
Defendants new claim of childhood abuse. And this is an important point for the Courts
consideration: the evidence which establishes premeditation is independent of the evidence of
the Defendants prior abuse. Yet the District Attorney has eliminated any consideration of this
evidence of pre-meditation. Even if a fact-finder accepts the Defendants statements that he was
abused as a child, the fact-finder still must consider that the Defendant had committed a multimillion dollar theft scheme, and was within hours of being discovered. The District Attorney did

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 14

not present this evidence to Dr. Griphon. See Ex. L. The District Attorneys failure to consider
this evidence of premeditation creates an appearance of impropriety.
The District Attorneys lack of transparency only heightens these concerns. The Crime
Victims submitted public information requests, asking the District Attorney to identify any
remuneration or gifts received for his participation in making or promoting the movie. But the
District Attorney objected to listing the benefits he has received. See Ex M. Even though it is
common practice for movie producers to negotiate releases with individuals who are portrayed in
commercially-marketed movies, the District Attorney represented that he has no correspondence
whatsoever with the producers, directors, distributors or anyone associated with the Bernie
movie. See Id., p. 1. If the District Attorney has entered any contract with people associated
with the movie, then the District Attorney may well be limited from considering evidence or
presenting facts that are inconsistent with the movies story line.
Relatedly, the District Attorney has received valuable trips and entertainment from people
legally and financially associated with the Defendant.

The District Attorney has appeared

publicly at fundraiser events as well as movie gala events with the Defendants colleagues and
supporters. However, the District Attorney claims to have no correspondence regarding his
participation in these fundraisers and galas, and has declined the Crime Victims request to create
a list of the benefits he has received.
In order to protect the integrity of the judicial process and avoid the appearance of
impropriety, the Court should inquire about any agreements the District Attorney has made
regarding his role in the prosecution of this case, the scope and value of benefits that the District
Attorney has received, and affirmatively establish that the District Attorney does not have

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 15

personal interests or responsibilities that may cause him to not be able to consider, recommend
or carry out an appropriate course of action for the State. Tx. Disc. R. Prof. Conduct, 1.06, n.4.
CONCLUSION
The Crime Victims respectfully move this Court to protect the rights guaranteed by the
Texas Constitution by disqualifying the District Attorney or by other effective procedures. The
Crime Victims additionally request this Court to inquire regarding the potential conflicts of
interest that may limit the District Attorneys ability to represent the State of Texas in this matter.
Respectfully submitted,
Arnold A. Spencer
State Bar No. 00791709
aspencer@akingump.com
AKIN, GUMP, STRAUSS, HAUER
& FELD L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Office (214) 969-2800
Fax (214) 969-4343
Attorney for Crime Victims

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion has been served via
certified mail, return receipt requested upon all attorneys of record including the Panola County
Criminal District Attorneys Office on this _____th day of March, 2015.

Arnold A. Spencer

CRIME VICTIMS MOTION AND BRIEF IN SUPPORT

PAGE 16