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Court rules on Mike McCarty's appeal

The Ninth District Court of Appeals in Beaumont has ordered a new criminal trial for Mike McCarty based on faulty jury instructions. We reported Mr. McCarty was serving as Liberty County Pct.1 Commissioner back in April 2017 when he was convicted on two Class B misdemeanor charges of Abuse of Official Capacity.  The state was represented in that criminal trial by a special prosecutor - Polk County District Attorney Lee Hon. The trial in Liberty County’s 75th District Court was presided over by visiting Judge Joe Ned Dean. Following McCarty’s conviction, Judge Dean sentenced him to six months in the county jail but probated, or suspended, that punishment for two years. The judge also fined Mr. McCarty $2,000. On Abuse of Official Capacity convictions, Texas law requires removal from office. However, in this case, defense attorneys filed a Notice of Appeal. Once that took place, it was up to the judge whether or not to suspend that required removal during the appeals process. Judge Joe Ned Dean opted to allow McCarty to continue to serve. However, in a separate matter, Liberty County Attorney Matthew Poston filed for a civil removal. A hearing on that matter was handled by visiting Judge Ernest McClendon. He ordered McCarty’s temporary removal from office and, on the recommendation of Liberty County Judge Jay Knight, appointed Bruce Karbowski to serve in his place. Now, here is the purpose of today’s report. The criminal court of appeals has issued a ruling in the original criminal matter. In his appeal, McCarty sought to overturn the case based on several arguments, including the merits of the case. However, it was his argument on faulty jury instructions that gained the attention of the appeals court judges. Mike McCarty and his attorney asserted that the jury instructions should have included accomplice witness instructions for Jo Carol Bolt and David Murphy. In this case, accomplice witness instructions were given for two other witnesses – Clair “Buck” Gordon and Koby Box. The appeal argued that by not giving the same instructions for Bolt and Murphy, the jury was allowed to use their testimony to corroborate the testimony of Gordon and Box. If all four had been included in the accomplice witness instructions, corroborating testimony would have been required from additional testimony and evidence from other sources. In the appeal, McCarty argued that caused a – quote – “impermissible accomplice witness loop, which resulted in harm to him” – end quote. The court of appeals agreed with that argument. In the ruling, the court of appeals did say there was enough evidence in this case to legally support the jury’s findings of guilt. However, the judges’ decision also said the failure to submit accomplice-witness instructions for both Jo Carol Bolt and David Murphy resulted in harm calculated to injure the rights of the defendant. With that statement, the Ninth Court of Appeals has reversed the judgments against Mike McCarty and remanded the case for a new trial on the merits. Special Prosecutor Lee Hon has not returned our calls, so no word on whether or not he will re-try the case. It’s important to note that Mike McCarty is still removed from office based on the civil case’s temporary order. Liberty County Attorney Matthew Poston said a change in that decision would require a trial or dismissal of the civil case.

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