By Cindy V. Culp

Tribune-Herald staff writer

The felony theft trial of former Downtown Waco Inc. executive director Margaret Mills is staying in McLennan County, but it will be longer than expected before the case is heard.

During a pretrial hearing in Waco’s 54th State District Court on Wednesday, Judge Matt Johnson denied a motion from the defense to move the case to another county. He also set Nov. 3 as the new trial date. Previously, it had been set to start Sept. 22.

Rick Bostwick, one of Mills’ attorneys, said he was disappointed that the trial was not moved to another jurisdiction. Most of the four-hour hearing was consumed by defense testimony that he said proved Mills could not get a fair trial here because of unprecedented news coverage of the case.

Bostwick also said he regrets that the trial date was pushed back. But he didn’t object to the state’s request for a continuance, he said, because the defense also needs more time to locate missing Downtown Waco documents that are “critical” to Mills’ defense.

The documents in question were generated by Downtown Waco and then given to the city of Waco for storage after the development agency ceased its day-to-day operations, Bostwick said. Although the city has located some of the documents, there are still many outstanding items that the defense hopes can be found within the next few weeks, he said.

“We’d like to get (the case) resolved . . . but we would like to get it resolved in a situation where we’re most likely to get a fair trial,” Bostwick said.

Mills, 67, was indicted in November on first-degree felony charges for allegedly embezzling money while she headed Downtown Waco Inc. The 16-page, 116-paragraph indictment charged that she embezzled more than $200,000, the amount at which a theft case becomes a first-degree felony.

Prosecutor David S. Glickler — a state assistant attorney general who was assigned to the case after McLennan County District Attorney John Segrest recused his office — has said Mills stole about $511,000 from the nonprofit organization since at least April 2003. She reportedly took checks from outside organizations on behalf of Downtown Waco Inc. and deposited those checks into her personal accounts or those she controlled.

During Wednesday’s hearing, the defense first made a motion requesting that cameras and other recording devices be banned from the courtroom. Bostwick argued that cameras detract from the decorum of proceedings and might cause jurors or others to feel the case deserves special attention.

Glickler previously had filed a written response to the motion. In it, he agreed that cameras should be banned, saying they “will have a harmful effect on the jurors and the conduct of the trial so as to deprive the defendant of a fair trial.”

Despite that agreement, Johnson said he will allow a television pool camera in the courtroom during the proceedings. Noting that the 54th Court hosted the first live televised criminal trial in the history of the United States in December 1955, Johnson said it has been the long-standing policy of the court to allow pool cameras.

“I’m not going to treat this case any differently than any other case before this court,” Johnson said.

However, the judge banned other cameras from the courtroom.

After addressing a few minor procedural matters, Johnson then heard the defense’s change of venue motion.

Bostwick said the judge should move the case elsewhere because news coverage of the case would preclude a fair trial. The coverage has been unprecedented, he said, especially considering that Mills is charged with theft and not a more serious, violent crime. The only cases that have garnered more media attention, he said, were the 1982 Lake Waco triple murder and the Branch Davidian saga that started in 1993.

“This is not, by any means, a witch hunt of the media,” Bostwick said. “But we believe that there are times when the jobs of the media, frankly, are in conflict with the rights of a criminal defendant. And we believe this is one of those instances.”

Glicker responded by asking the judge to simply follow the law. If a case is to be moved because of media coverage, the defense must prove such coverage has been “pervasive, prejudicial and inflammatory.”

Glicker also noted that the state obtained several affidavits from community members who said Mills could get a fair trial locally.

After hearing those arguments, Johnson said he had reviewed the defense’s motion and that it didn’t meet the statutory requirements for a change of venue. Therefore, he denied the request.

However, Johnson agreed to a request from Bostwick to hear from defense witnesses on the matter.

The first witnesses called were executives of three of Waco’s television stations. Bostwick asked them whether Mills could get a fair trial in McLennan County.

Virgil Teter of KWTX-TV, Channel 10, said he hadn’t really considered the issue. Dennis Kinney, KXXV-TV, Channel 25, asserted that Mills could indeed be tried fairly, as did Don Bradley of KCEN-TV, Channel 6.

Teter and Kinney also were asked whether they could recall any other theft case that had garnered so much media attention, and both said they could not.

Next up was Garret Schlesinger, who hosts a morning radio program on KWTX-AM under the stage name of Garret Lewis. Bostwick questioned Schlesinger about the way he handles news commentary on his show and related Internet blog, getting the host to acknowledge that he has talked about the Mills case sarcastically.

Bostwick honed in on a photo he said was posted on Schlesinger’s Web site. It showed a doctored photo of Mills in an orange jumpsuit posed between several people protesting conditions at the U.S. detention facility in Guantanamo Bay, Cuba.

Schlesinger testified that neither he nor his webmaster had posted the image. His best guess, he said, was that someone had posted it in a chat room set up for show listeners.

When Schlesinger was asked whether he thought Mills could get a fair trial locally, he said he couldn’t answer the question.

The final media representative called to testify about coverage of the case was Carlos Sanchez, editor of the Tribune-Herald.

Under questioning from Bostwick, he said he believes Mills could get a fair trial here, though no other theft case has garnered as much attention from the newspaper. That attention included him assigning reporters and photographers to stake out Mills’ house overnight, something he has not done for other criminal defendants, he said.

Sanchez also answered questions about comments the public posted in response to stories on the Tribune-Herald’s Web site. Sanchez said some of the comments have been inflammatory against Mills but that the newspaper makes an effort to pull down any inflammatory comments it is alerted to.

The final seven witnesses were community members who testified they thought an unbiased jury would be impossible to find locally.

They included former Waco city councilman Maurice Labens; former Tribune-Herald managing editor Barbara Elmore; longtime attorney Tom Moore Jr.; and William Charles Treadwell III, an Episcopal priest.

All said news coverage of the case has resulted in most local residents deciding Mills is guilty. A couple of the witnesses also testified that they could not rule out a conspiracy by influential community members to keep Mills from getting a fair trial.

Glickler did not call any witnesses on the state’s behalf.

He simply referenced the seven affidavits he had filed in the case.

As part of his summations, Bostwick mentioned those affidavits, noting that three were from people who said they thought Mills could not receive a fair trial here. They were from Christina Stopka, deputy director of the Texas Ranger Hall of Fame and Museum; real estate agent Patrick Farrar; and another local resident, Jolea K. James.

Bostwick also noted that one of the affidavits that asserted Mills could get a fair trial in Waco was from the secretary of the Waco Police Department’s Special Crimes Unit, which investigated the allegations.

But the most disturbing affidavit, Bostwick said, came from a local man who wrote, “I’d like to see the trial stay in McLennan County, even though she may not get a fair trial.”

After hearing Bostwick’s arguments, Johnson said he was not changing his mind about moving the trial.

However, he said that if it becomes clear during jury selection that Mills’ case cannot be heard fairly, he won’t hesitate to act at that point, even if it means moving the trial out of the county.

Glickler declined comment after the hearing.

Bostwick said the defense was disappointed with the judge’s ruling about moving the trial. But he said he and fellow attorney Pat Beard still will launch a vigorous defense of Mills.

“You live with what you got, and you try the case,” he said.

cculp@wacotrib.com

757-5744