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The clock is quite literally running down on the impeachment trial of suspended Attorney General Ken Paxton.
Lt. Gov. Dan Patrick on Monday morning told the Texas Senate — which is serving as the jury — that the historic trial could wrap up by the end of this week.
The prosecution and the defense were each given 24 hours to present their case and cross examine witnesses.
By the close of Monday — the fifth day of the trial — attorneys for the House impeachment managers who are prosecuting the case against Paxton had around 9.5 hours left, while Paxton’s defense lawyers had a little more than 12 hours.
The prosecution used more than 40% of its time on just four witnesses called in the first week: Jeff Mateer, Ryan Bangert, Ryan Vassar and David Maxwell, who were among the top deputies in the attorney general’s office who reported their boss to the FBI.
In total, eight witnesses have been called by the prosecution. Paxton’s lawyers have yet to call their own witness, and have used their time on cross examination. But it’s appearing unlikely either side will make a significant dent in the list of nearly 150 witnesses subpoenaed, according to a report published by the Dallas Morning News.
If both sides keep their current pace, it could pose problems for the House prosecutors who have less time left than Paxton as of Tuesday morning. They could find themselves unable to cross examine the defense's witnesses if they run out of time.
"I want to be very clear that one side or the other could have more time left that the other side could not respond to," Patrick warned both sides Monday. "Those are the rules that both sides proposed and agreed to its up to you to strategize and manage your time properly."
Yet while the impeachment trial has been unprecedented in many ways, the use of time limits is not unique, particularly in civil trials. Often, judges do not want to waste jurors’ time and time limits can reduce court costs.
Sam Sparks, a federal judge based in Austin, often sets time limits for civil trials in his courtroom, using a chess clock to keep track of each side.
Nonetheless, the time limits are weighing heavily on the minds of the attorneys involved in the case and are driving strategies on both sides.
On Monday, House prosecutor Rusty Hardin grew exasperated with defense attorney Tony Buzbee for peppering them with objections, drawn out with additional commentary.
“He’s using up our time,” Hardin complained to Lt. Gov. Dan Patrick, serving as judge of the trial. “He’s been speaking through objections all day.”
Earlier, House prosecutor Terese Buess questioned Katherine “Missy” Cary, ex-chief of staff in Paxton’s office, about the perception of the attorney general’s office at that time and the deputies who were working under Paxton. Buzbee again interrupted the witness with objections, arguing the prosecution’s questions were vague or speculative.
Buess, growing frustrated by the interruptions, said she was willing to ask the question about each of the deputies individually if necessary.
“You’re on the clock,” Buzbee reminded her.
Mike Golden, a former trial lawyer and director of advocacy at the University of Texas Law School, said the defense attorneys know what they’re doing.
“There's certainly a side benefit,” he said. “Which is as a result taking the House Managers team longer to present their evidence. And I think there's no doubt that that is working.”
Legal experts said the political stakes of this trial means that both sides are approaching time constraints in different ways than they might in a traditional trial as they court multiple audiences in and out of the Senate chamber.
“Both sides are undoubtedly trying to not just speak to the senators, but they're also trying to make political points with the people outside the impeachment [proceedings] in the hopes that they will put pressure on the senators one way or another,” said Shannon Ratliff, a trial lawyer in Austin with more than five decades of experience. “It seems to me that the audience might be a little bit broader than you would have in a trial.”
On the House side, lawyers have used a sizable amount of their allotted time to lay out the conservative bonafides of the first four witnesses, an apparent attempt to convince senators that the whistleblowers who reported Paxton to the FBI for alleged bribery and misuse of office are not working with liberal forces to remove Paxton from office.
“It's not permissible in court to try to court the jury's favor by suggesting that a witness shares religious beliefs with the jury,” said Golden. “The battle that the House managers are fighting is they need to make sure that the senators believe these witnesses and understand that these witnesses are credible.”
Meanwhile, experts say Paxton’s team is making “emotional pleas” to the public.”
“Paxton’s team is trying this case to the media and not to the senators,” Golden said. “So they need to decide, ‘hey, four more hours of media coverage is four more hours of media coverage. That's great. We’ll use every single last minute, even if there's no realistic chance that at this point you're swaying the opinion of the people who are making the decision.”
Traditionally, experts said, time constraints benefit the defense because the prosecution has more evidence to present and has the burden of proof to convince a jury of their allegations.
“It’s a hard thing to balance, being efficient and being thorough,” Golden said, adding that it can force the prosecution to prioritize efficiency.
Still, Ratiff said a good prosecutor won’t let any time limits rush them through important testimony.
“You don't want to get up there and rush through a direct [questioning] when you're trying to make a lot of your most significant points,” Ratliff said. “That's the meat of the coconut right there. You really want the witness going at a pace that will allow the people to absorb it.”
Once the two sides rest, they each have an hour to present rebuttal arguments before they each have one hour to make closing arguments. Golden and Ratliff said it is unusual for both sides to get time for rebuttal arguments, and each side will have limited time to make their rebuttal case.
“An hour is going to be very hard to get one or two folks up even to attack just one or two points, which is the purpose of a rebuttal,” said Golden. “It will require a lot of efficiency by the House manager's side to make that happen.”
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