Where Alex Jones goes, strangeness tends to follow. A sequence that came during his cross-examination in a Texas courtroom on Wednesday was, for legal observers and laypeople alike, a perfect example.
Mr. Jones was testifying at a trial that will determine how much he should pay the parents of a child who died in the mass shooting at Sandy Hook Elementary School in Connecticut in 2012. He had already lost the case by default after failing to produce documents and testimony related to his spreading of conspiracy theories about the shooting.
In the midst of cross-examination, a lawyer for the parents, Mark Bankston, sprung a surprise: Twelve days earlier, lawyers for Mr. Jones had sent data from his iPhone, including two years’ worth of text messages, to the plaintiffs.
The revelation prompted Mr. Bankston to suggest Mr. Jones had committed perjury in previous depositions. It also raised questions about how, exactly, the phone data had been shared.
Here is what legal experts thought of the moment when Mr. Jones was confronted with his phone data.
Attorney Mark Bankston told #AlexJones that his attorney messed up and sent him Jones’ entire cell phone history. “Did you know that your lawyers messed up and sent me your entire cell phone texting history 12 days ago?” Bankston asked. “You know what perjury is right?” pic.twitter.com/IfIiP5UTIg
—Law&Crime Network (@LawCrimeNetwork) August 3, 2022
Alex Jones did seem surprised, but was this actually unusual?
“It’s wild,” said Ellen Yaroshefsky, a distinguished professor in legal ethics at Hofstra University. “It’s really wild. It’s a wild situation in a wild case with a wild person.”
The exchange was eye-opening for several reasons. Information relevant to such litigation is typically handed over before trial, in a process called discovery.
Bruce Green, a law professor at Fordham, where he directs a center for law and ethics, said that Mr. Bankston, as part of that process, had almost certainly requested texts and emails Mr. Jones had sent pertaining to Sandy Hook.
Even if Mr. Jones’s lawyers wanted to withhold certain of his communications as privileged, they would have had to supply a list of those documents to the plaintiffs’ lawyers, who could then have tried to gain access to the documents by appealing to the judge.
Steven Goode, a professor at the University of Texas law school who specializes in trial and appellate law, said in an interview that if what Mr. Bankston said on Wednesday was accurate and that Mr. Jones’s lawyers had failed to take action after they learned what they had done, “I would find that stunning.”
Why should we believe what the parents’ lawyer said?
Mr. Green said Mr. Bankston was almost certainly telling the truth about how he had come into possession of the phone records, for two reasons. First, lawyers for Mr. Jones did not contest his presentation in court, which allowed the records to be admitted as evidence. Second, it would be a disciplinary violation for Mr. Bankston to lie to the judge.
In most states, ethics rules require plaintiffs’ lawyers to notify their defense counterparts of inadvertent disclosure. Texas, however, does not have such a rule. Still, Mr. Bankston said in court on Wednesday that he had informed Mr. Jones’s team of the disclosure, saying, that “when informed,” the lawyers “did not take any steps to identify it as privileged or protect it in any way. ”
Professor Goode said that if Mr. Bankston’s description was accurate, he had given a lawyer for Mr. Jones the opportunity to assert privilege over the material in a more generous way than was required.
On Thursday, a lawyer for Mr. Jones, F. Andino Reynal, filed an emergency motion requesting that a judge order Mr. Bankston to return all hard copies of the documents produced from the cellphone records, to seal those already entered into evidence and to give his team a chance to provide replacement copies of relevant evidence.
At a hearing on the motion, Mr. Reynal also called for a mistrial, based on Mr. Bankston’s use of the cellphone records. He said that after the documents had been turned over inadvertently, he had asked Mr. Bankston to disregard the link he had been sent and had expected the request to be honored.
Mr. Bankston, in response, said that the words “please disregard” had created “no legal duty on me whatsoever,” adding that he had been no under obligation not to look at the documents. He called the motion “frivolous.” (He also clarified that the link to the records had been sent by Mr. Reynal’s legal assistant.)
The judge, Maya Guerra Gamble, denied the mistrial request and the motion.
Did Mr. Jones commit perjury? If so, is he likely to face consequences?
Experts said it was unclear whether Mr. Jones would face perjury charges. Under Texas law, a person can be charged with perjury, a misdemeanor, if he makes a false statement under oath, or if, while under oath, he swears to the truth of a statement previously made, with a clear understanding of the statement and the intent to deceive. The person can be charged with aggravated perjury, a felony, if the false statement is made in connection with an official proceeding and could have affected the outcome of the case.
If investigators with the Travis County district attorney’s office investigate the case and find that Mr. Jones committed perjury, he could be charged with a crime. The office did not respond to a request for comment.
“At one point the judge actually said to Jones, you believe anything that comes out of your mouth at the time you say it,” Professor Goode said. “I don’t know what he believes or doesn’t believe, so I have no idea whether the Travis County prosecutors would be in any way interested in prosecuting or whether or not they’d actually be able to make out a case.”