When Texas Attorney General Ken Paxton was booked into the Collin County Jail last Monday, August 3, 2015, on charges of securities fraud, his mugshot shows him in a suit and tie, giving a rather inscrutable smile/sneer (I suppose your interpretation of the photo will depend largely on your opinion of the man.) Missing from the photo is a towel, which is apparently a standard practice for booking photos in Collin County, according to Mike Drago of the Dallas Morning News:

When my colleague Jennifer Emily reported on the practice in 2006 (it was eight years old at the time), Collin County officials explained that the intent was to help avoid wrongful identifications in photo lineups. If one guy is clearly wearing a suit and the other guy a dirty, old t-shirt, it could lead witnesses to finger the wrong guy. Or so the thinking goes.

Lt. Larry Smart said at the time: “We decided to make everyone the same.”

I couldn’t resist.

If it is the county’s policy to take mugshots with a towel, then taking Paxton’s photo without the towel seems like special treatment. Drago certainly thinks so:

Maybe it’s tempting to brush off the fact that there was no white towel under Ken Paxton’s crooked smile when he posed for his Collin County booking mug. Every other person booked there gets the ridiculous white towel, but not Paxton. So what?

***

But I don’t think it’s a trifle at all. I think it matters, if only as a tiny reflection of a dual justice system that treats nearly all of us one way and a very few of us another. It’s a system that willfully buries human beings in miscarriages of justice simply because they lack the means and access to power and money that Ken Paxton enjoys in spades.

Why should Paxton have been allowed to evade the humiliating white towel treatment when you or I wouldn’t?

As it turns out, it wasn’t anyone with the Collin County Sheriff’s Office who made the call to leave out the towel. It was Judge George Gallagher in the 416th District Court, who issued a written order on August 3 which states, in full:

The Court has been made aware of the policy of the Collin County Sheriff’s Office to photograph inmates in the Collin County jail while the inmate is wearing a towel around the neck of the inmate. Due to the high profile nature of this case and the Defendant’s right to a fair trial, the Court hereby ORDERS the Sheriff of Collin County, Texas to refrain from making the Defendant wear a towel while being photographed in the custody of the Collin County Sheriff’s Department.

It is possible that the judge issued this order on his own, but it seems more likely that Paxton’s legal team made some sort of expedited motion on the morning of August 3. My first thought was also that it seems highly unlikely that this would be the first time that a sitting Collin County district judge had heard of the towel thing, but Judge Gallagher is actually a judge in the 396th District Court in Tarrant County. He will be presiding over Paxton’s case because, according to an anonymous source cited by the Fort Worth Star-Telegram (huge grains of salt!), multiple Collin County judges recused themselves.

The point seems to be that the judge does not think Paxton will get a fair trial if his mugshot makes him look like every other individual booked into the Collin County jail—well, that’s one way of looking at it, anyway. A policy that was, at least according to Collin County officials, intended to make everyone appear equal has now been found, by one visiting judge presiding over the case of one sitting Attorney General, to make the defendant look guilty.

Look, I am all for removing elements from our criminal justice system that unfairly burden defendants in favor of prosecutors for no apparently valid reason. But here’s the thing—before now, one could plausibly argue that the towel thing, while humiliating, did not significantly impact the interests of justice because everybody had to wear one in their mugshot. The stated intent was to remove extraneous details that might, consciously or subconsciously, sway people’s opinions. Judge Gallagher’s order destroyed that rationale. Now it’s just a thing that most people arrested in Collin County have to do.

That brings me to my second point: Would anyone else going before the courts of Collin County get this sort of consideration? True, most people are not as high-profile as Ken Paxton, but by making an exception to the usual rule, the court has effectively stated that Ken Paxton is exceptional. Obviously he is entitled to a fair trial, but is he more entitled to a fair trial than others? Does going the extra mile to ensure that his trial is fair, by giving him accommodations others probably would not receive, make other people’s trials less fair? It might. I hope a slew of motions in upcoming Collin County criminal cases test that point. The county’s justice system has only Judge Gallagher and Ken Paxton’s legal team to blame.

(h/t Texas Standard)