A tardy motion to recuse in the Willingham court of inquiry

Apparently not everybody is as revved up for Flawed Forensic Science Week as I am here at Grits, and some would like to put a stop to one of its featured events.

In a motion filed late yesterday, Navarro County DA Lowell Thompson asked Judge Charlie Baird to recuse himself from the probable cause hearing for a Court of Inquiry scheduled to begin tomorrow in the Todd Willingham case, reports Steve Kreytak at the Austin Statesman:

Navarro County District Attorney Lowell Thompson has filed a motion asking for Judge Charlie Baird’s recusal from tomorrow’s planned court inquiry into the case of Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three young daughters.

The motion, filed in Travis County late Monday, asks Baird to recuse himself or to refer the motion to another judge to conduct a hearing on his fitness to hear the case, which Baird scheduled for a two-day hearing to begin tomorrow. While acknowledging that it was not filed within 10 days of the hearing, as required by law, the motion cites several grounds, including that Baird has previously participated in the case as a member of the Texas Court of Criminal Appeals. In 1995 Baird joined that court in voting to uphold Willingham’s capital murder conviction. 

Makes you wonder exactly what might come out at the hearing that the Navarro DA would prefer didn't become public?

To this non-lawyer, many of the arguments described by Kreytak seem irrelevant: It hardly matters, for example, that Baird heard the Willingham case when he sat on the Court of Criminal Appeals because the court of inquiry is aimed at determining whether there was official oppression by public officials. In other words, the hearing is only tangentially related to Willingham's case; it's not a cause of action that Baird presided over in the past. Similarly, the fact that Baird received an award from an anti-death penalty group is a meaningless red herring unrelated to the instant case. And quoting comments from an online newspaper site in a legal brief "as proof that there is a perception of impropriety among members of the public" is just pathetic.

Thompson's main argument, though, is that the statute requires a different judge to preside over any evidentiary hearing than the one who files the probable cause affidavit to initiate the proceedings. Indeed, the statute specifically states that "The presiding judge shall not name the judge who requests the Court of Inquiry to preside over the Court of Inquiry," a point made by Kent Scheidegger at Crime and Consequences. But upon closer examination, the DA's motion (and Scheidegger's critique) is jumping the gun: Judge Baird is holding this hearing to determine whether there is probable cause to initiate a Court of Inquiry. His role is essentially similar to that of a magistrate determining whether there is probable cause to obtain a search warrant. Given that, it's hard to see the motion to recuse prevailing, even if Thompson had filed it in a timely fashion.

Since the DA filed his motion late, it remains to be seen how or if Baird will respond (or even if the DA has standing to intervene). I plan to be at his courtroom tomorrow to watch the proceedings, assuming they actually take place. It'll be interesting to see whether the Navarro DA's office shows up as well.

MORE: From AP, the Fort Worth Star-Telegram, the Texas Tribune, KWTX-TV, and the Corsicana Daily Sun.