Tuesday, October 05, 2010

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.


Anonymous said...

You know, asking Baird to recuse himself in this instance is like asking Lowell to withdraw because his English teacher in high school happened to be the wife of the prosecutor who put Willingham in jail. Not a very strong connection.

I guess Lowell didn't listen to me when I told him to do the right thing.

Shameful, Lowell. We expected better.

Quit protecting one former prosecutor and judge, and one fire investigator, and give Navarro County a good name for once.

Anonymous said...

Hey Grits, what's the statute of limitations on Official Oppression? Isn't that just a misdemeanor?

Anonymous said...

I think this is a ruse, to make it look even more solid when Judge Baird finds there is no probable cause to look into anything.

There's a lot of behind the scenes political horse trading on these death penalty things.

Anonymous said...

DA's act like gods in the courtroom. 10 days is the rule. Follow it. Those clowns would be screaming bloody murder if a defedant filed that motion the day before trial

Anonymous said...

How could the prosecutor file his motion ten days in advance when Judge Baird only ordered the Court of Inquiry nine days ago on September 27th?

Anonymous said...

Grits, how is asking for a different judge an attempt to keep things from being public? And as far as missing the 10 day window, we've already accepted the notion that being "right" is better than being legal.

Anonymous said...

This whole thing smells. It's so obvious, even to those of us on the defense bar. The statute of limitations ran many years ago. But I suppose this wouldn't be happening if the committee looking into Willingham's case would actually do something. Of course, we all know why they haven't...the Governor wants the bad press to come out AFTER the election.