Monday, February 03, 2014

The Walther Files: Since when does illegally seizing 400+ kids qualify as 'minimal wrinkles' in Great Eldorado Polygamist Roundup?

Grits has been complaining that the mainstream news media - while trumpeting the most salacious crime coverage they can find to maximize the number of eyeballs viewing their product - have virtually ignored the most important election in the state concerning the criminal-justice system: The race to fill three soon-to-be open slots on the Texas Court of Criminal Appeals where three long-time members are retiring.

Perhaps, though, I spoke too soon. If they're going to flat-out spread misinformation about the races, maybe it'd be better if they said nothing at all. The Dallas Morning News last week endorsed Barbara Walther, the judge who presided over the Great Eldorado Polygamist Roundup, over Bert Richardson, a well-respected Republican out of San Antonio, in the GOP primary for Place 3 on the CCA. That's their prerogative, but the editorial said they endorsed Walther specifically because of her role in the YFZ Ranch fiasco, declaring, "It was an exceedingly complicated case involving 416 children, parents, Child Protective Services and hordes of lawyers. Her ability to keep a semblance of order and dispense justice with minimal wrinkles impressed us as remarkable, given the often chaotic scenario."

That's simply ridiculous given that Walther's own judicial overreach created the "chaotic scenario" in the first place. The Third Court of Appeals ruled (and the Texas Supreme Court agreed) that Walther abused her discretion by ordering more than 400 children to be taken from their parents based on their religious views (a prospect that should worry every religious home-schooler in the state, btw). Since when does a judge abusing her discretion to order 400+ children seized count as "minimal wrinkles"?

The appellate court ruled that Walther erred because she treated the entire 1,700 acre ranch on which many different families resided as a single "household" and failed to require that CPS demonstrate individual children had been abused before taking them from their parents, instead assuming their parents' religious beliefs in and of themselves justified rounding kids up by the busload and dumping them into the foster system. Readers will recall that the entire episode was based on a hoax phone call and Walther conspicuously avoided ever requiring the hoaxer - a woman named Rozita Swinton who called in her false allegations from Colorado Springs - to testify in court. As Grits wrote in 2010:
To repeat what I wrote last year, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that were to happen, I suspect it would reveal improprieties by authorities that would invalidate the search warrant used to get onto the property. I continue to believe officials were looking for any excuse to launch such a raid and knew or should have known at the time they went in that the call was a likely hoax.
One of her supporters campaign consultants insisted in the DMN comments that Walther "rescued more than 400 children from sexual abuse," but that's an absurd claim given that the appellate courts reversed her decision and all but a handful of the kids were returned to their parents. They weren't "rescued" from anything, just traumatized by the state for a few weeks and then released. Indeed, a couple of the attorneys assigned as ad litems in the case have expressed to your correspondent that Walther's actions probably prevented saving a handful of children who really were abused because, by issuing such a sweeping order to round up everyone, she made it impossible to separate the wheat from the chaff.

The Great Eldorado Polygamist Roundup is pretty much Walther's only claim to fame and it was a judge-created fiasco on a scale never before seen in the history of Texas jurisprudence. For the Dallas News to use that episode to justify her endorsement either bespeaks a lack of due diligence by the editorial aboard or an explicit ratification of judges abusing their power whenever they decide the ends justify the means.

For fans of limited government and judicial restraint - which in a Republican primary surely should be the proper measuring sticks - Bert Richardson is clearly the superior choice in that race. It's disappointing the Morning News couldn't see that. Let's hope GOP primary voters do.


doran said...

Grits said: "... either bespeaks a lack of due diligence by the editorial aboard or an explicit ratification of judges abusing their power whenever they decide the ends justify the means."

I'll put my small bet on the "ratification" of abusive judicial power. The DMN has never had much to say against abusive use of judicial authority. Indeed, the DMN's traditional constituency has for years been in favor of abusive judicial power, because that has been their preferred method of keeping Hispanics, blacks, liberals, and radicals under control. That has traditionally been what conservatives in Texas were all about.

The phenomena of right-wing small government advocates amongst Texas Republicans is fairly new. It will be awhile before it takes hold in a significant way.

Anonymous said...

Speaking of Due diligence, I read you post and find it smacks of appalling bias in this matter. Laying that whole mess at her feet smells like something I would see on Fox news. I do not always agree with you, not that you care, but I have always found you to be extremely reasonable, even when others are feeding in the bloody water like sharks, so it pained me to read this biased put down of an excellent Judge.
Regardless, I would have been more supportive if you had pointed out that Dallas Morning News should not have made their decision solely on the handling of that case and not then taken the stand to paint what I believe is an unjustified picture of an abusive judicial power. It seems you did the same thing the DMN did in your labeling this Judge with one case.
If you do not believe that the case was exceedingly difficult, what would you define as such?
I am not saying she was correct, I just think she serves a poor scapegoat for your endorsement of Bert Richardson.

Jerri Lynn Ward said...


Yes it should be laid at her feet. Did you ever read the transcript of the adversary hearing? It is on her head because she was responsible for being the check and balance on DPS. She was an abject failure at the job she was supposed to do which was to hold the executive branch accountable to the law. She was intemperate about the search warrant, but her handling of the adversary hearing was either complete incompetence or evil manipulation.

Oh, and Scott has done plenty of due diligence. Years worth, in fact.

Gritsforbreakfast said...

@2:15, I barely know Bert Richardson - we've never met face to face. My endorsement of him is founded almost entirely on my opposition to Walthers, which itself is purely a function of how awfully she performed in this case.

Also, Jerri's right - the whole episode can and should be laid at her feet and is grounds by itself for opposing her candidacy.

rodsmith said...

I don't remember the exact number but wasn't a number of those so-called children eventual after weeks in state child expert's custody discovered to not even be children in the first place?

Yes their leader was slime and he got what all slime eventually end up with. But that does not allow the state to toss the law.

Anonymous said...

Grits: Please don't "endorse" Bert Richardson simply because he's not Walther. Appalling as Walther's conduct with regard to the polygamist case was, that should not be allowed to obscure the fact that Richardson is an intellectually lazy judge who conducts "research" by getting on the phone to the DA's appellate section, and has been known to "rule" by reading from Lang Baker reports - the legal equivalent of Cliff Notes. And when he does rule, he consistently rules for the prosecution. He may be no worse than Walther, but he's simply unworthy of an endorsement. Putting him on the CCA would be a travesty.

James Gerard McDermott said...

The previous comment about Bert Richardson is just plain falsehood. And I am willing to put my name on this comment to back up my opinion.

I have been a criminal defense lawyer for almost 10 years. I have tried several cases in from of Bert Richardson, with some complicated and messy legal issues. He has always studied the issues, consulted with others to check his blind spots, ordered briefing when necessary, and engaged in argument. He runs a clean and efficient courtroom that is respectful to all parties. And he rules timely and fairly--for the defense as well as the prosecutor. Anyone who has actually practiced in front of him could not claim that he "consistently rules for the prosecution."

Bert Richardson is a hardworking judge. We couldn't do better than to have him on the CCA.

Gritsforbreakfast said...

@6:18, among attorneys I've consulted who've practiced in front of Richardson, they've all described him as fair and even-handed, which in the end is all one can ask of a judge. They can't all be geniuses and even the best are only geniuses on their rare, best days. The workaday stuff doesn't require brilliance but it does require being open-minded and considering both sides.

Of attorneys who've described their experience of Judge Walther in the Great Eldorado Polygamist Roundup, particularly the ad litems, many described her as the opposite of fair and even-handed - essentially an advocate on the bench.

I've learned from hard, bitter experience that no one I support will agree with me all the time. But I also know that, if one actually plans to vote, "none of the above" isn't on the ballot and declining to choose serves little purpose. One of these two will fill the seat. Given that, from what I know today, I'd prefer Judge Richardson.

Anonymous said...

Hell must be freezing over because I agree with Grits.

"Red" Merriweather Coast said...

I have to agree with your comments on the case, made in older posts, that raiding the place and taking the kids away made it harder for people being abused to seek help. I was homeschooled, and being "taken away" was a big fear for me, growing up. (I was mostly worried about being separated from my siblings; since I had six sisters and two brothers, I knew if CPS put us in foster care, we'd be broken up.)

The fear was instilled in me since childhood, but incidents like this would have reinforced my fears. Some families did have trouble with CPS or similar services in their counties, and that didn't help. My parents used that fear to further control who I talked to, what I was allowed to say, when I was allowed to go outside, and what activities I was allowed to do outside the home. Overall, it had a really detrimental effect on my mental well-being. And my family situation wasn't anywhere close to being as insular as the kids in an FLDS compound.

FleaStiff said...

Neither newspaper editorial boards nor the public at large care about rights, they care about the lurid details of the abuse even if they are imaginary.

doran said...

What I gather from this conversation is that one of the judicial candidates is considered to be the lesser of two evils, while the other is considered to be the evil of two lessers.

Sounds about right for a Texas GOP primary race.

Anonymous said...

We are marching to bedlam with our shiny tin foil hats on.

A much greater good was done at the "compound" than the dribble over due process. This place was a child molester's dream come true. Yes, if cult crazed people say that their religion compels them to take a child's "flower" in a group orgy fashion then hell yes they need to be closely watched.

Anonymous said...

It seems very ironic that Bert Richardson threw his hat in the ring after finding out that Walther was running for this position. Since Walther presided over the Polygamist Sexual Assault trial resulting in LDS Church Member Warren Jeffs' imprisonment, she became very unpopular with the Mormon community. Now Judge Bert Richardson, also a LDS Church Member and BYU graduate has decided to run against Walther. Is this a one in a million coincidence or a case of "Mormons sticking together?"

Anonymous said...

To the uniformed and bigoted, Anonymous @5:07 there is a big difference between the FLDS and the LDS organizations. Hard to believe after the last election, there are people that ignorant & bigoted in this country. Why don't you follow what the DMN said and take the high road like they pointed out both candidates have done.

Former Judge said...

The mainstream LDS Church has gone to great lengths to divorce itself from the fundamentalist sect that took up residence in Schleicher County. Members of the mainstream LDS Church have no connection to the FLDS sect. The comments by Anonymous are factually incorrect in several ways. First, Warren Jeffs is not an LDS church member. He is an FLDS Church member which is quite different. Second, Judge Walther did not become unpopular with the Mormon (LDS) community. Third. Richardson publicly decided to run before Walther decided to do so. Thus, Richardson did not decide to run after finding out that Walther was running for the position. Fourth, Anonymous equates Bert Richardson with Warren Jeffs and calls them "Mormons sticking together." This is an outrageous false claim. I don't know if Anonymous is malevolent or just uneducated on these issues. Either way, his comments are offensive.

Mark Stevens said...

I have been a criminal defense lawyer in Texas for 35 years and have practiced before both Bert Richardson and Barbara Walther, and Richardson is clearly the better person to serve on the Texas Court of Criminal Appeals. He prosecuted in both state and federal court where he handled trials and appeals of serious, complex cases, and, simply put, he was as fair, honest, and easy to get along with as any prosecutor I ever worked with. He served as a District Judge in San Antonio for 10 years and he was widely respected for appropriate judicial temperament, knowledge of the law, and willingness to listen to everyone who appeared before him. The court of criminal appeals will lose three intelligent, honorable judges this year, and, unless they are replaced with persons of comparable abilities, our justice system will surely suffer. Bert Richardson is the right choice in Place 3, and Jani Jo Wood is the best choice in Place 4.

Anonymous said...

From the last 3 comments me thinks this is a one in a million coincidence Anonymous@5:07.