November 03, 2005
One recusal motion deserves another

Fight fire with fire, I guess.

In an unprecedented move, Travis County District Attorney Ronnie Earle filed a motion Thursday asking a Republican presiding judge to remove himself from the decision about who will be the trial judge in the conspiracy case against U.S. Rep. Tom DeLay, R-Sugar Land.

Earle, a Democrat, argued that Judge B.B. Schraub, the presiding judge for the 3rd Administrative Judicial Region, should step aside for the same reasons that state District Judge Bob Perkins, a Democrat, was removed from hearing DeLay's case: Both had given political donations.

In the retaliatory motion, Earle wrote that he was using the same rationale that DeLay's lawyers used to get Perkins removed from the case. He said Schraub of Seguin, like Perkins of Austin, is a fair and impartial judge with a "sterling reputation" of honesty and integrity.

But Earle wrote that's "unfortunately no longer the standard in our state for the judiciary." He argued that Schraub could be personally biased for DeLay and against Earle.


Schraub appointed a retired Democratic judge, C.W. "Bud" Duncan of Bell County, who ordered Perkins to step aside after a four-hour hearing Tuesday. That left Schraub to find a replacement. He told the Associated Press he was looking at retired judges outside Travis County.

The issue of whether a judge outside or inside Travis County hears the case could have a bearing on an array of pre-trial issues, particularly whether DeLay could get a fair trial in the heavily Democratic county that he had split between three congressional districts in 2003 to try and defeat U.S. Rep. Lloyd Doggett, D-Austin.

Schraub declined to comment on the motion. DeLay's lead lawyer, Dick DeGuerin, was not immediately available for comment Thursday.

According to Earle's motion, Schraub has given $5,600 roughly the same amount as Perkins to Republican candidates, including President Bush, U.S. Sen. John Cornyn, Gov. Rick Perry, state Sen. Jeff Wentworth and state Rep. Ed Kuempel.

Earle wrote that the $1,500 to Perry was particularly troubling because Perry was a central player in DeLay's successful attempt in 2003 to have Texas congressional districts drawn to his liking. As governor, Perry called the special legislative sessions where the districts were redrawn to shift the balance of power in the congressional delegation from Democrats to Republicans.

The prosecutor also noted that Perry appointed Schraub as presiding judge and Schraub is up for re-appointment in January.

Earle suggested four options for breaking the partisan logjam over naming a judge to hear the DeLay case.

He asked Schraub to assign the case to another Travis County district judge; appoint a Travis County presiding judge to assign the case in the normal court rotation; to step aside voluntarily; or ask the governor to appoint the Texas Court of Criminal Appeals to hear Earle's motion to force Schraub to be removed.

First things first: If the words "publicity stunt" escape Dick DeGuerin's lips, so help me God I'll hunt him down and slap him into submission.

Second, according to the Quorum Report, Judge Schraub has recused himself and referred the matter of appointing a replacement judge to State Supreme Court Justice Wallace Jefferson. On the matter of substance, I doubt it makes any difference. Earle made his point, apparently.

Next, I sure do hope that there's a judge with no recent record of giving or receiving campaign contributions out there in the state somewhere, presumably in a hermetically-sealed environment, or maybe a basement bomb shelter from the 1950s. I was only joking when I suggested that we just move this whole circus to the World Court in the Hague, but maybe it's not such a bad idea after all.

And finally, I repeat what I said earlier about what the new judge should do. The first order of business should be to accept all that has gone on before, and move on immediately to new business. All in the interest of granting Tommy's wish for a speedy trial, you understand.

UPDATE: Here's the removal motion (PDF). And of course, as this story notes, the merry go round can keep on spinning if someone is inclined to keep turning the crank:

The administrative judge who was to pick a new trial judge for U.S. Rep. Tom DeLay withdrew today because of a challenge to his impartiality and turned the selection over to Texas Supreme Court Chief Justice Wallace Jefferson who was endorsed by the DeLay-founded Texans for a Republican Majority in 2002.

The Jefferson endorsement news release listed DeLay co-defendant John Colyandro as a contact for the news media. Jefferson also in 2002 actively campaigned with Texans for a Republican Majority, or TRMPAC.

One campaign trip Jefferson made on behalf of TRMPAC used an airplane provided by San Antonio lawyer James Jonas, who is law partners with another DeLay co-defendant, Jim Ellis.

Jefferson also shared a campaign treasurer with TRMPAC, Bill Ceverha of Dallas. Also, Bill Ceverha of Dallas in 2002 was the campaign treasurer for both TRMPAC and Jefferson's election campaign.


DeLay attorney Dick DeGuerin said Jefferson's connections to TRMPAC should not matter because his job of picking a new judge for the case is just administrative.

"What you've got to do is look at the judge he appoints" for potential bias, DeGuerin said.

Well, golly gee, Dick, if all we have to do is wait until after the fact to see if there's a basis for a complaint of bias, then why couldn't we have done that with Judge Perkins? Why the double standard?

I should note, by the way, that none of this should be taken as an insinuation on my part of anything untoward about Chief Justice Jefferson, who is held in high esteem by just about everyone. All I am saying is that Judge Perkins is also held in high esteem, yet he got the bum's rush. Everything that has followed flows from that.

Posted by Charles Kuffner on November 03, 2005 to Scandalized! | TrackBack

This is a done deal. There's more information at:

Posted by: William Hughes on November 3, 2005 2:39 PM

W better hurry and fill up the Federal Supreme Court before it gets there.

Posted by: Charles Hixon on November 3, 2005 4:17 PM

Removing Perkins was an incredibly stupid decision in the first place -- which is, I suppose, the real point of Earle's motion.

Posted by: David in NY on November 3, 2005 4:43 PM

Earle is right if De Guerin was right. Now go find a judge in the state of Texas without a party affiliation. I doubt that one exists.

Posted by: manndan on November 3, 2005 10:30 PM

It boggles the mind how anyone can claim that Jefferson be held in high esteem after such obvious conflicts of interest in making any decision whatsoever in this case, administrative or otherwise.

Is the case still being tried in Austin or did Jefferson move it to San Antonio?

Posted by: Tim on November 4, 2005 2:52 AM

Speaking of recusal, I see that Sen. Kay Bailey Hutchison has absolutely no intent of recusing herself from the Wright Amendment hearing on November 10, notwithstanding her husband's nearly 40 year, very profitable relationship with the DFW Airport Board.

Go KBH! Ethics are for other people.

Posted by: Richard on November 6, 2005 6:44 PM