As we know, the lawsuit against Harris County Sheriff Tommy Thomas has been delayed while the Fifth Circuit Court of Appeals rules on a motion from the defense to recuse presiding Judge Kenneth Hoyt. Here's some more information on that motion.
The effort to force the removal of a federal judge from a politically sensitive civil trial hinges not only on comments he made at a recent meeting with lawyers but also previous rulings and conduct in the case.
The broader approach angered U.S. District Judge Kenneth Hoyt. Speaking from the bench Wednesday, he chided attorneys for bolstering their arguments with material well beyond the scope of the original recusal motion, including details of sanctions he levied in 2005 against two lawyers from the Harris County Attorney's Office for "improper tactics" in the case.
"I think it's inappropriate to ask the 5th Circuit to look at that issue," Hoyt told the attorneys for four sheriff's deputies. The lawmen are being sued by two brothers, Sean Carlos and Erik Adam Ibarra, who say their rights were violated when they were arrested after one of them took photos of a drug bust in 2002.
"This issue is going to be a lot bigger than what you've indicated in your (recusal) motion," Hoyt said.
Hoyt's rebuke came moments before he brought in the jury that was expecting to hear opening statements Wednesday. He sent the jury home for the week while judges with the U.S. 5th Circuit Court of Appeals consider the recusal motion.
That motion, which is sealed from public view, concerns Hoyt's judicial philosophy, past rulings he has made in the case and comments he made during a pre-trial conference in chambers Feb. 8, said attorneys familiar with its contents.
The nature of those remarks is unknown since a transcript of that conference remains sealed.
Legal experts said the tactic undertaken by the deputies' attorneys is inherently dangerous.
"The point of a recusal motion is when you shoot at a king you better hit him," said David Berg, a local attorney who has handled many federal cases. "I don't think it's a good idea unless you are dead certain you have the evidence that he would be unfair or appear to be. If you lose, you're in for a hell of a ride."
Seeking recusal as a tactic to get the case before a more sympathetic judge would be a bad idea, Berg said.
"It is a very poor strategy because there is a very high burden of proof," he said. "Judges don't like these motions. Appellate judges don't like them and they don't like granting them."
Guy Womack, a former Houston federal prosecutor who defended two of the Brazoria County deputies, said Hoyt would have voluntarily stepped aside in the Ibarras' case if he thought he had done something to give the appearance of bias, just as he did in 2000 when he removed himself from the Brazoria County case.
"The way he handled that was the very model of the way you should," Womack said. "I've not seen evidence of him being biased in general against law enforcement."
An appellate lawyer not connected to the Ibarras' trial suggested that lawyers for the deputies are "forum shopping" with their recusal request because they could not win the civil case on merits alone, adding that recent negative publicity about Rosenthal could affect the case.
"It's not about him being liberal or conservative -- they're just looking for a less fair judge who would be happy to look the other way when deputies act improperly," said attorney Pat McCann, president of the Harris County Criminal Lawyers Association. "And tragically for them, Hoyt is not actually a judge who would do that. That's why they want to get rid of him -- no other reason."