Childress FLDS motion delivered personally to Judge Walther

I’ve speculated that Judge Walther and Charles Childress must have coordinated or communicated on the Order severing the FLDS cases and staying discovery. Many have wondered how and why the Childress motion that led to the order was distributed by the Court without Exhibit A.

No one to my knowledge — except Childress and Judge Walther — yet knows what is in Exhibit A or why the Judge removed it from the Motion before electronically distributing the Motion and Order last Friday. Today, however, a District Court insider has shed additional light on the process that produced the Order. It solidifies my belief that the Order was produced through prohibited ex parte interaction between Walther and Childress. However, I am willing to be persuaded otherwise.

Childress, as lead CPS counsel, should be pleased at the Order which puts the FLDS and their children at a serious disadvantage. To the FLDS and their attorneys, the stay of discovery (see pic, below) is the most onerous, especially in light of the ongoing criminal-prosecution juggernaut. No one knows where it’s headed.

Yet despite Walther’s Order, State prosecutors (and for all we know, federal prosecutors) have free access to all of the information denied the FLDS and their attorneys. In legal terms, the stay in effect turns the FLDS into sitting-duck gladiators — forced to fight lions, tigers and bears all at once — with both hands tied behind their backs. It is fundamentally unfair.

Most likely, if attorneys for the FLDS and their children had been given real notice of the Childress Motion and an opportunity for a hearing, the resulting Order would have been less one-sided.

So what about the process? Today, I received two messages, in response to specific questions, from an insider whose I identity I have chosen for now not to reveal. I do not believe that I am the only one who has received this information. But for some odd reason, no one else seems to think it significant.

I invite interpretive assistance from all comers, but especially those who understand the TRCP, Texas Bar rules and Code of Judicial Conduct. Is it or is it not evidence of misconduct on the part of Judge Walther and Charles Childress?

What appears below smacks of Justice Harriet O’Neill’s “collaborative” doctrine in which “therapeutic courts”* open their robes, giving up constitutionally mandated impartiality “for the children”.

The contents of my questions and the messages appear below. Messages are in blue font (slightly redacted, but only as indicated):

Q1. It has just come to my attention that Exhibit A to the Childress Motion for Severance, in Cause 2902, filed last Friday, is not attached to the motion. I wondered if you could tell me why the Exhibit was not attached and how I might obtain a copy?

A1: The judge removed the exhibit, after it [the motion?] was presented to her for signature. The CPS lead attorney indicated that attorneys had received a copy of the attachment. He also informed the court, after the confusion arose of “no attachment,” that he would send out a letter explaining the court’s reason for removing the exhibit.

Q2. While I have your attention, I wondered if you might also indicate why the motion, physically filed on Thursday morning, was not e-filed until Friday afternoon.

A2: The motion was filed at approximately 11:00 am on the 21st in person and was walked directly up to the Judge for her consideration. The motion and signed order was not returned to the clerk until the following day . . . The document was not e-filed, but was sent out as a courtesy to all attorneys who have registered with Texas on-line in hopes of providing the information in an expedited manner. Had we not utilized the capability of broadcasting the information and placing the document on-line, we would be mailing them all out . . . [creating more delay].

Q3. Who physically walked the motion in to the Judge?

A3: I believe it was walked up by Mr. Childress. Although I was not present, I understand that the exhibit was detached during the course of the judge reviewing the motion, exhibit and order, prior to signature.

Q4. At what point in time did the confusion arise over the Exhibit and when should attorneys expect to see the explanatory letter from Childress?

A4: Mr. Childress was contacted as attorneys . . . began to inquire about the attachment. The time frame regarding the letter of explanation was indicated to be something that would happen fairly quickly.

Now a few questions for readers. Assuming the accuracy of this insider’s account, whether or not Childress himself delivered the documents:

1. Would it not be ex parte communication for any party (or his agent) to physically approach the Judge without notice to the other parties in the case?

2. How could Childress — without having spoken ex parte with the Judge — promise to draft a letter explaining the court’s reasoning for deleting Exhibit A?

3. Why did Judge Walther delete the Exhibit? And why can’t she speak for herself? Is it common practice in Texas for one party to communicate to opposing parties the Judge’s views on motions before the court?

4. What would motivate Childress to personally deliver (or have personally delivered) his Motion?

5. Does Judge Walther also entertain, on an individual basis, visits from FLDS parent and child attorneys or their agents? Or is this an honor accorded only to CPS?  If only CPS, what does this say about Walther’s ability to rule impartially?

6. Am I the only one who finds this kind of behavior by judges and attorneys out of bounds?

Newbies might find helpful the Code of Conduct excerpts below:

Texas Code of Judicial Conduct

Canon 3(B)

(5) A judge shall perform judicial duties without bias or prejudice.

(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so.

(7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others.This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge’s direction and control.

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* Therapeutic justice is a Stalinist approach to the law in which courts eschew impartial justice to get personally involved in crafting policy and solutions. Read more about it’s Stalinist roots in this article:

Therapeutic Jurisprudence: Embracing a Tainted Ideal