Tonight, Judge Barbara Walther and U. of Texas law prof Charles Childress snicker quietly somewhere in unison** while big media applaud Walther’s order severing the case of 330 FLDS children into mother-based groups. Meanwhile, other attorneys on the case stare in disbelief at yet another constitutional and ethical violation by Judge Walther and Texas CPS.
It is good that Judge Walther has finally accepted — at least superficially — that individual FLDS families are entitled to separate consideration. However, this order and the process that produced it carry distinctly bad news for the FLDS or for other Americans who believe in due process and the rule of law. Some of the bad news is this:
“Discovery” refers to the process whereby the FLDS parents and children get access to whatever evidence the State may have to justify the continuing presence of CPS in the lives of FLDS families. Ever since the State confiscated personal records and gathered DNA samples back in April, it has largely refused to share that information with attorneys representing FLDS parents and children. Staying discovery allows the State to continue to stall and pretend is has evidence justifying its allow the FLDS to return to their normal lives — free of the CPS shadow — regardless of where they live.
The worst news is that the entire, unconstitutional case against the 330 children in the order should have been dismissed, period, and was not. CPS or the Texas Rangers should have been required to open new cases, one-by-one on the basis of individualized probable cause which, for most of these people, does not exist.
Why FLDS attorneys did not insist that Walthers hold a hearing on a motion to dismiss is itself worthy of some investigative reporting. I think a game theory dynamic has set in, in which individual attorneys are in a dysfunctional equilibrium, thinking they are best off right where they are when they may not be. I don’t want to call it a prisoner’s dilemma, because unlike the classic prisoner’s dilemma, few or none of the FLDS hostages (they’re still hostages) have likely committed any crime. But equilibrium seems to have set in, preventing individual FLDS attorneys from objecting to Walther’s abuse of the Constitution.
This is a perfect illustration of Justice Harriett O’Neill’s collaborative, therapeutic justice* approach to CPS cases: CPS and the courts working together in blatant disregard of essential constitutional checks and balances. Judge Walther secretly signed the severance order on Thursday, July 24 — while Harry “Wormtongue” Reid distracted the FLDS in Washington — and held it back until just after noon on Friday.
It came as a complete surprise to the AALs representing the FLDS kids. One remarked, off the record, “I bet the press release failed to mention the suspension of discovery or that this was all ex parte with no notice to any of the attorneys.”
Ex parte, for non-lawyers, means in essence, “talking to only one side of the case.” Judges are not supposed to do it. Fundamental to our Constitution is the idea that all parties to a case must be given the right to be there, participating when any other party communicates with the judge. The Texas Code of Judicial Conduct, Canon 3(B)(8), flatly prohibits ex parte communications (see below).
Only Texas CPS knew that Charles G. Childress (Harriet O’Neill’s chief AAL “trainer” and now lead CPS counsel in the case) had delivered a motion to sever the cases and stay discovery. As with Harry Reid, in Washington, no one but the anti-FLDS Texas CPS had any opportunity to be heard on the merits of the CPS motion. Her Honor just signed the order, kids, parents, Constitution and statutes be damned.
I do not mean to say that I know Walther and Childress communicated apart from Childress motion. I don’t know. But it seems very unlikely that on a move of this magnititude, Walther and CPS did not somehow coordinate.
The order means that hundreds of children, mothers and fathers will remain in limbo — unable to disprove their guilt (that’s how things work in a CPS case, not just in Texas) — for as long as Judge Walther wants them to be there.
Not for the last time, let me say: Every father and mother in America should be afraid, very afraid. This could just as easily happen to you. In your case, however, no one would know because yours would be an individual case unlikely to raise a public outcry.
What to know how Judge Walther is supposed to act in the courtroom? Take a look at the following excerpts from the Texas Code of Judicial Conduct, with special attention to Canon 3(B), Section 8:
Texas Code of Judicial Conduct
(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.
* * *
* 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
**My reference to the “snicker” is metaphorical, not literal. I have no reason to know whether either Childress or Walther was actually snickering.
{ 23 comments… read them below or add one }
Though I am not a lawyer Kurt, I constantly see Judge Walther do things that stink of bias and I am left marveling that she has the chutzpa to do it. After marveling at that, I am flabbergasted by the apparent inability for anyone to do anything about it.
I think as long as MSM silence continues on this issue, nothing will be done. Polygynists are universally hated in this country, on the left, and on the right. It would seem to be about the only thing they can agree on.
Is there really nothing that can be done? No appeal? No oversight?
This is what I find most disturbing – that NO ONE with legal oversight is stepping in to stop these illegal, unconstitutional actions of one small town judge and her cronies.
What in God’s name is going on? How can such blatant disregard of our civil and constitutional rights continue and be ignored by intelligent people?
The terrorists of the world no longer have to attempt to destroy us. We are imploding if the injustices happening in Texas are allowed to continue all the way to the Federal government actions.
I never understood Jeremiah as the weeping prophet….now I do…I understand what it means to point out wrongs and evils and watch them continue and INCREASE.
I am saddened and sickened….
God forgive us.
I hope some of the lawyers will file a mandamus action against Judge Walther, to attempt to get her suspension of discovery looked at by the Third Court of Appeals. It may or may not work, but the try seems to me to be worth it. A judge can modify the time limits and procedures for discovery, but I am unaware of any authority of a court to totally suspend discovery.
It is not only judges who are prohibited from ex parte communications; lawyers are similarly prohibited from making most ex parte approaches to a judge on a case. If Mr. Childress really is the lead attorney for the State, then he should have a grievance filed against him if he presented (which is more than just filing it with the clerk) a motion to suspend discovery. The order itself says the Court acted on its own initiative; is that correct? Did Childress or another State attorney file a motion or talk to the Judge about doing this?
Some women and children are missing from that list. Why would their cases have been severed already? Do they have better lawyers?
Zavenda Young isn’t on that list.
Kurt, I don’t fully understand your remarks about a game theory having set in. It seems to me to be no downside, except costs, to an attorney and his mother-client or child-client to challenge the judge by filing appropriate motions, setting them for hearing, mandamusing the judge if she won’t hear the motions, and appealing her decisions if that step is warranted. What am I missing?
Doran –
I have only one source who, as stated in the post, called it “all ex parte.” There had to be some communication on a move of this magnitude. And Childress was the guy who went to San Angelo to train the AALs.
And if you look at the time stamps on the motion and the order, the e-filing stamps show order at 12:03 p.m. on 25th and motion at 12:06. Yet the motion was physically filed at 11:07 a.m. on the 24th — while the FLDS were riveted on the Senate hearing.
My AAL source didn’t “get” the e-filing (they were all required to sign up for e-filing because of the numbers involved) until 5 or 6 pm last night.
Seems to me — though I don’t know the procedural details — that regardless of whether or or not Childress communicated with Walther outside of the mere motion, failing to e-file (or transmit) the Childress motion until AFTER e-filing the order had the same effect as an ex parte communication. Certainly, the circumstances would seem to justify a complaint alleging ex parte communication.
But you come across as one who knows, so I’ll tentatively defer to your judgment.
p.s. The post has been significantly updated.
Doran —
You appear already to have read the update. My game theory comments are based on off record commentary to the effect that attorneys are hunkered down, fearing that speaking out would jeopardize the dismissal of their individual cases. They apparently think that just taking their punishment quietly is the best way to get it over with. This is, as I am finding, very typical in CPS cases. CPS has so many extra-Constitutional weapons that people are intimidated into going along to get along.
The real question is why they want discovery suspended, and the answer is obvious: in most cases they have little but the DNA evidence proving that the mothers of the children are in fact the mothers of the children.
Suspending discovery suspends everything. Stops the process. And, as Julie points out, covers up the State’s lack of evidence to support probable cause.
Doran
“It seems to me to be no downside, except costs, to an attorney and his mother-client or child-client to challenge the judge by filing appropriate motions, setting them for hearing…
Are we not forgetting that all pleadings have been ignorded?
WHO sets them for hearing?
Do we know of ANY motions that were even signed to acknowledge receipt of such by walther?
I am not clear on how we are to know Childress filed this motion, not that it matters when considering what the motion did and Judge walther added on her “OWN INTIATIVE”. (LOL)
It’s possible I am stuck seeing only the small details of the matter at hand and am completely missing a bigger picture here. Somebody straighten me out here if I am missing something.
I see walthers had told all at the 14 day hearing the parents would NOT be heard until the “FINAL HEARING”.
The great state of Texas is going to start dropping the cases, make it look like they are caring for the children, never have hearings on the motions and never turn loose of the “DISCOVERY” until forced to do so by another court outside or above the district court walther controls.
The media just told it’s audience that the state has been and will continue to deny the parents due process here, but the way all of the public will read it tells them that the state is overwhelmed with the problem those people at the ranch created and Judge walther is struggling with the tasks needed to help them.
The criminal cases will not get ALL the discovery the state has on ALL the cases and absent a case in a civil complaint in a federal court, none of us will ever see what Texas did NOT have to prove the children were in danger.
CHECKMATE
You say suspending discovery stops everything- but that’s not entirely true, right? The CPS side can continue to peek through private letters, childrens’ diaries, mothers’ photo albums and scrapbooks, and leisurely take their time arranging the evidence, enjoying a leisurely read through the documents. They are not under a time crunch to do this anymore. It’s basically an ongoing and very irregular ‘time-out’ for them- like calling the opposing team off the field while letting the home-team keep right on playing the ball, moving it around the field so it’s convenient for them.
It only stops everything for the children’s attorneys, and those for their parents. They do not have access to anything the state has anymore, and have to stand on the sidelines and wait for the opposing team to say, “Okay, we’ve read enough now. You folks have two weeks to investigate the evidence we spent the last year reading.”
That “opposing team” has not been on the field (in many ways) since walther told them they still had the FINAL HEARING.
The state can drop suits without that final hearing.
Game over (in her court and for quite some time even if a civil complaint is filed)
kbp, the link to the motion will give you a peek at it. It is signed by Childress. Either he or some other lawyer or runner for the State filed it. The way this works in rural counties is that the lawyer filing it asks the Clerk to “put it in the judge’s basket.” That way, there is no ex parte communication between the lawyer and the judge. Or maybe the Clerk (who is an elected official) and the Judge have some kind of understanding that motions filed will be “put in the judge’s basket.”
The order itself has an untruth in it, over the Judge’s signature: It was not done on the Judge’s initiative, but in response to the CPS filing of the motion.
As for my suggestion that the other side file their motions and set them for hearing: The way I do that when the attorney on the other side will not agree to a date, is to just call the Clerk and ask her to put it on the docket for a date when a judge can hear it. that is, when there will be court in session. If that doesn’t work, I inform the other attorney that I will present the motion to the judge in open court on such and such a date, being a day when the court is in session. If the judge refuses to hear it or to set it for hearing, then, bam! off to the appellate court with a mandamus action. I’m sure all the attorneys on this case understand these things, and maybe they have just simply been trying to be nice.
Deputy Headmistress is actually right: This is a time out which leaves the State plenty of time to continue to do discovery in the material it already has. Again, donning my Saturday morning quarterback hat, I would file a pleading asking the Judge to prohibit the state from doing that until the discovery order has been signed. What would the state possibly have to say in response that would be reasonable?
Where is txbigotman?! There is obvious “lawbreaking” going on by Judge Walthers! I thought he always spoke vociferously against “breaking the law”!!! Or does he only speak out when he has no evidence, and here it’s too clear cut!!
Give him time. He needs to come up with some way to spin this.
3 apache helicopters just buzzed the ranch
TBM apparently prefers not to spar with the lawyers, as he’s commented on this over at my blog on a post linking back here- instead of at the source.
Here’s what he says: ”
Discovery is governed by the Texas Rules of Civil Procedure (Tex. R. Civ. P., or TRCP). Under the TRCP, discovery may be conducted under Level 2 or Level 3. Note that TRCP 190.4(a) allows the judge to decide on Level 3 on their own initiative. In this case, the judge has determined that it would be under Level 3, which requires a Discovery Control Plan to be issued by the judge.
This plan may include the setting of a discovery period by the judge. Basically, this allows the court to manage the case in order to protect the rights of both sides – which is what all of the FLDS supporters were screaming for in regards to the 14-day hearing.
In addition, if this was a motion to sever, with an additional request for a discovery plan, why would the AALs object? And what basis would the objection be upheld? It is clear in the TRCP that the judge has the right to set the rules for discovery, either on her own, or on the motion of one of the parties.
You should also note that you indicated that CPS attempted to come to an agreement with the AALs in accordance with TRCP 191.1, in which the parties could not reach agreement.
Under these circumstances, it is entirely reasonable to put the matter in front of the judge.
Another thing that you should consider is that while Kurt is an attorney, he is not an attorney in Texas and is probably not familiar with the TRCP. His general observations on discovery are correct, as is his comments on ex parte communications. His view is also biased – all of his posts and comments have shown his bias against the State of Texas, starting in the first days following the execution of the search warrants. I know I have a bias – it’s clear I support the work of the law enforcement officers, but he should at least acknowledge his bias, and you should at least label it as such in your posts (for clarity’s sake, if nothing else).
In this case, there has not been an ex parte communication, but a motion before the court, which was ruled on.
The judge clearly stated in her order that it was issued on her own initiative, considering the motion of CPS – clearly showing that it was not an ex parte communication. “
Doran,
A mandamus might work (it did last time), but I doubt it for several reasons.
First, courts are hesitant to issue mandamus. Second, if requested by one of the parties, the judge is required to establish a Discovery Control Plan, which had not been done. Third, the Tex. R. Civ. P. clearly allow the judge to suspend discovery (Rule 190.4.(b)(2), may set a discovery period) until the plan is completed, see In re Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999), stating “courts may limit discovery pending resolution of threshold issues…”
Furthermore, “That decision is left to the trial court’s discretion: “The discovery control plan ordered by the court . . . may change any limitation on the time for . . . discovery set forth in these rules.” Allen v. United of Omaha Life Insurance Co., 236 S.W.3d 315 (Tex. App. Ft. Worth 2007).
Basically, when setting a Level 3 Discovery Control Plan, the judge has almost unlimited discretion.
Headmistress,
Technically, there is a distinction between discovery and evidence. Nothing is stopping the FLDS from looking at their own evidence and while discovery is suspended, CPS cannot ask what they have, cannot determine who their expert witnesses are etc.
Cheese,
Nope, no lawbreaking here. Did you ever find the evidence of underage marriages that you were denying ever happened?
All,
I don’t have a problem debating y’all here, but I’ve found that aside from rhetoric, there has been precious little on the law from the FLDS side. Surprise me, I’ll enjoy it.
God have mercy.
How much longer will this injustice be allowed to stand?
This is not America.
Sara Barlow does not exist. God helps us all if that doesnt matter. TBM: The problem with CPS is not lack of integrity but exceesive zeal. I support police officers. I just dont have your blind faith.