Judge Barbara Walther admits violating Texas law

The photo below records what some might call a “perp walk.” Usually, the one officially accused is the “perp”. But Texas has always been a bit of an oddball when it comes to law and order. San Angelo, Texas, it appears, is odd even by Texas standards. In this scenario, it is fair to say that “seasoned” Texas “jurist” Barbara Walther — the one appearing below in white shirt and shades — is the perp, having admitted as much in her own courtroom on Friday, May 23, 2008.

The smoking gun? As reported by Paul A. Anthony at GoSanAngelo.com, at one point during last Friday’s court hearing in San Angelo, this “seasoned” jurist said:

“I tried to narrow the scope and keep things moving along [on April 17-18], and the complaint was I didn’t let enough evidence in [before tearing hundreds of innocent parents and children apart]. We’re going to have a full-blown adversarial hearing. If it takes two or three days, so be it.” (Emphasis added.)

But wait a minute, you say. Haven’t the Texas Supreme Court and Court of Appeals already ruled that Walther violated the law? Yes, they have. Judges violate the law all the time and get corrected by higher courts. But it is fortunately rare that a judge intentionally violates the law and even more rare that she confesses to it in open court. This statement can be taken as Judge Walther’s admission that she willfully failed to conduct a full adversarial hearing — on April 17-18, 2008 — before deciding to break up these families.

Why is this noteworthy? Because the very Texas statutes applicable to the FLDS case — the statutes that Judge Walther knows well and has sworn to uphold, statutes referenced by the Texas Supreme Court in its opinion yesterday — require a judge to conduct a “full adversarial hearing” before ordering the removal of children from their parents’ arms. This fearful remedy may be used only - as Texas statute also makes clear — in the truly extraordinary situations described in detail in the statute. Judge Walthers carried on as if no statute existed, as if she had unfettered power to do whatever she pleased.

In the first place, CPS is never entitled to remove children without a court order (which CPS did in the FLDS case) except on the basis of

personal knowledge [or] . . . information from another corroborated by personal knowledge of facts [not rumor or supposition] that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child . . . [or that] the child has been the victim of sexual abuse.

Yesterday, the Texas Supreme Court concluded that CPS had no such knowledge or information — even after breaking into the FLDS ranch in the middle of the night and terrorizing its residents for hours — before it removed the children without a court order. Judge Walther knew or should have known this and should have stopped CPS in its tracks when she saw them violate the law. But she in effect abandoned her constitutional responsibility and willfully failed to demand that CPS follow the law.

Having thus violated Texas law in removing the children, for two weeks CPS browbeat, humiliated and deprived of sleep and medicine — in an old, reeking, hot coliseum — hundreds of innocent FLDS mothers and children before dragging them into Judge Walther’s court for what should have been “a full adversarial hearing” required by Section 262.201(a) of the Texas Family Code. It was nothing of the kind.

A “full adversarial hearing” is not in the statute by chance or by Texas choice. It is a fundamental element of due process under the 14th Amendment of the Constitution of the United States. Even if the Texas legislature didn’t want it there, it would be required of Texas as a prophylactic against invasion by the U.S. military. The right to due process is that fundamental to our way of life in the United States.

The technical meaning of “full adversarial hearing” should be very familiar to Judge Walther and Texas CPS. Walther, as we know, is a “seasoned jurist” with long experience trying family law cases. Yet, taking her at her word, she deliberately chose (”I tried”) to deny the American citizens in her court what is perhaps their most crucial, cherished right: The right to confront their accusers, hear, view and challenge any evidence against them, and argue their case in detail before an impartial trier of fact. What she gave them instead was nothing more than a show trial, designed to present the form of fair play for the press while giving none of its substance to those under her merciless thumb.

By her admission on May 23, Judge Walther makes it clear that she willfully chose not provide this fundamental right to the FLDS defendants in her courtroom. Her farcical, arrogant, chaotic performance on April 17-18, 2008 utterly failed to deliver basic due process to parents whom she personally threatened with a penalty worse than death: the taking of their children. For these offenses against the Constitution of the United States, statutes of the State of Texas and arguably the Geneva Convention, Walther — like her mini-me, Mike Nifong of Duke lacrosse fame — should be forced from the bench and prosecuted. Nifong, to his credit despite his other crimes, cannot be accused of genocide.

Each of the individuals in the photo above swore an oath to defend the Constitution of the United States against all enemies, foreign and domestic and to follow the law. Yet, at the time the photo was taken on Friday, April 18, 2008, Walther was in the midst of a monstrous offense against it. She cannot claim ignorance as a defense.

And if Walther is later charged with genocide — as some think she should for her inhumane misconduct in this case — the armed tough guys in the picture may also be perps. When a genocide or constitutional violation is in process, everyone in the room has a solemn obligation to step up to the plate and exercise best efforts to prevent it. It doesn’t work to lamely say, “My officer ordered me to do it.”