Jeffs' recusal request denied
 Walther to preside at trial of church head
 
By Matthew Waller
San Angelo Standard-Times
 
SAN ANGELO, Texas — Warren Jeffs will face the same judge who presided over the trials of his fellow polygamist sect members when he goes on trial Monday.

A visiting judge from Midland denied Jeffs' motions to recuse 51st District Judge Barbara Walther from his trial in a decision issued Tuesday.

Jeffs, 55, the head of the polygamy-endorsing Fundamentalist Church of Jesus Christ of Latter Day Saints, is charged with two counts of sexual assault of a child, and his trial on those charges is scheduled to begin Monday. He also is scheduled to go to trial Oct. 3 on a felony bigamy charge.

Jeff's second attempt to unseat Walther was heard Monday in a pretrial hearing that lasted over five hours and involved testimony from several witnesses. The decision came Tuesday morning.

"The Defendant's allegations in the second motion to recuse Judge Walther are found to be without merit," state District Judge John Hyde of Midland stated in his order.

Hyde already ruled on a motion to recuse Walther on June 13 and decided against it. Jeffs has tried to fire his lead counsel and hired Houston-based Emily Detoto for purposes of a second attempt at recusal.

Hyde's most recent order states that the defendant's presentation at the Monday hearing focused on two factual issues: Walther's communication with the former head of the Tom Green County Court Appointed Special Advocate program and being shown pictures of "FLDS enforcers" as they were characterized during the hearing.

The communication to Walther had to do with a phone call she made to CASA to ask whether the program could handle children should they need to be removed, and with calls received updating Walther on the status of the raid on the FLDS Yearning for Zion Ranch.

The April 2008 raid, an execution of search warrants, was prompted by a call from a woman claiming she was being abused at the ranch. That call is now believed to have been a hoax.

In the raid, more than 400 children were removed from the ranch on the premise that they were in danger of being sexually abused. An appellate court several weeks later reversed Walther's decision to remove the children and ordered them returned to their families.

In the recusal motion heard Monday, the defense argued that Walther should have signed the warrant and kept an arm's length away as law enforcement officials raided the ranch.

Hyde said the updates and the inquiry as to whether CASA could take children were reasonable for actions for a judge, that they were not "prejudicial extrajudicial communications," as the defense characterized it.

"In the instance of state government action by warrant into a compound the size of the FLDS with the subsequent removal of children, a presiding judge does not have the luxury of 'going her merry way' after issuing the warrant as the Defendant contends," Hyde stated.

As for the pictures of people whom law enforcement authorities believed to be dangerous, Hyde said disclosing such information to a judge would be proper.

The defense argued other points against having Walther preside over Jeffs' trial.

"The fact that Judge Walthers was the judge who authorized the issuance of the warrant that caused the YFZ Ranch to be searched," and that Jeffs has filed a motion to suppress evidence from the raid makes for "an almost impossible situation," Detoto states in the motion.

Detoto also said in her motion that Walther's choice of Tom Green County as the venue for the trial was prejudicial, and that Walther showed an unwillingness to follow the Supreme Court of Texas' decision to return the children of FLDS members back to their families at the ranch.

But Hyde in his written decision said that overall, Walther has acted appropriately in her actions regarding FLDS members' criminal trials.

"Ultimately, Judge Walther's actions should not be measured by a yardstick of perfection but by the standard of procedural fair play," Hyde states. "Impartiality is not gullibility."

Jeffs has a pretrial hearing Wednesday concerning the venue of the trial, which is currently set for San Angelo.
 
gosanangelo.com
Originally published July 19, 2011
 
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