Retired District Judge Dan Mills
Waco – When the music stopped in the recusal hearing argued by three beaudacious women with bombastic attitudes to have 19th Criminal District Judge Ralph T. Strother recused, there was no bang, and no whimper.
In a conversational tone, visiting Judge Dan Mills, who is retired from the 424th District Court in the four Hill Country counties surrounding Burnet, simply leaned forward during an argument by lead prosecutor Michael Jarrett, and said, “If I follow my first inclination, you’re going to get a judge in the morning. You’re pitching a battle.”
It wound up appearing that he had formed his ultimate opinion when Region 3 Administrative Judge Billy Stubblefield called to describe the nature of the case.
It has a lot of moving parts – the recusal motion – but one of its key components is a smoking gun, an e-mail from Court Coordinator Ellen Watson to Austin Attorney Millie Thompson, who along with a quartet of lawyers obtained the recusal of Strother last month after arguing visiting Judge James Morgan out of his pre-conceived notion to “get this thing done today” by ruling against the recusal. By the time the day-long hearing was over, he said, “I’m going to have to give this a lot of thought.” A week later, he ruled for Strother’s recusal.
In the e-mail, the lead staffer for the judge described a decision to create a special docket call requiring both attorneys and their clients to appear in court in order to go to the DA’s office to submit tissue samples for DNA testing.
It was this degree of cooperation that led to complaints by Ms. Thompson and others including former District Judge Susan Criss that Strother was acting as both prosecutor and judge.
In the end, Casie Gotro fairly shouted, “The case is without a judge. We need a judge!” Her argument centered on the fact that she is convinced the judge’s bias rendered him in a dual role as both judge and prosecutor. “I cannot give my client effective counsel,” she said, repeatedly, as a result. Strother had made up his mind that Jake Carrizal would go to trial first, and no one else.
The three lady attorneys insisted that if they were the judge, they would settle the question of which case would go to trial first by having all 155 judges in for a conference to learn who is ready to go to trial, who is not, and go on with it.
Judge Criss said she learned that Strother did not want to put his choice of Jake Carrizal as the first defendant to face a jury in his courtroom in a court order because “The defense lawyers would see it and want to know why.”
Millie Thompson said she asked what happened to her setting to try her client, and the judge told her it had been changed. “Why?” Because it did, she said he answered. She asked what if she filed a motion for recusal, and he told her “I will deny it.” He never read a motion before he made that decision. He just declared he would deny her motion.
There were other arguments, including the appointment of retired Waco Police Detective James Hand as foreman of the first Grand Jury to be formed after the Legislature outlawed the pick-a-pal system in which the judge chooses his friends.
When asked about his choice, Strother sked a local reporter “What better person to serve on the Grand Jury than someone who is familiar with the criminal justice system?”
The prosecution argued long and loud that not one person was indicted for the Twin Peaks cases by that particular Grand Jury panel, and Jake Carrizal’s case had been heard by two other such panels.
At the end of the day, five grueling hours of testimony and argumentative, hostile and sometimes vituperative dialogue, nothing would dissuade the visiting judge from his original inclination.
He recalled his first hint about the DNA docket when Judge Stubblefield told him of the special arrangement with no subpoena by the DA’s office, no order to appear, just a special docket.
He said, “When Judge Stubblefield told me about that DNA docket on the phone, it really stuck a very negative feeling in my gut…There’s a smell test that goes with these things. My inclination to grand the motion.”
Prosecutor Jarrett said “I want you to do the right thing.”
Judge Mills’ reply sent a ripple of laughter through the courtroom when he replied, “I don’t know about right!”
The standard that applies, that of what a common man with common sense would think about a judge based on his actions alleged to show bias, would result in a natural man’s inclination to agree with the motion’s allegation of bias on the part of the judge.
And it was all over, except his remark that the new judge to be appointed will probably be 54th Criminal District Judge Matt Johnson. “They’ll probably just swap judges.”
That’s when Casie Gotro addressed the gallery, saying, “I have been drafting a recusal motion to have Judge Johnson removed from this case, too. It will be filed.”
A venire of what remains of a 600-person special venire – about 160 estimated by the judge – will report at 8:30 a.m. in the auxiliary courtroom to fill out juror questionnaires and go through the process of qualification to serve on the jury.
So mote it be.