Just in case the quality of Texas justice needed a final nail in its coffin, Tom DeLay has provided the coup de grace with his successful appeal for the removal of a Democratic judge from his case. The NY Times characterized his lawyer’s argument:
Dick DeGuerin, said that the contributions by the judge in the case, Bob Perkins of the 331st Judicial Criminal District Court, would create questions “in the minds of reasonable people” that he could not rule impartially.
Mr. DeGuerin and several witnesses who testified today on behalf of Mr. Delay cited a state statute that said a judge “shall recuse himself in cases where his impartiality might reasonably be questioned, or if he has a personal bias or prejudice in the case.”
“I think both are clearly triggered here,” John L. Hill, Jr., a former Texas Supreme Court justice, testified.
“It’s very clear cut,” the judge said. “We should have another judge in this case.”
So I guess this means that from now on any Democratic elected official in Texas (I guess there are a few left in some remote places) can demand the removal of a Republican judge from his case. That is preposterous. Here’s the grounds for suspecting the judge’s impartiality:
…The judge donated a total of $5,255 to the Texas Democratic party and the liberal group MoveOn.org from 2000 to 2005, but none of the contributions were made after Mr. Delay was indicted.
The article makes clear that Texas law does not prohibit judges from contributing to political races. So what’s DeLay’s problem? There are many problems with this decision but one of the major ones is that DeLay’s chief defense strategy (if you can call it one) is to portray the case as politically motivated. By removing Judge Perkins, DeLay gives this red herring strategy more credibility. Now, isn’t it too bad that DeLay can’t argue that Ronnie Earle, the Democratic Austin D.A. should be replaced with a Republican prosecutor? Though I’m sure he’d argue this in court if he could.
Another damaging aspect of this decision is that it is deeply harmful to the traditional functioning of the judiciary. I don’t remember before ever hearing of a case in which a judge was removed merely because he was from a different political party than the defendant. A Republican defendant can only receive “impartial” justice from a Republican judge. Why should we not presume that if a Democratic judge would provide partial justice (against) that a Republican judge would also render partial justice (in favor)? It’s just a pernicious notion.
The decision in effect maintains that judges innately cannot be impartial in adjudicating cases involving defendants from another party. What this does is cheapen the judicial role. I think one of the great things about American jurisprudence that sets it apart from the pure partisanship of some other nations (China among them) is the notion that any good judge can impartially judge virtually any case. You start out with this presumption of impartiality and only when an individual judge’s behavior causes you to doubt it do you then invoke the recusal process. But DeLay has turned all this on its head and it cannot be good for Texas, or U.S. jurisprudence.
The Austin Statesman reveals that Judge Duncan, who removed Perkins from the case, is a retired Democratic judge himself. Now, isn’t that convenient for DeLay? He gets a Democratic judge to remove another Democratic judge from his case. I guess Judge Duncan, even though he is an accursed Democrat, could still somehow be impartial enough to see that no Democrat deserves to sit in judgment on him?
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