Recusal in Jeffs trial sought

Defense questions judge’s body language

By Matthew Waller


Originally published 11:36 a.m., June 13, 2011
Updated 09:36 p.m., June 13, 2011



SAN ANGELO, Texas — A state district judge will decide today whether 51st District Judge Barbara Walther will be recused from the upcoming trial of polygamous sect leader Warren Jeffs.

Jeffs’ attorneys made the request during a hearing Monday at the Tom Green Courthouse, with state District Judge John Hyde of Midland presiding. Hyde said he will issue his ruling at 10 a.m. today, the same time that Walther is scheduled to hear pretrial motions in the Jeffs case.

Jeffs, the leader of the polygamy-sanctioning Fundamentalist Church of Jesus Christ of Latter- day Saints, is scheduled to be tried on charges of sexual assault of a child and bigamy in July.

“In this case we have an extrajudicial event,” Reagan Wynn, one of Jeffs’ attorneys, said about law enforcement testimony that a truck pulled out dangerously close to Walther as she traveled to Eldorado during the first of a series of FLDS member criminal trials.

Law officers said they speculated that the driver might have been an FLDS member, and because of increased security, the defense said that the judge should be recused, as have other judges who have had attempts made on their lives.

Arguing for the state, Eric Nichols said the increase in security was done by others, and not at Walther’s direction.

“Judge Walther wasn’t making those decisions,” Nichols said.

Jeff Kearney, Jeffs’ attorney, who called more than a dozen witnesses for the hearing, also asked witness attorneys about the security around the courthouse. They described how there were at times more than 30 law enforcement personnel on hand during trials in Schleicher County.

Under questioning by Nichols, attorneys said the building that hosts FLDS member trials in Schleicher County was not built as a courthouse. They acknowledged that there was no X-ray machine as there is at the Tom Green County Courthouse, so extra deputies helped search bags.

Jeffs’ attorneys also questioned former defense attorneys for FLDS members about Walther’s nonverbal conduct during trials.

The attorney witnesses said Walther’s body language had an impact on the jurors, claiming she rolled her eyes and exhibited mannerisms that made it appear she was frustrated with the defense.

“Many of the jurors would punch each other, nod their heads and smile to indicate they had seen” Walther’s gestures, said Dan Hurley, a Lubbock attorney who had participated in the case of Merril Leroy Jessop.

In one instance, Hurley and Brandon Hudson, a San Antonio attorney involved in several FLDS members’ cases, said Walther leaned back in her chair and looked up at the ceiling.

Under questioning by Nichols, who has been the lead prosecutor in all the criminal cases that came out of a raid on the FLDS Yearning for Zion Ranch in 2008, Hudson recalled that Walther apologized for looking up at the ceiling, saying that she had a sinus headache.

Stephanie Goodman, a San Angelo attorney who defended Abram Harker Jeffs and Keith Dutson Jr., said Walther would interrupt part of the defense’s handling of jury selection. Nichols said this was done to the prosecution as well.

“What we heard today doesn’t come close” to grounds for recusal, Nichols said.



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