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Remedies for the Willingham Circus

Ever since loose cannon Texas Judge Charlie Baird was reported to be holding a court of inquiry on the Willingham case, the discussion among persons of sense was what remedy was available.  The law is crystal clear, as we noted Monday, that the first judge has no authority beyond asking the presiding judge to appoint a different judge to conduct the court of inquiry.  But what if Judge Baird (the Innocence Project's cherry picked judge and recipient of an award from a Texas anti-death-penalty group) ignores the law and goes ahead himself, as he has apparently done once before?

The District Attorney of Navarro County has filed this motion to recuse Judge Baird.  According to Texas Rules of Civil Procedure 18a(c), a judge presented with a recusal motion must either recuse himself or ask the presiding judge to assign another judge to hear the motion.

Also, the Texas Legislature passed two statutes in 1995 in reaction to abuses of the court of inquiry and lack of remedies. Chapter 318 § 65 amended the court of inquiry law (Code of Crim. Proc. Art. 52.01) to add, among other provisions, the requirement that the initiating judge ask the presiding judge to appoint a judge to conduct the court of inquiry, and it disqualified the initiating judge from receiving that appointment.  The purpose is to prevent exactly the kind of judge shopping that is happening in this case.  Chapter 839 gave the court of appeals authority to restrain a rogue judge by writ of mandamus, amending Government Code § 22.221(b).

So at this point it appears (1) that the DA is fully engaged and ready to battle; and (2) that there is a remedy by writ of mandamus from the court of appeals if Judge Baird decides to plow ahead on his own in defiance of the law.

Judge Baird, BTW, is not running for reelection, so he will soon be ex-Judge Baird for the second time, to the betterment of justice in the Lone Star State.

Hearing photos by Jay Janner of the Austin American-Statesman are here.


Was Baird appointed in the Cole case?

I have been told, and as far as I can determine from the information available it appears to be true, he just took the case and conducted the court of inquiry himself, without referring the case to the presiding judge for appointment of a different judge as the statute requires.

If anyone has more solid information, I would appreciate receiving it.

How come Thompson is not challenging Baird's authority to conduct the hearing based on the language of the statute? It seems like he is only claiming a conflict of interest.

Shawn, it's not entirely clear whether Judge Baird thinks he is actually conducting the court of inquiry or holding a hearing to decide whether to make the request to the P.J. I'm not sure he knows what he is doing. There would not seem to be any need to hold a hearing just to make the appointment request, but it is also not clear that would be improper. We do know, as the motion indicates in part III, that he has summoned a witness with no conceivable knowledge of anything the court of inquiry has jurisdiction to examine.

If Judge Baird rejects the recusal request and indicates that he is actually conducting the court of inquiry himself, I would expect the DA to go for the writ of mandamus. That is precisely why the Legislature enacted Chapter 839.

Regarding my previous comment, I have received an email from an informed source who must remain anonymous that "that is exactly what happened."

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