Citing no response from a December letter addressed to 87th District Judge Deborah Oakes Evans, a Groesbeck attorney formally filed a “Motion to Recuse” on Monday, Janaury 9…
Citing no response from a December letter addressed to 87th District Judge Deborah Oakes Evans, Groesbeck attorney David E. Moore formally filed a “Motion to Recuse” on Monday morning, January 9, 2017.
Moore’s letter, dated December 27, 2016, respectfully requested that Judge Evans voluntarily recuse herself from “every criminal case I have in Freestone District Court once your son takes office.”
Hitting court exactly ten business days later, Moore’s Motion is filed on behalf of a client who, as of press time, is set to be arraigned in Judge Evans’ court this Friday, January 13th.
Newly elected Freestone County prosecutor, Brian Evans, was officially sworn in last week by his mother, Judge Evans, during an induction ceremony held Tuesday, January 3, 2017.
In anticipation of that day, Judge Evans had emailed a letter, less than two months ago, to local defense attorneys, officially disclosing her familial relationship to the incoming County Attorney, and outlining changes to case assignment in order to avoid the appearance of any impropriety.
In Judge Evans’ letter, she cites advice from the Judicial Ethics Commission, stating it was not a conflict or a disqualification to preside over criminal cases with her son, “…provided I disclose the relationship.”
Moore is one of several local attorneys who disagree with Judge Evans’ assertion, including former County Attorney, Chris Martin, who addressed the potential conflict during the Primary Election campaign last year; and Fairfield Attorney Chad Morgan, himself a former Asst. County Attorney, who filed similar Motions of Recusal / Disqualification last week on behalf of four of his clients.
Among documents cited by these attorneys include:
–Texas Constitution (Article V, Sec. 11);
—Texas Rules of Civil Procedure – 18b(b)(8);
–American Bar Association’s Model Code of Judicial Conduct – Rule 2.11(A)(2)(b);
–American Bar Association’s Model Code of Judicial Conduct – Canon 3E;
–Peer article from Texas District and County Attorney Association (TDCAA) – “To Recuse or Not to Recuse?” by Andrea Westerfield;
–Peer article from the American Judicature Society – “Disqualification Issues When A Judge Is Related To A Lawyer” by Cynthia Gray; and
–a plethora of precedent court cases, including Gaal v. State (Tex. Crim. App. 2011), Arnold v. State (Tex. Crim App. 1993), and Knight vs. State (Tex. Crim. App. 1968).
“Neither of the options proposed by Judge Evans in her [November 22, 2016] letter to counsel addresses the appearance of impropriety;” reads Moore’s Motion. “They only pay lip service to the Constitutional requirement of Due Process.”
Moore asserts that, by sending her email in the first place, Judge Evans is acknowledging that an appearance of impropriety may, indeed, already exist.
Otherwise, there would have been no need to “…shuffle cases to another court, or having her son’s assistant handle ‘lower level’ felonies wherein clients can be sentenced to 10 years in prison or 2 years in a state jail facility,” reads the court document.
Rather, it would have been business as usual when the newly elected prosecutor, Brian Evans, took office, as laid out in Moore’s Motion.
Therefore, asserts the Groesbeck attorney, the impartiality of Judge Evans might reasonably be questioned.
Furthermore, if County Attorney Evans is prohibited from practicing in front of his mother, the same would go for his Assistant County Attorney, Cari Warner, as Mr. Evans has “direct supervisory or policy responsibilities over the office and his assistant,” according to Moore’s Motion.
This is in direct opposition to Judge Evans’ suggestion in her letter that State Jail and 3rd Degree felonies be handled in her court by the Assistant County Attorney.
Additionally, as outlined in the documents for recusal, while procedural rules allow for some conflicts to be waived, under certain circumstances, “…when the son and the mother are the lawyer and the judge on the same case, recusal is mandatory.”
Moreover, the Texas Rules of Civil Procedure, as they apply to criminal cases, “does not require a showing of impartiality, only a showing of the relationship.”
Moore’s documents request that, should Judge Evans fail to recuse herself within three days hence, the District Clerk forward the Motion to Recuse to Administrative District Judge Olin Underwood, so that a hearing may be scheduled as soon as possible.
The law seems clear. And, as Robert Kepple, Executive Director of TDCAA, says he shared with then candidate Brian Evans, just one year ago, “Blood is, in fact, thicker than water.”
Karen E. Leidy reporting.
Editor’s Note: This week’s story was also covered by Channel 10 KWTX of Waco during their evening news broadcast on Tuesday, January 10, 2017. Their report includes an interview with a Baylor University law professor, as well as an interview with Fairfield Attorney Chad Morgan. Click here to watch the video online.
