My BAT Van Contempt Guess [Updated]

 Posted on November 06, 2011 in Uncategorized

[Update 7 November 2011, 9:32 a.m.: Murray was half-right, and I was half-right: the lawyer for one of the alleged contemnors (not the DA's Office) reportedly (according to Paul Kennedy on Twitter) filed a motion to recuse. We'll discuss it when I get a copy.]

Murray Newman's guess:

After talking to Todd, my guess would be that the District Attorney's Office is going to file a Motion to Recuse Judge Susan Brown from hearing the contempt hearing. According to Todd, that's something that any officer of the court (i.e., a lawyer) is entitled to. It's nothing against Judge Brown, and I don't think it will affect the ultimate results of the hearing.But it will possibly delay them.And it will absolutely make the District Attorney's Office look like they are hiding something, in my opinion.

I disagree with Murray.

First, I don't think the District Attorney's Office is going to file anything. Reliable rumor is that both lawyers accused of contempt have retained lawyers. Unless the District Attorney's Office is hiding something, it will encourage them to do so. (If the District Attorney's Office is hiding something, the Sixth Floor is going to have bigger problems than the 185th Grand Jury. Federal problems.)

Second, whoever is representing the lawyers, I doubt that they will move to recuse Judge Brown.

Sure, they can file a motion. The rule governing recusal is Texas Rule of Civil Procedure 18a. (Yes, even in criminal court.) Any party-not only an officer of the court-can file a recusal motion under Rule 18b.

A motion to recuse "must be filed as soon as practicable after the movant knows of the ground stated in the motion." Here, the alleged contemnors were served with the show-cause order on Halloween; they had a week to file a motion to recuse. Whether a sworn motion filed on Monday morning, the morning of the hearing, seven days after notice of the hearing, is timely is a nice question, but caselaw suggests that even where a motion to recuse is untimely filed the judge must either recuse herself or refer the recusal to the presiding judge of the administrative region (see, for example, Jamilah v. Bass). In other words, the judge whose recusal is sought doesn't get to decide that the recusal motion is untimely.

So a recusal motion would likely, as Murray suggests, delay the contempt hearing.

But the standard for recusal is high, and a recusal motion is not likely to succeed in this case. The parties might bear in mind the maxim, "if you shoot at the king, don't miss." My bet is that they don't bother with a recusal motion that will just land them back before Judge Brown in a few days.

I suspect that what Todd is thinking of, when he mentions recusals by officers of the court, is Texas Government Code Section 21.002(d), which provides:

An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.

Whether the two lawyers were acting as "officers of the court" when they committed the alleged contempt is an interesting question: they had been removed from the case before the alleged contempt, and the acts alleged could have been committed by anyone. The two court reporters were certainly acting as officers of the court, so-assuming that the 185th was acting as a trial court (another interesting question)-they are in a stronger position than the lawyers to argue for a hearing before a judge other than Judge Brown. They can, if they are held in contempt, get a hearing before another judge.

This is not like the ordinary 21.002(d) situation, in which a judge holds a lawyer in contempt and the lawyer files a get-out-of-jail-free motion. Until the parties have been held in contempt, neither the court reporters nor the lawyers have a right to a hearing before a different judge. Ex parte Avila. So a 21.002(d) motion at this point won't serve to delay the proceedings.

But there's a really weak case for contempt here. Even if the lawyers got copies of the grand-jury transcripts, they didn't violate any statute I've found; nor did they violate the court's orders that are alleged in the show-cause order.

So here's my guess for how Monday's proceedings go: the lawyers for the contemnors, the special prosecutor, and the judge go into the back and chat. Everybody gets on the same page: there was no contempt either intended or committed; the lawyers are to return all copies of the transcripts to the court and the court reporters are not to share transcripts with anyone but the special prosecutor. The contempt proceeding gets reset, and then reset again off-docket and quietly dropped.