SAN ANTONIO — A visiting judge on Tuesday denied polygamist sect leader Warren Jeffs' second attempt to remove the West Texas judge overseeing his upcoming sexual assault trial, this time because of alleged bias after she made calls to inquire about progress in the case and accepted extra police protection because of threats associated with it.
Judge John Hyde of Midland listened to more than five hours of testimony on Jeffs' motion to recuse District Judge Barbara Walther during a hearing Monday but wrote a day later that much of it rested "on innuendo and supposition." He cited previous court decisions in finding that "impartiality is not gullibility."
Jeffs, 55, is ecclesiastical head of the Utah-based Fundamentalist LDS Church that believes polygamy is the key to heaven. He is scheduled to go to trial next week on two counts of sexual assault of a child that are punishable by up to life in prison.
They stem from an April 2008 raid on the church's sprawling Yearning for Zion ranch outside remote Eldorado, south of San Angelo, where Jeffs will be tried.
Authorities who believed underage girls were being forced into polygamous marriages temporarily removed more than 400 children living at the compound, and the story made headlines nationwide when women there were seen in frontier-style dresses and 19th century hairdos.
The raid left Jeffs and 11 others facing charges that included sexual assault and bigamy. Seven have been prosecuted since last year, and all were convicted in cases overseen by Walther — who signed the original search warrant that prompted the raid.
Hyde also denied Jeffs' first motion to remove Walther on June 13, when his defense team claimed the judge's body language affected jurors during earlier trials of FLDS members
This time, Jeffs' attorney Emily Munoz Detoto said Walther received calls while the raid was going on about how many children were being removed. The judge then called child protective services to ensure they had the manpower to handle so many cases.
Detoto summoned Brooks Long, a Texas Ranger involved in the raid, to the stand Monday. He testified that while Walther did receive updates, that wasn't uncommon.
In his denial order, Hyde found that Walther's calls fall within the scope of judicial proceedings. "Given the magnitude of the ongoing FLDS litigation, it is unreasonable to conclude from the evidence presented that Judge Walther acted inappropriately," he wrote.
Detoto did not return phone messages seeking comment Tuesday. Texas Attorney General Greg Abbott's office is handling the state's case but had no immediate reaction to Hyde's ruling.
During Monday's hearing, Detoto also said Walther's impartiality could have been affected when she received additional police protection in court and at home in the days following the raid — after law enforcement received information that so-called "church enforcers" could target her.
But Hyde said law enforcement acted appropriately in disclosing potential threats to Walther and ruled that was irrelevant to her ability to remain impartial.
"Ultimately," he wrote, "Judge Walther's actions should not be measured by a yardstick of perfection but by the standard of procedural fair play."
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