This motion was file in a death penalty case in which the district attorney moved to disqualify the judge after a decision by the judge to allow evidence about the wrongdoings of a state witness.

The title of this motion was written to draw attention to the motion of the district attorney to disqualify the judge.  The impact of the title to this motion was so great that it was used as a headline to an article about the district attorney on the front page of the local paper.


Needless to say after the publicity the district attorney weakened and the judge remained on the case.


  NO. 6985-C
  IN THE 251ST DISTRICT  COURT
  IN AND FOR RANDALL COUNTY, TEXAS

 
  STATE OF TEXAS
  vs.
  DOUGLAS NATHAN PALMER

 
GASP, GASP, GASP, THE DISTRICT ATTORNEY RANDY SHERROD IS REACHING FOR THE LAST SAND BAG TO DELAY THE FLOOD OF INFORMATION ABOUT DR. ERDMANN'S WRONGDOING AND THE COVER-UP OF THESE WRONGDOINGS BY SOME DISTRICT ATTORNEYS INCLUDING RANDALL SHERROD HIMSELF - a/k/a The lesson politicians did not learn from the Nixon-Watergate era  
                      
  Counsel for Douglas Palmer answer the state's motion to "disqualify or recuse" Judge Pirtle as follows.
Introduction
  District Judge Patrick Pirtle set a hearing in this case for April 2, 1992.  In this hearing the issues involving the autopsy performed by Dr. Erdmann on Mr. Merriman were to be resolved.  
  On March 27, 1992, the District Attorney moved, pursuant to Rule 18(b) of the Texas Code of Civil Procedure, to disqualify Judge Pirtle from presiding over the hearing.  The grounds for the disqualification motion was that Judge Pirtle is a witness for the state of Texas on the material issue of whether Dr. Ralph Erdmann is qualified as an expert in forensic pathology under Tex.R.Crim.Ev., 608(a)(2).  The District Attorney has requested a hearing on this motion to disqualify Judge Pirtle before another judge, pursuant to Tex. Gov't Code Ann, Section 74.059(c)(8) (Vernon 1988).
  According to the District Attorney, Judge Pirtle is a material witness for the state because he: 1) ruled in the trial of John Rey that Dr. Erdmann was qualified to testify as an expert in forensic pathology and 2) made a statement after Rey's trial, on February 26, 1992, to the Amarillo Globe News that Dr. Erdmann "remains a qualified witness," in spite of the fact that he was indicted for falsifying an autopsy report and that unnamed defense attorneys in the Texas Panhandle made unspecified extra-judicial unsworn "complaints" about him.
  The defendant welcomes the District Attorney's candid concession that Dr. Erdmann's expertise is the issue to be decided at the hearing on the amended and consolidated motions, but the District Attorney's motion to disqualify or "recuse" Judge Pirtle from presiding over that hearing is legally and factually insufficient on its face and moreover untimely.  In fact, that motion is so obviously frivolous that it must be a desperate attempt to deny the defendant a fair hearing before an impartial judge, or delay a new autopsy until the evidence has completely disintegrated into dust.
  
 
Notice the frequent use of headings.








Each of the heading is designed to allow the reader to understand both the content of the material that follows and the important points in the document.
 
I.
FACTUAL BASIS FOR DENIAL OF DISQUALIFICATION MOTION
DELAY
Randall Sherrod Is Using The Disqualification/"Recusal" Motion Of Judge Pirtle As A Delaying Tactic
  If one believes that by attempting to disqualify Judge Pirtle, Randall Sherrod is seeking fairness for Douglas Palmer in a judge, or fairness in any other way, that person is a prime candidate to purchase the Brooklyn Bridge.  Randall Sherrod does not think Judge Pirtle is a material witness.  Randall Sherrod is not seeking a fair judge for Douglas Palmer.  Randall Sherrod only wishes to delay the presentation of evidence against Dr. Erdmann.  Randall Sherrod wants to continue his cover-up of Dr, Erdmann's unprofessional and criminal behavior.  Even worse, Randall Sherrod now seeks to have Judge Pirtle join him in the Erdmann conspiracy.      The motion to disqualify Judge Pirtle is for delay - it is a dilatory tactic.  
DECEIT
To Continue His Cover-Up Randall Sherrod Is Attempting To Enlarge The Erdmann Conspiracy By Involving Judge Pirtle In A Delay Of The Hearing
  Part of District Attorney Randall Sherrod's tactics in filing the disqualification motion is to try and enlarge the number of parties involved in the cover-up of the wrongdoings of Dr. Erdmann.  Travis Ware, the District Attorney in Lubbock County, has been involved up to his armpits with Dr. Erdmann's wrongdoings for a long period of time.  Randall Sherrod has only recently been drawn into the Erdmann cover-up conspiracy.  Like a chain letter, the participants are now inviting and trying to drag Judge Pirtle into the conspiracy.      
  Judge Pirtle is being invited and drug into the conspiracy under the guise that the hearing can be delayed because a new judge should be appointed.  The law on the issue of disqualification is so markedly against the District Attorney that his actual intent, delay through the expansion of the conspiracy efforts, is obvious.  These tactics are obvious even to an outsider to Randall Sherrod's political arena.  The tent is folded and loaded in the train cars; only Randall Sherrod thinks Dr. Erdmann can continue his show.  See the Dallas Morning News Article attached as appendix A.  
DIVERSION
Randall Sherrod, The District Attorney, Is Further Using The Disqualification Motion To Focus Public Attention Away From The Wrongdoings Of Dr. Erdmann.  Randall Sherrod Additionally Wants To Focus Public Attention Away From The Participation And Cover-Up Of The Wrongdoing By Certain District Attorneys Including Himself
  Randall Sherrod is on the eve of being caught with his cloak around Dr. Erdmann and his host of unprofessional and illegal acts.  Randall Sherrod is only hours away from entering a public arena where he will be defending and sponsoring the testimony of a criminal, Dr. Ralph Erdmann.  It is very convenient and useful for Randall Sherrod to try and drag Judge Pirtle into the Dr. Erdmann cover-up conspiracy.  Counsel for Douglas Palmer expects and certainly hopes, that Judge Pirtle will resist the tuggings of Randall Sherrod and not become a part of the Dr. Erdmann conspiracy.  
  Randall Sherrod is trying to convince the public that Judge Pirtle supports Dr. Erdmann in his wrongdoing.  Randall Sherrod is deliberately trying to deceive the public into believing that both he and Judge Pirtle have the same view about Dr. Erdmann.  If Randall Sherrod thought for one minute that Judge Pirtle supported the criminal activities and other wrongdoings of Dr. Erdmann, Randall Sherrod would be happy to keep Judge Pirtle as the judge.  
Counsel For Douglas Palmer Do Not Know Judge Pirtle's Views About
Dr. Erdmann
  If Judge Pirtle does approve of Dr, Erdmann's criminal conduct and wrongdoings, he should not only leave this case, but his judgeship as well.  To the knowledge of counsel for Douglas Palmer, the only thing Judge Pirtle has ever done regarding Dr. Erdmann's behavior, is rule that on the evidence presented, Dr. Erdmann could be qualified as an expert witness at those particular trials.  Right or wrong, these were only judicial decisions based on the evidence presented.  Right or wrong, these rulings are not a basis for disqualification.     
  Judge Pirtle Has No Relevant Evidence To Offer On The Issue Of Dr. Erdmann's Qualifications
  To the best of Counsel for Douglas Palmer's Knowledge, Judge Pirtle has no special training in forensic pathology, nor does he have personal or legally admissible knowledge about Dr. Erdmann's wrongdoings.  
  To identify Judge Pirtle as a material witness is at best a mockery of justice and more realistically a perjured statement.  The motion and affidavit of Randall Sherrod fails because he does not state with particularity the intended evidence to be elicited from Judge Pirtle; he merely makes conclusory statements.  
Judge Pirtle Is Most Likely Biased Against Douglas Palmer As Alluded To In The District Attorneys Motion.  However, This Bias Does Not Reach The Level Of Disqualification
  Judge Pirtle is most likely biased against Douglas Palmer.  Judge Pirtle's bias against Douglas Palmer is probably no different than any other judge's bias.  It is a bias that originates in the things that Douglas Palmer has been charged with doing rather than a personal bias against Douglas Palmer based on previous personal experience.  If this type of bias were the basis for disqualification there most likely would not be a judge in Texas who could try this case.  Our Constitution alludes to complete impartiality and fairness in a judge; the reality of "justice" is quite different.  An accused in a criminal case is fortunate to have a judge who is only mildly biased.  
Randall Sherrod, The District Attorney, Can Not Conform His Own Conduct Within The Framework Of The  Professional And Constitutional Requirements - Certainly He Has No Standing To Cast Stones At Judge Pirtle
  Counsel for Douglas Palmer is seeking numerous sanctions against Randall Sherrod in an amended and consolidated motion.  A draft copy of this motion was delivered to Randall Sherrod Thursday, March 26.  These sanctions, sought against Randall Sherrod, are for failing to comply with orders of Judge Pirtle, together with statutory and constitutional mandates.  Perhaps this is another reason Randall Sherrod wants delay.  
Any Delay In The Hearing Scheduled For April Second Will Prejudice Douglas Palmer
 
  Douglas Palmer is an indigent person who is relying on the funds and resources supplied his counsel by Randall County together with charitable contributions of legal talent.  
  Counsel for Douglas Palmer have endured enormous expenses preparing for the April 2nd hearing.  Most of these expenses must be incurred again if this hearing is delayed.  This will increase the burden to the taxpayers of Randall County by many additional dollars.  
  Every day this hearing is delayed is a day that the evidence needed by Douglas Palmer is wasting away.  If Randall Sherrod wants the charges against Douglas Palmer dismissed because of prosecutorial misconduct, his actions in delaying the hearing are useful.  
  The delay sought by Randall Sherrod is just another act of unconstitutional prosecutorial misconduct that will be dealt with at some stage in the criminal justice process.
This section deals with the law as relates to the issues in the document.  Sometimes the law is covered in a separate documents, however we prefer to incorporate the law with the pleading if not restricted by the local rule.


Most legal scholars differentiate the word "recuse" from the word "disqualify", when these words are used to have a judge removed from a case.  "Recuse" is something that the judge does in vacating a case; "disqualification" is when a litigant mover to have a judge removed from a case.  The quotation marks around the "Recusing" in the headline are to indicate the improper use of the the word "recuse".  This was relevant in this case as the assistant district attorney who wrote the motion for the state attempted to identify himself as a legal scholar.  Before this case ended the myth of this assistant district attorney being a legal scholar was dispelled many times.












































































































Again notice the use of the headlines.  The section about the law needs this as much as the other sections.







II.
THE LAW OF TEXAS ON THE DISQUALIFICATION OF A JUDGE AS IT APPLIES TO THE STATES DISQUALIFICATION AND RECUSAL MOTION
The District Attorney Did Not Allege Any Cognizable Legal Ground For "Recusing" Or Disqualifying Judge Pirtle
               
  Article V, Section 11 of the Texas Constitution declares that a judge must recuse himself if he has an interest in the outcome of the case; is related to one of the parties; or served as counsel to one of the parties in the same case.   For many years , these three grounds for disqualification were "held by the Supreme Court to be (the) exclusive" grounds for disqualification a Texas judge in civil  or criminal cases.  Love v. Wilcox, 28 S.W.2d 515, 518 (Tex. 1930) (emphasis in original).
  In 1980, the Texas Supreme Court adopted a rule of civil procedure that mandates disqualification on many grounds that did not disqualify a judge to sit under the Texas Constitution.  See Tex.R.Civ.P. 18(b).  Rule 18(b) does not specifically mandate disqualification when the judge is a potentially material witness, but it does disqualify a judge who has personal, extra-judicial knowledge of disputed evidentiary facts concerning the proceeding.  See Tex,R.Civ.P. 18(b)(2)(a)(b) (emphasis added).  
  The District Attorney must establish one of the three grounds for disqualification in Article V, Section 11 of the Texas Constitution to prevail on his disqualification motion because Rule 18(b) does not apply to criminal cases.  Arnold v. State, 778 S.W>2d 172 (Tex. App--Austin 1989); Williams v. State, 746 S.W. 2d 333 (Tex. App- Ft. Worth 1988); Crawford v. State, 719 S.W. 2d 241 (Tex. App. Eastland- 1986).  Defendants in criminal cases can move to disqualify trial judges on federal due process grounds, as well as the three narrow state constitutional grounds, but the District Attorney does not have standing to make such a motion.  
  The District Attorney did not allege that Judge Pirtle was disqualified by one of the three reasons stated in Article V, Section 11.  Judge Pirtle is qualified under that provision of the Texas Constitution, even if he formed an opinion about the material issue of Dr. Erdmann's qualification and could be called as a witness to testify about it in the case.  It is well settled that a judge is not subject to disqualification under Article V, Section 11 simply because he was a witness to his own conduct or testimony in a previous case.  Baldwin v. State, 478 S.W.2d 476 (Tex. Crim. App. 1972); Price v. Callahan, 319 S.W. 2d 347 (Tex. Civ. App. 1959) ; Chavarria v. Macias, 252 S.W.2d 262 (Tex. Civ. APP. 1952). In fact, Article V, Section 11, does not require the disqualification of a judge even if he expressed a biased opinion about a disputed issue that was based on his personal knowledge of what transpired in a previous case.  Baldwin v. State, 478 S.W.2d 522 (Tex. Crim. App. 1973); Zima v. State, 553 S.W.2d 378 (Tex. Crim. App. 1977).  Therefore the motion to disqualify Judge Pirtle must fail, even if he could be called as a witness at the hearing on the motion to exhume.  
  A similar disqualification motion was properly denied under Article V, Section 11 in Templin v. State, 321 S.W.2d 877 (Tex. Crim. App. 1959).  The judge in Templin's case had promised in an angry public speech to impose stiff sentences for all liquor law violations.  Templin was charged with  a liquor law violation, but the judge's expression of opinion did not establish one of the three state constitutional grounds requiring disqualification.  
  The District attorneys "recusal"/disqualification motion is also strikingly similar to the one that failed to pass muster in Bertch v. Beto, 254 F.Supp. 257 (E.D. Tex. 1966).  There, the judge made a public statement expressing great pride about the propriety of a ruling that he had made in a previous case about an issue that would also be litigated in Bertch's trial.  This is essentially what Judge Pirtle did when he spoke to the Amarillo Globe News: he was merely explaining and perhaps defending his rulings on Dr. Erdmann's qualifications to testify as an expert in John Rey's trial.  If that made him a witness, no judge could ever talk to the press about one of his or her rulings without becoming a witness.  The Framers of the Texas Constitution could not possibly have intended that absurd result.  
  Furthermore, the District Attorney failed to allege sufficient facts to disqualify Judge Pirtle under Rule 18(b).  Rule 18(b) is almost identical to the disqualification statute that applies in the federal courts.  See 28 U.S.C. Section 455(a); State ex rel Millsap v. Lozano, 692 S.W.2d 470, 476 (Tex. Crim. App. 1985).  In the federal courts, a judge is not subject to disqualification merely because he acquired personal knowledge of disputed facts when he presided over a related case.  United Sates v. Chavis, 772 F.2d 100 (5th Cir. 1985); Application of Scott, 379 F.Supp. 622 (W.D. Tex. 1974).  A judge is qualified to preside over a federal criminal trial even if he made factual determinations in a previous trial about an issue that will be relitigated in the case at bar.  United States v. Reeves, 782 F.2d 1323 (5th Cir. 1986).  That is essentially what the District Attorney has alleged here.  
  If Judge Pirtle's ruling on Dr. Erdmann's qualifications in John Rey's trial was grounds for disqualification under Rule (18)(b) because it made him a material witness, no judge could ever preside over more than one case in which the same expert testified.  Defense lawyers could create havoc and delay in countless criminal cases by simply retaining an expert that the judge had found to be qualified in a previous case and alleging that the judge was a witness about the expert's qualifications.  The Texas Supreme Court surly did not intend to promulgate a rule that was susceptible to such abuse.  
  In any event, Judge Pirtle is not subject to disqualification under Rule 18(b) because the District Attorney failed to allege sufficient facts to show that he could give an admissible testimony about Dr. Erdmann's qualifications.  Judge Pirtle is not competent to render an opinion about Dr. Erdmann's skill as a forensic pathologist because he has no specialized knowledge of that subject or personal knowledge of Dr. Erdmann's work.   See Holloway v. State, 613 S.W.2d 497 (Tex. Crim. App. 1954).  Judge Pirtle is. of course, competent to express his opinion about Dr. Erdmann's legal qualifications, but that testimony would clearly be inadmissable.  Leach v. State, 428 S.W.2d 817 (Tex. Crim. App. 1968).
  The District Attorney Is Not Entitled To A Hearing On His Disqualification Motion Before Another Judge
  In criminal cases, there is no requirement that a motion to disqualify a judge be heard by a different judge.  Arnold v. State, 778 S.W.2d at 179; Ricondo v. State, 657 S.W. 2d 439 (Tex. App. 4 Dist. 1983); But cf State ex rel Millsap v. Lozano, 692 S.W.2d at 478-81 and McClenan v. State, 661 S.W.2d 108 (Tex. Crim App. 1983). The District Attorney is not entitled to a hearing before another judge, even if the Texas Government Code requires one in criminal cases, because he did not allege sufficient facts to establish one of the mandatory grounds for disqualification in Article V, Section 11 or Rule 18(b).  Querner Truck Lines v. Alta Verde Industries Inc., 747 S.W.2d 464 (Tex. App. San Antonio 1988).  
  The District Attorney's Disqualification Motion Is Untimely
             
  Rule 18 Clearly states that a motion to disqualify a judge must be filed "a(t) least 10 days before the date set for trial or other hearing in any court."  Tex.R.Civ.P., 18(a).  The District Attorney clearly violated that rule without good cause and good cause would not excuse this procedural default.  
  The disqualification motion was filed on March 27, only six days before the scheduled April 2 hearing on the motion of Douglas Palmer.  The facts alleged in the motion were obtained from a newspaper article that was published a full month before it was filed.  
   Here, as in Ricondo v. State, it is obvious that an untimely disqualification motion was a thinly disguised attempt to delay the proceeding.  657 S.W.2d at 441.  Texas courts have held without exception that similar untimely Rule 18(b) disqualification motions were properly denied without a hearing, regardless of their merits.  Arnold v. State, 778 S.W.2d at 179-80; Mooney v. Jones, 766 S.W.2d 307 Tex. App. - Dallas 1989); Houston North Properties v. White, 731 S.W.2d 719 (Tex. App. - Hous. 1st Dist. 1987); Thibodeaux v. State, 726 S.W.2d 601 (Tex App. - Hous. 14 Dist. 1987).  Constitutional disqualification motions can be filed at any time, Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987), but the District Attorney's motion did not rest on constitutional grounds.  Constitutional rights flow to individuals, not to the government.
Notice that while supporting the judge in this document, that there is a careful reservation at the end of this section.  This reservation states that "the defendant is hereby exercising his right to 'waive any ground for recusal' of Judge Pirtle that is 'disclosed on the record' as of this date."






































It is important to raise issues relating to cost in all documents that will the subject of important news articles.
The Defendant Waives Any Right He May Have To Disqualify Judge Pirtle At This Motion's Hearing
  At bottom, the District Attorney's disqualification motion is based on the remarkable premise that Judge Patrick Pirtle is biased against the defendant on the most important issue to be determined at the hearing on April 2nd: whether Dr. Erdmann was qualified to perform a forensic autopsy.  The defendant strongly rejects that contention as a matter of fact and gladly waives any right that he may have had to raise the issue as a matter of law.  
  The defendant sees nothing in Judge Pirtle's comments to the Amarillo Globe News that would even remotely constitute an opinion about the issues to be litigated on April 2nd in his case.  The defendant agrees with Judge Pirtle that Dr. Erdmann's indictment and the unsworn extra-judicial complaints of local defense attorneys did not constitute a sufficient legal reason for Judge Pirtle to doubt the property of his ruling in John Rey's case that Dr. Erdmann was qualified to testify as an expert.  Judge Pirtle could not possibly have meant to express his opinion about how he will rule on April 2nd, because he has not heard any of the evidence that the defendant intends to present to him on that date.  That evidence will be completely different than the evidence in John Rey's case and there is no reason to believe that Judge Pirtle will not hear it with an open mind.  
  So that there is no possibility of a misunderstanding, the defendant is hereby exercising his right to "waive any ground for recusal" of Judge Pirtle that is "disclosed on the record" as of this date See Tex.R.Civ.P., 18(b)(5).  The defendant has no special reason to believe that Judge Pirtle will be more favorably disposed to his case than any other District Judge that might have been assigned to hear it.  Given the District Attorney's repeated efforts to obstruct justice in this case, that is a sufficient reason for the defendant to vigorously oppose the motion to disqualify Judge Pirtle.  
The District Attorney Is Willing To Waste Hundreds Of Thousands Of Dollars Of The Taxpayer's Money To Avoid A Fair Hearing Before An Impartial Judge
  If the motion to disqualify Judge Pirtle is erroneously granted, the defendant's trial will be a nullity because the error cannot be harmless.  Ex Parte Hopkins, 399 S.W.2d 551 (Tex. Crim. App. 1966).  It would be as if the Administrative Judge grabbed the first person who walked past the door handed out a gavel and told him or her to try the case.  No one else except Judge Pirtle has the authority to take any action on it.  
  It will cost Randall County hundreds of thousands of dollars to try this case once.  The citizens of the county should be outraged that their elected District Attorney is willing to make them pay for it twice in order to avoid a hearing before the District Judge that they elected to preside over it.  Fortunately, for the citizens of the county and Douglas Palmer, the District Attorney's disqualification motion is so clearly without merit that this enormous cost can be easily avoided by stamping it, DENIED!

 
  This motion was brought in a case in which Millard Farmer and Steve Losch were assisting a local attorney in a death penalty case.
  This motion was signed by the local attorney without the names of out-of-state counsel appearing.  Only local counsel signed the motion since this was an early motion filed and we did not wish the motion to be designated as a motion by outsiders.  The judge and the district attorney new the local lawyer did not write the motion, but they did not and could not make this comment to the newspaper.
  After receiving this motion the judge and the district attorney knew that this case was going to be litigated differently than they had expected form this local appointed attorney.  This local attorney is not deceased, but he ended his career saving this defendant's life and standing by Millard Farmer and Steve Losch thought as some extremely hard litigation.  
  V. G. "Bill" Kolius earned the highest respect possible from both the community and those involved with him in this litigation.  A letter addressed to those attending a wake for Bill in 1996 after all the litigation ended can be viewed by those having a historical interest in the litigation around this case.  Letter of September 1996.
  Wherefore, for the reasons stated above, Douglas Palmer prays:

  a)    that the motion be denied without a hearing immediately;

  b)    that sanctions be imposed against the District Attorney as provided by law for bringing this frivolous motion

  c)    that the District Attorney be admonished in open court for bringing the motion and                                  d)     for such other and further relief as justice and law require.
      

Respectfully submitted,
      S/ V. G. Kolius              
      V. G. Kolius
      State Bar No. 11667000
      301 E. 7th Street
      Amarillo, Texas  79101
     
    COUNSEL FOR DOUGLAS PALMER