By Andrew Kreig
A Texas federal judge has withdrawn from a major political corruption case five years after defendants moved for her recusal, thereby clarifying federal law on the due process right of litigants to a fair judge. U.S. District Judge Alia Moses withdrew at the request of three defendants accused of looting their state’s only legalized gambling facility. The judge attacked defense lawyers as liars in case tied to the White House, the notorious U.S. attorney purge in 2006 and the Jack Abramoff scandal. Also, she implied error by her supervising appellate judges. More generally, the case helps underscore aberrations around the nation when judges insist on deciding cases despite the clear-cut law requiring recusal as a protection for a fair trial.
The judge wrote that governing law compels her to withdraw from a case involving the Kickapoo Tribe's casino on the Texas-Mexico border even though she believes there is no basis for the defense claim she might act unfairly. Her resentment toward defendants and their attorneys is obvious. In the decision, here, she accuses one defendant of "mendacity" for statements about her three years ago. She saves her most sustained invective for defense attorneys. Richard "Racehorse" Haynes, the famed Houston-based defense attorney, is one of her main targets, albeit not criticized by name. To assess his and his colleagues' performance, the judge reached back to the 1808 poem of Sir Walter Scott: "Oh what a tangled web we weave, when first we practice [law] to deceive." Her animosity shows why lawyers are reluctant to challenge a judge on fairness grounds. As result, our Justice Integrity Project has documented that many lawyers around the nation let their clients suffer unfairness from biased judges rather than make hard-hitting filings to obtain recusal -- and thereby incur lifelong resentment from judges in new cases.
Other recusal disputes fester right up to the Supreme Court. Common Cause this year exposed Justice Clarence Thomas as hiding his wife's outside income from scrutiny on required disclosure forms, helping thwart litigants and the public from learning about his financial conflicts. In 2003, Justice Antonin Scalia went duck-hunting in Louisiana on vacation with Vice President Dick Cheney, and then refused to recuse himself from a major case challenging White House secrecy regarding a Cheney-led energy task force. Republicans recently have demanded also that Justice Elena Kagan recuse from health care litigation because she was the Obama Administration's Solicitor General. A flagrant abuse of recusal law is the federal prosecution of former Alabama Gov. Don Siegelman. Siegelman’s trial judge continues to preside despite many conflicts, as we recently reported in, “Florida Judge Continues Whitewash of Siegelman Frame-up.”
The Texas case became prominent because of ongoing controversies in the gaming industry and allegations that U.S. Attorney for the Western District of Texas, Johnny Sutton, was a leader in a nationwide effort by the Bush Justice Department and White House advisor Karl Rove to target Democrats unfairly. The photo above shows a Kickapoo tribal leader meeting President Bush in May 2001 with tribal lobbyist Abramoff in the background, circled in red. Upon publication by the New York Times, the photo contradicted Bush administration claims denying a relationship with Abramoff. Rove is portrayed at right.
The three Texas defendants include Isidro Garza, Jr., who worked for the Kickapoo Traditional Tribe of Texas as tribal representative. As such, he helped control financial affairs from 1996 to 2002. He is shown in the 1983 photo at right, as the second person from the right. His wife, Martha, is another defendant, and is in a black dress at the photo's center. The photo's occasion was a ceremony, led by the region's then- congressman after President Reagan officially recognized the tribe. The third defendant is their son, Timoteo Garza, who worked for the tribe's Lucky Eagle Casino, which is near Eagle Pass on the Mexican border. A 2004 federal indictment accused them and four others of illegally diverting hundreds of thousands of dollars from the receipts of the casino for illegal purposes. Isidro Garza is a former city manager and Democratic congressional candidate in 2000. Timoteo Garza was Democratic state representative when indicted.
Defendants included tribal leader Raul Garza, Sr., portrayed above at the center of the White House photo. Known by his tribal name of Chief Makateonenodua, he later pled guilty to corruption charges on the eve of trial. He was sentenced to 60 months in prison and ordered to make $2 million in restitution. He is no relation to the other Garza defendants.
The defendants claim that the Bush-appointed prosecutors and judges had political motivations. Among the defense allegations that they were forbidden to raise at trial were that Bush officials carried out the political agenda of Henry Bonilla, the only Mexican-American Republican in Congress until his 2006 defeat. Previously, Isidro Garza sought to challenge Bonilla in the huge, mostly rural Mexican-border 23rd congressional district. The gerrymandered district extends from San Antonio and Laredo 700 miles west to the outskirts of El Paso. Former New Mexico U.S. Attorney David Iglesias, fired during the Bush administration political purge of 2006, provided perspective in his 2009 autobiography, In Justice. Sutton, left, ran Western District operations in San Antonio from 2001 to 2009, and was also chairman of the Bush Administriation's national council of U.S. attorneys. Iglesias wrote that Sutton was “unquestionably the best-connected, most powerful U.S. attorney appointed by the Bush administration.”
Iglesias, left, is a Republican named by Bush in 2001 but fired for failing to prosecute certain New Mexico Democrats aggressively enough before the 2006 elections. His book did not link Sutton in any improper way to the Garza case. But Iglesias did note that one Texas radio station called him “Johnny Satan” because of alleged improper tactics elsewhere. U.S. Rep. Ted Poe, a Republican from the East Texas second district and former state judge, alleged in 2008 regarding the prosecution of a federal border agent that Sutton's style was to obtain convictions, not justice.
Bush prosecutors and Judge Moses, whom President Bush named to the bench in 2002 with a recommendation by Bonilla, have denied any improper motivations in the Kickapoo case. The Obama Justice Department, as is its practice throughout the nation, has shown solidarity with their Bush law enforcement predecessors, and also denied improper motivations by anyone in authority. Its two-year investigation of the U.S. attorney purge examined only the Iglesias firing, and called no witnesses involving other cases around the nation involving alleged political prosecutions. Our Project broke the story, excerpted below, of how and why the Obama-Bush internal investigation was a whitewash.
In 2006, the Kickapoo defendants suggested in legal papers that Judge Moses was biased. She presides as the sole judge in the court system's division in the border city Del Rios. She transferred the case to Walter S. Smith, Jr. of Waco, the Reagan-appointed chief judge for her district. The three defendants went on trial on such charges as embezzlement and conspiracy 330 miles from their home region. Upon conviction, Smith imposed sentences ranging as high as 20 years in prison for Isidro Garza.
Early last year, the Fifth Circuit U.S. Court of Appeals vacated their sentences because of excessive hardship in forcing defendants and their witnesses to travel to Waco, saying they had seldom seen a case where such hardship was so severe. The case reverted to Moses, a former federal prosecutor. After sitting on the case a year and a half, she responded to the defendants' writ of mandamus July 6 with a July 12 decision saying she has no choice under the law but to recuse. She sniped bitterly at the defendants' attorneys and the Fifth Circuit panel for what she considered unsupported claims of unfair motivations on her part. Her decision is here. The ruling means the case goes for trial in Del Rio. Presiding will be U.S. District Judge Catherine Lee Cardone, a 2003 appointee of President Bush who will travel from her usual courtroom in El Paso.
The Kickapoo case is notable because judges sometimes accept the clear-cut legal standards of recusal law. But we at the Project see also, as in the Siegelman case in Alabama, that judges sometimes do everything in their power to ensure victory for a favored side, including tactics to control a case or protect a colleague from public scrutiny. Several of our reports on this are excerpted below.
Roger Shuler, a talented and civic-minded blogger based in Alabama, frequently documents similar concerns. Portrayed at right with his late companion, "Murphy," Shuler founded his “Legal Schnauzer” blog four years ago to address the scandal of unfair judges. On July 15, he reported that his blog passed the million mark in pages views. We highly recommend that column, Legal Schnauzer Reaches a Blogging Milestone, showing the strong public interest in this topic and Shuler's approach. His column links to his first blog in 2007. Its theme is that an unfair judge is like a baseball umpire who inexplicably awards eight “outs” to a favored side, and threatens anyone who protests. Shuler often reports on prosecutions of federal corruption cases involving legalized gambling. Whether in Alabama, Texas or anywhere else, the cases involve huge profits. Also, the political connections necessary to obtain the licenses are similar, of course, to those necessary to obtain appointments to the top ranks of law enforcement. Hence the possibility of improper influence.
For such reasons, we have followed the Kickapoo case closely. Years ago, Isidro Garza described ambitious economic development and political organization plans for the depressed region energized by the casino he helped run from 1996 until 2002. During this period, Garza recalled to me in interviews, Abramoff worked for free whereas his associate Michael Scanlon unsuccessfully pushed for a $2 million contract to represent the tribe before state authorities. Isidro Garza made national news by supplying the New York Times with the White House photo of the tribal leader, portrayed also at left. The White House disclaimed contacts with Abramoff after he was exposed in lobbying scandals, even though Susan Ralston, Abramoff’s former aide, had become a top aide to Rove and had frequented contact with Abramoff and his clients.
Illustrating that these cases have many dimensions, the Democrat Isidro Garza likes the Republican Abramoff, and says he did a good job for the tribe in Washington representation at virtually no cost. They remained in touch while Abramoff serevd a prison and halfway house sentence. Garza, who served two years before release, faces a new trial with his family on the 2004 charges. To be continued ….
Below are significant articles that illustrate issues described above. See the full article by clicking the link.
Judicial Recusal & DOJ Internal Probe of 2006 Political Purge
Justice Integrity Project, Florida Judge Continues Whitewash of Siegelman Frame-up, Andrew Kreig, July 11, 2011. A Florida federal judge, Robert Hinkle, left, has ruled that former Alabama Gov. Don Siegelman and his co-defendant have been treated so fairly that no one can reasonably suspect the appearance of bias. despite evidence he “hated” the defendant and was rewarded with $300 million in federal contracts to his private company after facilitating the prosecution with pro-prosecution rulings.
Justice Integrity Project, Judges Who Refuse to Recuse Taint Our Justice System, Andrew Kreig, May 16, 2011. Three recent state, federal and Supreme Court controversies show how the public is nearly powerless to obtain due process when conflicted judges refuse to recuse themselves. The latest example is Texas judge Tracy A. Gilbert, right, in a child custody case.
Niewman Watchdog, New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings, Andrew Kreig/Justice Integrity Project, July 25, 2010. Four days before Nora Dannehy was appointed to investigate the Bush administration’s U.S. attorney firing scandal, a team of lawyers she led was found to have illegally suppressed evidence in a major political corruption case. This previously unreported fact calls her entire investigation into question, as well as that of a similar investigation by her colleague, John Durham, of DOJ and CIA decision-making involving torture.Kickapoo Case Background
Dallas Observer, Let the Chips Fall, John MacCormack, April 12, 2001.Texas' Kickapoo Indians once lived in squalor under a bridge and worked as migrant laborers. Now things are looking up, thanks to a new Native American tradition: casino gambling. Bumping along rutted caliche roads used nightly by prowling U.S. Border Patrol agents near the South Texas town of Eagle Pass, Isidro Garza sketches in the contours of the brave new world of the Kickapoo Indians. Garza, a former city manager of Eagle Pass, handles all business affairs of the Texas Kickapoo, a peripatetic 500-member tribe that has long been a downtrodden historical oddity. If his grandiose plans are realized, a destination gambling resort will rise beside the Rio Grande, and the Kickapoo will become a big player in South Texas.
San Antonio News-Express, Del Rio case waits and waits and waits to get judge's ruling, Recusal motion originally was filed in 2006, Feb. 11, 2011. When will U.S. District Judge Alia Moses ever rule? In Del Rio, that remains the question. After all, it was almost four years ago that defendants in a high-profile criminal case asked Moses, in a sealed motion, to recuse herself, claiming she had “political ties to a defense witness.”
FindLaw, U.S. v. Garza, et al, U.S. Fifth Circuit Court of Appeals Judges Patrick E. Higginbotham, Emilio M. Garza, and Edward C. Prado, No. 08-50186, Fifth Circuit U.S. Court of Appeals, Jan. 5, 2010. Defendants-Appellants Isidro Garza, Jr., Timoteo Garza, and Martha Catalina Gonzalez Garza appeal their convictions for crimes relating to the embezzlement of hundreds of thousands of dollars belonging to the Kickapoo Traditional Tribe of Texas and the Lucky Eagle Casino.
San Antonio News-Express, Kickapoos' ex-leader is handed 20-year term, John MacCormack, Feb. 13, 2008. Before a courtroom of watchful Kickapoo Indians, Isidro Garza Jr., a mercurial non-Indian who once ruled the tiny South Texas tribe with an iron hand, was sentenced Tuesday to almost 20 years in federal prison for his role in a theft and tax-evasion conspiracy. Also sentenced by U.S. District Judge Walter Smith to federal confinement were Garza's wife, Martha; his middle son, Timoteo, a former state representative from Eagle Pass; and Lee Martin, a former manager of the tribe's Lucky Eagle Casino. "The sentences reflect the seriousness of the abuse of the trust they were given," Assistant U.S. Attorney Bill Harris said. After a bittersweet embrace, Isidro and Timoteo Garza were led away in handcuffs. Martin and Martha Garza remain free on appeal. All were convicted in an October trial on various charges of conspiracy, theft from an Indian gaming establishment and tax evasion. The trial was moved from Del Rio after the original seven defendants objected to the judge there.
San Antonio News-Express, Former Kickapoo tribal manager is convicted, John MacCormack, Oct. 12, 2007. He was once a powerful South Texas political figure with an ambitious development plan for the tiny Kickapoo Tribe, but Isidro Garza Jr. was convicted Friday of the pedestrian crimes of theft and cheating on his taxes. The former tribal manager was found guilty in a Waco federal court of 11 counts of conspiracy, stealing money from the tribe and evading federal income tax. He was acquitted on five other counts.
U.S. Department of Justice, New Charges Filed in Federal Kickapoo Tribe Investigation, Jan. 26, 2005. Earlier, the government announced that on Dec. 9, 2004, a San Antonio grand jury returned a 19-count indictment in connection with what the government called a scheme to steal over $900,000 in tribal funds.
Casino Gambling Cases
Justice Integrity Project, Strange Twists in 'Casino Jack' Prosecutions Aired, Andrew Kreig, Dec. 23, 2010. As the movie Casino Jack debuts, a former client of Republican lobbyist Jack Abramoff described on MTL Washington Update radio Dec. 23 why the movie starring Kevin Spacey, at right, accurately portrays Abramoff's good qualities. Isidro Garza, Jr., the former Kickapoo Tribal Council representative with significant responsibilities at the Kickapoo Lucky Eagle Casino, the only legalized gambling facility in Texas, revealed for the first time why he has remained friendly with the notorious lobbyist through the years. Garza maintains that Abramoff, recently released from prison and a halfway house after corruption convictions, has taken more than his share of blame and has a great promise for making a positive contribution to society. Garza believes he was himself a victim of a political prosecution on corruption charges after he ran unsuccessfully as a Democrat for a Texas-Mexico border congressional seat.