Front Page  news  metro

Wednesday, July 23, 2008

Request Called Judge Shopping

By Scott Sandlin
Journal Staff Writer
       Defense lawyers' arguments that a federal judge should recuse himself from the Metropolitan Court corruption case are irrelevant, prosecutors say in a document filed late Tuesday.
    Prosecutors say it's like "a serial bank robber who wishes to introduce evidence of banks he did not rob."
    The judge, meanwhile, set a Friday morning hearing on the issue — but not to hear witness testimony as the defense had requested, but solely to hear argument.
    Defense lawyers for three of the five defendants signed on to the motion filed last week seeking to have U.S. District Judge William "Chip" Johnson recuse himself from the case.
    Their arguments were that Johnson, while a state court judge in Roswell, had been on the design committee for the remodel of the Chaves County courthouse and had interacted with Design Collaborative Southwest architect Marc Schiff in the process. The defense contended that Johnson thus couldn't impartially sentence Schiff, who has cooperated with the FBI, entered a guilty plea and agreed to testify for the prosecution.
    Prosecutors called the recusal effort a "transparent attempt" at judge shopping.
    Schiff, they point out, will be sentenced by the judge before whom he pleaded guilty in February 2007 — Senior Judge John Edwards Conway, not Johnson, "a reckless factual error" in the defense's argument. In his plea, Schiff admitted that Metro Court administrator Toby Martinez told him to send false invoices from DCSW, which he did, which were then used to obtain state checks cashed to pay kickbacks to Martinez and former state Sen. Manny Aragon.
    Conway recused himself from the case in January, telling the Journal that he was concerned that he lacked the stamina for a protracted and contentious trial.
    Defense attorneys also pointed to lobbying contracts with other legislators they said paralleled those of Aragon, who is charged with co-conspirators of skimming $4.3 million from the $83 million Metro Court project.
    Prosecutors say that boils down to claiming that the construction of publicly funded buildings in Chaves and Lea counties that haven't generated a criminal case would cause a reasonable person to doubt Johnson's impartiality in the Metro Court case.
    "This incomprehensible contention should be rejected without an evidentiary hearing," U.S. Attorney Greg Fouratt and prosecutors Jonathon Gerson, Paula Burnett and Chris Lackmann responded.
    Since Johnson was assigned to the case, he "has made regular reference to (his) experiences as a state district judge in the reconstruction of the Chaves County Courthouse," the prosecution response said.
    Prosecutors point out that a draft of the recusal motion was sent to chambers the day before it was formally filed, asking that Johnson review it and "consider a voluntary recusal." The full record of the case shows that the defense motion "is nothing more than an effort to do whatever is necessary to find a judge more to (their) liking," they say.