I have practiced law as an appellate and trial attorney since 1989, so I read about Union County District Attorney Kelsie McDaniel's motion to disqualify Circuit Judge Wes Williams from a criminal case because she believes he favors the defense and cannot be objective ("DA moves to sideline judge," April 25 edition of The Observer).
I obtained a copy of McDaniel's memorandum from the court. McDaniel cites numerous examples of what she considers to be Williams' bias. However, her memorandum includes only about a third of the records to support her allegations. Some cases McDaniel relies on are juvenile or civil commitment cases — conveniently, no one can double-check the truthfulness of those claims because those records are sealed.
Other claims are untrue.
McDaniel discusses a ruling Williams purportedly made on Jan. 1, 2019 — but Jan. 1 is a court holiday, when hearings are not usually held, and Williams was not even a judge (he took office later that month). McDaniel included a transcript to support her claim — but it was a transcript from a hearing on Oct. 8, 2019, and of a different issue. McDaniel frequently fails to cite any legal authority to show Willimas' rulings are actually wrong. McDaniel's failure to include all of the supporting records, combined with her sloppy and inaccurate legal work, makes it difficult to guess whether her complaints about Williams are valid.
The way the court has handled McDaniel's motion raises more serious issues about our county's criminal justice system.
Oregon law provides no way for an attorney to file a "blanket motion" that covers all of her or his cases. Instead, an attorney who wants to raise an issue must file a motion in the specific case. Additionally, Oregon law prevents an attorney from disqualifying any judge after that judge has made a substantive ruling in a case. However, I understand from court staff that following McDaniel's motion, Presiding Judge Tom Powers removed Williams from the criminal cases he was handling when McDaniel's filed the motion and is no longer assigning Williams new criminal cases.
Powers allowed McDaniel to remove Williams from all criminal cases without filing a motion in each case — work required of any other attorney in this state. Additionally, Powers allowed McDaniel to remove Williams from cases Williams already made substantive decisions —something McDaniel has no legal way to do.
If I were still practicing law, I would be alarmed by Powers' willingness to bend the rules to accommodate the district attorney. If I were a criminal defendant, I would insist on disqualifying Powers from hearing my case, based upon his clear showing of favoritism and bias for McDaniel and her office.