This post is a follow-up to yesterday’s Red River Justice on Trial. 

The Honorable John Miller, the judge who refused to grant state motions to dismiss bogus drug convictions in Red River County, has been recused. 

Judge John L. McCraw Jr., a visiting judge from Collin County, listened to two hours of testimony then casually granted the recusal motion.  

Judge Miller decided to skip the recusal hearing.  The upside: he didn’t have to take the stand and answer Mark Lesher’s searching questions.   When the Red River County Courthouse was renovated several years ago, the text of the ninth commandment was discovered under several peeling layers of paint: “Thou Shalt Not Bear False Witness.”  This maxim might not pass First Amendment muster these days, but it was advice the Honorable Mr. Miller wisely heeded. 

Judge Miller may have anticipated that Judge McCraw would use the lunch hour to take the matter under advisement.  When Mark Lesher, the attorney representing Mark and Jermicole Richardson, arrived back at the courtroom, he could hear Judge Miller insisting that “there’s another side to the story.” 

But it was too late, the honorable Mr. McCraw had already ruled.  When the visiting judge saw Mark Lesher approaching with the recusal order in his hand.  “It is ordered that the Amended Motion to Recuse John F. Miller, Jr., 102nd Judicial District Judge is ORDERED recused and dismissed from any future proceeding in these cases,” the document read.  Judge McCraw quickly signed the document and took his leave. 

A new judge will soon be appointed to replace Judge Miller.  It is assumed that the Attorney General’s motions to dismiss cases against Mark, Vergil, Xavier and Jermicole Richardson will be accepted and the Richardson family will finally be free to reconstruct their lives. 

On the surface, Vergil Richardson appears to be the very picture of health.  An outstanding athlete back in the day, he can still bench press almost 400 pounds.  But his blood pressure is chronically high and he suffers from a wide variety of stress-related ailments.  

“When all of this happened, I was head basketball coach at Liberty Eulau High School in Texarkana,” Vergil told me over lunch.  The principal had asked me to serve as school liaison.  I counselled kids and worked with their parents.  I was well-respected, the kids loved me and everybody noticed the success I was having with even the hard-to-reach kids.” 

But that all changed when Red River County Attorney Val Varley accused Mr. Richardson of being a drug dealer.  Vergil was forced to resign his position and hasn’t found steady employment since.  

“I don’t stay in any one place for long,” Vergil explained to me.  After I saw how easy it was for these people to destroy my life I found it hard to trust anybody.  I didn’t want people to know where I was living.  I’ve been staying a few months with relatives in Dallas, then visiting with family in Minden, Louisiana, then moving on to Ocean Springs, Mississippi where some of my people live.  I stayed away from Red River County, I’ll tell you that.” 

Although Mark Richardson was forced to change employers, he has stayed active in his profession.  But the last three years have been a nightmare for him as well.  “The newspapers would come out and I would be so embarrassed.  I would hide the paper at work because I didn’t want to be associated with drugs.  For people like me who have never been in trouble before, this whole ordeal has been humiliating.” 

Judge Miller was wise to skip today’s hearing.  Mark Lesher put fellow defense attorney Clyde Hill on the witness stand and plied him with questions for over an hour.  Hill recalled that he had Lesher sent a copy of the affidavit Robert Bridges used to obtain a no-knock warrant to University of Texas law professor George Dix.  Dix reported that the document fell well short of the documentation required for a no-knock warrant. 

Professor Dix’s critique, and the fact that the warrant was signed nineteen minutes after the raid was deeply troubling to Nicole Habersang, the special prosecutor from the Texas Attorney General’s Office assigned to prosecute the case. 

Clyde Lee testified that before he represented any of the defendants in this case, he overheard Judge Miller joking about the case in open court in the hearing of several attorneys.  “It looks like the Liberty Eulau basketball coach has been making extra money on the side as a drug dealer,” Miller allegedly remarked. 

Mr. Lee reported a number of ex parte conversations initiated by Judge Miller.  On November 30th, 2009, in the courthouse in New Boston, Texas, Miller told the defense attorney that he felt there was more to these cases than had been represented.  He said that if the Richardson’s civil rights lawsuit, filed two weeks earlier, as withdrawn the chances that the cases would be dismissed would be very high.  The Judge stated that, in his opinion, the civil rights suit was just part of the ongoing quarrel between Mark Lesher and County Attorney Val Varley.  Judge Miller suggested that Lee talk with Vergil  Richardson about dropping the suit.  He also said that he intended to replace special prosecutor Nicole Habersang with “a real prosecutor.” 

According to Lee’s testimony, the judge stated his intention to bring the Richardson situation to the attention of the Texas Rangers to see if there was any obstruction of justice by either defendants or lawyers. 

Asked how he felt about the conversation, Lee said, “I was uncomfortable about the whole situation.  Let me be frank, nobody wants to piss a district judge off.”  Lee said he interpreted Miller’s remarks as a veiled threat. 

Immediately after this conversation, Lee consulted with Mark Lesher and memorialized the content of the New Boston interchange.  He then contacted Nicole Habersang about the matter.  Habersang said she didn’t think there was a legal mechanism that would allow a judge to un-appoint a special prosecutor but she wasn’t certain of that. 

A month later, in a second conversation in New Boston, Judge Miller asked Clyde Lee if he thought Kevin Callaway was being “thrown under the bus” by the rest of the Richardson family and their attorneys.  Miller suggested things would go much better for Vergil Richardson if he could testify against two of his co-defendants. 

Lee told Miller that Vergil had no interest in testifying against anyone.  Miller then repeated his earlier intention to replace Nicole Habersang. 

In a third conversation on May 10, 2010, Judge Miller repeated his suggestion that Vergil rat out his family members. 

At this point Lisa Tanner, Nicole Habersang’s supervisor at the Attorney General’s Office, asked Mr. Lee a few questions.  Tanner wanted to know if Lee considered Habersang to be “a real prosecutor.”  

“Oh, yes,” Lee replied, “She doesn’t have a defense posture in her makeup.” 

Tanner asked who initiated the three conversations Lee had with Judge Miller.  Lee replied that if he had broached the subject it would have constituted an ex parte overture–something strictly forbidden.  Of course, it is equally inappropriate for a judge to discuss the details of a case with either the defense or the state without the knowledge or participation of the other party.  

This may be why Ms. Tanner, in her concluding remarks, referred to “an appearance of impropriety.”  Asked what her office would do if a new judge was appointed, Tanner said, “We would stand behind the motions we have filed already.” 

Mark Lesher then called Jamie Hodgson to the stand.  Hodgson testified that he had been in the District Clerk’s office on January 4, 2010 and overheard Judge Miller say that “Mark Lesher and all his associates can go to hell.”  Lesher pointed out that a writ of mandamus in connection with this case had been filed on that date. 

“When questions are raised about fairness,” Lesher said in his closing remarks, “most judges are happy to step aside.  In this case, Judge Miller appears convinced that these defendants are guilty.” 

Clyde Lee echoed these sentiments.  “Judge Miller cannot consider the possibility that Vergil is innocent or that the Attorney General’s Office is correct,” he said. 

When the recusal order was signed, both the Leshers and the Richardsons were jubilant.  Separated by race and social experience, the two families are united by a common encounter with false accusation.  “You never really get over it,” Rhonda told us.  You spend you whole life establishing a reputation as a good and decent person and then something like this happens.  You can’t help but wonder if people believe all the terrible things that have been said about us.” 

The recusal of John Miller marked the second smashing success for Mark Lesher in the past five days.  Last Thursday, a Collin County Judge gave the Lesher’s permission to question the grand juries who heard nothing about their case except Shannon Coyel’s perjured testimony.  The Lesher’s vindictive prosecution case against County Attorney Val Varley and the Richardson’s civil rights case against Red River County are now free to move forward.  “The civil rights suit is meritorious,” Lesher told me.  “If it wasn’t, Judge Miller wouldn’t have been so desperate to have it dismissed.”