Wednesday, January 17, 2007

Prosecutor moves for judge?s disqualification

Thomas files motions to remove Elgee from 8 criminal cases


By TERRY SMITH
Express Staff Writer

Fifth District Court Judge Robert J. Elgee listens intently during the second-degree kidnapping trial of Robert Joe Harrison Jr. in September 2006. Since the trial, Blaine County Prosecuting Attorney Jim Thomas has filed motions to disqualify Elgee from presiding over numerous criminal cases. Photo by Chris Pilaro

Blaine County Prosecuting Attorney Jim Thomas has requested the disqualification of 5th District Court Judge Robert J. Elgee from eight local criminal cases since early September 2006.

It's not uncommon in Idaho for prosecutors or defense attorneys to request that a different judge hear their cases, but the number of motions filed by Thomas for Elgee's removal is unusually large, Elgee agreed in an interview Friday, Jan. 12.

"You're probably on the right track. I'd have to agree with you," Elgee said. "But the reasons for it are unknown to me."

Thomas declined to comment on his reasons, but he is not required to under Idaho judiciary rules as established by the Idaho Supreme Court.

Rule 25 for criminal court proceedings in Idaho gives prosecutors or defense attorneys the right to petition for the disqualification of a judge without stating a reason. And once a motion for disqualification is filed, judges have little choice but to remove themselves from the case.

"It's a little game that the Supreme Court lets them play," Elgee said. "It's just one of the rules. Judges generally don't like it. Attorneys do like it. It allows the attorneys a certain amount of maneuvering."

Thomas' first motion for Elgee's disqualification was filed on Sept. 6 in the case of Samuel Samudio, a 17-year-old Hailey youth who faces three felony charges for allegedly using a shotgun on Aug. 19 to steal a 12-pack of beer from Veltex Market in Ketchum. In that case, Elgee said he suggested to Thomas that he file the motion because Elgee has a teenage son who is acquainted with the defendant.

But Elgee made no such suggestions in the other seven cases. All of them were filed after the September 2006 trial of Robert Joe Harrison Jr., when Elgee irritated the prosecutor's office by recommending to the jury that it acquit Harrison of a second-degree kidnapping charge.

Harrison, a former Friedman Memorial Airport security guard, was accused of kidnapping a 10-year-old Hemingway Elementary School student in Ketchum on April 10, 2006. Ultimately, the jury's verdict was in accord with Elgee's recommendation and on Sept. 25 it acquitted Harrison of the kidnapping charge but convicted him of misdemeanor child enticement.

Thomas' second motion for Elgee's disqualification was filed on Sept. 28 in the case of two men arrested in a major marijuana bust near Carey on Sept. 4. Leobardo Vega and Eduardo Mariscal-Castellon, both 31 and both from Heyburn, are charged with two felonies each for allegedly cultivating some 2,000 marijuana plants near Little Wood Reservoir.

A third motion to disqualify Elgee was filed Oct. 25. That case involves a felony DUI charge against Jon Gunnar Pedersen, a 60-year-old Shoshone man who was arrested in Blaine County on Sept. 2.

Thomas' fourth motion was filed on Nov. 15 in the case of Oscar Valenzuela-Perez, a 20-year-old Shoshone man arrested in Blaine County on Aug. 15 and charged with felony possession of methamphetamine and misdemeanor counts of possession of drug paraphernalia, violation of a no-contact order and concealing a dangerous weapon.

Next was a motion for disqualification filed Nov. 22 in the case against Arbi Ochoa, a 32-year-old former Ketchum resident who was accused of multiple felony drug offenses in a 2001 Blaine County grand jury indictment. Ochoa remained a fugitive from justice until he was arrested in November 2006.

Thomas filed his sixth motion for Elgee's disqualification on Dec. 1 in the Ricardo McQueen case. McQueen, 29, a Bahamian citizen who formerly lived in Ketchum, is charged with two felony counts of aggravated battery for allegedly stabbing two men during a fight behind The Mint Nightclub and Billiards Hall in Hailey on Sept. 30.

A seventh motion was filed by Thomas on Dec. 5. That case is against Ovidio Ricaldi-Villajuan, a 24-year-old Hailey man who is charged with lewd conduct with a minor child under 16 for alleged sexual misconduct with a 4-year-old Hailey girl on Nov. 11.

The eighth and final motion was in a second case against Jon Gunnar Pedersen, who was arrested on Nov. 11 and charged with a second count of felony DUI. Court records indicate that the two charges against Pedersen may be consolidated into a single case, but at present they are separate.

All but one of the cases have been reassigned to Judge Barry Wood, the 5th District Court administrative judge who normally presides in Gooding and Shoshone counties.

Wood, who averages two trips to Hailey per month to hear Blaine County cases, doesn't think the number of Elgee disqualifications is excessive, nor has it caused unusual hardship for the judicial district.

"In the scheme of things, it's not that many," he said. "I don't know of a judge in this district who doesn't get disqualified now and then. I've been disqualified myself."

A case in point is the aggravated battery case against Ricardo McQueen. After Thomas filed for Elgee's disqualification from the case and Wood was appointed to hear it, defense attorney Brian Elkins filed a motion for Wood's disqualification. The case was then assigned to 5th District Court Judge John Butler, who normally presides in Jerome County.

Wood said the district is set up to take judge disqualifications in stride, and the Blaine County cases he's now handling are not a burden.

"It's nothing out of the ordinary, at least not yet," he said.

In spite of the eight disqualifications, Elgee, who also presides in Camas County, said he still has a full caseload. He handled some 75 criminal cases in 2006 and another 146 civil cases. Plus, starting in 2007 Elgee will take on some 80 criminal cases a year in Twin Falls County to help relieve a large caseload on 5th District Court Judge G. Richard Bevan.

Elgee said he doesn't know if the Harrison case is related to Thomas' motions for his disqualification in other cases. Regardless, Elgee said he'd do the same thing today because evidence presented during the trial didn't warrant a conviction for second-degree kidnapping.

According to Ketchum police reports, Harrison allegedly had the boy in his vehicle for only a short time and then allowed the boy to leave after the boy declined to go into Harrison's apartment to watch a movie.

"He (Harrison) ended it when he let him go," Elgee said. "He (Harrison) demonstrated that it was not a kidnapping."

Elgee said he agonized over his decision to recommend to the jury that Harrison be acquitted of the kidnapping charge.

"I did not make that decision lightly," he said. "I lost sleep over it for three days. I did not want to have to make that decision, but it was the right thing to do.

"As a judge, you have to follow the law and make the best decision you can. And virtually every decision you make, somebody is not happy with it. And that's just the name of the game."




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