McBryde's ever-industrious lawyers flew to Mexico and dug up Sanjuana Torres, Grecia Torres' guardian, who gave an affidavit stating she'd been kept almost totally in the dark, and in any event had never authorized the settlement. (Branson did have the decency not to deduct the quarter of the $4,900 settlement that Buchmeyer's order allowed him to take as attorney's fees.)
In the Satz case, the non-judicial-council judges last July agreed with McBryde, finding that "we need not attribute paranoia or irrationality to Judge McBryde to explain his view that AUSA Cerow's contentions about the sealing order were untruthful."
But as Politz's threat had indicated, Judge McBryde's troubles with the judicial council were just beginning. For two years, McBryde and the council have been wrangling over issues neither side will discuss. Whatever the issues, well-placed insiders, speaking on condition of anonymity, say they spawned a nasty pair of lawsuits late last September and early last October. McBryde apparently filed first, bringing some sort of civil action against the judicial council in Fort Worth district court. A week later, the judicial council countersued in Dallas.
One person who has seen the suits says that they were ordered sealed (without notice or hearing, of course) and that every single judge in the Northern District recused himself from the cases. Pursuant to statute, Politz then assigned the cases to a judge whom no one will name. Another person who has seen the suits describes them as "spectacular." The same source says that, among other counts, McBryde's suit challenges the constitutionality of procedures under the 1980 act.
In the interim, McBryde apparently has filed two new actions seeking to enforce subpoenas he has sent to the Justice Department and to other persons involved in the underlying cases. This time, he was less successful; the regular 5th Circuit ruled it had no jurisdiction to aid McBryde's attempts to obtain the information and documents he sought.
In the wake of their loss before the non-judicial-council 5th Circuit, the judicial council seems to have dropped all pretext of objectivity or fairness. In July, Edward Prado, a San Antonio federal judge who is on the five-member Special Investigative Committee, told Texas Lawyer that while they couldn't remove the Torres and Satz cases, they certainly could find another way to sanction him. And several lawyers who testified against McBryde in New Orleans have filed motions suggesting they have been told the committee intends to take some action against the maverick jurist. In a motion asking McBryde to recuse himself from a case, Dallas lawyer Arch McColl--one of the witnesses who testified against McBryde in New Orleans "regarding his fitness to remain as a federal judge"--states that "counsel believes the matter is pending before [the judicial council] internally and that they will be issuing some sort of standing order to correct this problem."
During this week's Fort Worth hearings, which are expected to end this week, McBryde will get to present his witnesses. The five-member special investigative committee will then prepare a lengthy report with its findings, which will be presented to the entire 19-member judicial council for adoption or rejection. (As a practical matter, judicial councils usually rubber-stamp the findings.)
For their part, any number of Justice Department lawyers say they hope the council will issue an order refusing McBryde future case assignments--specifically, those involving the Justice Department.
If it happens, there are some lawyers who say it will be a shame. "I can only say that my client's impression was that Judge McBryde was fairer to both sides than the judge in Arizona," says William Kelly, the Texas lawyer who represented Michael Satz. "And I don't disagree with that.
