Judge recused in case where man got a stay of execution

Dallas: Ruling says letter creates appearance she couldn't be impartial

12:00 AM CST on Wednesday, November 29, 2006

By ROBERT THARP / The Dallas Morning News

Judge recused in case where man got a stay of execution Dallas: Ruling says letter creates appearance she couldn't be impartial 12:00 AM CST on Wednesday, November 29, 2006

By ROBERT THARP / The Dallas Morning News A Dallas judge was recused Tuesday from presiding over a court dispute involving a man who recently recanted testimony that helped send the man's uncle to death row in 1998.Visiting Judge Pat McDowell ruled that a Nov. 1 letter written by District Judge Janice Warder describing her opinions about the witness's recantation created an appearance that she could not be impartial in the case. "This case doesn't need any more baggage than it already has," Judge McDowell said. "The appearance is enough to make granting the motion [to recuse] the proper thing to do."Judge Warder said she wrote the letter at the request of the state Board of Pardons and Paroles after a hearing last month in which Memphis Nealy claimed that a Dallas prosecutor pressured him to implicate his uncle, Charles Anthony Nealy, in the 1997 robbery and fatal shooting of two clerks at a South Dallas convenience store.Such letters to the state board are meant to be confidential, but it was mistakenly placed in Mr. Nealy's court file and the contents were reported in The Dallas Morning News.

In the letter, Judge Warder wrote that she believed Memphis Nealy was lying to prevent his uncle's approaching execution."He was hostile, and it was obvious to me that it was a desperate attempt, most likely influenced by others in his family, to put off the execution of his uncle," the judge wrote in the letter."I am convinced beyond any reasonable doubt of the guilt of the accused," she wrote. "This is a death worthy case."Charles Nealy was granted a stay of execution this month based on his nephew's new testimony. With Judge Warder's recusal, a new judge will be appointed to rule on the merits of Memphis Nealy's new testimony. In his original trial testimony, Memphis Nealy said that his uncle told him before the slayings that he had a grudge against the store clerks and was planning to rob the store. Although the robbery was captured on a video surveillance tape, the image is so poor that it's difficult to ide! ntify th e two suspects on the tape. Memphis Nealy testified during the trial that the two men were his uncle and his brother, Claude Nealy. A surviving victim of the robbery also identified Charles Nealy as one of the robbers. Charles Nealy also told police that he took part in the robbery.

E-mail rtharp@dallasnews.com