Judge dismisses motion to recuse prosecutor

A judge denied a motion Tuesday that would have removed Special Prosecutor William Halvorsen from the case against Sheriff Brian Bellendir. The jury trial is set for July 16-18 in Barton County District Court, with another pretrial hearing on July 12.
Bellendir was charged last October with one count of mistreatment of a confined person, Nathan B. Manley. The charge is a misdemeanor.

Senior Judge Edward Bouker allowed defense attorney Jess Hoeme to view some emails he had subpoenaed, which included 21 pages of exchanges between Chase County Attorney Halvorsen and Barton County Attorney Amy Mellor and her staff. Hoeme argued that District Judge Mike Keeley abused his discretion in appointing Halvorsen as the special prosecutor because he was “hoodwinked” by Mellor to make the appointment.

“The argument is, that somehow Miss Mellor illegally picked someone who was going to do her bidding,” Bouker said. “The bottom line is, (Judge Keeley) had the right to say no. ... I don’t think it’s an abuse of discretion to appoint someone that the county attorney suggests.” He also said he did not see any evidence that Halvorsen has any ethical problems of his own in the case.

The arguments
“I have a great deal of respect for Judge Keeley but the appointment was wrong,” Hoeme said.
“Amy Mellor and Brian Bellendir have a long history of animosity,” Hoeme said, adding the county attorney wants to prosecute the sheriff while saying “it wasn’t me.”
“It was her and she still has a roll in this thing,” Hoeme said. “She can say, ‘I won’t prosecute my sheriff — but I’m gonna find someone that will.’ If the prosecutor has a conflict, they don’t get to choose their successor.”
Later, Hoeme added, “She’s tainting the prosecution with her bias.”

Mellor is also a member of the Kansas Commission on Peace Officers’ Standards and Training (KS-CPOST), a 12-member body appointed by the governor that oversees law enforcement training in the state.
A prosecutor is banned from using criminal law to satisfy malice or for personal gain, Hoeme said. Mellor’s choice of Halvorsen taints the communication between the prosecution and the defense.
This might, for example, stop Halvorsen from considering a plea bargain because he either wants a conviction or, “are you wanting CPOST to pull (Bellendir’s) commission as a Kansas law enforcement officer?” Hoeme said.
Hoeme would go on to describe that as Mellor’s goal. “The end game in mind is getting the sheriff removed,” he said. “She went out and hired a gun (Halvorsen). She went out and hired a friend for the sole purpose of prosecuting the sheriff.”

Hoeme said he needed to see the emails to show Keeley’s actions were premised on the actions of Amy Mellor. “Maybe I’m crazy but maybe I’m right,” he said. “We need to see those emails.”
After adjourning to read the emails, Bouker returned and said, “I can tell you that I don’t find anything in here that I consider to be a smoking gun. Most of these are extremely brief and I’m not convinced they are relevant.”

Halvorsen argued that nothing presented by the defense and nothing in the emails was relevant to the issue of whether Keeley abused his discretionary powers in appointing him. The fact that Halvorsen was already looking into the case for Mellor and filed the charges within minutes of being appointed by Keeley was not unusual. The county attorney asked him for an independent opinion on the case prior to his being appointed.
“We’ve heard nothing (from which) we can conclude why Judge Keeley did anything,” he said.
Bouker decided to allow Hoeme to read the emails before making his ruling.
After another 15-minute break, Hoeme commented on the emails, agreeing that they were “not the smoking gun. But it’s a gun and it’s hot,” he added.
The content of the emails will remain sealed to the public. Bouker described them, in part, as inner-office research.
Hoeme said he was prepared to subpoena Keeley and he said he had other witnesses, but Bouker said his courtroom would not be proper venue if Hoeme wants to accuse another judge.

He did rule in favor of the prosecution, saying Halvorsen does not need to be removed from the case because he was appointed by Keeley.
“There is no question that Mr. Halvorsen had been contacted well before the order was filed,” Bouker said. “He had been contacted before and took a look at the case. I don’t find that necessarily a problem.”
Bouker summed up his ruling that Halvorsen is a legally appointed public prosecutor.
“He’s not a hired gun. He was appointed by Judge Keeley. He is not disqualified.”