Stephen J. Lee, Published February 17 2014
Judges decline to hear murder conspiracy case
A longtime criminal defense attorney, Howe, 72, is charged with conspiring to kill a witness in a drug case.
All six judges in North Dakota’s Northeast Judicial District, which includes Walsh County and nine other counties, notified state Supreme Court officials they were recusing themselves from Howe’s case.
Howe last week asked that one of them, Judge Richard Geiger of Grafton, be removed from his case.
Judge Laurie Fontaine, in a one-page document filed Friday and addressed to Penny Miller, clerk of the Supreme Court, said Fontaine “deems herself and all other judges from the northeast judicial district disqualified from acting” in Howe’s murder conspiracy case.
Howe, who has been a criminal defense attorney in North Dakota since the 1970s, was arrested Jan. 30 in a Grafton courtroom as he prepared for a hearing with his client Paul Lysengen in a separate felony drug case.
Howe and Lysengen were charged with conspiring with Wesley Smith in recent months to murder a confidential informant who allegedly helped investigators make – and record – a drug deal with Lysengen last May in Minto, N.D.
The female informant was the key witness in the felony drug trial of Lysengen that could put the ex-convict back in prison for years.
Investigators said in a meeting last month, Howe told a male informant wearing a wire and Lysengen it “would be good” if the woman “died or went away,” at least five days before Lysegen’s trial slated for April.
Howe told Judge Geiger on Jan. 30 he is innocent and will fight the charge. Last week, his attorney, David Thompson, moved to have Geiger removed from the case.
Howe has worked many cases over the years in the Northeast Judicial District that includes Walsh, Pembina, Cavalier, Towner, Ramsey, Benson, Pierce, Bottineau, Rolette, McHenry and Renville counties.
Howe also has experience defending people in the Northeast Central Judicial District that includes Grand Forks and Nelson counties.
In a separate letter to Miller, also filed Friday, Fontaine added: “I wanted to advise you that I assumed no district judge in the northeast central (district) would stay on this case either, so I did ask Judge Lawrence Jahnke. He advised me that he did not believe anyone in their district would want to be assigned (to Howe’s case). If possible, a judge from another part of the state could be assigned.”
Jahnke is the presiding judge in the northeast central district that includes four other judges besides him hearing cases in Grand Forks and Lakota.
Miller said after such a recusal as Fontaine made of the six judges in her district, it’s up to Chief Justice Gerald VandeWalle to assign another judge to hear Howe’s case.
Although the sentiments of Judge Jahnke conveyed by Judge Fontaine are likely an accurate account of judges’ views, they don’t serve as an official recusal of the five judges who sit in Grand Forks, Miller said.
But that won’t be needed, since there is little doubt the chief justice will assign Howe’s case to a state district judge who sits some distance from the two districts in the northeast corner of the state and has no regular history with Howe, Miller said.
Miller said it’s not unusual for all the judges in a judicial district to recuse themselves from hearing a case in which one of the parties is an attorney who regularly appears before them as a lawyer.
The stakes are high in the Howe case: The murder conspiracy count each of the three men face carries a top prison sentence of life without parole if convicted.
Howe, Lysengen and Smith made their initial appearance on the charge Jan. 30, the day they were arrested. But no other court dates have been set because of the question over which judge is on the case.
Howe was released after a few hours in jail and making his $100,000 bond. Lysengen and Smith, who have long criminal records, remain in jail in Grafton on bonds of $200,000 cash or surety.
Previous drug-dealing cases against Lysengen and Smith also are delayed because Howe no longer can represent Lysengen.
The informant/witness allegedly targeted by the three was not hurt but was advised by investigators to leave the area because they feared she would be killed.