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Judge cites 'Seinfeld' in ruling where state's attorney, defense lawyer exchanged heated words, hearsay in Minot court

MINOT, N.D.— A district court judge scolded both the state's attorney and the defense for contentiousness last week in his order denying the state's motion to change the judge in the Cynthia Wilder murder conspiracy case.

"There was a time, and not too long ago, when lawyers in North Dakota were collegial to one another and respectful towards the bench," wrote Judge Thomas Merrick, who was appointed earlier this year to fill in for Judge Richard Hagar, who is on suspension.

"Perhaps that was because they knew, as the 'Seinfeld' characters discovered, that a $20 bill lost may soon be counterbalanced by a $20 bill found. Perhaps they realized that while their present client is holding aces, their next might not. In the small universe of the courthouse, civility and doing the right thing was once as important as winning. No more. Now, any adverse ruling is taken as an affront."

Merrick presided over a July 5 hearing on the matter, at which heated words were exchanged between lawyers and each side introduced hearsay statements supposedly said by attorneys from each other's offices, old grievances were aired between the prosecutor and the defense, and the judge admonished the defense not to interrupt.

Ward County Deputy State's Attorney Kelly Dillon demanded a change of judge after Judge Stacy Louser was assigned. Dillon argued that the state disagreed with Louser's rulings in past cases, that they lack faith in Louser's ability to control a courtroom and they don't think Louser will give them a fair trial.

Defense attorney Patrick Waters argued against the state's bid to change judges. Waters accused the state of "throwing a tantrum" because it didn't get its way in past cases and of "judge shopping" and argued that the demand for a change of judge was not made in good faith. Waters said the state has tried to have Louser removed from up to 11 cases since March, when Lorin Hove was acquitted of sexual abuse of an 11-year-old girl. Louser had ruled against the state regarding discovery motions in that case.

"The Ward County State's Attorney's office did not allege bias on the part of Judge Louser in their demand in this case, nor was it required that they do so," wrote Merrick in his decision. "Likewise, at the July 5 hearing, there was no allegation of actual or implied bias. Rather, they admitted they were removing her from certain cases 'because of Judge Louser's evidentiary rulings in several cases,' and 'general concern over Judge Louser's ability to control the courtroom.' Based on these admissions and the frequency of the demands since the Hove acquittal, I find their demand in this case was not made in good faith but for the impermissible motive of 'judge shopping.' I can only conclude that they are not seeking impartiality but favor."

Merrick also wrote that he doubts any other judge would fare better in controlling a courtroom "if lawyers continue choosing unrelenting argument over zealous advocacy."

The ruling means that Louser will remain the presiding judge in the Cynthia Wilder case. A preliminary hearing in the case is scheduled for Aug. 15 in district court in Minot.

Wilder, 26, a one time kindergarten and second grade teacher for the Minot Public Schools, is accused of helping her husband, Richie Wilder Jr., plan the November 2015 brutal stabbing murder of his first wife and of helping him clean up the evidence afterward. She is also accused of aiding his failed escape from the Ward County Jail in August 2016.

She allegedly made a confession to a former partner that she connected with on Facebook in March. Cynthia Wilder has complained to the court that she doesn't know what is going on in her case and wasn't sure why she was in the courtroom at the July 5 hearing. She wrote that her defense lawyer's number is blocked when she tries to call him from the jail. She wants a bond hearing because she said her daughter and her two stepchildren need her at home. She has been held on $1 million bond since May.

Richie Wilder Jr. was convicted of Class AA felony murder in December 2016 and was sentenced to life in prison without parole in May 2017. He is appealing his conviction to the North Dakota Supreme Court and wants another trial.

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