New judges’ failure to disqualify

In 2 recent cases, 2 new judges were disciplined for failing to disqualify from cases related to their pre-bench representation and making comments while presiding in those cases that created the appearance of impartiality.

In 1 case, the judge had become a judge on January 1, 2015.  On January 21, 2015, James Thomas was brought into her courtroom to be arraigned on a petit larceny charge.  Thomas was at the time on parole supervision for a felony on which the judge had represented him approximately 3 years earlier.

When Thomas entered the judge’s courtroom, he smiled and waved at the judge, who was on the bench.  The judge laughed and disclosed to counsel that Thomas was a former client, adding, “And I like him.”  She then said, “Well, I mean, I can … arraign him … but I’m going to transfer it.”  The judge asked her court clerk, “Can it not go to Johnson, please?”, referring to another judge who would usually get a transferred case.  At the hearing, the judge testified that, if Judge Johnson, who was not very “nice to anyone,” got his case, Thomas would get harsher treatment and a less favorable result.

She then commented from the bench:  “[W]hen … you said the name I’m like, ‘Aw, come on”‘; “He freaking just got out.  I represented him … He just, just got out”; and “Aww, I’m so sad about this.”

The judge read Thomas the charge and assigned him counsel, who entered a plea of not guilty.  The judge told Thomas that it was not appropriate for her to preside over his case.  When he asked why, she replied, “I would love to preside over your case, but I don’t … want any conflicts.”  The judge set a “courtesy” bail at $50, as requested by Thomas’ attorney.  In setting bail, the judge stated that because he was being held, “it really doesn’t matter,” but that because he was being held on bail concurrent to the parole hold, he would be “getting time on these charges.”  When the next case was called, the judge commented, “I totally love him.  I’m so sad that he’s in jail right now.”

The New York State Commission on Judicial Conduct found that the judge’s impartiality could reasonably be questioned, not only because of the prior attorney-client relationship, but because of her evident bias.  The Commission explained:

Even if respondent mistakenly believed that conducting the arraignment was permissible as long as she subsequently transferred the case, her handling of the proceeding, including her repeated expressions of fondness for her former client and her misuse of her judicial position to benefit him, created an unmistakable appearance of favoritism.  Her undisguised attempt to benefit the defendant by asking her clerk not to transfer the case to a particular judge whom respondent viewed as harsh was particularly improper.  The defendant, who was being held on a parole violation arising out of the matter in which respondent had represented him, also benefited from her decision to set a $50 “courtesy” bail, which would give him credit for jail time on the current charge.

The Commission emphasized that, “when a conflict with a party requires disqualification, a judge must recuse at the outset of the case and must not handle an arraignment since arraignments are a significant stage in the criminal proceeding requiring the exercise of discretion . . . .”

The Commission removed the judge for arraigning Thomas; making discourteous, undignified, or otherwise inappropriate comments while presiding over 3 other criminal matters; operating a vehicle while under the influence of alcohol; asserting her judicial position in attempting to avoid the consequences of her arrest; and repeatedly violating the terms of her conditional discharge.  In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

* * *
In the second case, the judge had been sworn into office in January 9, 2017.  On February 22, 2017, she accepted a defendant’s guilty plea, and, on March 8, she sentenced the defendant — even though she had appeared in the same case representing the same defendant at the preliminary hearing on November 8, 2016, while serving as the “attorney of the day.”

During the sentencing hearing, after disclosing that she had represented the defendant at the first hearing, the judge asked whether “either party” had “any problem” with her imposing sentence.  There was no objection.

Before imposing sentence, the judge said, “Well, I actually – I remember [this defendant], and I remember thinking he was different than most of the people that I dealt with when I was defense attorney.  I remember telling the judge that I felt like it was outside of his character for him to do something like this.  In my dealings with him he was a very respectful young man.”  The judge then sentenced the defendant in accordance with the agreed recommendation of the parties.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished the judge.  In re O’Rourke, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct March 9, 2018).

In the disciplinary proceedings, the judge stipulated that her comments attesting to the defendant’s character may have reasonably given the impression that she was not impartial even though she followed the agreed recommendation of the parties.

Prior to the disciplinary proceedings, the judge had “mistakenly believed that disclosing her past representation and recusing herself” if requested was sufficient to cure the conflict.  She had done some research on the issue and had spoken to other, more senior, judges, including inquiring informally following a presentation on judicial ethics.”  She had concluded that disclosure was the appropriate remedy based on the limited nature of her prior representation and the potential disruption to the court if she were unable to preside over criminal cases because she had represented virtually every person charged with a crime in the county at their preliminary appearance in 2016.  The Commission noted that others in the local legal community it had contacted in the investigation also had the mistaken belief that the disclosure of prior representation was sufficient.  Noting the “apparent confusion regarding application of this rule,” the Commission clarified that a judge cannot preside over a case in which the judge previously acted as an attorney and that that disqualification cannot be waived.

The code of judicial conduct requires a judge to disqualify when the judge “served as a lawyer in the matter in controversy.”  This Washington code does not allow this disqualification to be waived unlike the model code of judicial conduct and the codes in many other states, but even under those codes, waiver is permitted only if the parties agree, “without participation by the judge or court personnel,” and the agreement is incorporated into the record.

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