Fri. Apr 19th, 2024

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

WHY JUDGES OR ATTORNEYS MUST SOMETIMES RECUSE THEMSELVES

 

But as the public may talk about recusal when it is discussed in major news stories, many don’t understand what the term actually means or the greater implications it has on the judicial system. Here’s why someone may recuse themselves from a case and what happens if someone who should have recused themselves didn’t do so.

What Does Recuse Mean in Law?

A recusal occurs when a judge or prosecutor would would have normally taken a case does not participate in it. This can happen if they are removed from the case due to a motion on behalf of an attorney or due to the individual’s decision. Recusals usually take place due to a conflict of interest of some type that will result in the judge or prosecutor being too biased to fairly participate in the case. Some of the top reasons a recusal may take place include:

  • Bias or prejudice concerning the party or their attorney. If a judge or prosecutor has a bias or prejudice against the defendant or their defense attorney, then they cannot take the case. Simply trying a case involving the person or their lawyer in the past isn’t enough, there must be evidence there is actual bias or prejudice preventing them from acting fairly in the trial.
  • A personal relationship to the party or their attorney. Alternatively, if the judge or prosecutor has a personal relationship to either the defendant or their lawyer, they cannot be expected to be fair, it doesn’t matter if this means the defendant is a loved one or a neighbor the judge or prosecutor sued in the past, if the two have a relationship beyond a simple acquaintance (just being friends on Facebook isn’t enough), the judge or prosecutor needs to recuse themselves.
  • An economic interest in the case. While this is more commonly a problem for judges handling civil cases, it can still affect criminal ones as well. For example, if the prosecutor’s wife holds a lot of stock in a company being tried for fraud (which would likely result in the stock plummeting if the company is found guilty), he might be, or at least seem, less likely to try very hard to prove the company’s guilt, which is why he would be expected to recuse himself in such a case.
  • A judge’s personal knowledge of disputed facts. This is less of a problem for prosecutors, but often there is evidence uncovered during the investigation of a case that is not actually admitted in the factual record of the case or that conflicts with the evidence presented in court. If a judge knows about such evidence, it could stop her from being impartial and she should recuse herself. Similarly, if a judge was the prosecutor in a case years ago that is later appealed, she could not judge the appeal.

What Happens if Someone Refuses to Recuse Themselves

Most judges and prosecutors will automatically recuse themselves if they feel there is a conflict of interest. If they do not, the defendant’s criminal attorney can file a motion to have the either judge or prosecutor recused from the case and the prosecutor can file one to have the judge recused. The judge may then determine if the prosecutor should be recused and will also make the determination about whether or not he should be recused if it was against him. If he decides he should not be recused, the side that filed the motion can then be able to have the motion heard by a higher judge.

If it is discovered after the fact that the judge or prosecutor should have recused themselves and did not, the case can be appealed and the court may order a new trial. The judge or prosecutor may also face disciplinary measures, which could even include disbarment.

When Defense Lawyers Have Conflicts of Interest

It’s worth knowing that defense lawyers can be conflicted on cases but it is not the same as recusal. The usual grounds are that a defense lawyer shouldn’t represent more than one defendant on a case. Another conflict is the defense lawyer has previously represented a co-defendant or a witness in the case.

Anyone who believes their motion to recuse a judge or prosecutor was improperly denied should tell their lawyer and be sure to include all relevant details regarding why they believe the judge or prosecutor should recuse themselves.

source 

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

 

 

 


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