EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, July 31, 2008

Your Honor, We Call Your Honor To The Stand: Proseuctors Ask Judge To Recuse Himself In Baby Killing Case

The 1987 courtroom thriller "Suspect," starring Cher and Dennis Quaid is by no means a very good movie, despite the esteemable talents of director Peter Yates and screenwriter Eric Roth.  Nonetheless, it has one of the classic lines in any courtroom movie, with defense counsel at the climax of the movie saying to the judge, "Your honor, we call your Honor to the stand."  Well, in Ohio, Mahoning County prosecutors have asked the judge presiding over the case of an accused baby killer to recuse himself to avoid such a scenario

That case is the case of Terrance Tate, who is charged with aggravated murder with a death-penalty specification in connection with the fatal beating of Javonte Covington on his first birthday in April 2006.  The current issue in Tate's case is whether his admission to the subject crime will be admissible at his trial.  At the suppression hearing on the issue, Tate testified that police behaved aggressively toward him, yelled at him, and called him a liar in 45 minutes to an hour of questioning before warning him of his right to remain silent.  Judge John M. Durkin apparently credited Tate's testimony and excluded the confession, and the 7th District Court of Appeals affirmed, finding that police failed to warn Tate of his right to remain silent before questioning him about the victim's injuries while he was in police custody.

Prosecutors have appealed this ruling to the Supreme Court of Ohio, and they are armed with two new pieces of evidence:  letters that Tate wrote to Judge Durkin while in county jail in May 2006 and August 2007.  So, why didn't the prosecution have these letters earlier?  Assistant county prosecutor Martin P. Desmond has claimed that while the letters were faxed to defense lawyers, John B. Juhasz and Lynn Maro, they were not faxed to the prosecution.  So, what was in the letters?  While it's unclear what the letter from 2007 letter stated, in the May 2006 letter, Tate told the judge he gave a false confession to police to keep the baby’s mother, April Ford, from going to jail.  The prosecution now claims that it could have used the May 2006 letter to cross-examine Tate when he testified at Judge Durkin’s suppression hearing concerning the methods police used to obtain the confession.

And the prosecution ostensibly plans to use the letter(s) at a new suppression hearing, which, if it has its way, will not be before Judge Durkin.  That's because, as noted, the prosecution wants Judge Durkin to recuse himself because as the recipient (and alleged withholder) of Tate's letters, Durkin could himself be called as a witness.  Now, I don't have all the facts of the case, but I will address why Judge Durkin should indeed recuse himself if he thinks that it's likely that he will be a (material) witness in the case.

The reason that Judge Durkin should recuse himself in this scenario is because Canon 3 of the Ohio Code of Judicial Conduct states at (E)(1)(d)(v) that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where...[t]he judge...is to the judge's knowledge likely to be a material witness in the proceeding."  Moreover, pursuant to Ohio Rule of Evidence 605, "[t]he judge presiding at the trial may not testify in that trial as a witness.



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