Wednesday, September 20, 2017

Judge Should Have Recused But Error Harmless

The South Dakota Supreme Court affirmed a fourth-degree rape conviction

Approximately one month before [defendant] Shelton’s trial, his attorney moved to withdraw from the case. Shelton’s former cellmate came forward with information that Shelton confessed to him that Shelton had committed the rape. The attorney represented both Shelton and the former cellmate. Due to the conflict, the court allowed the attorney to withdraw and appointed a new attorney to represent Shelton. A week later, the circuit judge overseeing the matter sent a letter to the new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this proceeding, and another judge will be assigned to hear this case, unless you and your client agree in writing that I should not be disqualified, and that I may continue to preside over this action.

But

A written agreement waiving disqualification was not provided and there was no further mention of the issue in the record. Nevertheless, the same judge continued to preside over the trial.

The court concluded that the judge erred in failing to recuse but

In upholding the conviction in this case, there is little risk of injustice to the parties. Initially, Shelton does not argue that the judge was biased or prejudiced against him in any way. Instead, Shelton erroneously argues that the judge lacked jurisdiction to proceed in the case, and as a result, the judgment of conviction was void. A thorough review of the record does not reveal any evidence of partiality. Further, it is not alleged, and it does not appear from the record, that the judge’s ex-wife had any involvement in the matter. And while Shelton argues that in his experience, “an overwhelming majority of divorce cases have at least some level of animosity[,]” none was shown here...

There is also little risk that denial of relief would produce injustice in other cases. Unlike the situation presented in Liljeberg, where the judge failed to disclose the potential basis for disqualification to the parties, the judge in this case upheld his ethical obligations under the Code of Judicial Conduct and made a full disclosure. The judge sent a letter to Shelton’s counsel informing him of the potential basis for disqualification and filed the letter in the record. Although the judge erred by continuing to preside over the matter absent a waiver, Shelton compounded this error by failing to raise it.

The court held that the error was harmless. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/09/the-south-dakota-supreme-court-approximately-one-month-before-sheltons-trial-his-attorney-moved-to-withdraw-from-the-cas.html

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