Thou Shalt Not Judge

The Florida Judicial Ethics Advisory Committee has opined that a judge cannot sit in judgment in a matter involving a defendant he had previously prosecuted

Subject

A judge who, as a former Assistant State Attorney, prosecuted a particular defendant, must recuse from all cases involving that defendant.

Issue

Whether a judge must recuse from all cases involving a defendant who the judge previously prosecuted.

ANSWER: Yes.

Facts

Prior to being appointed to the bench (and subsequently elected), the inquiring judge was a prosecutor in the same county/ circuit. The judge was a trial attorney at the State Attorney’s Office and actively prosecuted all types of cases, ranging from misdemeanors, sex crimes, career criminals, firearm offenses, and homicides.  The judge did not have any official supervisory capacity over any other attorneys. While the judge was given specialty designations, such as when prosecuting sex crimes and career criminals/firearms, each Assistant State Attorney (“ASA”) handled their own cases, and the judge did not have supervisory duties for any special divisions.

When the judge was appointed to the bench, the judge spent 2.5 years in a non-criminal Circuit division but has now been transferred to a Circuit Criminal division. In the county where the judge presides, Circuit Criminal cases are assigned to each judge based on the beginning letter of the defendant’s last name. 

While at the State Attorney’s Office, the judge was assigned to several different divisions in front of several different judges. As an ASA, the judge was assigned specialty cases (such as sex crimes) and handled all of the defendants assigned to that courtroom with all letters assigned to that courtroom (such as A, B, C, D). The judge would also handle “non-specialty cases” and be assigned all the defendants with that letter (ex: B).  Each division would include a Sex Crimes/Child Abuse ASA, Career Criminal/Firearm ASA, General Felony ASA and a Division Chief.

In the Criminal Circuit courtroom to which the judge is now assigned, the judge was assigned as an ASA approximately 10 years ago. During that time frame, the judge handled the sex/child abuse cases, as well as other felony cases in that division.

According to the judge, it appears that, over the course of 10 years, the “letters” assigned to the division have not changed significantly. While the judge is seeing very few cases where the judge was actually the ASA who prosecuted the defendants’ current case, the judge is seeing cases where the defendants previously prosecuted by the judge in his former ASA capacity have new cases. Those defendants are assigned to the judge’s courtroom by virtue of their last names.

Discussion

Canon 2A states, “A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In the Commentary to Canon 2A, it is noted that, “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”

Additionally, Canon 3(E)(1)states, “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: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.” In the Commentary to Canon 3(E)(1), it is noted that, “Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.” [Emphasis added]

In JEAC Op. 2021-18, this Committee opined that a judge did not have to recuse from presiding over a sex offender/predator’s failure to register case, where the underlying sex offense convictions that formed the basis of the registration requirement, were initially charged by the judge when the judge was an ASA. The committee based its conclusion on the fact that the judge made the charging decision but did not actually prosecute the case or supervise the attorneys who did. And concluded that, “when applying the plain reading of Canon 3E(1)(b), the inquiring judge did not serve as a lawyer in the matter in controversy, as the matter in controversy is a failure to register charge and not the original sexual offense.”

The inquiring judge asks a slightly different question in that this judge was the prosecuting, and not just the charging)attorney in a case involving this same criminal defendant on different charges. This makes JEAC Op. 2021-18 distinguishable.

In fact, in Goines v. State, the court found that it was ineffective assistance of counsel for the defense attorney not to seek disqualification where the judge presiding over the defendant’s trial had prosecuted defendant on other charges, six years earlier. 708 So. 2d 656 (Fla. 4th DCA 1998)

“The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Commentary to Canon 2A. This Committee finds that a reasonable mind would perceive that a judge who previously prosecuted the same defendant would not be impartial.

Additionally, the Commentary to Canon 3(E)(1) states clearly that, “…a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.” Commentary to Canon 3(E)(1). Here, it is evident that the judge’s impartiality might be questioned.

Based on the Commentary for both Canon 2A and 3(E)(1) and the Court’s holding in Goines, this Committee concludes that the inquiring judge must recuse from all cases involving this defendant.

(Mike Frisch)