On Recusals: Offending the Judge, Protecting the Client

by Jamison Koehler on January 9, 2012

A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life.  Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset.

In fact, running a list in this judge’s courtroom was viewed to be a tremendous hardship among us public defenders, and the first thing I did after she issued the order was to make sure that the stenographer had captured the exchange:  Did you get that?  All of my colleagues were extremely jealous of me when I returned to the office, and I had to remind my supervisors of the ban every time they drew up a new schedule.   Because they kept trying to send me back there.

My offense?  I asked the judge for a recusal on the morning of an aggravated assault bench trial.

The sheriff complained to the judge upon bringing my client into the courtroom that my client had been disruptive in the holding cell, and, as the sheriff unshackled my client and seated him next to me at the counsel table, the judge cautioned me to sit a good distance away from him.

The judge must have seen the look in my eyes and tried to head off my motion.  Mr. Koehler, she said. I have to warn you that if you are about to ask for a recusal, the first thing I will have to do is call your supervisors at the public defenders office to complain about you.  I will then ban you from ever appearing in front of me again.

I couldn’t resist the dare.  Nor did I have any choice.  Why I was doing a bench trial in front of this judge on this type of case will have to be the subject of a different blog entry (one that will not be very complimentary of the Philadelphia PD’s office).  But once the judge had expressed concern for my physical safety, I knew there was no way my client could ever receive a fair trial in front of this judge, even apart from all the other problems with this particular judge.  (Fortunately, she was later pushed off the bench, as I understand it, for substance abuse problems and multiple ethical violations.)

It is one of the law’s many fictions that a juror who has just heard a damaging and inadmissible piece of evidence can be successfully instructed to disregard it.  As one cliché puts it, you can’t unring the bell. Likewise, even assuming this particular Philadelphia judge had the wisdom of Solomon and the fairness of Mother Teressa  (she didn’t), it would be difficult to believe that she could put aside what she had just heard from the sheriff when deciding whether he had acted aggressively on the day in question.  As a result, asking a judge to recuse herself and to send the case to another judge for trial is often a difficult but necessary thing to do.

That’s why, however much I might prefer the D.C. court system to the one in Philadelphia, I was surprised to encounter the “one family, one court” juvenile system here.

I fully understand the rationale behind it.  A family court judge takes a much more holistic approach to dealing with the accused – the respondent — in a juvenile case.   He is interested not in meting out punishment but in rehabilitating the juvenile so that the juvenile can put his life back on track and get back into the community.  It therefore makes sense for the same judge to deal with the juvenile each time he returns to the system with a new charge.  It also makes sense for the same judge to deal with all the kids from the same household.  I was surprised recently when Judge Ross knew far more about a juvenile’s living conditions than I did as the juvenile’s lawyer.  It turns out that the judge had been dealing with the same family for years through an older child in the household.

And, in fact, based on my still limited experience, the system in D.C. does seem to work.  Judges take the bench on time.  They listen to you.  Applying the law, they throw out cases when they need to.  Most importantly, they appear to have genuine concern and affection for the young people who appear in front of them.

With some unfortunate exceptions, the same holds true for probation officers, social workers and shelter house staff. They return phone calls.  They come to court.  They are often aware of problems before you are and can often be convinced try to work something out with you before taking the matter to the court.  Finally, the more rabid law-and-order prosecutors don’t seem to end up at the Juvenile Division of the Attorney General’s Office.

Where the “one family, one court” approach becomes problematic is during the guilt-finding phase.  As it turns out, D.C. family court judges have very good memories that are aided, I assume, by the private notes that they take on each respondent. I appeared in front of Judge Lee the other day on behalf of a client who had just been arrested on a new charge, and was amazed that the judge not only remembered little things about my client (that he liked to play basketball, what he had said at the last listing on the other case), the judge also remembered details about the client’s mother.

Having the judge remember details like this can make the juvenile feel cared for and respected.  I was often struck by how many adult clients in Philadelphia seemed convinced that the judge took a personal interest in their affairs.  Only when this notion began to interfere with my representation would I disabuse them of this notion:  the judge really has no clue who you are.  But she will be plenty angry if you violate the terms of your probation.

This is not true in D.C. juvenile court. In fact, the judges there may sometimes remember clients all too well.  A Family Court judge recently found one of my clients guilty after trial of “carrying a dangerous weapon.”  You have got to stop carrying kitchen knives around in your pocket, the judge told the juvenile during the disposition hearing.  Heck, you should have learned that lesson two years ago when I convicted you of the exact same offense.

So what can you do as their lawyer to rectify this?  The question of recusals did not come up in our training for the panel; nor does it appear to be included in any of the voluminous materials we were given.  So I asked some of my colleagues who have been doing this a lot longer than I.  They laughed.  Good luck with that, they said.

For one thing, there are only four judges who currently hear juvenile cases in the District:  Judges Milton Lee, Maurice Ross, Maribeth Raffinan, and Robert Rigsby (who just replaced Judge Broderick).  With many kids picking up multiple cases, you would rapidly run out of judges to hear cases if each charge had to go in front of a different judge.

I suppose you could also run into a problem with “forum shopping”; that is, defense lawyers asking for a recusal in order to put the case in front of a different judge because, let’s face it, some judges are more defense-friendly than others.   And, of course, there is always the reluctance from a tactical standpoint to subject your client to an annoyed judge who has just denied your recusal motion.

We are thus left with the fiction that a judge can completely clear her mind of everything else she knows about your client when determining the client’s involvement in an offense. There is always the ideal of what we would hope to accomplish with the criminal justice system. And then there are the accommodations we make every day to reflect reality.  Sometimes the “good enough” will just have to do.  Except for those times, of course, when you are the defendant and it doesn’t.

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