Thursday, March 03, 2011

DUI Appeal of the Day (DAD) - When is a bad judge bad enough?

In Gaal v. State --- S.W.3d ----, 2011 WL 709698 (Tex.Crim.App.) the defendant was eventually convicted by jury of a Felony DWI. The defendant waffled back and forth about whether to have a plea or not. At the second plea setting, he again changed his mind. The judge said:

"We're supposed to have a plea here today. It appears that Mr. Gaal does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it's for the maximum term of ten years.”
The thereafter filed a motion to recuse the judge, based on his statement at the aborted plea hearing three days earlier. He argued that the trial judge's statement about refusing to accept any plea bargain for less than the maximum showed that the trial judge had entered into the plea-bargain process, could not be fair and impartial, and had demonstrated an arbitrary refusal to consider the entire range of punishment. The recusal judge denied appellant's motion to recuse. He first noted that “the trial judge doesn't have to take a plea bargain.” Second, he said that the record did not support a finding that the trial judge's ruling was arbitrary because the case file showed that appellant had had four or five violations registered on his interlock device while he was on bond. He had not stopped drinking and attempting to drive afterwards. The recusal judge stated that the record before him “doesn't support a position that [the trial judge] had some preconceived notion other than what was going on in this case, dealing with this defendant and the defendant's history while the case was going on.” Appellant's jury trial began later in August. He pled guilty to the jury and, after hearing the evidence, the jury sentenced him to ten years confinement.

On appeal, appellant argued, in part, that the recusal judge abused his discretion in denying his motion to recuse. The court of appeals agreed. It relied on Norton v. StateFN6 and Jefferson v. State for the proposition that the trial judge had “forecasted his inability to consider the full punishment range” and denied appellant due process when he stated that he would consider a plea bargain only for the maximum punishment. The court concluded that the recusal judge had abused his discretion in denying appellant's motion to recuse.
Additional appeal was then granted from the appeals court decision. The law on recusal was discussed as follows:

• A judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

• The Texas Civil Rules of Procedure, which were determined to apply here as well, state that “A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; [or] (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]”

• Federal due process may also require recusal. Three situations have been held to rise to this level under the federal Due Process Clause: 1) when the judge has a financial interest in the case; 2) when the judge had acted as a one-man grand jury to bring charges in the case he is trying; and 3) “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” Caperton v. A.T. Massey Coal Co., Inc., ---U.S. ----, ---- - ----, 129 S.Ct. 2252, 2259-64, 173 L.Ed.2d 1208 (2009). As Justice Kennedy has stated, a judge's impartiality might reasonably be questioned “only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.” Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring).

• Generally, though, recusal is not required when based solely on judicial rulings, remarks, or actions. These acts almost never constitute a valid basis for a bias or partiality motion. In and of themselves ..., they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

• Thus, a judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.” FN22 On the other hand, “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women” may display, do not establish bias or partiality. FN23 Thus, a trial judge's ordinary efforts at courtroom administration do not render him subject to recusal.FN24 Although intemperate remarks may well violate a rule of judicial conduct, such a violation does not necessarily mean that the judge should be recused.

• Recusal has been required, however, when a trial judge revoked a defendant's bond and put him in jail solely because he decided to invoke his right to a jury trial,FN26 or when a trial judge arbitrarily, without any evidence before him, refused to consider a portion of the range of punishment. Recusal of the trial judge in a criminal trial was also proper under the reasonable-person standard where the trial judge's remarks evidenced “a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record,” or a personal prejudice against the defendant for successfully appealing his conviction on the basis of the judge's actions during a prior trial.
Finding that the trial court did not display the requisite lack of impartiality, the higher court upheld the denial of recusal. It stated:

"The trial judge's comments could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he had twice rejected favorable plea bargains-one the minimum possible jail time-and was continuing to drink in violation of his bond conditions. Thus, the trial judge would not encourage further delay for more plea bargaining (after all, who is going to accept a plea bargain for the “maximum”?); it was time to try this case as soon as possible. The trial judge never intimated, nor is there anything in the record that would logically support a finding, that he would not fairly consider the entire range of punishment at trial. His comment, taken in light of the totality of the circumstances, is more logically construed as an expression of impatience with a defendant who reneges on his agreements to plead and to abide by the DWI bond conditions. A reasonable person, based on the totality of the circumstances, would translate the judge's statement as, “I'm not going to reset this case for any more plea negotiations; we're going to trial.” That statement does not suggest that the trial judge's impartiality might reasonably be questioned, and it is not a basis for recusal."
Thus, the DWI conviction was upheld and the 10 year sentence was reinstated.

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