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Order in the Court

Updated: Oct 18, 2023

While observing District Court this summer, I witnessed an intimidating interaction between a Judge and a Public Defender.

It was a bench trial for a routine trespassing case, and everything seemed to be proceeding as normal. Let me start by saying that this was a cut and dry case. Everything was lined up and ready to go. We all thought we would be out of the courtroom in under thirty minuets. The trial began, and the judge asked if there were any pretrial motions. The prosecution said no, but the public defender said yes. The PD had several pretrial motions – there were easily ten. This is where it all started to go down hill. The judge was furious because several of the motions that were argued - in his opinion, and mine too…but I don’t think it counts for much - were frivolous. She argued the same motion five different ways. It was like watching a child argue with her parents. The judge became angry with the PD and called several recesses. At one point he threw his pen in frustration. Several times during pretrial motions the judge stormed of the bench so the PD “get her act together and stop wasting the court’s time.” The prosecutor remained quiet and composed. Pretrial motions went on like this for about an hour. Back and forth – the PD arguing with the Judge and the Judge arguing back with the PD. At one point the judge threw his pen in frustration. When the prosecutor brought his first witness to the stand, the PD objected to almost every single question. The judge was furious and began to lecture the PD…two hours later the trial ended.

For the past two years I have been watching trials, and I have never experienced anything like the interaction described above. Sitting in court that day, my main concern was for the defendant. I asked myself, because the judge was annoyed with the public defender would her client suffer the consequences?

Although the defendant was found guilty of trespassing, after the trial the judge seemed genuinely concerned with the defendant’s well being. He displayed empathy while speaking to the defendant, a homeless man who, it was later discovered, suffered from mental issues, and seemed he genuinely wanted the defendant to succeed “in turning his life around.”

Over the course of our legal education, we are taught how to act when we are in the courtroom. By using the rules of professional conduct as a guide, lawyers can avoid conflicts with not only judges, but their clients and other lawyers as well. The Model Rules of Professional Conduct’s Preamble states that lawyers have an obligation to zealously protect and pursue a client’s legitimate interest, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. This begs the question: can lawyers zealously represent their clients if they feel that a judge harbors animosity towards them? Canon 1 of the ABA Model Code of Judicial Conduct states that “a Judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Specifically, the Trial Handbook for District of Columbia Lawyers, Jacob A. Stein, Trial Handbook for District of Columbia Lawyers § 2:5 (2016), states that a trial judge must “remain an objective and disinterested participant in the proceeding and must not be clearly hostile to, or align himself or herself with, any parties in the trial. Further, a trial judge should be so impartial in the trial of a criminal case that the jury is unable to detect personal convictions as to the guilt or innocence of the accused.”

Numerous judicial transgressions have been exposed over the past decade. For example, Texas Judge Christopher Dupuy was indicted for “routinely [abusing] his authority to retaliate against attorney’s with whom he had personal conflict at the expense of litigants.” A former Philadelphia Traffic Court Judge Thomasine Tynes was convicted for “ lying to a grand jury about giving favorable outcomes to ticket holders who were well-connected to the judges or court employees.” In the courtroom the judge is in charge, which puts lawyers in a tough position. As an attorney when is it appropriate to ask for recusal?

While each state has its own code for professional responsibility, in additional to the ABA ethical standards, the Supreme Court has given its opinion on judicial misconduct and when recusal is necessary in Liteky v. United States. The Court considered 28 U. S. C. § 455(a), which requires a judge to “disqualify himself in any proceeding which his impartiality might be reasonably questioned.” It held that recusal under 28 U. S. C. §455(a) is subject to the limitation of the “extra judicial source” doctrine. The extra judicial source doctrine is defined as an opinion held by judge that is derived from a source outside a judicial proceeding. The Court emphasized that the extrajudicial source is not the exclusive basis for establishing disqualifying bias or prejudice, but should be used as a factor. It further emphasized that: "The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for “bias or prejudice” recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for “bias or prejudice” recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) “extrajudicial source” factor, than of an “extrajudicial source” doctrine, in recusal jurisprudence" Additionally, it found that a judge is not necessarily recusable for bias or prejudice where his opinion was acquired properly and necessarily in the course of the proceedings. In fact, this is an essential component of a judge’s profession. As an example, the Court noted, “a judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.”

“If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.” Lawyers are supposed to be advocates for their clients, while judges are supposed to remain objective, leaning on precedent for guidance when making decisions. When in doubt, both lawyers and judges should look to their state rules of professional conduct for direction. The Rules of Professional Conduct provide a structure for the ethical practice of law, while shaping both lawyer’s and judge’s roles in the legal profession. Compliance with the Rules preserves harmony within the legal community and provides structure to the legal profession.


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