Too Late To Disqualify?

A post from sunEthics

Judge presided over a criminal case in which the defendant was a City of Sweetwater police officer charged with official misconduct.  The State filed a motion to disqualify Judge, citing these grounds:  “(1) the trial judge’s acknowledged previous attorney-client relationship with the City of Sweetwater Police Department, which appeared as a third party duces tecum witness before the trial judge on a show cause order why it should not be held in contempt for its failure to comply with a subpoena duces tecum for production of documents; (2) the trial judge’s acknowledged personal and extra-judicial knowledge regarding facts asserted during that discovery dispute; and (3) the trial judge’s  acknowledged previous attorney-client relationship with the defendant, who he represented in another case.”

          Judge denied the motion as untimely.  The State petitioned the Third DCA for a writ of prohibition.  The appellate court denied the petition.  “While these allegations give rise to an objectively reasonable fear of bias or prejudice requiring disqualification of the trial judge, we are compelled to deny the petition for writ of prohibition because the motion to disqualify the trial judge was not timely filed.”  The court went on to indicate that Judge should step aside voluntarily:  “Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative.”   State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662. 

(Mike Frisch)