Recusal Required

The Indiana Supreme Court has required the recusal of a judge from presiding over post-conviction proceedings based on her mandatory recusal from a like matter.

Each of the matters involve allegations of misconduct that led to the wrongful convictions of actually innocent petitioners

These four interlocutory appeals require us to decide whether a judge’s decision to recuse from a prior case disqualifies her from presiding over these cases because they all present the same concerns that led her to recuse in the prior case.

Andrew Royer was the petitioner in the previous case, and he sought post‐conviction relief to set aside his 2005 murder conviction. He alleged that “systemic” police and prosecutorial misconduct had produced an “epidemic” of wrongful convictions in Elkhart County, including his own. Shortly after Royer first made these allegations, his attorney held a press conference amplifying them through comments that the judge concluded violated the Rules of Professional Conduct. That led the judge, who is a former Elkhart County deputy prosecutor, to not only enjoin the attorney’s further public comments about the case, but also to remark that the attorney’s comments were “defamatory.”

Royer then argued, and the judge agreed, that the judge had to recuse for one of, or a combination of, two reasons. Royer said he would be calling many witnesses—law enforcement officers, deputy prosecutors, and an elected prosecutor—with whom the judge worked when she was a deputy prosecutor and some of whom remained the judge’s social acquaintances. She could not, Royer argued, be expected to remain impartial either when evaluating so many of her friends’ and former colleagues’ credibility or when evaluating Royer’s allegations of systemic police and prosecutorial misconduct that spanned the judge’s own time as a deputy prosecutor in Elkhart County. Even if that were not reason enough to recuse, Royer also argued that the judge’s characterization of his attorney’s comments as “defamatory” suggested she had pre‐judged his allegations of systemic misconduct before hearing any evidence.

Each of the appellants here petitioned for post‐conviction relief before the same judge who recused in Royer’s case. Royer’s attorney represents them too, and they allege the same sort of “systemic” misconduct that they claim has led to an “epidemic” of wrongful convictions. And like Royer, they intend to call as witnesses former law enforcement officers and prosecutors who are the judge’s former colleagues and/or current social acquaintances.

But unlike in Royer’s case, the judge declined to recuse in these cases. And as we explain below, we conclude that was a mistake. We hold that the judge is disqualified from presiding over these cases because her determination that recusal was mandatory in Royer’s case would lead an objective observer to reasonably question her impartiality in these cases, where the petitioners raised the same concerns as Royer.

The wake of the mandatory recusal

But these appeals can’t be decided on those broad propositions. What is different about these appeals—and this is critical to our holding—is that the judge already decided in Royer’s case that recusal was mandatory. So while viewing each of the petitioners’ various concerns in isolation may not warrant recusal, the judge herself already concluded that their overarching concerns about her entanglement with the evidence and her remark about their attorney’s comments do require recusal. And an objective observer who knows the judge previously concluded she had a duty to recuse could thus reasonably doubt her impartiality in these cases. That objective observer could reasonably ask: What changed since the judge decided she was required to recuse in Royer’s case? And the record does not reveal a good answer.

Oral argument linked here. (Mike Frisch)