The Utah Supreme Court handed down its decision in State v. Van Huizen (2019 UT 01). The judge int he bindover decision at the trial level was married to the Chief Criminal Deputy of the County Attorney, a fact not disclosed by the judge and unknown to the defendant. The Court of Appeals thought that, because Van Huizen did not know of the relationship he could not raise the issue as grounds for the judge to be disqualified, and hence the issue was not waived. The Court of Appeals agreed. Not the Supreme Court. Van Huizen's trial counsel did not submit an affidavit stating that he (or she) did not know of the relationship between the judge and the Chief Criminal Deputy. Statements from the defendant and his family members that they did not know were not enough. The lawyer 's absence left a gap, and that gap meant that Van Huizen had not shown that he was unaware of the relationship -- the State's argument that it was possible that the lawyer might have known or the judge might have told the lawyer, off the record, of the relationship had not been eliminated. The Court of Appeals is reversed. Not all is lost, as the Supreme Court did return the case to the Court of Appeals to consider two alternative arguments from Van Huizen: (1) ineffective assistance of counsel for failing to inform the court of relevant revisions in the Serious Youth Offender Act and failing to make a case for retention. (Van Huizen was tried as an adult, not a juvenile); and (2) the juvenile judge misinterpreted the Serious Youth Offender Act.
The disqualification aspect of the decision is a mixed bag. There is helpful affirmance of the analysis of the disqualification issues by the Court of Appeals, and even says "that judges are obligated to disclose facts relevant to disqualification" and that a judge has an obligation to recuse when required whether or not a motion is filed. When the judge fails, well, it is still up to the party (here a defendant) to preserve the issue of disqualification or show that one of three exceptions to preservation applies. It turns out that exceptional circumstances entail consideration of whether manifest injustice would result, whether a significant constitutional liberty or right is at stake, and judicial economy. Part, I suppose, of the general view that in criminal cases the defendant has to ensure that the judge and the prosecution do their jobs properly. Going forward, one might think, it is settled. But no. The Supreme Court thinks the relevant rules are unclear, leaving open whether or not a spouse who is the Chief Criminal Deputy is enough to warrant recusal from criminal cases. There is no money involved; when there is money involved, i.e., a private lawyer is involved, of course recusal. But here, it is just 'reputational interests' that may be involved, and those are unclear and hard to measure, in the view of the Supreme Court. That is partially true, but importantly beside the point. The evidence from empirical studies is pretty strong, overwhelming in fact, that association biases decision making and evaluations. Professionals favor themselves, fans favor their teams, party member favor their fellow member, and so on. A judge whose family member is a prosecutor is still a human being and subject to the same sorts of influences the rest of humanity is subject to. That favoritism is highly probable, or so the evidence shows. Maybe the Supreme Court has some theory about why it does not apply to judges (who are immune from virtually all oversight or discipline). It would be nice to know what that theory is. It would be nice to know why private lawyer reputations are more dangerous to impartiality fo a judge than government office reputations.
It is worth noting that under Utah Rules, government lawyers are not members of a firm for conflict purposes. (10.1(f) I believe.). Maybe that applies to recusal analysis as well.
Comments