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Redacted Brief in Support of Motion to Recuse

by merlin on October 8th, 2013
  • Sumo

The following is a redacted version of a brief that will be submitted later today, in support of a motion made a few days ago.  The law is valid as it is used, and it is posted here for the use of others in a similar situation:



STATE OF GEORGIA                       §          CRIMINAL MATTER


            VS.                                               §          CASE NO. XXXXX


XXXXX XXXXX XXXXX,                §


                        Defendant.                     §




COMES NOW Defendant XXXXX XXXXX XXXXX, by and through undersigned counsel, further enumerating the compelling and authoritative law and legal principles supporting his earlier-filed Motion to Recuse, and in support thereof states the following:

Relevant Procedural History

 Prior to his ascension to the bench, XXXXX XXXXX acted as a private lawyer and, in that capacity, represented XXXXX XXXXX XXXXX when he was arrested in XXXXX, Georgia, sometime prior to XXXXX 2006, driving a vehicle belonging to XXXXX XXXXX in which an unlawful substance was found.  A Nolle Prosequi was filed by the Office of the District Attorney, and there was no prosecution arising further from that arrest; however, the similarities between the instant case against him and the previous case in which the assigned Superior Court judge affirmatively represented Defendant are too significant to miss.  Both involved marijuana, both involved vehicle searches, and the same individual was charged with the same or similar crimes in the same jurisdiction in approximately the same location (near his home).  In neither case does Defendant assert any ownership of the alleged unlawful substance.  A copy of this Nolle Prosequi is attached hereto and incorporated herein as Exhibit “A”.

This knowledge and his prior direct involvement in a similar case involving Defendant logically indicate that the dangers of prejudgment have tainted this trial process, and must be stemmed.  They have already become too substantial to contain before the current judicial officer.

Argument and Citation to Legal Authority

Georgia Code of Judicial Conduct Canon 3(E) provides the following rules regarding disqualification of a judge from a case assigned to him or her:

“(a)(1) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of disputed evidentiary facts concerning the proceeding;

(b) the judge  served as a lawyer in the matter of controversy, or a lawyer with whom the judge  previously practiced law served during such association as a lawyer concerning the matter, or the judge  has been a material witness concerning it;

(c) the judge  or the judge‘s spouse, or a person within the third degree of relationship* to either of them, or the spouse of such a person, or any other member of the judge’s family residing in the judge’s household*:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known* by the judge  to have a more than de minimis* interest that could be substantially affected by the proceeding;

(iv) is to the judge’s knowledge* likely to be a material witness in the proceeding.

(2) Judges shall keep informed about their personal and fiduciary* economic interests*, and make a reasonable effort to keep informed about the personal financial interests of their spouses and minor children residing in their households.”

Even though the judicial conflict presented by this situation does not fit neatly into the listed statutory categories for a conflict automatically requiring disqualification, the situations in these categories represent merely examples to be included, and the Canon itself is not limited solely to these instances.  The situation necessarily represents a strong enough conflict that disqualification is required by the law, nonetheless.  “Every litigant, including the state … is entitled to nothing less than the cold neutrality of an impartial judge.” 30A Am.Jur. 56, Judges, § 89.

  1. The Bias Complained of Arises from an Extra-Judicial Source.

Rule 25.3 of the Uniform Superior Court Rules provides the standard for judging a motion to recuse, stating in pertinent part that “recusal would be authorized if some or all of the facts set forth in the affidavit are true”.  In the case at bar, Defendant was previously represented by Judge XXXXX XXXXX in his capacity as a private attorney, and the specific situations that would have been involved or relevant to the case in which he served as advocate for the Defendant is detailed on the attached case dispositions.

It has been said that “[t]he alleged bias of the judge must be of such a nature and intensity to prevent the defendant… from obtaining a (trial) uninfluenced by the court’s prejudgment”.  Birt v. State, 256 Ga. 483 (1986)(upholding the idea that even absent formal grounds of recusal substantive justice would provide for such).  The attached and incorporated case disposition forms both involve charges stemming from the alleged possession by Defendant of marijuana.  The same crime is alleged in the case at bar.  Both cases involve discovery of the substance in a vehicle operated by Defendant.  The same situation applies very directly here.  Given the role played by Judge XXXXX in his prior case involving this Defendant while a direct advocate for him, he would naturally be influenced directly by foreknowledge of those prior events, and could not help but prejudge the case.

The test for the appearance of impropriety warranting recusal of a judge is whether the situation would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.  Code of Judicial Conduct Canon 2; Wilson v. Mcneely, 670 S.E.2d 846, 295 Ga.App. 41 (2008).

  1. The Motion to Recuse is Timely.

Uniform Superior Court Rule 25.1 states that a motion to recuse a trial judge shall be filed and presented “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification”.  Though the affidavit submitted as a necessary part of this motion to recuse is dated September 30, 2013, the facts alleged in the affidavit demonstrate that the events which were recollected by Defendant bore no precision, and are based on events that occurred approximately seven (7) years before the filing of the motion itself, as they turn on the representation of Defendant by Judge XXXXX XXXXX while he still acted as a private defense attorney.  More relevant, therefore, to the potential conflict at hand is the latter date described in UCSR 25.1 – at least ten (10) days before any hearing in this matter.  There has been no hearing scheduled for this case, other than the Arraignment and Motion to Suppress hearings scheduled for the end of the month before the Hon. XXXXX.

The proper procedure for evaluation of a recusal motion is detailed fully in Mayor & Aldermen of the City of Savannah v. Batson-Cook Co.  According to that decision, “[t]he motion and supporting affidavits initially are presented to the judge whose recusal is sought; the judge immediately determines the timeliness of the motion, the legal sufficiency of the affidavits and, assuming any of the facts of the affidavits to be true, whether recusal would be warranted. USCR 25.3. If all three prongs are met, another judge is assigned to hear the motion to recuse. Id. The judge hearing the motion has the discretion to consider the motion solely on the affidavits or convene an evidentiary hearing, and the ruling on the merits of the motion shall be accompanied by written findings of fact and conclusions. USCR 25.6.”  291 Ga. 114, 116, 728 S.E.2d 189 (2012).

The recollection of the event represented by the attached and incorporated Exhibit “A”, the Nolle Prosequi involving Defendant in which he was represented by XXXXX XXXXX, is plainly inaccurate in detail but precise as to facts, according to the affidavit accompanying the motion itself.  The undersigned did not learn the details which prompted the instant in-depth brief in support of Defendant’s motion until the day the motion in question was submitted, when records were obtained via the Magistrate Court of XXXXX County and the conflict became specific, rather than vague.  This brief has immediately followed, and is made within five (5) days of learning of the grounds for recusal, and at least ten (10) days prior to any hearing in the matter.

The motion is therefore timely.

  1. The Recusal would be authorized under the Allegations of the Affidavit.

The affidavit submitted in support of the motion to recuse was incorrect as to the approximate date believed by Defendant to be the basis for the conflict described, but an inaccuracy as to the date is irrelevant; it doesn’t make the conflict itself less dangerous.  To act as a “complete affidavit”, there are three essential elements: “(a) a written oath embodying the facts as sworn by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.” Auito v. Auito, 288 Ga. 443, 704 S.E.2d 789 (2011). That case also mentions the necessary criteria of USCR 25.2 – “definite and specific foundational facts of the trial judge’s extra-judicial conduct demonstrating a purported lack of impartiality”, that is “not stated in conclusory fashion or as a matter of opinion.”  Id.  Even with the error in date pointed out above, the affidavit is still a valid ground for recusal according to Berger v. United States, which stated that the rule itself is designed “[t]o commit to the judge a decision upon the truth of the facts gives chance for the evil against which the [rule] is directed.” 255 U.S. 22, 36, 41 S.Ct. 230, 65 L.Ed. 481 (1921).

The affidavit contains such similarity of facts that prejudgment becomes an evident and manifest danger.  This judge cannot hear this case given his prior involvement with this Defendant and the circumstances involved in that matter.


The Motion to Recuse filed in this matter was timely, met the formalities necessary for such a motion under the Official Code of Georgia, the Canon of Judicial Ethics, and the cases that directly address the issue of recusal, and involves a conflict whose nature is so intimately related to the matter now before the Court that recusal is mandated.  There is an involved Superior Court Judge capable and willing to hear this matter, who is not similarly subject to a conflict that, if viewed by a neutral third party, would necessarily raise suspicion of bias and impropriety.  Therefore, this is a matter that can and should be decided without need for a hearing on the topic, even though the conflict does not directly pertain to a relevant classification for conflict.  That it creates the appearance of impropriety is sufficient in this case, and there is a valid basis for such an appearance.

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