LLOYD DUEST, PETITIONER,
v.
HON. BARRY E. GOLDSTEIN, CIRCUIT JUDGE, SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, RESPONDENT
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In a death penalty case, the Fourth District Court of Appeal grants a petition for disqualification, finding that the trial judge's prior involvement as an assistant state attorney who assisted in the original prosecution creates a well-founded fear of judicial bias precluding him from presiding over resentencing.
Yes. The court held that the judge's prior assistance in the prosecution and supervisory role over the state attorney's office that sought the death penalty create a well-founded fear of judicial prejudice sufficient to require disqualification under Canon 3(C)(1)(b) of the Code of Judicial Conduct.
[1] A judge must disqualify himself when his impartiality might reasonably be questioned, including instances where he previously served as a lawyer in the matter in controve…
[2] A judge's prior role as a supervising prosecutor in a case, particularly one involving the death penalty, can create a reasonable fear of bias in subsequent proceedings.
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Join FLexlaw to unlock all legal intelligence“The facts asserted in support of a motion for disqualification must be reasonably sufficient to create a well-founded fear of judicial prejudice.”
Establishes the legal standard governing judicial disqualification motions
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Join FLexlaw to unlock all legal intelligencePetitioner was a defendant in a capital case whose death sentence was reversed by the Florida Supreme Court. The trial judge who will preside over res…
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WARNER, Judge.
Petitioner, the defendant in the criminal case below, seeks a writ of prohibition to disqualify the trial judge from presiding over his resentencing after reversal of his death sentence by the Florida Supreme Court. While he makes several statements regarding the judge in his affidavit supporting disqualification, we find one dispositive. The petitioner stated that the trial judge, a former assistant state attorney, assisted the state attorney who prosecuted petitioner in his original trial. While the assistance appears to be minor (delivery of a document to the trial attorney during the proceedings), it clearly aligned the judge with the state’s interest in this particular defendant’s case. Moreover, at the time of petitioner’s conviction the trial judge was the supervising state attorney of the division in which petitioner was tried.
The facts asserted in support of a motion for disqualification must be reasonably sufficient to create a well-founded fear of judicial prejudice. Fischer v. Knuck, 497 So. 2d 240, 242 (Fla.1986). We hold that the foregoing facts are sufficient to create such a fear. First, according to the affidavit, the trial judge actually assisted in the trial of defendant. Canon 3(C) of the Code of Judicial Conduct states:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
... (b) he served as a lawyer in the matter in controversy ...
Not only did the trial judge participate in the proceeding against petitioner, but he was a supervisor at the time the state sought the death penalty in this case, and as supervisor one can infer that he approved or at least concurred in that decision.
In a death penalty case, the question of judicial bias is of particular importance, since the judge will be called upon to make what is literally a life-or-death decision. Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993) (citing Livingston v. State, 441 So. 2d 1083, 1087 (Fla.1983)). To leave that decision to a judge who assisted in securing the death sentence in petitioner’s first trial seems to us to create more than a reasonable fear of bias on the part of the judge.
The petition is granted. We withhold issuance of the writ, trusting that the judge will recuse himself from further proceedings in accordance with this opinion.
DELL, C.J., and GLICKSTEIN, J, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alphonso Cave v. State, 660 So. 2d 705 (Fla. 1995)…heriff's detective for the crime; and Richard Barlow, the Assistant State Attorney who conducted the post-conviction proceedings. The State was also allowed to submit the affidavit of Robert Stone, another lead prosecutor. . Cf. Duest v. Goldstein, 654 So. 2d 1004 (Fla. 4th DCA 1995) (judge prohibited from presiding over resentencing where judge, as assistant state attorney, had delivered document to prosecutor during previous trial and was supervisor of division that prosecuted defendant). . Photographic ev…
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Goines v. State, 708 So. 2d 656 (Fla. 4th DCA 1998)…ing criminal charges, disqualification would have been necessary. Fla.Code Jud. Conduct, Canon 3(E)(1)(b); see also Steinhorst, 636 So. 2d 498 (judge disqualified who rendered advice on a civil matter relating to the same crime); Duest v. Goldstein, 654 So. 2d 1004 [*659] (Fla. 4th DCA 1995) (trial judge who assisted state attorney prosecuting petitioner in original trial disqualified from presiding over re-sentencing); Roberts v. State, 161 So. 2d 877 (Fla. 2d DCA 1964) (as matter of law disqualification requ…
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W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997)…est, it does support petitioner’s claim of a well founded fear that he will not receive a fair trial before this judge. Fischer v. Knuck, 497 So. 2d 240 (Fla.1986); Fla.R.Jud.Admin. 2.160(d); section 38.10, Fla. Stat. (1995). Cf. Duest v. Goldstein, 654 So. 2d 1004 (Fla. 4th DCA 1995). We do not believe that the second ground asserted for disqualification, namely the trial judge’s voluntary disclosure of friendship with the case worker was legally sufficient in and of itself. Petitioner cited this court’s dec…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Kirby Lynn Chastine v. The Honorable Va. Gay Broome, 629 So. 2d 293 (Fla. 4th DCA 1993)