Recusal Requests Expected To Increase Due to Judge’s Acceptance of Political Contributions

A recent Supreme Court case may well have an effect on local cases in jurisdictions where there are judicial elections. Indeed, this may have an effect on some states’ analyses on whether to have elections at all, though, one may appropriately wonder whether ANY involvement in the political process (whether by appointment or elections) may have a bearing on the recusal analysis.

From the ABA

Court Watchers Predict ‘Deluge’ of Recusal Requests in Light of Caperton
Posted Jun 11, 2009, 10:57 am CDT
By Molly McDonough

This week’s U.S. Supreme Court ruling that a West Virginia Supreme Court justice should have recused himself from a case involving a party that helped fund his campaign has lawyers across the country predicting a “deluge” of recusal requests.

But judges told the New York Times that few situations would involve conflicts serious enough to result in actual recusals.

On Monday, the Supreme Court held 5-4 that Justice Brent Benjamin should not have participated in a case involving a coal mining executive from Massey Coal Co. Justice Anthony M. Kennedy wrote in the Caperton v. A. T. Massey Coal Company majority opinion that due process required recusal. Benjamin had twice voted with a 3-2 majority to overturn a $50 million verdict against Massey Energy, despite the large judicial campaign contributions made by CEO Don Blankenship.

One thing is for certain, scrutiny of conflicts will increase.

“You’re going to see a much greater analysis put to the campaign contributions that elected judges get,” ABA President H. Thomas Wells Jr., told the Times.

Because such large campaign donations are rare, Bradley A. Smith, chair of the Center for Competitive Politics, which opposes campaign regulations for First Amendment reasons, said “I wouldn’t think you would find judges panicking” and saying “Whoo! I’d better go over my docket!”

But lawyers told the Times that they see opportunity in the high court’s ruling.

John Wesley Hall Jr. of Little Rock, Ark., said the Caperton ruling gives lawyers who file recusal motions “an issue to argue” on constitutional grounds.

Meanwhile, some states have already started to review where lines should be drawn. Wisconsin will hold rule-making hearings in the coming fall focusing on the influence of political contributions to judges.

William Blackford is an Anne Arundel County Lawyer.

Right To Counsel Wins Again

High Court Overrules Decision Barring Questioning After Lawyer Appointment
Posted May 26, 2009, 09:49 am CDT
By Debra Cassens Weiss

The U.S. Supreme Court has overruled a 23-year-old decision that bars police from questioning suspects without the presence of an appointed lawyer.

The court overturned the 1986 decision, Michigan v. Jackson, according to the Associated Press and SCOTUSblog. The Jackson ruling had held that once a suspect has asserted a right to counsel, any waiver of that right during police questioning is not valid unless the suspect initiated communication with the officers.

Justice Antonin Scalia wrote the majority decision in the 5-4 case, Montejo v. Louisiana. He said Jackson had required “voluntariness on stilts” and noted that other Supreme Court decisions protect defendants from being badgered into confessing.

Petitioner Jesse Montejo waived his Miranda rights when police questioned him in connection with the robbery and murder of the owner of a dry cleaners. He ultimately confessed to the crime. During a later preliminary hearing a judge ordered the appointment of a public defender. After another visit by detectives, Montejo wrote a letter of apology, which was introduced at his trial and challenged on appeal.

“When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary,” Scalia wrote in the opinion (PDF).

“No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring.”

Scalia wrote that the Supreme Court has protected defendants in three other opinions:

• Miranda v. Arizona, requiring defendants to be advised of the right to a lawyer and the right against self-incrimination.

• Edwards v. Arizona, which requires police interrogation to stop once a defendant invokes his right to have counsel present.

• Minnick v. Mississippi, which bars further police interrogation without the presence of counsel after the initial request for a lawyer.

“These three layers of prophylaxis are sufficient,” Scalia wrote. “Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.”

“Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason to retain its rule. Miranda and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as ‘voluntariness with a vengeance,’ 384 U. S., at 505 (dissenting opinion). There is no need to take Jackson’s further step of requiring voluntariness on stilts.”

William Blackford is an Anne Arundel County Lawyer.