published Tuesday, March 30th, 2010

Refusal to recuse stirs legal debate

When a judge is faced with a request to be dismissed from a case, it's important that the "public's faith" in the judicial system is not at risk, experts agree.

When Lookout Mountain Judicial Circuit Superior Court Judge Brian House put a gag order on a kindergarten teacher charged with child molestation and then denied a motion to step down from the case without giving a written explanation, he ran that risk, said James Sample, a law professor at Hofstra University in New York.

"It's impossible to establish (if) the judge would be biased in any way," Mr. Sample said. "(But) anything that undermines the public's perception (of justice,) particularly when they are paying attention to the process, is of heightened importance."

Tonya Craft's defense attorney filed a motion for Judge House to recuse himself from the case in February, citing that the judge had represented Ms. Craft's ex-husband during their 1998 divorce, court records show.

But Judge House denied the motion twice, court records show.

Judge House's assistant, Michael Caldwell, the judge would not comment on his decision or the "alleged" claim.

Ms. Craft, a former Chickamauga Elementary School teacher, faces 22 counts of child molestation, aggravated sexual battery, aggravated child molestation and child molestation involving three children, records show.

"The fact that (the judge) doesn't talk about it is appropriate," said J. Mark White, president of the Alabama State Bar.

While a judge can give a written response for his decision, it would be more problematic if he were talking with a third party about the case before it goes to trial, Mr. White said.

With most recusals, the test to use is the "reasonable man's standard," which asks how an ordinary person would view the scenario, Mr. White said.

Some states require a judge write a reason for denying a motion to step down but Georgia does not, said Adam Skaggs, counsel with the Brennan Center for Justice at New York University School of Law.

The Brennan Center is advocating that every state adopt a rule on written explanations addressing recusals, Mr. Skaggs said.

"Transparency is an important part of any public figure," he said.

In Georgia, if an attorney's affidavit can prove the judge has a conflict of interest in the case, that judge is required by law to step down and let another party mediate, said Kermit McManus, Conasauga Judicial Circuit district attorney.

Sometimes the judge will decide that the charges "on its face" are not sufficient evidence and dismiss the motion, Mr. McManus said.

Donald Wilkes Jr., a University of Georgia law professor, said that after a judge has denied a request for his or her recusal, the attorneys cannot appeal the decision without the judge's permission.

"Most judges take recusals very seriously," said Penny White, a University of Tennessee law professor and former Tennessee Supreme Court justice.

A judge usually does not have a reason to sit in one particular case, and attorneys don't usually file seeking a recusal unless they have a legitimate reason, Ms. White said.

Continue reading by following these links to related stories:

Article: Attorney for Craft asks judge for recusal

Article: Molestation trial moved to April

Article: Molestation case leads to emotional divisions

about Joy Lukachick Smith...

Joy Lukachick Smith is the city government reporter for the Chattanooga Times Free Press. Since 2009, she's covered crime and court systems in North Georgia and rural Tennessee, landed an exclusive in-prison interview with a former cop convicted of killing his wife, exposed impropriety in an FBI-led, child-sex online sting and exposed corruption in government agencies. Earlier this year, Smith won the Malcolm Law Memorial Award for Investigative Reporting. She also won first place in ...

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