Revised ethics opinion: Judges should disclose prior prosecutions but assess recusal individually
A judge is not required to automatically recuse themselves from all cases involving defendants they previously prosecuted. Instead, the judge must assess each case individually to determine if recusal is necessary, taking into account the specific circumstances of the case, according to the Judicial Ethics Advisory Committee.
“Additionally, if a judge is aware of his or her involvement in a prior prosecution, the judge must disclose the relevant facts to the defendant even if the facts do not require automatic recusal,” the ethics panel said in Opinion Number 2024-12 (Amended).
The amended opinion issued August 27, recedes from the original version issued August 2 that opined that judges must recuse from all cases involving defendants whom the judge previously prosecuted.
“The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired,” the ethics panel said citing commentary to Canon 2A. “Additionally, the Commentary to Canon 3(E)(1) states clearly that, ‘…a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.”
The panel said the inquiring judge may need to recuse from a case but must evaluate each case individually.
“Relevant factors may include: the judge’s involvement in the defendant’s case, the time since the prosecution of the defendant, comments the judge may have made to the defendant or about the defendant, and any other factor that the judge deems relevant to the recusal inquiry,” the panel said.
The rules require that the inquiring judge disqualify himself or herself where his or her impartiality might reasonably be questioned.
“That is a fact dependent inquiry that depends on the circumstances of each individual situation,” the panel said. “The inquiring judge must consider the factors outlined above and any other facts a litigant might deem relevant to the recusal inquiry. Additionally, once advised of prior involvement with a defendant’s earlier cases, a judge must disclose those facts.”
The committee noted that one JEAC member expressed an opposing view and believes that a former prosecution by the judge would always call into question the judge’s impartiality. That committee member prefers the “bright line” position that a judge must recuse from all cases involving a defendant who the judge previously prosecuted.
In JEAC Op. 2021-18, the committee opined that a judge did not have to recuse from presiding over a sex offender/predator’s failure to register case, where the underlying sex offense convictions that formed the basis of the registration requirement and where initially charged by the judge, when the judge was an assistant state attorney. The committee based its conclusion on the fact that the judge made the charging decision but did not actually prosecute the case or supervise the attorneys who did, and concluded that, “when applying the plain reading of Canon 3E(1)(b), the inquiring judge did not serve as a lawyer in the matter in controversy, as the matter in controversy is a failure to register charge and not the original sexual offense.”
The inquiring judge asked a slightly different question in that this judge was the prosecuting attorney, and not just the charging attorney, in a case involving this same criminal defendant on different charges. This, the committee held, makes JEAC Op. 2021-18 distinguishable.
In fact, in Goines v. State, 708 So. 2d 656 (Fla. 4th DCA 1998), the court found that it was ineffective assistance of counsel for the defense attorney not to seek disqualification where the judge presiding over the defendant’s trial had prosecuted defendant on other charges six years earlier, the panel said.
The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.
