Motion to Recuse Trial Judge Due to (a) Bias, Pressure as an Elected Judge and/or (b) Lack of Training and Qualifications in Death Penalty Cases
by John Niland & Philip Wischkaemper
INDICTMENT NO. _______

STATE OF TEXAS	§	IN THE DISTRICT COURT OF
	§
V.	§	___________ COUNTY, TEXAS		§
_______________	§	___________ JUDICIAL DISTRICT

	Now comes _________________________ pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amend­ments to the United States Constitution, as well as Article 26.052 of the Texas Code of Criminal Pro­ced­ure, moves the Court to Order first, that any judge who lacks experience presiding over criminal cases be recused on the ground that such a judge is unprepared to preside over a capital case. Second, the Defendant moves the Court to Order that any elected judge presiding over this case should be recused on the ground that such judges have an inability to remain impartial in capital cases. In support thereof, the Accused would show

	1. 
The Accused has been indicted for capital murder. 
	2. 
The State is seeking the death penalty. The Eighth Amendment to the United States Constitution requires a “greater degree of accuracy and fact finding than would be true in a non-capital case.” Gilmore v. Taylor, 508 U.S. 333, 342 (1993), see also Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
	3. 
It is the duty of this Court and the Texas Court of Criminal Appeals to make certain that the death sentence is not “wantonly or freakishly” imposed and that the purposes of Article 37.071 of the Texas Code of Criminal Procedure are accomplished. Ellason v. State, 815 S.W.2d 656, 660 (Tex. Crim. App. 1991).
	4. 
The Supreme Court of the United States has clearly acknowledged the distinctive nature of capital cases apart from other criminal cases, calling the death penalty “unique and irreversible.” Woodson, 428 U.S. at 287. The Court has further recognized that the death penalty is “different in kind from any other punishment imposed under our system of criminal justice,” and thus that it “could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976). Pursuant to this acknowledgement, the Supreme Court and the states, including Texas, have adopted heightened procedural safeguards for imposing capital punishment. These include but are not limited to the following: 
		a.	
Ensuring Competent Representation. As discussed below, Article 26.052 of the Texas Code of Criminal Procedure requires that lead counsel for death penalty defendants have significant experience in criminal law (specifically in litigating the punishment phases of capital cases), have participated in advanced training regarding death penalty defense, and have strong pro­fessional records as defense attorneys. 
		b.	
Automatic Appeal. In reinstating capital punishment in Gregg v. Georgia, the Court gave consid­era­ble weight to a new Georgia statute requiring automatic appeal of all death sentences as a “further safeguard . . . to ensure that death sentences are not imposed capriciously or in a freak­ish manner.” Gregg v. Georgia, 428 U.S. at 194–195. Texas statutes similarly provide for auto­matic appeal in capital cases. Tex. Code Crim. Proc. art. 37.071 §2(h).1
		c.	
Special Jury Requirements in Capital Cases. The Supreme Court has held that as a minimum guarantee of due process, sentencers in capital cases must weigh all evidence presented by the defendant before imposing the death penalty. See Kansas v. Marsh, 548 U.S. 163, 175 (2006). Texas’ criminal code goes far beyond this procedural floor, mandating that only a jury may impose a death sentence, and only after unanimously finding (i) that the defendant is a continued danger to society and (ii) that there is not sufficient mitigating evidence. Tex. Code Crim. Proc. art. 37.071 §2(b)–(g) (emphasis added).2 Further, unlike in all other criminal proceedings, a defendant in Texas does not even have the option of waiving his right to a jury trial if the state chooses to pursue the death penalty. Tex. Code Crim. Proc. art. 1.13.

Motion for Recusal Based on Inability of Elected Judges 
to Remain Impartial in Capital Cases

	1. 
Judicial fairness and impartiality are the cornerstones of our legal system. The United States and Texas Constitutions both contain guarantees of an impartial jury in criminal prose­cutions; principles of due process and due course of law, codes of criminal procedure, and professional codes of con­duct have extended these guarantees to cover judges and presiding officers.
	2. 
Under Texas law, motions to recuse in both civil and criminal cases are governed by the Texas Rules of Civil Procedure, which state that a judge must recuse himself in any proceeding in which (a) his impartiality might be questioned, or (b) he knows that he has any interest that could be sub­stantially affected by the outcome of the proceeding. Tex.R. Civ. P. 18a and 18b. See also West­brook v. State, 29 S.W.3d 103, 120 (TX 2000). This rule is reflected in federal law in 28 U.S.C. §455, requiring a judge whose impartiality might reasonably be questioned to disqualify himself from a proceeding. This directive is specifically applicable where the judge has an interest that could be substantially affected by the outcome of the proceeding.
	3. 
In addition to legislative regulation of judicial impartiality, the American Bar Association’s Model Code of Judicial Conduct addresses political influence more directly. Canon 2 of the Code states generally that “[a] judge shall perform the duties of judicial office impartially, competently, and diligently.” American Bar Association Model Code of Judicial Conduct, Canon 2, Rule 2.4 (2007). Rule 2.4 covers external in­flu­ences more specifically, stating in relevant part that (a) a judge shall not be swayed by public clamor or fear of criticism, and (b) a judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.
	4. 
Over the last several decades, criminal issues, particularly the death penalty, have proven to be salient political subjects. Politicians have effectively appealed to the public by asserting that they are “tough on crime.” Because crime is a one-sided issue that concerns nearly every member of the public, even those politicians who might otherwise oppose capital punishment profess to support the death penalty as a tough response to violent crime and thereby appease their constituents. For example, the candidates in the 1990 Texas gubernatorial race argued about which of them was responsible for the most executions and who could do the best job in executing more people. Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 772 (1995). By 1994, the National Governors’ Association observed that “the top three issues in gubernatorial campaigns this year are crime, crime, and crime.” Id., quoting Leslie Phillips, “Crime Pays as a Political Issue,” USA Today, Oct. 10, 1994, at 11A.
	5. 
History has shown that elected judges are particularly susceptible to the pressures of a pro-death-penalty public. Justice Stevens has observed that the present political climate is one “in which judges who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty.” Harris v. Alabama, 513 U.S. 504, 519 (1995) (dissenting). In Texas, the fate of judges is especially tied to politics by virtue of the fact that judges run under party af­fil­ia­tions. See Orrin W. Johnson and Laura Johnson Urbis, Judicial Selection in Texas: A Gathering Storm?, 23 Tex. Tech L. Rev. 525, 526, n.6 (1992). The Supreme Court has stated that it is the role of the judge “to hold the balance nice, clear, and true between the state and the accused.” Tumey v. State of Ohio, 273 U.S. 510, 523 (1927). The ABA’s Code of Judicial Conduct states even more explicitly that judges are not to be influenced by politics. Yet judges are painfully aware of the effect that their judicial decisions can have on their careers, and examples abound of campaigns attacking judges for their “softness” on crime. In Texas, voters removed a respected conservative former prosecutor who had served twelve years on the Texas Court of Criminal Appeals after the reversal of a highly publicized capital murder case, replacing him with a lawyer who promised to uphold more death sentences, despite having been accepted to the Texas bar less than two years before (with no prior criminal law experience) and having been fined for practicing law with­out a license. Richard C. Dieter, Killing for Votes: The Dangers of Politicizing the Death Penalty Process, Death Penalty Information Center, available at http://www.deathpenaltyinfo.org/node/379 (October 1996). As one scholar of elected judges has noted, “[t]he margin of safety for judges on retention ballots is rapidly declining to the point that one unpopular decision can make any justice vulnerable.” Gerald F. Uelmen, Commentary: Are We Reprising a Finale or an Overture?, 61 S. Cal. L. Rev. 2069, 2072 (1988). Accordingly, studies have shown that judges become significantly more punitive the closer they are to standing for reelection. Gregory A. Huber and Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 Am. J. of Pol. Sci. 247, 261 (2004).
	6. 
As Justice Brennan once noted, the risk of the biased judge is “particularly acute” in the context of a capital case—and when judges are elected or otherwise harbor political aspirations, “the pressures [to secure a conviction] are particularly dangerous.” Wainwright v. Witt, 469 U.S. 412, 459 (1985) (J. Bren­nan, dissenting). Experience across the nation, and particularly in Texas, has proven that judges’ ac­tions on the bench are influenced by public reactions to capital case de­ci­sions. The demands of due process, as well as the commands of both the ABA Model Code of Judicial Conduct and the Texas Code of Criminal Procedure, require that judges facing reelection, and who are thus susceptible to proven political pressures, recuse themselves from capital cases. 

Motion for Recusal Based on Inexperience of the Trial Judge

	1. 
Article 26.052 of the Texas Code of Criminal Procedure requires that counsel appointed in death penalty cases be not only competent, but also possess substantial experience in both criminal and capital matters. These requirements are stringent and include, but are not limited to, the following: 
		a.	
Lead counsel in capital cases must exhibit “proficiency and commitment to providing quality rep­re­sentation to defendants in death penalty cases” and must never have been found to have rendered in­ef­fec­tive assistance of counsel during the trial or appeal of any capital case.
		b.	
Lead counsel must have at least five years of experience in criminal litigation. 
		c.	
Lead counsel must have tried to verdict as lead defense counsel a significant number of felony cases, including homicide trials.
		d.	
Lead counsel must have trial experience in the use of and challenges to mental health or forensic expert witnesses and presenting mitigating evidence at the penalty phase of a death penalty trial.
		e.	
Finally, lead counsel must have participated in continuing legal education courses or other training related to criminal defense in death penalty cases. 
	2. 
That attorneys representing defendants in capital cases are held to such rigorous standards, much higher than those required of attorneys in non-capital criminal cases, is a clear articulation of the Texas legislature’s acknowledgment that capital cases demand a much higher level of procedural protection than do other cases. 
	3. 
Further, as discussed above, both the United States Supreme Court and Texas courts have ac­knowl­­edged the unique nature of capital cases and adjusted procedural standards accordingly, as evidenced by the unique requirements of ensuring competent representation in capital cases, providing for automatic appeal of capital cases, and imposing special jury requirements in capital cases. 
	4. 
It follows from the immensely heightened procedural protections attached to capital punishment proceedings that the requirements of judges presiding over capital cases in terms of both experi­ence and capital punishment–related continuing legal education should also be significantly height­ened. Specifically, just as the Texas Code of Criminal Procedure and the Due Process Clause of the United States Constitution require knowledgeable and experienced counsel in capital pun­ishment cases, it naturally follows that they must also require experienced and knowledgeable triers of law in those cases.
	5. 
Though judges are ordinarily afforded a strong presumption of judicial fitness and impartiality,3 this is merely a presumption, and one that must be more easily rebuttable in the capital punishment con­text, where the consequences of allowing an inexperienced judge to preside over a case may mean the difference between life and death for the defendant. 
	6. 
Further, although judges do not always have a duty to recuse themselves, they have the discretion to do so, particularly where the stakes are high for themselves or the line is blurry as to whether or not recusal is proper.4
	7. 
In the case at bar, the judge lacks any experience with cases in criminal law. Unlike in Goings v. State, 265 Ga. App. 296 (Ga. App. 2004), in which the Court held that a judge who normally sat as a juvenile court judge was qualified to preside over an armed robbery prosecution, the judge in this case has no experience presiding over criminal matters in general, much less over capital cases, and she has not pursued continuing legal education regarding these matters in order to prepare herself to take on a case of this nature. 
	8. 
Recognizing that capital cases mandate higher procedural standards than non-capital criminal cases, including more stringent standards regarding the qualifications of judges who preside over such cases, some states have imposed a categorical rule requiring that trial judges who hear capital cases be qualified to do so. These rules are based on the acknowledgment that trial judges “play an important role in the capital punishment system by insuring the fairness of proceedings for all parties.” Report of the Commission on Capital Punishment, Governor’s Commission on Capital Punishment (Apr. 15, 2002), http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/index.html (hereinafter Illinois Commission Report).
		a.	
Florida: The Supreme Court of Florida, for example, has adopted a rule expressly designed “to pre­vent the assignment of new judges with no prior experience trying criminal cases to death penalty cases,” and to ensure “that all judges hearing capital cases have the experience and train­ing necessary to handle the unique demands of such proceedings.” In re Amendment to the Florida Rules of Judicial Administration, Rule 2.050(b)(10), 688 So.2d 320 (Fla. 1997). 
		b.	
Illinois: Similarly, the Illinois Commission on Capital Punishment (“Illinois Commission”) has unanimously recommended that the state supreme court mandate that judges presiding over capital cases undertake capital litigation seminars prior to hearing capital cases. Illi­nois Commission Report at 94–95. The Illinois Commission has urged that this training is necessary to ensure that judges fully understand the parameters of capital punishment and that judges presiding over capital cases be the “most qualified” and “best trained.” Robert M. Sanger, Comparison of the Illinois Commission Report on Capital Punishment with the Capital Punishment System in California, 44 Santa Clara L. Rev. 101, 152 (2003). The Illinois Commission recommended that before presiding over capital cases, trial court judges should be certified to do so by virtue of either experience in hearing criminal cases or completion of specialized training. Illinois Commission Report at 99.

WHEREFORE PREMISES CONSIDERED, Mr. _____________ prays that prior to further proceedings, the judge shall recuse himself (herself) or “request the presiding judge of the administrative judicial district to assign a judge to hear such motion” all pursuant to Tex. R. Civ. P. 18a(c). 

Respectfully submitted on this the ____ day of _____, 2010.

	By: __________________________
		COUNSEL FOR THE ACCUSED
		State Bar No. _____________________
		Address: _________________________
	_________________________
		Telephone: ( ) 

	_________________________________
		CO-COUNSEL

Certificate of Service

	I hereby certify that a true and correct copy of the above and foregoing instrument has been furnished to counsel for the State by hand-delivery of a copy of same this the ____ day of ______________________, 2010.

Notes
1. Section 2(h) reads as follows: “The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals.” See also Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) (where defendant was convicted of capital murder, and sentenced to death, direct appeal to the Court of Criminal Appeals of Texas was automatic). 
2. Section 2(e)(1) echoes the Supreme Court’s evidentiary standard for mitigation, in that the jury during the punishment phase must consider “all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant” in determining whether to impose the death penalty or life imprisonment.
3. See, e.g., Ex Parte Ellis, 275 S.W. 3d 109 (Tex. App. 2008); 48A Texas Practice Guide §40.4 (“[a]n apperance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”
4. Keene Corp. v. Rogers, 863 S.W. 2d 168 (Tex. App. 1993) (“This is not a case where federal law requires recusal, but it is a case where judicial discretion is exercised in favor of maintaining a judiciary that is not only fair and impartial, but also one which appears that way”).