When the judge is not disinterested

[Alpo]

There's a movie. THE BACHELOR AND THE BOBBYSOXER.

 

Myrna Loy is a judge. Shirley Temple is her much younger 17 year old sister (musta been a change of life baby - Myrna was 30 years older than Shirley). Shirley has a major crush on Cary Grant.

 

Cary was arrested for contributing to the delinquency of a minor.

 

Now Myrna should not try this case (she didn't). The minor in question is her little sister. She would not be able to be disinterested in this case.

 

But if she had tried the case, and found him guilty and sentenced him to 115 years hard labor. And then a few years later someone reviewing the case discovers that she was the judge and she should not have been the judge.

 

What would they do in that case? Have a retrial? Tell Cary, "TOO BAD, SO SAD, BUT A SENTENCE IS A SENTENCE" and leave him in the calabozo?  Sweep the whole thing under the rug, so as not to embarrass the legal industry?

 

Surely this is happened sometime in the past. There must be precedent (I hear lawyers like precedent).

[Red Gauntlet , SASS 60619]

They would modify the sentence to soft labor.

[Cat Brules]

Considering a real situation and the time period, I think a retrial would be a given in this case.  And, the court, reconsidering the girl’s age and other factors, might commute his sentence to time served and no new trial.

 

Cat Brules

[DocWard]

Any attorney, even the most inept, would have filed a motion to have her recuse herself from the proceeding. If she didn't, an appeal would happen in short order.

[bgavin]

I would also think that any attorney, even the most inept, will file a motion to have Sanders, Booker, Harris and Warren recused from the Senate trial of Mr. Trump.

 

[Tyrel Cody]

1 minute ago, bgavin said:

I would also think that any attorney, even the most inept, will file a motion to have Sanders, Booker, Harris and Warren recused from the Senate trial of Mr. Trump.

 

 

Don't hold your breath.

[Loophole LaRue, SASS #51438]

19 hours ago, DocWard said:

Any attorney, even the most inept, would have filed a motion to have her recuse herself from the proceeding. If she didn't, an appeal would happen in short order.

 

Not sure, Doc.  The sister is not the defendant - Cary is.  No familial relationship between Cary and the Judge.  Not sure that there is any automatic disqualification here.  Now, Cary's counsel could have filed a Motion to Recuse, arguing that the Judge's relationship to the "victim" operates to make it unlikely that the Judge could be impartial, but that would depend upon the facts.  In any case, there apparently was no such Motion filed.  That leaves Cary (as the only affected party) with an appeal based upon ineffective assistance of counsel, maybe.  But wouldn't he have to prove at this point that there was actual prejudice in the trial?  That the judge was clearly biased?  

 

LL

[Alpo]

The question first popped into my mind while watching The Addams Family.

 

If you will recall, the Addams' next door neighbor was a judge, and Gomez would hit golf balls into the judge's dining room.

 

When the crooked lawyer had the trial to show that all of the Addams wealth belonged to Fester (since he was the elder brother), the next door neighbor who hated Gomez was the judge.

 

Then I thought about Shirley and Cary and Myrna, which I had watched the night before.

 

Cary's lawyer, upon hearing that when the judge and the district attorney broke in the door to his apartment, and found him with a drink in his hand, wearing a bathrobe, with a 17 year old girl, suggested he plead guilty. The lawyer said he thought he could get him off with 10 years.

 

Another question. Could you possibly be convicted (I think that like anyone can sue for anything, anyone can be charged with anything, but convicted might be a little more difficult) for punching the district attorney, if you were unaware that he was the district attorney when you hit him? In this case the DA broke into Cary's apartment and started screaming at him and calling him a child molester. Cary punched him.

[DocWard]

1 hour ago, Loophole LaRue, SASS #51438 said:

 

Not sure, Doc.  The sister is not the defendant - Cary is.  No familial relationship between Cary and the Judge.  Not sure that there is any automatic disqualification here.  Now, Cary's counsel could have filed a Motion to Recuse, arguing that the Judge's relationship to the "victim" operates to make it unlikely that the Judge could be impartial, but that would depend upon the facts.  In any case, there apparently was no such Motion filed.  That leaves Cary (as the only affected party) with an appeal based upon ineffective assistance of counsel, maybe.  But wouldn't he have to prove at this point that there was actual prejudice in the trial?  That the judge was clearly biased?  

 

LL

 

During voir dire, a juror can be dismissed for cause if a relative or friend of the victim, because of the likelihood of bias. This extends further to parties, attorneys, and even key witnesses on the case. By extension, and my understanding of the law, the judge would be required to recuse if there is a strong possibility of bias, whether actual bias exists or not. The integrity of the tribunal dictates that there not be the appearance of bias or impropriety.

A very quick search indicated SCOTUS ruled in 2009 that a judge who received campaign contributions from a company's CEO should have recused himself, despite evidence of bias. In so holding, SCOTUS referenced a number of other cases in which judges should have recused themselves, including other than pecuniary interests.

https://www.law.cornell.edu/supct/html/08-22.ZS.html#content