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COA: Judge should have recused himself

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The Indiana Court of Appeals agreed with a defendant that he received ineffective assistance of trial counsel because his attorney should have filed a motion for change of judge. The sentencing judge had worked as a prosecutor in the early stages of the defendant’s case 10 years earlier.

In Paul L. Patterson v. State of Indiana, No. 09A02-0909-CR-849, Paul Patterson was arrested for selling cocaine in 1997 and charged with Class B felony dealing in cocaine. Judge Leo Burns, then a Cass County deputy prosecutor, signed the information charging Patterson and participated in the probable cause hearing. He didn’t participate any more in Patterson’s case. Just after a different prosecutor took over the case, Jay Hirschauer was appointed to represent Patterson. Patterson entered a guilty plea, but fled before sentencing. He was arrested in 2009 in Illinois.

When he appeared in Indiana, Judge Burns had become the judge of Cass Circuit Court. The state brought it to the judge’s attention that he had worked on the case years earlier, but he didn’t think it required his recusal. Without any objection from Patterson, the judge sentenced him to 10 years in prison.

Even though Hirschauer didn’t start on Patterson’s case until after Judge Burns stopped working on it, the judge’s name appeared numerous times in the record, wrote Judge Margret Robb. And since Judge Burns hadn’t recused himself for his previous involvement in the case, as is required by Judicial Conduct Canon 2.11, Hirschauer should have filed the motion for a change of judge. Judge Burns would have then been obligated to remove himself from the case. Patterson was prejudiced because he was denied his right to have an impartial judge preside over his case.

The appellate court remanded to have the case assigned to a different judge. That judge may reject Patterson’s plea agreement and set the case for trial if he or she deems it appropriate.
 
 

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  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

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