ILNews

COA: Judge should have recused himself

Back to TopCommentsE-mailPrint


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.
 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
ADVERTISEMENT