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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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