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COA: Judge’s late recusal not reversible error

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An Adams Circuit Court judge who learned that he had previously represented a defendant on trial in his courtroom acted appropriately when he recused himself but denied a mistrial, the Indiana Court of Appeals ruled.

The matter came before the appellate court in David Mathews v. State of Indiana, 01A02-1203-CR-207. Mathews claimed that judge Adam Miller should have declared a mistrial when Mathews notified the judge that he had represented him in a prior criminal case.

Mathews told the judge about the prior representation after a jury trial in which Mathews was convicted of Class D felony intimidation and Class B misdemeanor public intoxication, but before arguments on whether Mathews would be ruled a habitual offender.

Upon notification, Miller recused himself and said in court, “My representation of you on an underlying offense that has never been presented to the jury as of yet has no impact on the first phase of this trial so I will deny the request for mistrial.”

“Given that Judge Miller did not serve as a lawyer in the matter in controversy, i.e., the matter involving the public intoxication or intimidation charges, we cannot say that Rule 2.11(A)(6) required recusal prior to the habitual offender phase of the trial or that the trial court abused its discretion by denying Mathews’s request for a mistrial,” Judge Elaine Brown wrote for the unanimous panel.

Judge Rudolph Pyle III concurred with a separate opinion in which he wrote, “The language and examples provided with the rule presuppose that a judge has knowledge of an event that calls into question his or her ability to be fair and impartial.

“In this case, the record reveals that neither the judge, prosecutor, defense counsel, nor Mathews himself was aware of the judge’s prior representation of Mathews until after the completion of the first phase of the trial. At that point, the judge correctly disqualified himself from the case. Therefore, because there was no knowledge during the trial, there was no duty to disqualify.”


 

 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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