Judge Not Required To Recuse Himself From Case Involving Former ClientOlivia

Covington for www.theindianalawyer.com

An Adams County judge who presided over a case in which the defendant was his former legal client was not required to recuse himself, the Indiana Court of Appeals found Monday.

After David Mathews was charged with several violations of Indiana Code Title Nine, including Class D felony operating a vehicle, in 2003, then-public defender Patrick Miller was appointed Mathews’ counsel. Under Miller’s advice, Mathews pleaded guilty to the felony charge in exchange for the dismissal of the remaining charges and the majority of his sentence suspended to probation.

In 2011, Mathews was charged with Class D felony intimidation and Class B misdemeanor public intoxication. Presiding over the case in 2012 was Miller, who had since been elected judge to the Adams Superior Court in 2008. After a jury found Mathews guilty in the first phase of a bifurcated trial, he moved for a mistrial, arguing that Miller’s representation of him in 2003 disqualified him from presiding over the 2011 case because the convictions in the 2003 case were to be part of the state’s evidence on a recidivist charge in the 2011 case.

Miller denied Mathews’ mistrial motion but transferred the recidivist portion of the trial to the judge of the Adams Circuit Court. The jury found Mathews guilty in the second phase of the trial and the Indiana Court of Appeals affirmed Miller’s decision and Mathews’ convictions on direct appeal.

While on parole in 2014, Mathews was charged with Class A misdemeanor operating a vehicle while intoxicated and Level 6 felony obstruction of justice. Mathews’ case was once again brought before Miller, and Mathews’ court-appointed public defender filed a motion for recusal of judge in June 2015. The motion cited Judicial Canon 2.11(A) and was filed more than two months after Mathews initially raised the issue with Miller at an earlier pretrial conference in April.

Mathews’ motion was denied and a jury found him guilty as charged. Mathews appealed in David A. Mathews v. State of Indiana, 01A02-1601-CR-104, but a panel of the Indiana Court of Appeals unanimously affirmed Miller’s decision not to recuse himself.

Under Indiana criminal law, a party seeking to overcome the presumption of judicial impartiality must move for a change of judge under Rule 12 of the Indiana Rules of Criminal Procedure, Judge Paul Mathias wrote. Although Mathews failed to meet certain Rule 12 requirements, such as filing a verified motion within 30 days, he argued that he still had a claim under Judicial Canon 2.11(A), which holds that a judge must disqualify himself or herself if there is a question as to impartiality, including circumstances in which a judge has previously represented the party in the same matter as an attorney.

But Mathias wrote that the judicial code of conduct does not supply a freestanding mechanism for relief independent of a motion properly brought under Rule 12. Instead, the code’s requirements for judicial impartiality “are enforced by the individual judge against himself in the first instance.” Accepting Mathews’ argument, Mathias wrote, “would effectively nullify Rule 12 by creating a new species of recusal motion that could be brought at any time, in any manner, on grounds far broader than those contemplated by Rule 12.”

Further, Mathias wrote that the 2014 case was not related to the 2011 case – and thus was not related to the 2003 case – so Miller was not required to recuse himself under the judicial code of conduct.