Court Records Blog

Perhaps it’s a term you’ve heard on Law & Order. Or you may remember the calls for withdrawal of Supreme Court Justices Elena Kagan and Clarence Thomas from hearing The Affordable Health Care Act case due to alleged conflicts of interest. Both Justices remained on the case, although critics were quite vocal about their participation-Kagan, for her role as Solicitor General in the Obama administration when the Act was signed into law, and Thomas, for failing to disclose his wife’s income from organizations opposed to the Act. Demands for their recusals may have split along partisan lines, but how important is public perception of judicial impartiality, whether a high profile case or not? And what exactly is judicial recusal?

Simply stated, recusal is the act of a judge removing him or herself from a case to avoid the appearance of judicial bias or conflict of interest. A fair trial demands the participation of a judge who can impartially preside over legal proceedings, whether criminal or civil in nature. If a party to the proceeding (plaintiff, defendant, respondent, attorney) perceives judicial bias or possible conflict of interest, that party may seek recusal of the judge by request or motion. Under what circumstances are recusal proceedings initiated, and how compelling must the appearance of bias or conflict be for removal from the case?

All states have codes of judicial conduct that govern the activities of judges to guarantee the integrity of the justice system. Most states follow guidelines from the American Bar Association Model Code of Judicial Conduct, which direct judges to recuse themselves from legal proceedings if their impartiality may be reasonably questioned. There does not need to be a definitive showing of prejudice or bias, merely a reasonably drawn inference that the judge may not be able to execute legal duties impartially, given a personal, professional, or financial interest.

Who decides whether an allegation of bias or conflict is sufficient to warrant recusal of the challenged judge? You might be surprised to learn that the decision to recuse remains with the individual judge, regardless of how the question of possible bias emerged.  The judge may disclose a potential conflict, or one of the parties may raise it.  Regardless, the judge alone determines whether a conflict exists, and whether he or she can preside over the proceedings impartially and equitably.

Even if the codes of conduct for judges grant them broad discretion regarding self-disqualification from cases, there are obvious circumstances that warrant recusal. A personal conflict of interest includes legal proceedings  in which the judge, a family member, or close friend is a party to the action, or has some stake in the legal outcome. A judge’s extra-judicial activities or past issue advocacy may also challenge the appearance of neutrality, depending on the nature of the legal action. For example, a judge should not preside over a criminal case in which the defendant is a family member, but should the judge also withdraw from a case involving a past political opponent  involving election fraud?

A professional conflict of interest involves proceedings in which former clients, judicial peers, past employers and/or colleagues are parties to the case or have some stake in the legal outcome. For example, if a judge is assigned to a case involving a former client represented while practicing law, the judge should elect to recuse.  Professional conflicts of interest can also extend to professional relationships of family members and judicial staff. Further, an elected judge should opt for recusal from any legal proceeding involving campaign staff, volunteers, members of political action committees, or anyone else associated with getting the judge elected.  If the judge was appointed, he or she should refrain from hearing cases involving the appointing executive or political organization.

Judicial campaigns present another significant conflict of interest challenge-the unprecedented amount of money in state  judicial elections. Campaign contributions by a specific litigant, attorney, or issue advocacy group should be disclosed and monitored to prevent the appearance of bias or favor by the recipient judge. Other financial conflicts include legal proceedings impacting a judge’s personal or family assets, investments, and other financial business affiliations.  Clearly, recusal would be in order if a judge is assigned to a case involving a company in which he or she holds significant stocks. 

While many of these circumstances are obvious, some are more nuanced. We must rely on our judges to police themselves, to disclose potential conflicts of interest, and err on the side of disqualifying themselves from any legal proceedings where their impartiality may be reasonably questioned.  Our notion of a fair and unbiased legal system demands it.

To find rules of judicial conduct in your state governing recusal,  look for links to organizations like the State Bar Association or the Administrative Office of Courts on CourtReference under the Self Help and Legal Research category.

Crime is in the news lately. But as they say in the news business, “If it bleeds, it leads.” – so whether crime rates are up or down, crime is always in the news. Among the crime reports are those in which the accused is a minor, so the reports note whether the accused will be tried as an adult or a minor. But what does that question really mean?

If the minor is tried as an adult, the trial will be in a regular criminal court, and neither the process nor the result will take the accused’s age into account. The age at which the accused is no longer a minor varies from state to state, but is usually 17 or 18. For the most serious crimes – especially for murder – a minor may be tried in adult criminal court. State statutes generally set the criteria by which a case with a minor defendant may be transferred to adult criminal court, although prosecutors usually have some discretion. But for most criminal charges, if the accused is under that age, the trial will be in Juvenile Court.

“Juvenile Court” does not always mean a special “juvenile court judge” in a separate “juvenile” courtroom. Juvenile Court may be a constitutionally-created court, or it may be an ad-hoc division of the local circuit, district, or county court – whichever court usually handles criminal cases. Regardless of the way the Juvenile Court is created and administered, its functions differ in some significant ways from the general criminal court system.

Of course there are similarities, mostly based on due process of law: juvenile defendants facing possible incarceration are entitled to a lawyer, they are not required to incriminate themselves, and the normal rules of evidence apply. But Juvenile Court proceedings are not always adversarial; social workers, parents, and other parties from outside the formal court system may work with the court to develop a course of action designed to steer the juvenile away from a life of crime, instead of into prison.

That doesn’t mean that defendants in Juvenile Court don’t go to jail (or to “juvy” or to “reform school”); many do. Juvenile Court doesn’t always mean “juvenile diversion” (see our January 2009 post diversion programs). Nor does it mean a Teen Court of the juvenile’s peers, the subject last month’s post; Juvenile Court has an adult judge and prosecutor. Still, diversion or other forms of non-retributive justice are more common in Juvenile Court than in adult criminal court.

Juvenile Court may also handle cases in which the juvenile is not accused of a crime, such as dependency cases. Juvenile “delinquency” means the minor has committed a crime. Juvenile “dependency” means the minor’s parents have neglected or lost control of the juvenile, and the court must consider transferring care of the juvenile to a foster home or a person who is not the biological parent.

Some court systems may only have dedicated Juvenile Courts in certain areas, usually those with larger populations. In Louisiana, Juvenile Courts exist in Caddo, East Baton Rouge, Jefferson, and Orleans Parishes; juvenile cases in other parishes are heard in District or City Courts. In Calcasieu Parish, for example, juvenile cases are heard in two of the nine divisions of District Court. Nebraska, like Louisiana, has dedicated Juvenile Courts in only a few counties.

New York does not have separate Juvenile Courts, but it does have Family Courts that handle juvenile cases as well as other types of  family cases such as divorce, custody, support, paternity, and guardianship. In California, some county Superior Courts have dedicated juvenile divisions. Los Angeles Superior Court has several dedicated juvenile courthouses; much smaller Calaveras County has a single Superior Court location and judge, with multiple divisions including Juvenile. In Indiana, juvenile cases may be heard in Circuit  Court or Superior Court, depending on the county.

Georgia has a dedicated Juvenile Court in each county, although they may share jurisdiction with Superior Courts in some counties, and they do not have  jurisdiction over serious criminal cases. Mississippi’s juvenile courts are called Youth Courts; they exist in every county, but their judges come from County Courts or Chancery Courts.

To see if your state has dedicated Juvenile Courts or juvenile divisions of its criminal courts, to check the courts’ jurisdiction, or to find the court’s contact information, simply check CourtReference.

The American criminal justice system is not always all about determining guilt or innocence and then punishing the guilty. It recognizes that some “bad actors” can be deterred from embarking on a life of crime, and can be given a “second chance” through programs that don’t result in a criminal record. For examples, see our blog posts about Mental Illness Cases, Drug Courts, Veterans Courts, Family Dependency Treatment Courts, and Diversion. These “problem-solving” or “accountability” courts are not actual courts, but special programs that impose treatment, counseling, education, restitution, and community service in lieu of incarceration and a criminal record.

The juvenile justice system takes a special interest in keeping young offenders out of the criminal justice system. That’s because a juvenile or criminal record can make it difficult for them to turn their lives around, and incarceration can expose them to worse influences than they encounter among their age peers. Many courts have special Diversion Programs for juveniles. But because juveniles are a special case, their cases are most often handled not by specialized programs but by actual juvenile courts.

Traditional juvenile courts are a subject for their own blog post; here we examine courts that are staffed – jury, clerk, bailiff, prosecutor, and defense counsel – by the juvenile offender’s own age peers. Some Teen Courts even have a teen judge, although most place a local volunteer attorney or judge in that position. Teen Court members must attend training classes, and often pass a “bar exam” and be sworn in. We examined one such court in our post about Seattle’s Youth Traffic Court. Let’s take a look at some other Teen Courts – also known as Youth Courts – which handle more than just traffic cases.

Teen Courts operate on the “restorative justice” principle, in which the offender takes responsibility for his or her offense, makes amends to the victim and the community, and receives the assistance of the community in avoiding future offenses. As any parent can attest, teens tend to pay more attention to their age peers than to adults – including their parents. Teen Courts substitute an organized form of “peer pressure” for the traditional “do what the adults tell you” model. Not surprisingly, it works; recidivism rates for Teen Courts are significantly lower than those of traditional juvenile courts.

Teen Courts generally serve only first-time offenders charged with misdemeanors and infractions, such as minor theft, underage drinking, vandalism, disorderly conduct, and traffic tickets.  Because the offender must accept responsibility, these courts operate as sentencing courts; the offender admits guilt, and the court decides the consequences – which may include restitution, community service, education, counseling, and serving on other Teen Court juries.

The Seattle Youth Traffic Court is not the only such court in Washington; take a look at Lake Forest Park Youth Court (limited to traffic cases) and the Island County and Whatcom County Teen Courts.

In Texas, some Teen Courts such as Killeen’s are limited to traffic cases, while others such as College Station’s and Texarkana’s handle more types of misdemeanors. Links to the many Texas Teen Courts may be found on CourtReference’s Texas Courts Guide; just scroll down the page and look for “Teen Court” links.

Other examples may be found in Anchorage, AK; Union County, OR; Santa Fe County, NM; Florida’s 4th, 6th, and 7th Judicial Circuits; Horseheads, NY; and Bureau County, IL. Be sure to check CourtReference’s guide for your state to find Teen Courts and Youth Courts in your own county or city.