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In re L.M.

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Argued September 10, 2010

Before THOMPSON and OBERLY, Associate Judges, and FARRELL, Senior Judge.

Appellant was adjudged delinquent after she assaulted with a dangerous weapon (ADW shod foot) a girl, C.S., at school. She first argues that Judge Bush erred in not recusing herself from the factfinding hearing, D.C. Code § 16-2316 (2001), on defense request. The argument appears to have two parts. First, appellant cites D.C. Code § 16-2312 (j) in arguing that the judge was compelled by statute to recuse herself “[u]pon objection” because she had “conducted a detention or shelter care hearing” in the case.*fn1 It is true that the judge had conducted a prior shelter care hearing regarding L.M., indeed several, but in only one – held on October 31, 2007, resulting in L.M.’s detention overnight until another judge could hold a formal “probable cause” hearing on the delinquency allegations, see D.C. Code § 16-2312 (e) – did the judge learn of facts related to the offense charged, and that was with the express consent of L.M.’s counsel.*fn2 Because appellant rejected the alternative of letting another judge decide the issue of probable cause justifying overnight detention, she cannot properly complain that by considering the factual allegations for that purpose, Judge Bush became subject to disqualification under § 16-2312 (j). See Brown v. United States, 627 A.2d 499, 508 (D.C. 1993) (defendant may not take one position at trial and contradictory one on appeal).

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