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A Louisiana federal judge accused by defense lawyers of allegedly being impaired by painkillers when presiding over the trial of a former Louisiana governor recused himself from the post-conviction case after being asked to. Because the judge’s medical records are being sought to prove the allegation, the case has triggered debate among judges, lawyers and ethicists about when a litigant can legitimately get access to such records, who should make that call�and if it threatens judicial integrity. Before U.S. District Judge Frank J. Polozola removed himself, he took the extraordinary step of transferring state court records of his past psychological condition to his own court, where they remain sealed. But soon those records will be in another judge’s court, and that judge will have to decide whether or not to unseal them. For now, Polozola’s action blocks Edwin W. Edwards from gaining access to the records. Edwards, a four-term governor and once a member of the Louisiana Supreme Court, was convicted by a jury in May 2000 of racketeering, conspiracy and extortion in the awarding of riverboat casino licenses. His appeals exhausted, he is serving a 10-year prison sentence. In their pleadings, Edwards’ lawyers allege that Polozola’s judgment was impaired by painkillers he was taking due to injuries suffered in a 1997 automobile accident, and that he did not deal fairly with their client. Polozola recused himself from hearing Edwards’ habeas corpus petition. U.S. v. Edwards, No. 98-165 (M.D. La.). Edwards’ lawyers had also asked a state court to unseal Polozola’s medical records and his deposition. In addition, they had asked for the depositions of the judge’s psychologist and psychiatrist. Those documents come from Polozola’s personal injury suit, brought in state court, arising from the auto accident. Polozola v. McCallum, No. 447,648 (East Baton Rouge Parish, La., Dist. Ct.). Risking judicial integrity? In Edwards’ motion for intervention in the personal injury suit that was settled in 2001, he claims those records will show that the judge was taking Oxycontin, a narcotic painkiller, while his case was being heard. Earlier, his lawyers had alleged that the judge exhibited “erratic” and “paranoid” behavior toward Edwards. Richard Zitrin, director of the Center for Applied Legal Ethics at University of San Francisco School of Law was not surprised by the defense lawyers’ tactics. “If a U.S. Supreme Court justice is going to define grounds for recusal as narrowly as Justice [Antonin] Scalia recently did [involving his hunting trip with Vice President Richard Cheney], perhaps it’s not surprising that lawyers will grasp at any straws to get quote unquote evidence to support recusal,” Zitrin said. “But that doesn’t answer the question of whether it’s a bona fide issue in this case or manipulation,” he added. “If this type of attack on a judge is abused it will threaten judicial integrity. You’ll have potential motions for every judge on antidepressants. That would be ridiculous.” One of Edwards’ attorneys, Michael Small of Law Offices of J. Michael Small in Alexandria, La., “uneqivocably” denied that Edwards was trying to manipulate the system, noting that there were three other grounds for asking for recusal, such as an allegation that the judge knew, but didn’t disclose, that a juror had told a deputy marshal that another juror had said that if there were a hung jury they’d all be jailed. In their brief, prosecutors accuse Edwards of trying to subvert the criminal justice system and threatening “irreparable injury to a national interest.” They claim that Edwards is judge shopping because he didn’t like the court’s rulings, which were sustained on appeal. In an 18-page ruling granting the recusal motion, Polozola noted that from the time of his auto accident to the end of Edwards’ trial, he’d disposed of 1,219 civil cases and 167 criminal cases without complaint about his abilities from any litigant. Polozola declined to comment beyond his ruling. Former federal Judge Stephen Orlofsky, now a partner in the Cherry Hill, N.J., office of Philadelphia’s Blank Rome, asserted that the judge should have recused himself as soon as the U.S. attorney filed a notice of removal of the state court records-before he’d issued any order. “I would have recused myself and assigned it to another judge immediately,” Orlofsky said. “This is an unusual situation to have a public record in another case . . . perhaps [be] a basis to claim that a judge was somehow incapacitated.” But, he added, the defense lawyers should have raised it as soon as they knew, or they waived it. “If you knew or should have known, it is barred,” Orlofsky said, predicting how the next judge might view it. “Had they made a record? Was the judge falling asleep . . . wobbling? Just because a judge’s back hurts and he’s taking medication is not reason enough. The judiciary deals with frivolous claims all the time.” In Edwards’ recusal memoranda, he claims that he learned in a press report, after he was sentenced, that in 1999-when pretrial proceedings were in full swing-Polozola had claimed he suffered from an “impairment of functions.” The motion also asserts that the judge had been prescribed Oxycontin, although it doesn’t state a basis for that claim. The government counters that the untimeliness of the recusal motion is evident because the named source for a much earlier news story about the judge’s back problems was a former criminal defense attorney for Edwards’ son, who was a co-defendant in the same case. That attorney was disqualified and then became a defense attorney on the other side of Polozola’s personal injury lawsuit. The government also asserts that the judge was candid about medical appointments during the trial, including an appointment with a neurosurgeon. U.S attorneys assigned to the case declined to comment. A ‘balancing act’ Former federal Judge Robert Cindrich, now chief legal counsel for the University of Pittsburgh Medical Center, was ambivalent. On the one hand, “the judge should have recused himself at the beginning because there were factual issues to be resolved,” Cindrich said. “On the other hand, context is everything. There is a principle that’s important-no judge should be intimidated from sitting on a case.” He said that, as a threshold, counsel should have been made to point to things that were indicative of impairment in great detail. “Otherwise you can say any time of a judge that is under psychiatric care or has surgery that he or she was impaired,” Cindrich said. “It’s a close one because of an appearance of impropriety-a balancing act between it and the courage to stay in, but I think [Polozola] should have made the call himself. If he is wrong, they have avenues of appeal.” Post’s e-mail address is [email protected].

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