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The Pennsylvania Supreme Court has said a Dauphin County judge was not required to recuse himself for comments he made to a journalist in 2000 about a state legislator’s guilty plea to hit-and-run charges a month before the judge sent the politician to prison.

Tom Druce, who resigned his seat in the state House soon after pleading guilty to the 1999 incident, had accused the trial judge of compromising his impartiality by talking about the case to an Associated Press reporter. When Druce demanded the judge recuse himself, he declined.

Last week, despite Druce’s urging, the court refused to adopt a per se rule requiring judicial recusal for any violation of the state Code of Judicial Conduct.

That code states in part that judges “should abstain from public comment about a pending proceeding in any court.”

In a 5-1 vote, the justices concluded that remarks made by President Judge Joseph H. Kleinfelter to the Associated Press before Druce’s sentencing were “violative” of the code, but “not a blatant disregard for its purpose.”

“The substance of the comments did not evince bias or prejudice, for or against appellant; it certainly did not impugn Judge Kleinfelter’s integrity,” wrote Justice J. Michael Eakin in Commonwealth v. Druce. “This case illustrates the danger of pre-sentencing judicial comments to the press. Although this court does not condone the comments, the record shows Judge Kleinfelter made the necessary self-assessment, and we find no actionable error in his denial of the recusal motion.”

The court also rejected Druce’s contention that his prison sentence was “unduly harsh” because of his position as an elected official. He had represented the 144th District in Bucks County.

In July 1999, Druce struck and killed 42-year-old Kenneth Cains with his Jeep Grand Cherokee on a Harrisburg street. Druce later said he thought he had hit a construction sign and that that’s why he didn’t stop, according to the opinion.

The next day, Druce told his insurance company he’d hit some barrels on the turnpike, and later had the car repaired and traded in the Jeep for another car, according to the opinion.

In the plea deal, prosecutors dropped the most serious charge of vehicular homicide; Druce pleaded guilty to charges of leaving the scene of a fatal accident, tampering with evidence and insurance fraud, according to the opinion.

Eakin, noting that Druce could have been sentenced to as many as 16 years imprisonment, said Druce had only received the mandatory minimum for his felony conviction – one year in prison for leaving the scene of a fatal accident – and “merely six months for each attempt at covering up his guilt.”

Justice Ronald D. Castille filed a separate opinion, concurring with the majority’s reasoning.

Justice Sandra Schultz Newman wrote separately to dissent, saying Kleinfelter should have recused himself because his behavior raised “at least an appearance of impropriety and bias.”

The case was argued before the justices in May 2003 before Justice Max Baer took his seat on the court, so he did not participate in the decision.

The prosecutor in the case, Dauphin County District Attorney Ed Marisco, praised the court’s decision, saying it affirmed exactly “what we had advocated all along, which was that Judge Kleinfelter did not need to recuse himself.”

“The mere fact that the judge made comments to the press does not show he was biased or prejudiced against Mr. Druce,” Marisco said. “And the judge’s sentence was appropriate under the sentencing guidelines.”

Druce’s attorney, Matthew R. Gover of Nealon & Gover in Harrisburg, declined to comment last week, saying the case is now being handled by William Costopoulos of Costopoulos Foster & Fields in Lemoyne.

Costopoulos could not be reached for immediate comment Friday.

Eakin explained that when a party requests a judge’s recusal, the judge makes an independent, self-analysis of his or her ability to be impartial. Eakin said, quoting the Supreme Court’s 1998 decision in Commonwealth v. Abu-Jamal, that the assessment is a “‘personal and un-reviewable decision that only the jurist can make.’

Kleinfelter told the AP in 2000 that he was perplexed by Druce’s claim that he didn’t know he had hit a person with his car – a claim Druce made after he had struck a deal with the prosecution.

“The whole idea of a hit-and-run charge is it involves personal injury to a person,” the judge was quoted in newspaper articles as saying. “When Druce pleaded guilty to that charge, he admitted he knew he hit somebody.”

In reference to speculation that he might give Druce special treatment because he was a legislator, Kleinfelter said he wouldn’t. “Everything that a judge does generally displeases one side or another. . . . If I had to worry about everyone who is unhappy because of the result . . . then there would be a strong possibility that I would compromise my decisions. Fortunately I don’t have to do that either in this case or any other.”

In response, Druce requested the judge recuse himself.

Before Kleinfelter announced Druce’s sentence in court, he talked about Druce’s concerns, telling Druce that he held no “personal bias, prejudice or ill-will” against him and noted they had never met but for the court proceedings, according to the opinion.

Gover had argued that Kleinfelter’s comments to the AP illustrated the need for a per se rule requiring the recusal of judges who violate the judicial code by speaking publicly about a pending matter before the court. Gover said a judge who knowingly violates the judicial canon eviscerates the public’s faith and trust in the system, according to the opinion.

Eakin said a structured, per se rule would “defeat the spirit of our judicial processes and undermine the legitimacy of our judges.”

It would also impose a legal duty of recusal upon judges and take away their “introspective discretion” in such matters, Eakin said.

Because at the sentencing hearing Kleinfelter had “adequately addressed” the concerns about his comments to the reporter, and because a notable part of his remarks in the subsequent newspaper articles were about why he wouldn’t be pressured into giving Druce a tougher sentence, the Supreme Court supported Kleinfelter’s decision not to recuse.

Kleinfelter “openly acknowledged making the comments, then reiterated his ability to be fair and impartial, as he had during the media interview itself,” Eakin wrote. “He clearly gave the matter considerable thought, and acknowledged the public interest on both sides of the sentencing issue. We find his introspection and sincere public statements of impartiality sufficient to justify his decision not to recuse himself.”

Eakin also added, “Although this court does not condone the comments, the record shows Judge Kleinfelter made the necessary self-assessment, and we find no actionable error in his denial of the recusal motion.”

Druce has been free on $600,000 bail after serving about two months of his sentence at a state prison in 2000, according to the opinion. Marisco asked the court to revoke Druce’s bail considering the justices’ ruling.

Druce, working from his Warminster home as a consultant, has worn an electronic monitoring device since his release in 2000 and has had to report to probation officials by e-mail daily, Marisco said.

Marisco said he anticipates an attempt by Druce to get credit toward his prison time for the years he spent under electronic surveillance.

“Our position is that being at home is not equivalent to being incarcerated,” Marisco said.

(Copies of the 15-page opinion in Commonwealth v. Druce , PICS No. 04-0681, are available from The Legal Intelligencer . Please refer to the order form on Page 11.)

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