Joel Cohen ()
A provocative concept, to be sure! Or alternatively, can a defense attorney, under any view of his ethical responsibilities, basically “take on” the judge to justify—indeed, set up—a recusal motion?
Now, some defense attorneys (usually on the fringe and more so years ago) have been willing to “bait” judges. They engage the (prosecution-friendly?) judge and cause him to react, creating a palpable bias against counsel and his client—a deliberate ploy to create sympathy, or justify recusal. Or these attorneys try their case, in part, by confronting the judge, particularly when the jury is seated, in a manner designed to induce error. No one talks about such a “strategy” in polite company, but it is unquestionably practiced by some, sometimes successfully. And not only by “blue collar lawyers” (if there is such a phrase).
Actually, though, a bigger issue may arise concerning the lawyer who suffers from timidity; who may be intimidated by judges. Needless to say, there is a great disequilibrium between an attorney and a judge sitting on that elevated bench. Still, as Benjamin Cardozo famously said in a totally different context, “The timorous may stay at home.” Murphy v. Steeplechase Amusement, 250 N.Y. 479 (1929).
A Recusal Motion?
Unquestionably, whether motivated by timorousness or not, most practitioners fear making a recusal motion, lest there be continuing repercussions when the case goes forward. As if the judge says to herself deep down in her conscious, “He thinks I can’t be fair to his client. Oh yeah? Let me show him how fair I can be!” Needless to say, even the most fearless defense attorney who believes a recusal motion would not be a slam-dunk may be loath to seek recusal—look at the potential consequences if it is denied, even if the filing is unquestionably designed to merely protect the record. And the attorney will have to be concerned that his clients in future cases won’t suffer because of this recusal motion—it may be a breach in the relationship between the judge and attorney that will go unhealed: judges are human, after all.
But what about when recusal is warranted—can a failure to move constitute “ineffective assistance,” words that could place a defendant back in the game? There is a tremendously high burden to establish “ineffective assistance,” but can counsel actually aid his client by being (unintentionally) ineffective?
Consider the disturbing facts of McKernan v. Superintendent Smithfield, 849 F. 3d 557 (3d Cir. 2017). Paul McKernan, charged with a violent murder, was represented by Fred Harrison. Harrison counselled McKernan to proceed non-jury before Judge Lisa Richette. Unusual, but a strategy. Until the second day of trial, that is. After the Commonwealth rested, Richette called a conference in her robing room with counsel and the victim’s mother and brother—McKernan remarkably was not present. Richette said that she was “very disturbed” by the website of the victim’s family criticizing the judge—”Let ‘em Loose Lisa … a bleeding heart judge that often sympathizes with murderers and … gives them light sentences.”
Despite her anger over the website, the judge actually sought their approval of her actions and characterized the case as “a horrible, horrible murder.” Harrison left the conference to speak to McKernan, while the judge and the family stayed and chatted. Remember, Richette was sitting non-jury, and the defense case was just beginning.
Still, even though the judge offered to recuse herself with another judge beginning the trial again, Harrison privately counselled McKernan to stick with Richette. This even though McKernan had himself registered concerns about the judge. Based upon his attorney’s advice, McKernan presented his brief defense, after which—surprise!—Richette convicted him of first-degree murder, sentencing him to life without parole.
One may think McKernan was a gimme, but it was not until the case reached the U.S. Court of Appeals for the Third Circuit—19 years after his conviction—that McKernan’s ineffective assistance claim would be considered. Indeed, when granting relief, the court reminded us of Judge Richard Posner’s memorable words concerning limitations on a defendant’s waiver: “if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent …” U.S. v. Josefik, 753 F. 2d 585, 588 (7th Cir. 1985).
Now, McKernan doesn’t address counsel’s motivation for counseling a bench trial, nor for not taking the judge up on her offer to recuse. Maybe he believed it best to not rock the boat. Or was it a strategy? Hawaii counsel Earle Partington was so passive during a murder trial that the presiding judge filed a letter with Hawaii’s disciplinary committee stating his belief that counsel was deliberately ineffective so as to create grounds for reversal. The conviction was indeed reversed, and Partington had to defend his own actions. Partington v. Gedan, 961 F. 2d 852 (9th Cir. 1992).
Lawyers cannot ethically “bait” a judge. NY Rule of Professional Conduct 3.3(f) provides that a lawyer must not “engage in undignified or discourteous conduct,” or “engage in conduct intended to disrupt the tribunal.” NY’s Rule 3.3 Comment 13 allows a lawyer to maintain “respectful and courteous” “independence.” ABA Model Rules of Professional Conduct treat the issue somewhat differently. ABA Rule 3.5(d)—which prohibits lawyers from engaging in conduct “intended to disrupt a tribunal”—doesn’t specifically address undignified behavior.
However, Comment 4 makes the point: “An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” New York State’s Standards of Civility note: “A lawyer is both an officer of the court and an advocate. As such, the lawyer should always strive to uphold the honor and dignity of the profession, avoid disorder and disruption in the courtroom, and maintain a respectful attitude toward the court.” Following 22 N.Y.C.R.R. 1200.
And make no mistake, lawyers have been disciplined and sanctioned for violating these rules. See, e.g., In the Matter of Frederick C. Hayes, 7 A.D. 3d 108 (1st Dept. 2004) (publicly censured; accused judge of racism); In the Matter of Morisseau, 763 F. Supp. 2d 648 (S.D.N.Y. 2011) (sanctioned for attacks on judges she perceived to be Jewish). Prominent attorney William Kunstler was held in contempt when, during the Central Park Five case, he told a judge his ruling was “outrageous” and that he was a “disgrace to the bench.” Kuntstler v. Galligan, 168 A.D.2d 146 (1st Dept. 1991); Matter of Kunstler, 194 A.D. 2d 233 (1st Dept. 1993).
And in MacDraw v. CIT Group Equipment Financing, 994 F. Supp. 447 (S.D.N.Y. 1997) aff’d 138 F. 3d 33 (2d Cir. 1997) and see 157 F. 3d 956 (2d Cir. 1998), counsel conceded that he challenged Judge Denny Chin’s rulings because the judge was a prominent Asian-American and counsel was adverse, in another case, to other Asian-Americans. The U.S. Court of Appeals for the Second Circuit upheld Chin’s grant of sanctions, as well as his prior rulings: “Some tolerance must be shown by a court … as it was here when [counsel] exhibited pique in open court at the time of the adverse” trial ruling. However, when counsel sent a letter challenging the judge based on race, it “was insulting and smacked of intimidation. Judge Chin was in no way required to tolerate it.” 138 F. 3d at 38.
Must Recusal Be Granted?
“A judge is not required to grant recusal if an attorney’s rude and disruptive conduct in court creates a bad impression and leaves the judge with a sense that the attorney is not credible.”1 In a case where a defendant was tried for possession of a controlled substance, counsel accused the court of knowing little about the case and of ignoring “250 years of jurisprudence”; and made statements like “Let me tell you what’s going on here so even you can understand it.” Defendant was convicted and sentenced to 15 years to life.
On appeal, the court rejected defendant’s claim that he was denied a fair trial because the judge was hostile: “Upon reviewing the record, it is indisputable that, to the extent the court’s conduct could in any remote way be perceived as hostile, this was the direct result of defense counsel’s constant baiting, belittling, provoking and showing disrespect to the court throughout the trial.” People v. Straniero, 17 A.D.3d 161 (1st Dept. 2005), lv. den. 5 N.Y.3d 795.
In U.S. v. Engstrom, 16 F. 3d 1006 (9th Cir. 1993) counsel said: “You are making a mockery of the judicial process”; “This is a kangaroo court” and, during summation: “This judge is going to instruct you on what the law is here, but even this judge can make mistakes and that’s why we have Appeals Courts.” The judge was not required to recuse himself from the criminal trial, but pursuant to Federal Rule of Criminal Procedure 42(a), another judge should have presided over the summary contempt proceedings.
But a judge can go too far. Where counsel made numerous prejudicial errors exacerbated by “‘pitched battles’ between defense counsel and the trial judge, some of which were in the presence of the jury,” recusal was warranted. Although the court’s response to counsel may be “understandable and excusable,” if “‘the fairness of the process as a whole’ [is] compromised by the combination of defense counsel’s conduct and the response of the trial court,” an ineffective assistance of counsel claim will stand. People v. Dean, 50 A.D.3d 1052 (2d Dept. 2008).
Counsel, of course, must comport themselves with dignity and respect for the court. As stated by the Second Circuit 80 years ago, affirming the trial court’s adjudication of contempt in circumstances far less egregious than those discussed:
Like the minister of justice, before whom he pleads, [counsel] should, without flinching from his duty, control his demeanor and display his learning without personal criticism or an attack upon the judge. This is not impractical, for calm and poise of counsel go far in the course of the true administration of justice…
U.S. v. Landes, 97 F. 2d 378 (2d Cir. 1938).
There are those among us who, from time to time, seem to think it necessary or wise to disruptively take on the judge. But there is a price to be paid for disruptive and discourteous behavior both ethically and reputationally, and it is important we all have our eyes open to that price we might have to pay.
1. Robert L. Haig, “Commercial Litigation in New York State Courts”, 4th Ed., §71:20.