Prosecutor: Judicial recusals from cases don't happen often
Move can pose challenges for state, defense
Posted: July 27, 2014
By Ann Marie Bush
THE CAPITAL-JOURNAL
While the Kansas Office of Judicial Administration doesn’t keep statistics on how often judges recuse themselves from cases, Shawnee County chief deputy district attorney Jacqie Spradling said it doesn’t happen often.
Shawnee County District Judge Mark Braun recused himself Friday from the capital murder trial of Phillip D. Cheatham Jr., who was originally sentenced to death for the 2003 shooting deaths of two Topeka women. Police say the shootings were drug-related.
The Kansas Supreme Court overturned the sentence in 2013, citing ineffective assistance of counsel. Cheatham is to have a new trial on the charges.
There have been 82 motions filed in the case — Spradling had six three-ring binders filled with them and responses in court with her Friday. All motions, including 37 of which have already been argued, will have to be argued again in front of a new judge.
“Both parties want the same thing — to make sure the defendant gets a fair trial,” Spradling said.
While the state and the defense want the defendant to get a fair trial, Spradling said a recusal does pose problems, such as a waiting for a new judge to be appointed, motions having to be argued again and court dates having to be rescheduled.
In February 2009, then-Shawnee County District Judge Charles Andrews Jr. recused himself from hearing the county’s lawsuit against former District Attorney Robert Hecht. In that case, Andrews told attorneys for both sides he had information that posed a conflict of interest and created a basis for him to recuse himself.
Andrews, who died in 2012, also recused himself in March 2010 from hearing a lawsuit filed against the city of Topeka by Jim and Sharon Suwalski. The Suwalskis were asking a judge to overturn a ruling made earlier that found Jim Suwalski violated the city’s clean air ordinance.
In a March 2010 article about Andrews recusing himself, Andrews, who became a district judge in 1990, said he had “probably recused himself from 10 or 15 cases in which he was close enough to someone involved that he didn’t think it would be fair for him to hear the case.”
In June 2013, Shawnee County District Court Judge Mary Mattivi denied a motion to recuse herself from the trial of William Marotta, a Topeka man who answered a Craigslist ad in which two Topeka women were seeking a sperm donor.
In Cheatham’s case, he filed a judicial complaint against Braun. Cheatham’s complaint stems from the judge in May promising a fair trial before he had ruled on motions. Cheatham contends defense motions, which include a challenge to the state’s death penalty, require the trial to be dismissed.
Braun in court said he hadn’t received official word of the complaint. However, he went ahead and recused himself so there would be no question later.
Braun said because it is a death penalty case, he wants there to be an “orderly and fair resolution.”
Chief Judge Evelyn Wilson will have to appoint a new judge to the case.
Lisa Taylor, spokeswoman for the Kansas judiciary, said the state doesn’t track recusals. She also noted there wasn’t a public file available on Cheatham’s complaint against Braun. Complaints don’t become public until after a particular point in the process, she said.
There were a total of 183 complaints filed last year, according to the 2013 Commission of Judicial Qualifications’ annual report. The complaints become undocketed or docketed. Undocketed complaints are dismissed with a letter to the complainant and to the judge. Of the 183 complaints filed last year, 30 were officially docketed, which means a panel thought further investigation was warranted.
The most common complaint filed in 2013 was the defendant was denied a fair hearing.
Between 2009 and 2013, the highest number of complaints received was 217 in 2011, the report stated. Twenty-two were docketed. The highest number of docketed complaints occurred in 2012, when there were 44 docketed.