The Motion to Recuse


From the State’s Motion to Recuse Judge Helm from all family violence cases:

Due process requires recusal when “there is a serious risk of actual bias—based on objective and reasonable perceptions.”

and

This bias should not be allowed to interfere with the State’s due process rights in a manner that infects “the integrity of the trial process.”

Problem: The State has no right to due process.

(Prosecutors and other statists go slackjawed when introduced to that principle, and see it as non-obvious, so I offer them a cite: Collier v. Poe, 732 S.W.2d 332, 343-44 (Tex. Crim. App. 1987)).


0 responses to “The Motion to Recuse”

  1. As one of the lawyers who represented Judge Poe in Collier v. Poe, you should have mentioned that it went to the Supreme Court on appeal and was dismissed as not presenting a substantial federal question.
    That means that there was a ruling from the Supreme Court of the United States effectively affirming the Court of Criminal Appeals.

  2. Fascinating. Such an obvious principle once you blogged on it, but I have often been faced with prosecutors’ arguments premised upon the State’s Consitutional rights (which, I supposed were derivative of the victim’s rights – see Connecticut’s constitution re victim rights.) Once I read your cite, the “reservation of rights not otherwise enumerated” phrase jumped back into mind – something I suppose I had allowed to fade in my thinking.

    Thanks again for the thoughtful post.

  3. Mr. Moran,

    Here is a quote from Supreme Court Practice.

    [D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter “of sound judicial discretion.” A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore, all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. United States v. Carver, 260 U.S. 482 (1923). See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)(“Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner”); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

    • Phil, thanks for that, but you might have bothered to look up the procedural history of Collier v. Poe before presuming to school Tom Moran on Supreme Court procedure.

      In Collier v. Poe, cert. was not denied. Instead, the appeal was dismissed for want of a substantial federal question. Would you like to explain the precedential effect of that? (If you need a hint, try Hicks v. Miranda (1975)).

      Never mind looking up the procedural history, you could have, I dunno, read Tom’s comment?

      Know-it-alls who are wrong just bug me.

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