Aggressive Advocates For Your Rights

Judges Still Must Be Impartial

In Commonwealth of Pennsylvania v. Daniel Dougherty, a judge proved that adjudicating while being Southern was not a good enough excuse for violating the rules of the court. At a Post Conviction Relief Act (PCRA) hearing in 2008, a Judge called the defendant "vile". That alone would not have been too bad and said statement likely could have been ignored, had the judge not gone much further. 

Upon a second hearing, the judge not only admitted that she called the defendant vile, but also that she had instructed a court reporter to remove her saying it from the record, along with some other phrases because they were "non-judicial" and only stated because she is "Southern". Instead of using her own internal discretion, as most people would do, this judge abused her rights and had the court reporter remove those phrases from the record.

This alone should have been enough, but this judge chose to dig herself in even deeper. When the defendant's counsel argued that the judge had created an appearance of impropriety and should recuse herself, she instead insulted the counsel and even threatened his client, by stating "be very very, very clear, I have no problem defending my opinion of [appellant], my opinion of the legal issues that have been raised, and I am grossly offended. I really, really, really am".

The judge then followed that statement saying that she did not let her personal opinion "of a person who toasted a house with children in it to affect the legal opportunity that [she] gave the attorney to show [her] that [she] had misread the evidence". Finally, she said, so the counsel, "don't you dare, as long as you live, question my integrity. that's not for negotiation here or ever".

The legal system has a clear system of rules that apply in a case like this. The most obvious rule that applies is Code of Judicial Conduct, Canon 3(C)(1) which states "Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned...."

I do not think there is a single person, besides this judge, who would not question this judge's impartiality at this point. The concurring opinion then went onto to cite a few cases where a judge made comments that would also be considered to have made an appearance of impropriety but they were not necessary for the sole fact that this judge did the unthinkable, to edit the transcript.

It should also come as a surprise to no one that she was disqualified. putting forth a "de minimis excuse" can never be made for such a grievous infraction as editing the transcript no matter what level but, especially in a PCRA hearing.

Although the judge did admit to the odious offense, this should not mitigate the fact that she insulted a defendant, defendant's counsel, was clearly upset by the fact that she was even questioned and then attempted to cover it all up through altering the transcript. As was stated in the concurring opinion's footnotes, if the lawyer had been the one to effectuate an alteration of the transcript, the court would "pronounce sure and serious discipline upon him or her". As such, she should likely be given a punishment far greater than mere disqualification, since no judge should ever make the choice to alter a transcript.

The final question is how the attorney seemed to deal with all of this. When faced with an almost impossible situation like this, most attorneys would be at a loss for how to deal with such monumental unfairness. It appears he did exactly what he should have done, which was review the transcript then wrote a letter to the court reporter immediately and told her not to destroy any of the audio recordings of the proceedings.

The judge then scheduled a hearing in response to that letter where she did admit what she said and admitted that she had ordered the transcript to be altered. But then, once her impartiality was questioned and she had another outburst, the attorney again reacted properly, by bringing the matter before a court.

The court clearly saw this judge's improprieties and disqualified her for it. This would indicate that the lawyer took the proper steps in dealing with such a difficult situation, and as such, should be emulated by an attorney who finds himself or herself in a similar situation.

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