Opinion 15-67

April 23, 2015


Digest:         Under the totality of the specific circumstances presented, a judge who is a former prosecutor should not preside in a case involving a particular individual’s claim of actual innocence.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Joint Opinion 13-51/13-169; Opinions 05-77; 00-112 (Vol. XIX); 92-46 (Vol. IX); 92-34 (Vol. IX).


         The inquiring judge states that an individual who was formerly imprisoned is now appearing before the judge to challenge his/her original conviction based on a claim of actual innocence. The judge has disclosed to all parties and counsel that the judge was previously employed with the same prosecutor’s office that obtained the conviction, although the judge’s employment began some time after the individual was released from prison. During the judge’s employment as a prosecutor, the formerly imprisoned individual commenced multiple collateral applications and related litigations involving the prosecutor’s office; one or more of the judge’s colleagues, including the judge’s direct supervisor, participated in an internal review of the individual’s prosecution; and one of the prosecutors who had been involved in prosecuting the individual served as the inquiring judge’s deputy. However, the inquiring judge had no personal involvement with any of the individual’s applications or the internal review process, and did not discuss them with his/her colleagues.1 The judge also suggests that because a claim of actual innocence requires a showing of facts that prove the individual’s innocence and does not concern the manner of prosecution, it is unlikely that the judge will need to consider the internal review undertaken by the judge’s former supervisor and other former colleagues. Finally, the inquiring judge states that he/she has been sued, along with certain former prosecutor colleagues, in connection with one or more other prosecutions that are entirely unrelated to the case currently before the judge. The inquiring judge believes he/she can be fair and impartial in the case before him/her and, therefore, asks whether he/she may preside under these specific circumstances. The Committee further understands that, if disqualification is required, remittal will not be possible because one side objects to the judge continuing to preside over the case.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law § 14).

         In Joint Opinion 13-51/13-169, the Committee advised:


There are two initial objective questions to consider when determining if disqualification is required. The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of those enumerated circumstances appl[ies], the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         Applying these principles here, the Committee believes the totality of these specific circumstances creates an objectively reasonable basis to question the judge’s impartiality in the “actual innocence” case currently before the judge (see 22 NYCRR 100.3[E][1]).2 However, we emphasize that the Committee does not question this judge's belief that he/she is capable of being completely fair and impartial or his/her assertions he/she does not know the individual, was not personally involved in the case - including the multiple collateral applications and related litigations the individual commenced while the judge was still employed by the prosecutor's office - and the judge’s statement that he/she did not follow or discuss the case. However, the specific facts this judge provided, when viewed cumulatively, create an indelible impression that he/she worked closely with at least one prosecutor (his/her immediate superior) who was personally involved in an internal review of the individual's prosecution during the judge's employment; and also with at least one prosecutor (the judge's deputy and direct report) who was personally involved in the individual's original prosecution. Moreover, in the background, throughout the judge's tenure as a prosecutor, still other prosecutor colleagues of the judge were handling a variety of applications by the individual for relief, under intense media scrutiny.3

         Under the totality of these specific circumstances, the Committee concludes the “judge's impartiality might reasonably be questioned” in the individual’s current “actual innocence” case (22 NYCRR 100.3[E][1]). Therefore, the judge must disqualify him/herself from the matter.


         1 The judge notes that he/she was fully occupied with prosecuting a different high-profile case at the time of the internal review, and did not know of his/her deputy’s role in prosecuting the individual until after the deputy’s departure.

           2 Potentially disqualifying factors need not be considered in isolation, and the Committee has, at times, made this explicit (see Opinions 05-77; 00-112 [Vol. XIX]; 92-46 [Vol. IX]; 92-34 [Vol. IX]).

         3 In light of all these connections, the Committee suspects that even the otherwise presumably trivial coincidence that the judge and certain of his/her former prosecutor colleagues from the same office happen to be co-defendants in certain entirely unrelated pending lawsuits at this time, could potentially take on additional “apparent” significance to the public.