I could use some feedback and ideas on a situation.

I have a case pending in a few weeks where the Judge presiding represented the Defendant in a prior criminal case as a Defense lawyer. I know that Cantu v. State, 802 S.W.2d 349, says that a Judge is not disqualified as long as the prior representation "involved a different event and not the one on trial." My concern is that I alleged the prior conviction for enhancement purposes in the indictment.

Add to the fact scenario that in this county, we have two district judges that alternate months so, if we wait a month, the other judge will be presiding and there will be no question as to conflict (my boss wants to me to try it in July and not wait until August, though.)

Thoughts or information?

I had the same problem when I convicted a guy who I had represented many years ago as a young court appointed attorney.When I got to the punishment stage and he informed me that I had represented him in one of the enhancment cases. I swear they all look the same these days.The Defense asked for a mistrial and I was sick. A quick call to Jeff Van Horn and I handed the rest of the punishment to my DA to finish up. No problems on appeal. Why wouldn't a judge hand it off just to keep the appearance of impropriety to a miniumum?

He could except it would have to wait a month and my boss wants this one to go in three weeks. Our two judges don't divide the cases here. Whoever is on the bench that month just handles whatever cases are pending in the district court. If a case is not reached it goes to the next month and the other judge handles it.

You don't say why your boss is so adamant about trying it THIS month. Maybe there is some really big thing we should be considering. Can't imagine what might be THAT big. But, if not, it seems to me that we, as lawyers, owe something to the judiciary and the justice system.

The public confidence in the system is eroded by things like this (judge overseeing a case against a party he represented) and we owe the system a little protection and the judge a little protection from criticism that is so easy to avoid. Even though the 'rules' might permit it, you can be opening up your judge to having to endure a complaint filed by the defendant. That it would likely be resolved in the judge's favor is cold comfort and a waste of everyone's time.

Why even put the judge in this no-win situation?

Pass it a month and put the case up for the other judge's consideration so it isn't even an issue. Just do it, don't ask the judge his/her preference, because he/she can't win whatever he/she says. A little quiet protection of the justice system and its officials by gently avoiding these potential conflict issues as a matter of course is a nice habit to get into. Especially, as here, where you have easy access to another judge who has no hint of a similar potential conflict.

We always flag a file as soon as we can if one of our two district judges represented the defendant before. Our judges don't want any appearance of conflict, so if they recognize the defendant themselves they automatically request the clerk or our office to flag the file and put it before the other judge. Sometimes we, or the defense would like it to go before the judge with the "conflict", but if known, we never let it go before a judge who represented the defendant before,and that often delays trials for a month or more. Luckily it is not too common, even in a small county such as ours.