I'm the elected DA for one county in a four county Judicial District. My wife is running for Dist. Judge in the four county District. There is another District Court with concurrent jurisdiction. The questions are:
1. Can I prosecute personally in her court if she is elected? (I wouldn't, but COULD I).
2. Can my assistants prosecute in her court without her being subject to a valid Motion to recuse?

I have actually done some research and have found one case close on point - McKnight V State, 432 S.W. 2d 69. (Dist. Judge was DA's Father in law and DA tried cases in his court. CCA held did not violate Constitution, Statute, or Canons). This seems to say I can prosecute in her court as can my assistants.

Am I missing something? Is anyone aware of any similar sitiuations past or present. Her opponent is, of course, trying to make hay stating that she will have to recuse on ALL criminal cases in her court.

Damn, it is bad enough watching my own political rear, now I'm watching hers!

Set aside the law for a moment. And just ask yourself: If you were the defendant, would you feel like you had a fair and impartial judge if the judge was related to the prosecutor, particularly by marriage?

We have a duty greater than any particular statute or rule to see that justice is done. Even if it hurts.

In my opinion, there is no legal or ethical disqualification for either the judge or the prosecutor.

This has come up a number of times in my 11 years here at the Association. I guess that's not a surprise, because in lots of jurisidictions there aren't that many lawyers. people are bound to be related from time to time.

And I think because of that, the law and the ethical rules starts with the presumption that all of the people operating in the system are going to do right. The public assumes we will do things for the right reason, subject to getting in trouble later if we screw it up. That's when the ballot box takes over.

Therefore, I have found no judicial disqualifications or lawyer disqualifications to such a thing. You could, if you wanted to, appear before your wife.

Now, that all being said, it is up to you as to what tolerance you've got for that pesky "appearance if immpropriety" thing. You know that at some point in time -- probably when it is most important -- this issue will come up in some presently unimaginable way. I suppose that's why it is important that you structure this carefully and that the public has a lot of confidence that both parties are operating above board and above reproach.

Thanks John and Rob.

You can imagine my concern when she told me she wanted to do this. We research the issue, talked about it and agreed she should run.

Part of our agreement was that if she is elected I WILL NOT APPEAR BEFORE HER ON ANY CONTESTED MATTER. I agree the appearence of impropiety would be too great. I am comfortable with my assistants appearing before her though.

The problem that has arisen is her opponent is stating that it is absolutely illegal and she will be forced to recuse on all criminal cases in this county. That is not the law unless I missed somthing.

As for what is right, John, the voters will determine "right" since the law seems to have no problem. If voters have the confidence in the two of us to follow the law, they will elect her ( of course they meke elect her and through me out in two years). I just want them to make a knowing decision and not be mislead by statements about the law that are false. As for defendants, I have met few who feel they got a fair deal when they were shipped of to TDCJ regardless of who was on the bench.

Rob, I would be interested in any specific instances you or Tom are aware of. E-mail me if you get a chance.

Thanks again.

John sites a good case. Take a look at all of the cases found in the West Digest, 2d edition, under key number 45. A judge isn't disqualified, even if an attorney in the case is a son, daughter, or cousin. And even if the related attorney was going to receive a contingency fee if victorious.

I'd be curious to know what the claim of illegality is based on. The law/cases I found all talk about disqualifications based on relationship to a party, but not to a lawyer in the case. Once again, I think we start from presuming that the lawyers and judges act properly.

And think about it. In every jurisdiction, the judge starts out as a practicing lawyer in the community, and will have lots of very close friends in the courthouse. (Just as close as family members in many cases, I wager.) We presume that the judge, even when the attorneys are good friends, will do right.

Just go to Houston. For awhile the first assistant was married to a district judge. Right now, at least two assistant DA's are married to district judges. And if anyone else is reading this and knows of more, chime in. There's got to be more in other jurisdictions...

Maybe the fact that the opponent does not seem to understand the law any better is a reason for the voters to question his/her qualifications. However, I must say that this type of connection has to be taken into account by the electorate. In my district the brother (and law partner) of an attorney ran for judge, and he failed to receive the 2 votes from my family primarily for that reason, but he indicated he would not necessarily recuse.

If I were a def., I'd be pretty darn worried if my judge were married to the DA, & I suspect others in the community will feel the same way.

I don't know if this is a practical solution in your jurisdiction or not, but in N. Mex. & several other Western states, both sides have a one-time "right of excusal" of a judge. In N.Mex. I think this right expires 10 days after arraignment. Perhaps your wife could institute a similar policy in her court: any crook in her court could file a motion to excuse her for up to 10 days after arraignment, and she would honor that, no questions asked.

Of course, you'd want the other judges on board. But if most people don't have a problem with the DA's wife hearing their case, it will prove to be a minor problem. If its too much of a problem, then maybe she should leave the bench after her term expires.

And low and behold, I read today in the clips where an assistant DA got in big trouble for dismissing some cases in which her husband was the defense attorney. Of course it was a newspaper report so I never assume that the facts they report are accurate, but it's a story to them, and that's the point. Whatever the arrangement, it needs to be above board and understood by all.

Contatct Charles Mitchell, currently the District Judge in San Augustine & Shelby counties I think. (273rd District Court). Before that, Charles was the District Attorney in San Augustine County for many years while at the same time his brother, John Mitchell, was the District Judge until he died a couple of years ago. He might be able to give you some insight.

There is a good discussion of this topic in the association's "Texas Prosecutorial Ethics" booklet. It's the defendant's burden to prove bias to such a strong degree that the defendant was denied due process. In addition to McKnight, the Mosely (983 S.W.2d 249 - Tex. Crim. App.) case has useful holdings. See also Kelley, 20 S.W.3d 147 for discussion on "appearance of potential" for conflict. Good luck, I hope your wife's opponent has a very public opportunity to explain the "illegality" of your appearing before her. If you don't own a copy of the booklet from tdcaa, I'll be glad to fax you the relevant (two) pages. That is, of course, if it's o.k. with them. Would not want to infringe on anyone's copyright.

-Neel

Good citation. That book is free, and every prosecutor can have a copy if they don't have one. Grant funds were used to get it done, and Chip Wilkerson of the Tarrant County CDA's Office did a great job on it...

Ed, thanks for the referral. I will try and contact Judge Mitchell in the morning.

Neel, I have got a copy of tdcaa's book at the office. I will give a look. I have already read Mosley and it does have some good strong language on the issue. Thanks.

Rob, I believe the story about the ADA is true. It happened in an adjacent county. I have several defense attorneys who practice in both counties that have told me about the situation. I agree that the most important thing is that everything done is done in the open. My marrige to the Judge would be somewhat difficult to concel. The very nature of our relationship would cause us to be very very careful. In all likelyhood, she would err on the side of the defendant to assure there are no questions. Not to mention, anyone who has been married for any amount of time will realize no wife ever does what their husbands want them to do. If the electorate has any concerns it shoud be that I would be at a disadvantage:

Wife/Judge: So, you didn't like the meatloaf last night? Well, the defendant's motion to supress is granted, the case is dismissed and you are in contempt. sheriff, Take him away!

DA/Husband: but honey...errr...Your honor?

I'm just trying to imagine your conversations at the end of the day....

Judge: Hi honey, how was your day?

DA: Terrible. This stupid judge kept overruling all of my great objections, and then gave probation to a terrible guy. How was your day?

Judge: Heck, you know. You were there the whole time. Let's go see a movie so we don't have to talk about it.

Ain't it the truth. When I married her 20 years ago she was a church piano player. Now she is a Board Certified Family Law Specialist. I not sure when or where I screwed up but my life has never been the same.

Thanks for the suggestions