State v. Fleming

¶1concurring.

¶2I concur in the first division of the majority opinion. In a concurring opinion I can express some personal views which would be called guidelines if promulgated by the executive branch of government but which can only be called dicta in a judicial opinion. While the majority feels constrained not to include dicta in anticipation of problems not presented by the case at bar, as the author of this opinion, I am not so constrained.

¶3This concurring opinion is written to emphasize that, in my view, the motion and affidavit showing bias or *705prejudice must not only be sufficient; it must be timely.1 Such written motion and affidavit should, in my view, satisfy at least two time requirements: It should (1) show that it was filed promptly and without delay, at the first opportunity after the affiant learned of the grounds for disqualification, and (2) it should be filed sufficiently in advance of trial so as to allow time for the designation of another judge to hear and decide the motion, and to secure another judge to preside at trial if the presiding judge is found to be disqualified, so as not to delay the trial. In multi-judge circuits, where the motion and affidavit are personally presented to the judge presiding over the case (not merely filed in the clerk’s office), presentation at least ten days before trial may suffice, assuming that the affidavit was also filed at the first opportunity, promptly and without delay. In single judge circuits, more lead time may be required. If these requirements are not met, then the affiant should be required to show good cause, in the motion and affidavit and at the hearing, for the failure to file earlier. The federal cases indicate that the requirement of showing good cause for failure to timely file a motion to recuse is rarely, if ever, satisfied. A litigant, civil or criminal, knowing of possible grounds for disqualification, cannot delay filing the motion and affidavit in order to see how the judge will rule or will handle the proceeding. Neither an adverse decision nor the sentence imposed by the court is itself evidence of bias or prejudice. Reasons for this rule are self-evident.

¶4Because our decision in this case may cause problems in those circuits where criminal cases are tried immediately following indictment, I should add that, in my view, no trial should be postponed or suspended due to the filing of such a motion and affidavit. At least in my view, the presiding judge may himself or herself, without calling upon another judge, decide that a motion is *706untimely if the hearing of it would require postponement or suspension of the trial.

¶5From all that appears, the motion to recuse and its supporting affidavit were timely filed in this case and I therefore concur fully in Division 1 of the majority opinion. I am, however, deeply concerned, as is the district attorney and, I believe, the majority of this court, with the defendant’s right to be represented by retained counsel of his choosing. Because we cannot decide that issue without a record made before a judge found qualified to do so, I join the judgment of the court.