Tuesday, November 15, 2011

Appearance of Impropriety & Judge Dutchcot in Sandusky Case

District Judge Leslie Dutchcot recently ordered Jerry Sandusky freed on $100,000 unsecured bail. It has been reported that she volunteered for Sandusky's Second Mile Foundation and donated between $500 and $1000 to the Foundation.

Given Dutchcot J.'s ties to the Second Mile, there has been criticism that she should not have been involved in this case from the outset.

For lawyers and judges, conflicts are a big deal. If it looks like acting for someone or being part of a proceeding could give rise to a conflict, then it's best not to be involved.

Paraphrasing an old expression, the one thing that is as important (if not more imporant) as justice being done is the perception that justice has been done.

This is captured in the ABA Model Code of Judicial Conduct, which sets out principles judges should follow. As provided in the Code, the rules are in place since "an independent, fair and impartial judiciary is indispensable to our system of justice".

The Code goes on to state as follows:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
The test to determine whether there is the "appearance of impropriety" is if a judge has engaged in anything that would impair or appear to impair his or her ability to carry out judicial responsibilities with integrity, impartiality and competence.

The key here is the perception of impropriety.

Under the circumstances, it would be surprising to see Dutchcot J. remain on the case. This is not to suggest she has done anything wrong. However, the perception is that she is too close to the matter and for that reason she may elect to recuse herself.

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