Let me say publicly that DonBoy’s answer exudes a combination of intuitive genius and confidence that make me think DonBoy is going to do big things in his life. -- Steven D. Levitt (Freakonomics blog)
Monday, July 25, 2005
Google case study: in commenting on a thread at Pandagon about would-be-Justice Roberts' possible duty to recuse himself if certain cases came before the Supreme Court, I remembered that Judge Ito, in the OJ case, was married to a Captain in the LAPD, and yet did not have to recuse himself. I thought I'd better check that memory. So I Googled "Judge Ito's Wife". Note that I did not add "recusal" to my search phrase. The first hit is this -- "The Court", speaking, is Ito, and italics are mine, to flag the most relevant sentences:
LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 15, 1995
9:10 A.M. DEPARTMENT NO. 103
HON. LANCE A. ITO, JUDGE
(APPEARANCES AS HERETOFORE NOTED.)
(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.) (CHRISTINE M. OLSON,
CSR NO. 2378, OFFICIAL REPORTER.)
(THE FOLLOWING PROCEEDINGS WERE HELD IN CAMERA:)
THE COURT: We're in chambers with Mr. Cochran, Mr. Neufeld, Mr. Blasier, Miss Clark and Mr. Darden.
And I've asked counsel in chambers to discuss the problem that has arisen with regards to the Fuhrman tapes. And I want to make it clear for the record at this point that the court's knowledge of the tapes is based upon the representations that counsel have made to the court in chambers or at the sidebar and that at this point, the court has not -- does not physically have the tapes or the transcripts. I have not listened to the tapes or read any of the transcripts which I think actually is a good state of affairs at this point. There is a potential that one side or the other may wish to call my wife as a witness with regard to mr. Fuhrman. If that happens, then under the code of civil procedure section 171.1, Sub (a) sub (1), I'm required to disqualify myself as the trial judge in this case.
Although I do not have any personal knowledge of my wife's dealings with Mr. Fuhrman while she was a lieutenant at West L.A. And the watch commander back in 1985, the code says that a judge shall be deemed to have personal knowledge within the meaning of this paragraph if the judge or the spouse of the judge is to the judge's knowledge likely to be a material witness.
So I am deemed to have her knowledge for the purposes of disqualification. So if my wife is a material witness, then under this code section, I'm required to disqualify myself and perhaps declare a mistrial at this point. The alternative is to solicit a waiver from the parties.
But the code is very clear that I -- the only thing I can do is make counsel aware of that possibility and ask if that's something that they would contemplate. And that's the extent of what I can do as far as that is concerned. So that is something you should perhaps consider.
My proposal at this point is to transfer to department 100 for reassignment to another judge the issue of whether or not my wife is a material witness, whether or not she has any relevant, admissible or material information to offer on this point.Stunningly, psychically, exactly what I wanted. The session goes into more detail about what would happen in various circumstances that might or might not call for a new judge, and/or a mistrial. (Surprisingly, the various lawyers, and Ito himself, are not all up on this question. I guess it happens a lot more often on TV than in reality.)