Prosecutors in the Aaron Hernandez case are currently making their case for Superior Court Judge Susan Garsh to recuse herself. Hernandez is present at the hearing which is being aired live on ESPN News. Many media outlets will detail what exactly happens during the hearing but here is an overview of what it means for a judge to recuse herself from a case.
The standard for recusal or judicial disqualification is provided by two sections of the United States Code. Section 455 of Title 28 of the United States Code (28 U.S.C. §455) titled “Disqualification of justice, judge, or magistrate judge” and Section 144 titled “Bias or prejudice of judge”.
Disqualification of Justice, Judge, or Magistrate Judge
Section 455(a) provides that, “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455 goes on to list a number of other reasons a judge should recuse herself from a proceeding.
Bias or Prejudice of Judge
Section 144 titled “Bias or prejudice of judge” provides another avenue for parties in a trial to request a judge recuse herself. Section 144 states,
“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”
In this case, the prosecutors seem to be asking the judge to recuse herself under Section 144 due to bias she has shown to prosecutors during questioning of witnesses. While attorneys may file a motion and be heard about why they feel the judge should recuse herself, it is a risky proposition. When filing such a motion, attorneys are essentially asking a judge to disqualify herself because she is biased against them or is not able to be fair. Often times recusal is fairly straightforward such as in a case where the judge has a financial interest in the outcome of the case. In this case however, the prosecutors are claiming the judge is biased against them which is far more personal.
While in a perfect world in which no emotions are involved, there would be no problem with this. However, people have egos; judges are people and some have very large egos. In the likely case the judge does not grant the motion and does not recuse herself, the prosecutors have to face the judge for the rest of the trial and may face consequences from that. While its unlikely a judge will hold a grudge enough to affect the outcome of a trial, she can make life difficult for one side or the other.
So far during the hearing the prosecution has stated their intent is not to “jugde shop”; in other words they are not out to search for a judge that will be partial to them. The defense is now at the podium making their case against the judge’s recusal. It will be interesting to see how the judge rules on this motion but it seems unlikely that she will recuse herself.