State v. Putnam

Annotate this Case
STATE_V_PUTNAM.95-344; 164 Vt 558; 675 A.2d 422

[Filed 12-Jan-1996]

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 95-344


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Joshua S. Putnam                                  October  Term, 1995


Stephen B. Martin, J.

Dan M. Davis, Windham County State's Attorney, and James Maxwell, Deputy State's
  Attorney, Brattleboro, for plaintiff-appellee

Charles S. Martin of Martin & Paolini, Barre, and Stephen L. Fine, Athens, for
  defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       DOOLEY, J.  Defendant, who has been charged with two counts of sexual
  assault, moved to disqualify Judge Theresa DiMauro, the presiding judge in
  the Windham District Court. Pursuant to V.R.Cr.P. 50(d)(3), Judge Dimauro
  referred the disqualification motion to the administrative judge for the
  trial courts, who denied the motion.   We granted an interlocutory appeal. 
  We affirm.

       The disqualification motion is before us on a sparse factual record. 
  State police officers stationed in the Rockingham barracks conducted the
  investigation of the sexual assaults allegedly committed by defendant.  The
  officer who led the investigation, Detective Sergeant David Tetrault, is on
  the State's witness list.  Two other officers, Troopers Burns and Cutting,
  were also involved in the investigation.  Judge DiMauro is married to
  Vincent DiMauro, who is a state police trooper also stationed in the
  Rockingham barracks.  Trooper DiMauro was not part of the investigation,
  nor do any of the troopers who may testify have a supervisory relationship
  over him.  In fact, there are two separate units that work out of the
  barracks: the bureau of

 

  criminal investigation in which the potential witnesses work and the
  uniform patrol division in which Trooper DiMauro works.  Defendant
  presented no evidence indicating either that Trooper DiMauro has any
  connection to the arrest or investigation of defendant, or that Judge
  DiMauro is familiar with the investigating officers.

       The heart of the decision of the administrative judge is found in his
  rejection of defendant's claim that "at least one close working associate
  of [Judge DiMauro's] husband and perhaps more than one will testify":

       The assertion that "one close working associate" will testify, [with
       whom a personal relationship exists between Trooper DiMauro
       and/or Judge DiMauro,] is unsupported by any evidence.  The
       defense does not name the "close associate" or indicate whether
       this "associate" has any connection to this case and/or is expected
       to testify.  Although it may be reasonable to believe that personal,
       as well as professional relationships exist, the defense does not
       offer any detail to support the assertion.  While the existence of a
       personal relationship between either Judge DiMauro and/or her
       husband and a potential witness in this proceeding would be
       relevant to this court's inquiry, no such evidence is presented in
       this case.

  The judge also concluded that the marital relationship between a judge and
  a state police officer who works in the same barracks as an officer who
  will testify in a case before the judge does not automatically require
  disqualification of the judge.

       Some background in our law is important to understanding the issue
  before us.  We have adopted, with some minor technical variations, the 1990
  American Bar Association Model Code of Judicial Conduct.  See Reporter's
  Notes, A.O. 10, Canon 3.  The Code contains specific per se
  disqualification rules, none of which are involved here.  See A.O. 10,
  Canon 3E(1)(a)-(d). It also contains the general standard relied upon by
  the defendant here:  a judge must disqualify himself or herself "in a
  proceeding in which the judge's impartiality might reasonably be
  questioned."  Id., Canon 3E(1).

       We have recently detailed our approach to disqualification issues,
  relying on procedural reforms.  Our former approach was set out in Richard
  v. Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985), where we held
  that a judge must be disqualified "whenever a doubt of impartiality would
  exist in the mind of a reasonable, disinterested observer."  We observed
  that "`if the slightest question exists, all doubts should be resolved' in
  favor of disqualification,"  id.

 

  (quoting Condosta v. Condosta, 137 Vt. 35, 36, 401 A.2d 897, 898 (1979)), a
  standard required because the judge subject to the motion to disqualify
  would decide if disqualification were appropriate.   After Richard, we
  adopted a procedure for referring trial judge disqualification motions to
  the administrative judge for the trial courts.  See V.R.Cr.P. 50(d)(3).  As
  a result, the "slightest question" standard of Richard is no longer the
  law.  See Ball v. Melsur Corp., 161 Vt. 35, 39-40, 633 A.2d 705, 710
  (1993).  In Ball, we emphasized that a judge subject to a disqualification
  motion is accorded a presumption of honesty and integrity and that because
  reasonable minds can differ on an issue, discretion must be accorded to the
  administrative judge for the trial courts in deciding disqualification
  issues.  Id. at 39-40, 633 A.2d  at 709-10.  We held that the standard for
  review of disqualification decisions of the administrative judge is "abuse
  of discretion, that is, if the record reveals no reasonable basis for the
  decision."  Id. at 40, 633 A.2d  at 710.

       Defendant urges us to impose a per se rule that disqualifies a trial
  judge from a criminal case if his or her spouse is a police officer and
  works in the same barracks as an officer who is a potential witness in the
  case.  For two major reasons, we decline to impose the rule sought by
  defendant.

       First, "per se" rules are generally inappropriate in judicial
  disqualification issues of this type, and such a rule is inappropriate
  here.  The Code contains detailed per se disqualification rules for
  circumstances where we have decided that disqualification is always
  required.  See A.O. 10, Canon 3E(1)(a)-(d).  Thus, the drafting is
  generally inconsistent with adding new per se rules.  For this primary
  reason, we declined to fashion a per se disqualification rule in Ball to
  cover instances where the judge is subject to a judicial conduct complaint
  by a lawyer who is appearing in a case before the judge.  See Ball, 161 Vt.
  at 39, 633 A.2d  at 709-10 ("On its face, the `reasonable disinterested
  observer' standard of Canon 3C(1) [now 3E(1)] forestalls such an inflexible
  per se rule, but instead enables the decisionmaker to take particular
  circumstances into account.").

 

       Moreover, we clearly decided to move away from overly rigid
  disqualification rules when we entrusted these decisions to the
  administrative judge.  Thus, we stated in Ball that because "reasonable
  minds may differ on an issue, a certain degree of discretion inheres in the
  determination of whether a judge's impartiality may be doubted in a given
  situation."  Id. at 39, 633 A.2d  at 709.  We held that where the trial
  judge does not grant a disqualification motion, "the question of recusal
  hinges on the administrative judge's exercise of discretion."  Id. at 40,
  633 A.2d  at 710.

       There is nothing special about the conflict involved here that
  necessitates a per se rule in spite of our holding in Ball.(FN1)  Courts
  interpreting identical or similar judicial ethics standards have not
  adopted per se rules in cases where friends or associates of a judge appear
  as witnesses, see United States v. Kehlbeck, 766 F. Supp. 707, 712 (S.D.
  Ind. 1990) (no per se disqualification where "friend appears as counsel,
  party, or witness"; collecting cases); State v. Romano, 456 A.2d 746, 754
  (R.I. 1983) (no per se rule because of judge's "professional, social,

 

  or business relationships"), or in cases where a spouse or other relative
  is employed by, or is otherwise aligned with, a party appearing before the
  judge, see Bernard v. Coyne, 31 F.3d 842, 845 (9th Cir. 1994) (appeals
  judge not disqualified from bankruptcy case in which trustee challenged
  exemptions claimed by debtors even though judge's wife was United States
  Bankruptcy Trustee for judicial district); Hewlitt-Packard Co. v. Bausch &
  Lomb, Inc., 882 F.2d 1556, 1568 (Fed. Cir. 1989) (no per se rule where
  judge's son employed by plaintiff) cert denied, 493 U.S. 1076 (1990);
  United Farm Workers of America, AFl-CIO v. Superior Court, 216 Cal. Rptr. 4, 10 (Cal. Ct. App. 1985) (in suit over labor strike, judge not
  disqualified because his wife worked two days for plaintiff employer as
  replacement worker; disqualification decision based on applicable factors);
  State v. Calhoun, 511 A.2d 461, 491 (Md. 1986) (in post-conviction relief
  proceeding involving defendant who killed police officer, judge not
  disqualified because his father was chief of same police department for
  fifteen years, because he had other relatives who were police officers, or
  because his cousin was police officer who was killed in line of duty) cert
  denied, 480 U.S. 910 (1987); People v. Taylor, 482 N.Y.S.2d 968, 970-71
  (N.Y. Crim. Ct. 1984) (no disqualification of judge because his wife was
  probation officer and defendant's father was also probation officer in same
  county).  We see no reason to reject these precedents because the witness
  is a police officer.

       Second, it was defendant's burden, as moving party, to make a record
  on which a decision could be reached.  See Ball, 161 Vt. at 40, 633 A.2d  at
  710 (moving party has burden to make "clear and affirmative showing of bias
  and prejudice").  The record here is virtually nonexistent.  At best, this
  is a case where a party seeks a judge's disqualification because a person
  who works in the same office as the judge's husband may be a witness,
  giving unspecified testimony.  We know that the office contains twelve
  police officers, in two divisions (patrol officers and criminal
  investigators), and the witness or witnesses are not in the same division
  as the judge's husband.  We also know there is no supervisory relationship
  between the witness or witnesses and the judge's husband.  The witness or
  witnesses involved, because they are police officers, are aligned with the
  State and want it to prevail.  As the administrative judge

 

  found, there is no evidence that Trooper DiMauro is a close working
  associate with any of the potential witnesses.

       To prevent the appearance inquiry from turning into the speculation of
  a suspicious mind, the standard necessarily requires that the objective
  observer know and understand all the relevant facts.  See In re Drexel
  Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) cert denied, 490 U.S. 1102 (1989).  Moreover, the questioning of the judge's impartiality
  must not be based on unsupported opinion, baseless conclusions or rumors. 
  See State v. Hunt, 147 Vt. 631, 631, 527 A.2d 223, 223 (1987); Maier v.
  Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985); Zoline v. Telluride Lodge Ass'n,
  732 P.2d 635, 639 (Colo. 1987).  Media reports are not a proper basis for a
  recusal motion.  Hunt, 147 Vt. at 632, 527 A.2d  at 223.(FN2)  We must
  "wrestle with the problem . . . and look closely at our ethical and
  constitutional obligations."  In re Vermont Supreme Court Admin. Decision
  #17, 154 Vt. 217, 224, 576 A.2d 127, 131 (1990).

       Defendant's arguments are in direct conflict with these requiremen ts. 
  Because we know few of the relevant facts, it is easier to say that the
  judge's impartiality might reasonably be questioned.  Moreover, defendant's
  argument is based on the assumption that there is some overriding
  significance to a state police "barracks" in determining whether to
  disqualify the judge.(FN3)  Thus, defendant seeks a per se rule that applies
  to cases investigated by

 

  an officer in the same barracks, but not at all to cases investigated by
  officers from a different barracks.  Nothing in the record addresses that
  significance.  For all we know, uniformed patrol officers have no
  professional and social interaction with criminal investigators within the
  barracks, but do have extensive interactions with uniformed officers from
  other barracks and other police forces.  We decline to speculate on the
  inner workings of law enforcement units without some evidence from the
  party who seeks the disqualification on which the law enforcement
  relationships are based.

       We review the administrative judge's decision on a motion to
  disqualify only for abuse of discretion, looking to determine "if the
  record reveals no reasonable basis for the decision." Ball, 161 Vt. at 40,
  633 A.2d  at 710.  Based on the very limited record supplied by defendant,
  the administrative judge thoroughly examined defendant's grounds for
  questioning the trial judge's impartiality and rejected them.  We find no
  abuse of discretion.

       Defendant has also argued that Judge DiMauro's involvement in his case
  denies him due process of law because "the marital relationship between one
  of those who enforces the law and one who interprets the law is far too
  cozy for the comfort of the Due Process Clause."  We agree that defendant
  is constitutionally entitled to a "fair trial in a fair tribunal."  In re
  Murchison, 349 U.S. 133, 136 (1955).  For essentially the same reason that
  we reject defendant's ethical challenge, we reject the due process
  challenge.  Defendant has failed to demonstrate that Judge DiMauro will be
  other than fair and impartial.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


  ---------------------------------------------------------------------------
                                  Footnotes

       FN1.   Justice Johnson argues in her dissent that a police officer
  should be treated the same as a prosecutor so that we should view this case
  as if Judge DiMauro were married to a prosecutor. Although we do not agree
  with this premise, we do not see a different result even if the premise is
  accepted.  The commentary to Canon 3E(1) of the Model Code of Judicial
  Conduct, from which the provision before us is taken, states this directly: 
  "A  lawyer in a governmental agency does not ordinarily have an association
  with other lawyers employed by that agency. . . ."  and goes on to add
  "[t]he fact that a lawyer in a proceeding is  affiliated with a law firm
  with which a relative of the judge is affiliated does not of itself
  disqualify the judge."  Model Code  of Judicial Conduct Canon 3E(1), cmt.
  (1990).  Addressing this exact question, a recent commentary wrote:

       [T]he very nature of these intangible considerations prevents the
       formulation of a bright line rule stating when such a conflict
       necessitates recusal.  Thus, each case must undergo a fact specific
       and party specific analysis and be decided in accordance with those
       individual findings.  That is, one must ask, given the facts of the
       case, the people involved and the potential issues relating to the
       facts and people involved, whether the interest of the judge's
       spouse and the involvement of that spouse are extensive enough to
       warrant the judge's recusal.

  M. Brandsdorfer, Lawyers Married to Judges: A Dilemma Facing State
  Judiciaries -- A Case Study of the State of Texas, 6 Geo. J. Legal Ethics
  635, 660 (1993).

FN2.  Although acknowledging this rule, defendant attached to his
  brief a newspaper editorial categorizing the recusal question as "vexing
  and urgent," but requiring a "well-considered but speedy resolution." 
  There is no indication that the editorial is based on any more facts than
  are before us.


FN3.  According to published sources, the Vermont State Police are
  organized primarily around troops.  The officers in the case are in Troop
  D, which includes stations (or barracks) in Rockingham and Brattleboro. 
  See Vermont Dep't of Public Safety, 1990 Annual Report 2, 9 (1991); The
  National Survey, Vermont Year Book 26 (1995).  Troopers are also members of
  special units and teams, like the tactical support unit (ten troopers) and
  the dive team (eight troopers).  1990 Annual Report at 11, 16.  We also
  understand from cases argued in this Court that state police officers can
  be members of task forces, organized to combat specific criminal activities
  like child sexual abuse, domestic violence or drug selling and usage.  We
  have no information on whether the judge's husband is a member of any of
  these organizational units. Nor do we have any information on how close the
  working relationship is among officers in separate stations, but within the
  same troop.

------------------------------------------------------------------------------
                                 Dissenting

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 95-344


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Joshua S. Putnam                                  October  Term, 1995



Stephen B. Martin, J.

       Dan M. Davis, Windham County State's Attorney, and James Maxwell,
  Deputy State's Attorney, Brattleboro, for plaintiff-appellee

       Charles S. Martin of Martin & Paolini, Barre, and Stephen L. Fine,
  Athens, for defendant-appellant



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J., dissenting.  The majority concludes that a judge may
  preside over a criminal trial even though the judge is married to a state
  police officer who works in the same small barracks as the investigating
  officers in the case.  Today's decision, rather than simply requiring Judge
  DiMauro's disqualification in every case in which officers of the
  Rockingham Barracks are involved as investigators, arresting officers, or
  witnesses, instead requires a fact-specific determination in every such
  case in which the defendant seeks Judge DiMauro's disqualification. 
  Because I believe the majority's decision encourages defendants to pry into
  the personal lives of Judge DiMauro and her husband, creates an unnecessary
  administrative burden for the administrative judge and this Court, and,
  most importantly, permits the public and

 

  criminal defendants to entertain doubt as to the integrity of the criminal
  process, I respectfully dissent.

       Both the majority and the administrative judge emphasize the lack of a
  detailed factual record showing any relationship between Judge DiMauro or
  Trooper DiMauro and the officers involved in this case, other than Trooper
  DiMauro's position as a fellow officer in the twelve-officer Rockingham
  Barracks.  Yet the "heart of the decision of the administrative judge,"
  ante, at 2, includes an acknowledgment that "it may be reasonable to
  believe that personal, as well as professional relationships exist" and,
  moreover, that "the existence of a personal relationship between either
  Judge DiMauro and/or her husband and a potential witness . . . would be
  relevant."  Ante, at 2.  The majority apparently accepts that (1) a
  personal relationship between Judge DiMauro or Trooper DiMauro and an
  officer involved in the case might be enough to require Judge DiMauro's
  disqualification, and (2) a reasonable person would likely believe, under
  these circumstances, that such relationships do exist.  Nonetheless, the
  majority holds that Judge DiMauro may preside over defendant's case.

       Although I have no reason to doubt Judge DiMauro's fairness and
  integrity, in this or any other case, I believe that these two
  propositions, which I also accept, compel an opposite result.   Our first
  priority in resolving a difficult question such as this must be the
  preservation of public trust in the judiciary.  For a number of reasons,
  permitting Judge DiMauro to preside over criminal cases that involve
  officers from her husband's barracks raises an appearance of impropriety
  and unnecessarily exposes the judiciary to public criticism.

       Of critical importance is the fact that this is not an ordinary civil
  trial, and the officers involved are not ordinary witnesses.  The
  appearance, as well as the reality, of fair and impartial proceedings is
  especially important in a criminal trial.  Criminal defendants have more at
  stake than a possible monetary loss.  They face a possible loss of liberty. 
  What stands between a

 

  defendant and the power of the state is the judge and, if the case goes to
  trial, the jury.(FN1)  An apparent connection between a presiding judge and
  the agents of the state who are prosecuting a case undermines the judge's
  function as an impartial arbiter between the defendant and the state.

       The majority maintains that defendant is seeking Judge DiMauro's
  disqualification merely "because a person who works in the same office as
  the judge's husband may be a witness, giving unspecified testimony."  Ante,
  at 5.  This characterization of the facts is disingenuous.  Police officers
  who testify in criminal cases are not ordinary witnesses.  As a result of
  both the officers' official duties and the typical collaboration between
  investigating officers and prosecutors, police officers in criminal cases
  appear to be an arm of the state.  I see little difference between this
  case and one in which the presiding judge is married to a member of the
  state's attorney's office.  Indeed, in one way the connection is more
  troubling: because of the importance of police investigatory work in
  criminal trials, Judge DiMauro will likely be called upon in some of these
  cases to make rulings that turn on the competence and credibility of
  Trooper DiMauro's fellow officers.

       I am concerned as well by the practical consequences of the majority's
  decision.  By requiring defendants to produce evidence showing that either
  Judge DiMauro or Trooper DiMauro has some specific connection to the
  officers involved in their cases, the Court encourages future defendants to
  probe the private lives of Judge DiMauro and her husband, in the hope of
  unearthing relevant information.  Judge DiMauro's social relationships will
  be the subject of routine investigations by defendants.

       Not only will the DiMauros' privacy be invaded, but our scarce
  judicial resources will be expended on future motions like this one.  The
  administrative judge will be forced to hold lengthy evidentiary hearings as
  defendants attempt to make out a sufficient factual record to

 

  support disqualification.  Review of these motions will also absorb the
  time of this Court, while unnecessarily delaying the underlying criminal
  proceedings.

       Defendant urges this Court to avoid these problems by adopting a "per
  se" rule requiring Judge DiMauro's disqualification in cases involving
  officers from the Rockingham Barracks. Rejecting this approach, the
  majority makes two arguments: first, that fashioning a per se rule in this
  case is inappropriate, because the Code of Judicial Conduct provides the
  list of circumstances in which the Court has decided that disqualification
  is always required; and second, that by entrusting disqualification
  decisions to the discretion of the administrative judge, we signaled a
  shift away from rigid disqualification rules.

       Although it is true that this case does not fit within any of the
  disqualification rules of the Code, A.O. 10, Canon 3E(1)(a)-(d), I see no
  reason to conclude that the Code's list of disqualification rules is
  exhaustive.  In a state of this size, conflicts are certain to occur
  frequently.  If such questions were typically litigated, we would quickly
  find that the specific rules contained in the Code of Judicial Conduct
  barely scratch the surface of this issue.  For example, those rules do not
  cover situations in which a judge has a social relationship with a party,
  yet we have found such a situation troubling enough to require
  disqualification.  See Richard v. Richard, 146 Vt. 286, 288, 501 A.2d 1190,
  1191 (1985) (requiring disqualification of assistant judges based on social
  relationship with plaintiff).  This Court does not face these questions
  often, however, because judges usually go beyond the requirements of the
  rules, either simply recusing themselves for any reason that might cast
  doubt on their impartiality, or disclosing the information and then
  recusing themselves if a party so requests.

       Fortunately, this informal system works well, and permits this Court,
  and the administrative judge, to avoid most sticky disqualification
  questions.  Nonetheless, troubling situations may develop that, like this
  one, are difficult to pigeonhole within the rules, but are best resolved
  with a simple and straightforward requirement of disqualification.  This
  approach is not inconsistent with our decision in Ball v. Melsur Corp., 161
  Vt. 35, 39-40, 633 A.2d 705

 

  , 710 (1993), in which this Court recognized that the administrative judge
  has discretion in deciding disqualification issues.  That discretion is
  appropriate when the administrative judge reaches a decision after weighing
  evidence and resolving disputed factual questions.  Here, however, I
  believe the best approach is to establish a rule that prevents such
  fact-based disputes from ever reaching the administrative judge.

       I would reverse the decision of the administrative judge, and require
  Judge DiMauro's disqualification in this case, and any case involving
  officers from the Barracks where Trooper DiMauro is stationed as
  investigators, arresting officers, or witnesses.(FN2)

                                  _____________________________
                                  Associate Justice


  ---------------------------------------------------------------------------
                                  Footnotes


FN1.  A marital relationship between a juror and an officer in the
  Rockingham Barracks would likely entitle defendant to strike the juror for
  cause.

FN2.  If both parties agree, of course, they may notify the court
  clerk that Judge DiMauro may preside over a case that involves officers
  from the Rockingham Barracks.


  ---------------------------------------------------------------------------
                                 Dissenting

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 95-344


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Joshua S. Putnam                                  October  Term, 1995


Stephen B. Martin, J.

       Dan M. Davis, Windham County State's Attorney, and James Maxwell,
  Deputy State's Attorney, Brattleboro, for plaintiff-appellee

       Charles S. Martin of Martin & Paolini, Barre, and Stephen L. Fine,
  Athens, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       MORSE, J., dissenting.   I agree that the standard of review is "abuse
  of discretion," and I can imagine a like case where additional factors
  might support an affirmance.  But, in my opinion, the essential facts, the
  very "sparse[ness of the] factual record," require Judge DiMauro's
  disqualification.  There simply are no facts to weigh on the other side of
  the question.  The Court's imposition of the burden on defendant, to dispel
  any doubt that the perception of partiality requires the judge's
  disqualification, turns the standard of review on its ear.  In my view,
  once the threshold is reached, it is up to the State to overcome the force
  of defendant's argument.  In this case, the State presented nothing to
  rebut the appearance of partiality, and I conclude there is "no reasonable
  basis" for affirmance.

       The unavoidable public view in Vermont is that a twelve-officer state
  police barracks is a tightly knit organization of peace keepers dedicated
  to serving and protecting the community. The import of the Court's opinion
  is that this perception is not borne out for lack of detail in the

 

  evidence, and is merely "the speculation of a suspicious mind."  But, it
  takes no "evidence" to establish that officers in the Rockingham barracks
  should care deeply about how the judges at Windham District Court handle
  the cases generated by any one of them.

       This case is not an isolated incident where spouses' professional
  roles just happen to cross.  The judge's husband is permanently employed at
  the Rockingham Barracks, which is the State police venue for Windham
  County.  Judge DiMauro's court and Trooper DiMauro's office are involved in
  one case after another.  It is no stretch to imagine that employees in
  those two places take more than a passing interest in the interaction of
  their work.  For instance, the judge might be required to rule on a motion
  to suppress the fruits of a search conducted by a local state trooper, one
  of her husband's eleven co-workers.  Not only will the judge be conscious
  of the potential reactions her ruling may engender at the barracks, she
  will be aware also that she will have to make such rulings again and again.

       Finally, there are no countervailing concerns here about a disruption
  in the efficient administration of the court.  Defendant gave plenty of
  warning by filing his motion to recuse before the judge's investment in the
  case was significant enough to cause a hardship to anyone. In fact, the
  Court's affirmance redirects the hardship the other way, onto the moving
  party, as Justice Johnson points out in her dissent.

       None of the cases cited by the Court establishes anything like the
  kind of blanket authority it has created here.  The administrative judge is
  given limitless discretion.  There is nothing in the standard created today
  that would stop the administrative judge from allowing Judge DiMauro to sit
  on a case investigated by another member of the uniformed patrol division
  in the Rockingham barracks or even one Trooper DiMauro himself
  investigated.  I am not saying by this that the Court would approve of
  Judge DiMauro sitting, only that the Court has given no parameters for the
  administrative judge to use in ruling on future cases.  In sum, I think
  this case stretches discretion beyond the breaking point.

       I respectfully dissent.

                   _______________________________________
                              Associate Justice




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