Could a judge hear a habeas matter arising from a prosecution begun while the judge was prosecutor if the petitioner requested it?

Plain-English summary

A judge had been prosecuting attorney when a murder occurred and had discussed it with police, though suspects were identified and charged only after the judge took the bench. The resulting habeas case was reassigned to the judge after the petitioner requested it. The Commission applied former Canon 3E(1)(b) and said the judge could not preside. It also said the West Virginia Code contained no provision allowing parties or counsel to waive that ethical disqualification. The PDF encloses a January 5, 1993 JIC opinion on waiver of former-prosecutor conflicts.

In practice

The Commission’s no-waiver conclusion answered the petitioner’s written request that this judge hear the case; it was tied to the former Code provision cited in the letter.

Common questions

Q: Could the judge preside because the petitioner asked for it?

A: No. The Commission said former Canon 3E(1)(b) precluded the judge from the described habeas case.

Q: Could the parties waive that disqualification?

A: The Commission said the West Virginia Code then had no provision allowing waiver of that ethical mandate.

Background and rules framework

The letter quoted former Canon 3E(1)(b) on a judge’s prior service as lawyer in a matter and discussed the absence of a waiver provision in that Code.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 3E(1)(b). Earlier JIC opinion attached: January 5, 1993, addressing former-prosecutor disqualification and waiver.

See also

• WV JIC Advisory Opinion 2003-09
• WV JIC Advisory Opinion 2005-21

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2003-08, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 * FAX (304) 558-0831

May 26, 2003

Re: JIC Advisory Opinion 2003-08

Dear

You have recently requested an advisory opinion from the Judicial Investigation Commission. In your request you stated that a murder occurred in County while you were the Prosecuting Attorney and you had discussions with the police, but no leads developed at that time. After you became a judge, suspects were identified and indictments were returned. Following a trial one defendant was convicted of murder but you had no participation. His appeal was rejected, but he has now filed a civil habeas corpus proceeding alleging constitutional violations in his criminal prosecution. The habeas proceeding was assigned to your docket but upon recognizing that the crime occurred while you were Prosecuting Attorney, you entered an order transferring the matter to the other circuit judge. Immediately counsel for the petitioner asked that the case be returned to you, and his client signed a written request that you preside in the habeas corpus matter, acknowledging that you were the Prosecuting Attorney when the crime occurred. Based upon the petitioner’s request and your willingness to preside, the other circuit judge retransferred the matter to you and you are currently presiding.

You stated that a recent review of advisory opinions revealed an opinion issued on January 5, 1993, that stated, “A judge who had previously been employed in the prosecuting attorney’s office may not hear criminal cases that were handled by that office while the judge was employed there and that disqualifications may not be waived.” You asked whether the advisory opinion was provided under the old or current version of the Code of Judicial Conduct and whether that made a difference. You asked if you should continue to preside in the matter.

In order to address the inquiry which you have made, the Commission has reviewed Canon 3 of the Code of Judicial Conduct which states in relevant part:

May 26, 2003
Page Two

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

E. Disqualification. - (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it; .. .

It is the opinion of the Commission that this language would preclude you from presiding over the matter which you described in your correspondence. Further, the Code of Judicial Conduct does not have a provision which permits parties or their attorneys to waive the ethical mandates set forth in the Canon, While that provision does appear in the Code of Judicial Conduct in some other jurisdictions, it is not present in our Code and so a conflict of interest would preclude a judge from sitting on a case even if the parties or counsel wished the judge to preside.

A complete copy of the advisory opinion which you mentioned in your correspondence is attached hereto. If you have any further question regarding this matter do not hesitate to contact the Commission.

Very truly yours,
ple: ___—>

Donald H. Cookman, Chairperson
Judicial Investigation Commission

DHC:nb

Enclosure