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Lawyers debate judge's partiality

Defense attorneys want the circuit judge presiding over the trials of John Couey and John and Linda Dollar to recuse himself. In the Dollar case, he's refused.

By ABBIE VANSICKLE
Published August 22, 2005


INVERNESS - In recent weeks, two high-profile criminal cases in Citrus County have featured legal debates that center on one important player: the judge.

Attorneys for John and Linda Dollar, the couple accused of torturing their children, and John Couey, the registered sex offender accused of killing Jessica Lunsford, have asked Circuit Judge Ric Howard to remove himself from the cases.

Howard refused to recuse himself from the Dollar case. He's expected to make his decision concerning Couey this week, possibly as soon as today.

Just how common is it to ask for a new judge?

It's not uncommon to ask judges to recuse themselves from cases where there's an apparent conflict of interest or if a defendant is concerned the trial won't be fair, Pinellas-Pasco public defender Bob Dillinger said.

Such motions are more common in death penalty cases, such as Couey's, said Christopher Slobogin, a law professor at the Unversity of Florida.

"You're more likely to find it in a capital case than in a noncapital case because the stakes are so high," he said.

Dillinger pointed to a recent Pinellas case as an example.

In late June, Dillinger successfully argued that Pinellas Judge Brandt Downey should not be allowed to oversee a new trial for a 66-year-old man accused of fatally shooting a man outside a St. Petersburg motorcycle club on New Year's Eve 2002.

The defendant, Woodrow Wilson, was convicted of manslaughter in the spring. But one juror, Brenda Sanders, 37, came forward after the trial and said one of the jurors was sleeping during trial. Sanders said she wrote a note to Downey during the trial to tell him about the sleepy juror, but the judge never addressed the problem.

Wilson was granted a new trial, and Downey will not be allowed to preside over it, Dillinger said.

"(A recusal motion) is not that uncommon," he said. "It's really based on the client's perception that the client doesn't feel he can be treated fairly."

The motion must be "legally sufficient," he said. That means the judge must find a specific, clear legal reason to be recused from the case.

That kind of motion can be tricky for defense attorneys, though, said Michael Siegel, a law professor at the Unversity of Florida.

"If you get denied, you're in front of a judge that you've kind of insulted," he said.

To be successful, attorneys must show a specific bias by the judge against the defendants, and they must file their request soon after evidence of bias is shown.

In the Dollar case, defense attorney Charles Vaughn argued Howard had shown bias against the couple by revoking their bail in February. Bail had been set at $100,000 each. But when the Dollars, who face multiple counts of aggravated child abuse, were arrested in Utah in the winter, Howard switched to no bail.

Since then, the Dollars have argued unsuccessfully that they should be granted bail. They have pleaded not guilty to the charges and are being held at the Citrus County jail pending trial.

At an Aug. 3 hearing, Howard told the couple he wouldn't recuse himself from the case and called their motion "legally insufficient," in large part because it was not filed in a timely manner. Under state law, the judge said, a defendant must file such a motion within a reasonable time, not more than 10 days, after discovering the facts that are the basis of the motion.

The Dollars knew about the facts they cited in their motion for several months, Howard said.

After listening to the judge, John Dollar stood up in the courtroom and told Howard he felt the judge had a conflict of interest. He accused Howard of bias, pointing to Howard's decision not to allow the oldest Dollar child, Shanda Rae Shelton, 25, to visit her siblings after the couple's arrest.

A disagreement about bail amounts or procedural issues usually isn't enough to get a new judge on a case, Siegel said. It's the judge's job to make procedural decisions, including setting or denying bail, and those decisions are discretionary.

"A lot of times, you will see attorneys do what we call "forum shopping,"' he said. "They're shopping around for a better judge because these judges have obviously indicated some sort of toughness in these cases. It is kind of like playing with fire, and it surprises me, I guess, unless you have very good grounds."

In its request for a new judge, Couey's legal team said Howard's decision to set a Feb. 6 trial date - months earlier than what public defenders thought was reasonable, considering the complexity of the case - was evidence of his bias.

The judge told the attorneys it was a tentative date, and trials are often pushed back from their initial dates. But the defense attorneys say the decision to set a February date showed favoritism to the prosecutors.

The issue of whether Howard will remain on the case will be discussed at a hearing at 3:30 p.m. today at the Citrus County Courthouse.

--Abbie VanSickle can be reached at 860-7312 or vansickle@sptimes.com

[Last modified August 22, 2005, 01:07:12]


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