Public defender's office asks to remove judge
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The federal Public Defender's office on Tuesday filed a motion to disqualify a judge sitting on 22 of its criminal cases, accusing him of being in conflict with the office that represents indigent clients.
The unusual motion, filed against U.S. District Judge Arthur J. Schwab, comes after a months-long dispute between the judge and the public defender's office stemming from what the public defender's office saw as an obvious conflict of interest in a case involving a simple felon in possession of a firearm charge.
Throughout the dispute, the judge has accused the public defender's office of purposely delaying the case -- and thereby failing to serve its client by lengthening his stay in custody. The dispute escalated in June, when the public defender's office sought legal advice from the law firm Reed Smith, and Judge Schwab then threatened to recuse himself from all cases he had before him that were handled by the law firm.
While it's unlikely the public defender's office would be successful with its motions to disqualify, one law professor said what may be happening is that the public defender's office is sending "a cannon shot across the judge's bow.
"What they're saying is, 'we don't think you're being fair in this one case, and what we're trying to do is prevent that in the future,' " said University of Pittsburgh law professor John Burkoff.
Lisa Freeland, who heads the federal public defender's office, declined to comment.
The problems between the public defender's office and Judge Schwab began in June.
The office was representing a man named Youa Vue, who was charged with one count of possession of a firearm by a convicted felon.
In June, defense attorneys found out that a confidential informant against Mr. Vue was also a client of the public defender's office.
They filed a motion to withdraw as counsel for Mr. Vue, citing a conflict of interest.
Judge Schwab denied the motion, writing in an opinion issued in July that defense attorneys only cited the conflict of interest after he rejected their ninth motion to continue the case and had set a trial date.
Further, he wrote that the public defender's office could have figured out much earlier in the case who the confidential informant was simply by asking Mr. Vue who was in his house during the two days prior to his arrest.
The judge made one concession. He gave the public defender's office permission to bring in outside counsel for Mr. Vue to deal with the confidential informant.
The public defender's office then sought -- and received -- an opinion from the Allegheny County Bar Association's ethics committee that even with the appointment of additional counsel there was an actual conflict of interest. The public defender filed another motion to withdraw, and again the judge denied it.
Following the judge's denial, the public defender's office sought advice from W. Thomas McGough Jr., an attorney at Reed Smith who is an expert in ethics issues.
He joined defense attorneys at a court hearing for Mr. Vue on June 30.
At that hearing, Judge Schwab told Mr. McGough if he formally joined the case, the judge might be required to recuse himself in any case before him in which an attorney for Reed Smith was counsel.
When Mr. McGough asked for clarification as to why such a recusal would be necessary, the judge didn't answer, instead telling him to file a motion on the issue.
Judge Schwab also suggested that the parties "think through" the issue, and told everyone "to take a deep breath and think about what's happening."
Mr. McGough never did join the case, and Judge Schwab never recused himself from any Reed Smith cases.
However, in its motions for disqualification -- filed for every defendant the public defender's office currently has before Judge Schwab -- the public defender's office wrote that the judge's threat to recuse himself from any Reed Smith case makes it clear that a conflict exists with the federal public defender.
"The court effectively communicated the following: if you stand with the [federal public defender], you stand against me," the office wrote in its 31-page motion. "The court's own candid acknowledgement of a conflict is enough in itself to require recusal."
The motion goes on to state that no reasonable layperson "would doubt the court's impartiality in any case involving the federal public defender."
Mr. Burkoff said that it is difficult to win a motion to disqualify, primarily because it is decided by the judge in question.
"Most judges don't think they are partial or biased," he said. "Even if a judge has made a mistake or done something inappropriate in an earlier case, it doesn't mean he or she will screw up or can't be fair in a future case."
Judge Schwab was the subject of another high-profile recusal request a few years ago in the criminal case against former Allegheny County Coroner Dr. Cyril H. Wecht.
Defense attorneys asked the judge to step aside twice during the pendency of the case, accusing him of bias.
Though Judge Schwab denied both motions, he was ultimately removed from the case by the 3rd U.S. Circuit Court of Appeals, which said the case might benefit from less rancor in the courtroom.
First Published September 1, 2010 12:00 am