Viking’s running back, Adrian Peterson, has been charged with assaulting his four-year old son.  In a Texas courtroom, the prosecutors of his case want the judge removed.  See the Star Tribune article at:  http://www.startribune.com/local/280108652.html  Usually, this is pretty difficult.  What’s really going on?

1.  Most jurisdictions allow either the prosecutor or the defense to get rid of a bad judge automatically.  It’s called a “Notice of Removal” and either side can file one with the clerk of court  They don’t have to give any reasons to support their request—it’s automatic and the judge is booted.  There are two conditions, however:

a.  It must be made prior to the parties appearing before the judge for the first time.  Once they’ve had a court hearing, they’re stuck with the judge.  Apparently, in Adrian Peterson’s case, the prosecutors didn’t do this.

b.  It can only be used once.  Either side has to make a preliminary decision: will the next judge be worse than the first one?

2.  In Adrian Peterson’s case, the prosecutor first asked the judge to voluntarily remove himself.  I’ve seen this happen in my cases, but not for bias.  It’s usually happened because the judge had a conflict-of-interest—he knew the parties or had some personal/financial connection to the case.

3.  If either side hasn’t used the automatic Notice of Removal, things become tougher.  Most jurisdictions have a procedure to challenge a judge for being biased or unfair.  The Chief Judge or an appellate judge would hear the case.  It is handled just like a trial.  In Adrian Peterson’s case, the prosecutor would have to present evidence to convince the second judge the first one was too biased to be fair.  Of course, the defense can present evidence to counter he prosecutor’s case.

4.  What will the prosecutor do now that the judge won’t be removed?

a.  It could be the prosecutor is mad and doesn’t think the public and the victim will get a fair trial in front of this judge.  Some judges are clearly biased toward the defense or the prosecution.

b.  Even though the prosecutor lost this hearing, he’s drawn attention to the issue.  Hopefully, the judge will be on “his best behavior” and rule fairly throughout the trial.

c.  If the prosecutor loses the Adrian Peterson trial on assault, the issue of a biased judge might give the prosecutor a reason to appeal.

Any thoughts from you??