Pruett, Robert Lynn ( 2015 )

WR-62,099-03
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/8/2015 12:55:52 PM
Accepted 4/8/2015 1:12:29 PM
ABEL ACOSTA
CLERK
No. WR-62,099-03
RECEIVED
COURT OF CRIMINAL APPEALS
4/8/2015
ABEL ACOSTA, CLERK
IN THE
COURT OF CRIMINALAPPEALS
FOR THE STATE OF TEXAS
In re Robert Lynn Pruett,
Petitioner,
vs.
William Stephens,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent.
_________________________________
MOTION TO RECUSE JUDGE BERT RICHARDSON
_________________________________
CAPITAL CASE
MR. PRUETT IS SCHEDULED TO BE EXECUTED ON APRIL 28, 2015.
_________________________________
David R. Dow
Texas Bar No. 06064900
ddow@central.uh.edu
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
TEL: (713) 743-2171
FAX: (713) 743-2131
No. WR-62,099-03
IN THE
COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
In re Robert Lynn Pruett,
Petitioner,
vs.
William Stephens,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent.
_________________________________
MOTION TO RECUSE JUDGE BERT RICHARDSON
_________________________________
To avoid any appearance of impropriety and promote public confidence in
the integrity of the judiciary, Relator-Petitioner Robert Lynn Pruett asks that Judge
Bert Richardson recuse himself, or be recused by the Court, from further
participation in this case. The basis for this motion is that Judge Richardson
presided over the DNA proceedings in this case in the trial court. The petition
filed in this cause pertains to the evidence that was at issue in the trial court
proceedings over which Judge Richardson presided.
The grounds for recusal of appellate judges are the same as the grounds for
the recusal of trial judges. See Tex. R. App. P. 16.2. Under Texas Rule of Civil
Procedure 18b(2), a judge must recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the subject matter or a
party, or personal knowledge of disputed evidentiary facts concerning
the proceeding.
Tex. R. Civ. P. 18b(2)(a), (b).
The standard for assessing judicial bias in this context is whether the
allegation of lack of impartiality is grounded on facts that would create doubts
concerning the judge’s impartiality – not in the mind of the judge himself, or even,
necessarily, in the mind of the party filing the motion, but rather in the mind of a
reasonable person with knowledge of all the circumstances involved. Kemp v.
State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992); see Rogers v. Bradley, 909
S.W.2d 872, 880-82 (Tex. 1995) (Enoch, J., responding to declaration of recusal).
The language of the rule is mandatory. The standard is an objective one: It
requires “the judge to recuse if ‘his impartiality might reasonably be questioned,’
regardless of the source or circumstances giving rise to the question of impartiality
and even though the source and circumstances may be beyond the judge’s volition
or control.” Rogers, 909 S.W.2d at 874 (Gammage, J., declaration of recusal).
Because of Judge Richardson’s presiding over proceedings in the trial court,
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his impartiality with respect to the instant petition might reasonably be questioned
by a reasonable person. Moreover, if Judge Richardson acquired any knowledge
during those proceedings that was outside of the record on appeal received by this
Court, that knowledge would seem to require his recusal.
If these proceedings were in the federal (rather than state) courts, Judge
Richardson’s recusal would be required. See 28 U.S.C. § 47 (“No judge shall hear
or determine an appeal from the decision of a case or issue tried by him.”).
Similarly, his recusal would be required if Texas was among the states to have
adopted the American Bar Association’s Model Code of Judicial Conduct. See
Model Code of Judicial Conduct R. 2.11(A)(6)(d) (requiring a judge to disqualify
himself if he “previously presided as a judge over the matter in another court”).
The federal rule reflects that a reasonable person would harbor doubts as to the
impartiality of an appellate court judge, when that same judge previously acted as
the trial court judge in the same case.
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PRAYER FOR RELIEF
For the foregoing reasons, Mr. Pruett asks that Judge Richardson recuse
himself, or be recused by this Court, from the case.
Respectfully Submitted,
s/ David R. Dow
__________________________
David R. Dow
Texas Bar No. 06064900
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131
Counsel for Robert Pruett
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CERTIFICATE OF SERVICE
I certify that on the 8th day of April 2015, a true and correct copy of the
above legal document was delivered via email to:
Jefferson Clendenin
Assistant Attorney General
Criminal Appeals Division
Texas Bar No. 24059589
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Tel. (512) 936-1600
Fax (512) 320-8132
Email jay.clendenin@texasattorneygeneral.gov
Melinda Fletcher
Special Prosecution Unit
mfletcher@sputexas.org
s/ David R. Dow
_________________________
David R. Dow
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