State ethics committee refines its advice to Judge O'Malley

Warned she could appear biased, she'll choose cases to hear

March 01, 2002|By Caitlin Francke | Caitlin Francke,SUN STAFF

Though standing by its controversial opinion that family ties make it improper for District Court Judge Catherine Curran O'Malley to hear most cases, a state ethics panel said yesterday that it is really up to the judge to decide which cases to avoid.

"The judge is certainly free to evaluate the need for recusal in individual cases," District Court Judge Charlotte M. Cooksey, chairman of the nine-member Judicial Ethics Committee, wrote in a letter received by O'Malley's lawyer yesterday.

"However, the Committee has concluded that the guidance it has previously given in its opinion is appropriate. It is the judge's decision whether to accept this guidance."

In a December opinion that cast a pall over O'Malley's fledgling judicial career, the committee recommended barring O'Malley - wife of Baltimore Mayor Martin O'Malley and daughter of State Attorney General J. Joseph Curran Jr. - from hearing about two-thirds of the cases in District Court.

Though the opinion was not binding, such rulings are generally regarded as guidelines to be followed.

Yesterday's letter appears to give her breathing room.

The committee still maintains that O'Malley's family ties could raise the appearance of bias in the courtroom. But yesterday's letter focuses on a judge's individual power to determine what constitutes a conflict of interest and warrants recusal.

O'Malley said she was pleased that the panel recognized that it is her right to decide whether she should hear a case.

"They seem to be making a retreat, if you will, that they recognize the principle that the judge is charged with making a decision regarding recusals on a case-by-case basis," O'Malley said.

Her main objection to the Dec. 11 ruling was the committee's decision that she should not hear cases in which a police officer is a witness - virtually all criminal cases - because she has a "special" relationship with the police. Police protect the mayor's family.

In an interview yesterday, Cooksey denied that the committee scaled back the opinion. Ethics opinions amount only to advice, Cooksey said, and are designed to protect judges.

"If [O'Malley] chooses not to accept the advice that she requested, then she doesn't have that safe harbor from any finding that she violated the canons of ethics," Cooksey said.

That "doesn't mean that the Judicial Disabilities Commission would find that there was a violation of the canon, it [just] wouldn't be automatically out of the question."

Abraham A. Dash, a legal ethics professor at University of Maryland's School of Law, said yesterday's letter puts O'Malley in a tight spot.

"It just places the judge in an uncomfortable position," Dash said. "The judge does not have to [follow] the opinion but it's a highly regarded organization. ... Judges don't want to ignore them."

Dash is one of many legal experts who believe the Dec. 11 opinion went too far in curtailing her powers.

"I really can't see where there is a problem with a police officer [as a witness], unless there is something with a specific officer," Dash said.

O'Malley requested the opinion at the urging of her boss, the court's administrative judge, Keith E. Matthews, soon after she was appointed last summer.

After the committee released its findings in December, O'Malley stopped hearing criminal cases and worked mainly on civil matters.

Then, in January, she decided to challenge the opinion and hired lawyer Ralph S. Tyler to argue her case. O'Malley recently began hearing criminal cases again with the blessing of Matthews.

Yesterday's letter came in response to a request by O'Malley that the committee revisit its decision.

Tyler said no case law in Maryland requires judges to step aside simply because a witness is a police officer.

"The fundamental point we made back to the committee is ... she is entitled to the same deference and respect that every other judge in the state [has], and that includes the right whether to decide in a particular case if she should recuse herself," Tyler said. "At least that principle has now been recognized by the judicial ethics committee, and for that we are grateful."

O'Malley said she will recuse herself from cases where the mayor and City Council are named as parties, such as in a civil suit.

She said that if criminal defendants or litigants are worried they could not get a fair hearing in her court, then she would listen to their concerns.

"If I felt they were valid concerns I would recuse myself," O'Malley said, noting that no one has voiced an objection so far.

The opinion, she said, is "is just what it is - advice for me to consider. ... Part of it I am definitely going to follow and part of it I am not."

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