Request for authority

A lawyer filed a motion for a competency hearing.  The trial judge denied the motion.  The lawyer filed a mandamus to get the competency hearing.  The trial judge filed his own brief in opposition to the mandamus.  Grounds for recusal?

Comments

[John Steele]

I believe that Judge Rakoff recently did it.

http://blogs.wsj.com/law/2012/08/14/rakoff-to-second-circuit-you-dont-get-it/

[Richard Painter]

If a judge conducts himself as if he were a party to a case -- for example he retains a lawyer to file a brief on his own behalf in the case -- the judge should thereafter recuse from judging the dispute among the other parties in that same case. Judges cannot be lawyers in the same case in which they are judges; they also cannot be parties in the same case.

[Clyde Leland]

The 9th Circuit issued an opinion on this issue last week (Jan 18): Hurles v. Ryan, No. 08-99032. In a death penalty case in Arizona, appointed counsel asked for co-counsel, and appealed the denial. The judge opposed the appeal - - guess I'd better repeat that: the judge opposed the appeal, filing a brief that explained why she rejected the request, mentioning that it was a brutal murder and a straightforward case. The state appellate court rejected the judge's brief, saying it was inappropriate and that she lacked standing, and granted the appeal, allowing co-counsel. On remand, the same judge stayed on the case, eventually finding special circumstances for murder.
The 9th circuit said the defendant was entitled to an evidentiary hearing on the issue of judicial bias.