Can disqualified lawyer ask judge to disqualify herself? Mark Jones’ ex-attorney seeks recusal
May an attorney disqualified from a criminal case ask the judge who disqualified him to recuse herself from the case she disqualified him from?
That’s the odd question posed by a motion suspended Columbus District Attorney Mark Jones’ former counsel filed a few hours after he was disqualified from representing Jones’ at his upcoming trial for alleged misconduct.
Judge Katherine Lumsden disqualified Christopher Breault because he’s expected to be a witness in Jones’ Nov. 8 trial. Her order was filed with the Muscogee Superior Court Clerk at 11:13 a.m. Monday. Breault filed the motion for Lumsden to recuse herself at 4:39 p.m., then added an amended motion at 5 p.m.
Titled “Motion to disqualify unfair, biased and partial judge,” Breault’s filing said Lumsden is married to a sergeant with the Georgia State Patrol, and because of that, she is “severely biased in favor of law enforcement and against District Attorney Mark Jones.”
He said Lumsden’s bias was clear from her comments in a pretrial motions hearing.
But if Lumsden already disqualified Breault from Jones’ case, can Breault file a recusal motion on Jones’ behalf?
No, said Deputy Attorney General John Fowler, the prosecutor who Wednesday moved to strike Breault’s recusal motion.
To “strike” means not to deny the motion on its merits, but to rule Breault had no standing to file it.
Noting the time Lumsden disqualified Breault on Monday, Fowler wrote, “Five hours and 47 minutes later, Mr. Breault filed a motion to disqualify the presiding judge on behalf of Mr. Jones. Thus, Mr. Breault was no longer Mr. Jones’ lawyer at the time that the motion was filed, and he represents neither party of the litigation.”
That makes Breault a “third party” in Jones’ case, and Georgia law “does not include any language that recognizes the right of a party to intervene in a criminal matter,” Fowler wrote, adding: “As such, Georgia law does not permit a third party to file a motion in criminal law. And here, given the lack of expressed authority granting Mr. Breault the right to file a motion as a third party, his motion should be struck.”
Breault sent the Ledger-Enquirer a statement Friday evening:
“As the advocate for DA Jones, I am (currently) only disqualified as to the trial of the case (starting November 8),” he wrote, citing a Georgia bar rule that says, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness ... except where disqualification would work substantial hardship on the client.”
He added: “It is clear disqualifying the DA’s lawyer right before trial would be a substantial hardship on District Attorney Jones. It is also clear that I am not a ‘necessary’ witness because there is nothing I can talk about that other witnesses can discuss.”
He called his disqualification “a ruse” to deprive Jones of a fair trial.
The hearing
Breault claimed Lumsden’s bias was evident at a hearing Oct. 21, when Breault asked her whether it was illegal for Jones to offer prosecutors a $1,000 bonus for each conviction in a murder case. Jones is charged with bribery for that.
As Breault asked Lumsden to cite a specific code section prohibiting such an incentive, the judge told him, “You can not pay your employees by conviction. The law is very clear.” She later added, “You can see the problem with that, certainly. Because then the prosecutor’s duty to seek justice and the truth arguably would be overwrought by your financial incentive.”
As reported in his motion, Breault responded, “They get paid to work, period.“
Lumsden replied, “Yeah, and they don’t get a thousand-dollar bonus when they win at any cost.”
The judge later repeated that Jones’ proffered bonus was “prohibited by state statute.”
This shows not only that Lumsden’s impartiality “might reasonably be questioned,” but that it is “absolutely and entirely lacking,” Breault wrote, noting the Georgia Code of Judicial Conduct requires judges to “disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.”
Lumsden can’t respond to Breault’s motion outside of court because the code of conduct prohibits judges’ commenting on pending motions, stating, “Judges shall not make, on any pending proceeding or impending matter in any court, any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.”
Lumsden in court has said she does not intend to postpone Jones’ trial, as the issues raised by Breault’s representing him were obvious before Breault entered the case on Oct. 12. Fowler named Breault in motions filed Oct. 6.
Jones faces nine felony charges alleging he tried to influence witnesses, to persuade a detective to commit perjury, and to bribe staff prosecutors. Gov. Brian Kemp suspended him from office on Oct. 4, acting on the recommendation of a review commission that said Jones’ indictment adversely affected the district attorney’s office and the public interest.
This story was originally published October 29, 2021 at 3:06 PM.