Judge's unrecusal didn't violate defendant's rights

Amanda Bronstad

January 21, 2010

The California Supreme Court, relying on last year's U.S. Supreme Court ruling in Caperton v. Massey, ruled on Jan. 21 that a judge did not violate a defendant's due process rights by overseeing her criminal trial after initially recusing himself from the case.

Following an "exhaustive review" of "a delicate realm of constitutional law," the justices said that "while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient." The state justices borrowed liberally from the U.S. Supreme Court's ruling in Caperton, concluding that the case before them did not present "extreme facts" that would justify judicial disqualification on due process grounds.

The case involved Marilyn Kaye Freeman, whose 14-year-old daughter (referred to in the opinion as "E.") was placed in a foster home after reporting to police that her mother had assaulted her. Freeman, an attorney, later "solicited one of her clients to kidnap E. from the foster parents, burglarized the foster parents' home, chased the foster parents at high speeds on the freeway, followed them in her car on city streets, glared at them 'in [an] evil manner' when she was spotted, spied on them at their residence and elsewhere, took pictures of them, and sprayed her perfume in their vehicle," the court said.

In 2002, while in custody on charges including solicitation to commit kidnapping, residential burglary and stalking, Freeman asked San Diego Superior Court Judge Robert O'Neill to review her bail and address recent rumors that she was stalking Judge Harry Elias, who was overseeing her dependency court hearings. O'Neill, noting that Elias was a friend he had known for 23 years, recused himself and referred the case to another judge.

O'Neill took up the case again after the rumors were found to be unsubstantiated.

In 2004, before going to trial, Freeman brought a handwritten challenge asking O'Neill to disqualify himself under California's recusal rules. She later withdrew that challenge, but filed another one, telling O'Neill: "I don't believe that once you recused yourself for cause that there was any possible way for that to be overridden." O'Neill denied her request.

A jury found Freeman guilty on all charges and she was sentenced to six years in prison. In 2007, an intermediate California appellate court reversed the conviction, reasoning that O'Neill's failure to disqualify himself after the case was reassigned to him violated Freeman's due process rights.

While the case was pending before the California Supreme Court, the U.S. Supreme Court issued its ruling in Caperton.

The California high court said that O'Neill's acceptance of Freeman's case after initially recusing himself did not warrant "exceptional facts" needed for a due process violation under Caperton.

Freeman's lawyer, Carl Hancock, of the Law Offices of Carl M. Hancock in San Diego, declined comment on the ruling. A call to the California attorney general's office, which represented the state in the case, was not returned.

Amanda Bronstad can be contacted at abronstad@alm.com.