Keating was charged with possession of cannabis with intent to sell, and possession of MDMA. Both of these charges are third degree felonies, and both charges qualify Keating for entry into a felony drug court program. However, in order to have a case transferred to felony drug court, the judge must review said request to make sure it qualifies. So, when Keating’s judge read his police report, this judge assumed that Keating was selling MDMA. Keating was not charged with selling MDMA, and Keating’s criminal defense attorney begged the court to take some sworn testimony on the matter in order to clarify the record. The judge denied Keating’s request to be transferred to drug court, based solely upon what was written in the police report. The judge denied all requests for testimony and argument on the matter. I should take this time to say that, you shouldn’t believe everything you read, and this is especially true of police reports and criminal defense blogs. Any judge that simply reads a police report and believes every word concerns me, just as any judge that would believe everything a defendant says would concern me as well.
We pay our judges to call balls and strikes, that’s it. This judge denied drug court without hearing offered testimony, and without permitting any argument. So, Keating’s attorney filed an appeal requesting that this judge be thrown off the case (technically, it’s a Motion to Disqualify, but my language sounds more dramatic, doesn’t it?). Believe it or not, it can be fairly simple to disqualify a judge–the very request can cause most judges to simply bow out gracefully. And, there are many reasons to have a judge disqualified, but the basic premise is that a defendant have a reasonable belief “that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). Yes, we can argue all day as to what constitutes a “reasonable” belief. But the appeals court didn’t need to resort to Webster’s Dictionary for their decision, the focus here was on fair and balanced decision making, or the lack thereof.
The appeals court disqualified Keating’s judge, holding that a “trial court’s adverse ruling is not alone sufficient to require disqualification, but where a court enters an adverse ruling without allowing a party a fair opportunity to present evidence or argument regarding a significant issue, disqualification may be required.” Id. at 540. The appeals court went on to say that Keating “clearly qualifies for entry into the program, desires to enter the program, and the State has not objected. Nevertheless, the court refused to provide petitioner any opportunity to fairly present his case for transfer to drug court. Petitioner has an objectively reasonable basis to fear that he may not receive a fair trial or hearing before the judge”. Id.