COA: Judge should have recused himself

The Indiana Court of Appeals agreed with a defendant that he received ineffective assistance of trial counsel because his
attorney should have filed a motion for change of judge. The sentencing judge had worked as a prosecutor in the early stages
of the defendant’s case 10 years earlier.

In Paul L. Patterson v. State of Indiana, No. 09A02-0909-CR-849, Paul Patterson was arrested
for selling cocaine in 1997 and charged with Class B felony dealing in cocaine. Judge Leo Burns, then a Cass County deputy
prosecutor, signed the information charging Patterson and participated in the probable cause hearing. He didn’t participate
any more in Patterson’s case. Just after a different prosecutor took over the case, Jay Hirschauer was appointed to
represent Patterson. Patterson entered a guilty plea, but fled before sentencing. He was arrested in 2009 in Illinois.

When he appeared in Indiana, Judge Burns had become the judge of Cass Circuit Court. The state brought it to the judge’s
attention that he had worked on the case years earlier, but he didn’t think it required his recusal. Without any objection
from Patterson, the judge sentenced him to 10 years in prison.

Even though Hirschauer didn’t start on Patterson’s case until after Judge Burns stopped working on it, the judge’s
name appeared numerous times in the record, wrote Judge Margret Robb. And since Judge Burns hadn’t recused himself for
his previous involvement in the case, as is required by Judicial Conduct Canon 2.11, Hirschauer should have filed the motion
for a change of judge. Judge Burns would have then been obligated to remove himself from the case. Patterson was prejudiced
because he was denied his right to have an impartial judge preside over his case.

The appellate court remanded to have the case assigned to a different judge. That judge may reject Patterson’s plea
agreement and set the case for trial if he or she deems it appropriate.