A provocative concept, to be sure! Or alternatively, can a defense attorney, under any view of his ethical responsibilities, basically “take on” the judge to justify—indeed, set up—a recusal motion?

Now, some defense attorneys (usually on the fringe and more so years ago) have been willing to “bait” judges. They engage the (prosecution-friendly?) judge and cause him to react, creating a palpable bias against counsel and his client—a deliberate ploy to create sympathy, or justify recusal. Or these attorneys try their case, in part, by confronting the judge, particularly when the jury is seated, in a manner designed to induce error. No one talks about such a “strategy” in polite company, but it is unquestionably practiced by some, sometimes successfully. And not only by “blue collar lawyers” (if there is such a phrase).

Actually, though, a bigger issue may arise concerning the lawyer who suffers from timidity; who may be intimidated by judges. Needless to say, there is a great disequilibrium between an attorney and a judge sitting on that elevated bench. Still, as Benjamin Cardozo famously said in a totally different context, “The timorous may stay at home.” Murphy v. Steeplechase Amusement, 250 N.Y. 479 (1929).

A Recusal Motion?

Unquestionably, whether motivated by timorousness or not, most practitioners fear making a recusal motion, lest there be continuing repercussions when the case goes forward. As if the judge says to herself deep down in her conscious, “He thinks I can't be fair to his client. Oh yeah? Let me show him how fair I can be!” Needless to say, even the most fearless defense attorney who believes a recusal motion would not be a slam-dunk may be loath to seek recusal—look at the potential consequences if it is denied, even if the filing is unquestionably designed to merely protect the record. And the attorney will have to be concerned that his clients in future cases won't suffer because of this recusal motion—it may be a breach in the relationship between the judge and attorney that will go unhealed: judges are human, after all.

'McKernan'

But what about when recusal is warranted—can a failure to move constitute “ineffective assistance,” words that could place a defendant back in the game? There is a tremendously high burden to establish “ineffective assistance,” but can counsel actually aid his client by being (unintentionally) ineffective?