Post v. State v. State v. State
298 Ga. 241
| Ga. | 2015Background
- Post, Fripp, and Brown were indicted for crimes arising from a 2009 armed robbery that resulted in two deaths; their cases were assigned to Judge Reuben M. Green after his October 2010 appointment.
- On April 18, 2011 Post filed a recusal motion (with a sworn verification) alleging Judge Green had been employed by the Cobb County DA’s Office when Post’s case was handled there and that DA Patrick Head served as Green’s campaign treasurer (supported by campaign disclosure printouts dated April 13, 2011).
- Judge Green held a contested oral motions hearing on May 31, 2011, during which he openly discussed and defended against the recusal allegations; Fripp and Brown later filed recusal motions based on his hearing statements.
- Judge Green denied the recusal motions and refused to refer them for reassignment; Post appealed and so did Fripp and Brown after conviction; the Supreme Court of Georgia reviewed whether the judge should have referred the motions and whether recusal was required.
- The Court concluded Judge Green erred in not referring Post’s timely and legally sufficient motion for reassignment, and that Fripp’s and Brown’s motions — based on the hearing transcript — required recusal without remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness & affidavit sufficiency of Post’s April 18 motion | Post: motion filed within five days of discovery; verification attached satisfies affidavit requirement | State/Judge: motion untimely and affidavit legally insufficient | Held: motion timely and verification substantially complied with USCR 25.1 affidavit requirement; judge erred in finding otherwise |
| Whether allegations (DA as campaign treasurer) warranted referral for reassignment | Post: DA serving as campaign treasurer creates a reasonable appearance of partiality needing another judge to develop facts | Judge: prior employment or routine campaign support insufficient; relied on Gude | Held: allegation that DA was campaign treasurer (with committee address at DA office) is a nonconclusory fact that, if true, required referral so another judge could develop evidence |
| Judge’s conduct at May 31 hearing (defending himself) as independent ground for recusal (Fripp & Brown) | Fripp/Brown: Judge’s oral defense of himself created appearance of partiality and improvidently allied judge with State | Judge: his disclosures were explanations and denials, not grounds for recusal | Held: judge’s active defense at hearing created appearance of partiality; referral was required and, based on the transcript, recusal must be granted without remand |
| Remedy and effect on convictions | Appellants: convictions should be vacated if proper recusal failed | State: argued proceedings should stand absent reversible error on record | Held: Post’s conviction vacated and remanded for reassignment to decide recusal; Fripp’s and Brown’s convictions vacated and reversed in part because recusal was required based on transcript; all proceedings after filing of recusal motions are void as to those defendants |
Key Cases Cited
- Horn v. Shepherd, 294 Ga. 468 (explains threshold test under USCR for recusal referral)
- Batson-Cook Co. v. Mayor of Savannah, 291 Ga. 114 (procedural limits on judge deciding whether to refer recusal motion)
- Birt v. State, 256 Ga. 483 (sworn verification can satisfy affidavit requirement)
- Gude v. State, 289 Ga. 46 (prior employment in prosecutor’s office, by itself, insufficient to require recusal)
- Isaacs v. State, 257 Ga. 126 (judge’s defense against recusal motion can itself create appearance of partiality)
- Henderson v. State, 295 Ga. 333 (judge presented with recusal motion may not hold evidentiary hearing; must assume affidavit facts true)
- Propst v. Morgan, 288 Ga. 862 (if judge should have been disqualified, proceedings after motion to recuse are void)
- Berger v. United States, 255 U.S. 22 (affidavit facts must be taken as true when deciding whether to refer recusal motion)