Special Reports

Options are few after recusals, refusals in Brame suit

Pierce County is running out of judges who can hear the Crystal Brame wrongful death lawsuit.

Four of the county's 21 Superior Court judges are on assignments that keep them from hearing any civil trials.

Six others - the most recent on Friday - have stepped away from the case, and two more say they, too, would refuse to hear it if the Brame suit came their way.

They've "recused" themselves, relying on a judicial tool designed to keep justice blind.

Judicial canons say judges should withdraw from a case, without giving a specific reason, if they believe they would be prejudiced, or if someone might have good reason to think they are. Most often, judges who recuse themselves know someone well who's either a lawyer, a witness or a defendant in a case.

Figuring out when judges should disqualify themselves and when they shouldn't isn't always easy, judges and legal experts say.

"There isn't a clear answer," said Rob Aronson, a legal ethics professor for the University of Washington. "That's part of the problem."

"In most cases," he said, "judges should err on the side of recusing themselves."

Barrie Althoff, director of the state Commission on Judicial Conduct, agrees.

"The trend in this area probably is to tighten it up and require recusal more frequently than they have in the past," Althoff said.

Still, recusals must be balanced with a county's need and responsibility to hear cases.

"The basic, underlying policy is the public deserves to have a judge do mainly what he's paid for - to judge," Althoff said. "From a judge's perspective, it's often easier to recuse, to pass the buck to someone else. But judges aren't paid to take the easy way out."

Judges have to be able to live in their community, make friends and make mistakes without the fear that their everyday experiences might keep them from hearing cases.

Does a judge who's had a speeding ticket have to avoid every case of a speeding driver? Can a judge who has a family member who was beaten up never hear an assault case? Do divorced judges have to shy away from all family law cases?

Of course not, experts say.

Judges should live their lives, and rely on recusing themselves only in uncommon scenarios - when a friendship or a traumatic event would keep them from being fair, or would make people think they might not be fair.

"In theory, recusal should cure all ills," said Kurt Bulmer, a Seattle attorney who defends judges against allegations of misconduct. "Otherwise, we've got judges who are afraid of doing anything in the world."

Recusal allows judges to associate with some of the people they see most often - lawyers, other judges, law enforcement officers. It allows them to buy insurance policies or company stock, even though a lawsuit involving those companies theoretically might come before them.

The Brame case is the sort of high-profile lawsuit that might make a judge want to run for cover. Alternately, it could be a thrill for a judge who loves a tough case wrought with complex legal issues.

The lawsuit - brought against the City of Tacoma by Crystal Brame's parents, sister and two children - alleges that officials gave Police Chief David Brame power and then did nothing as he publicly unraveled emotionally.

David Brame fatally shot his wife and himself April 26.

The suit speaks of officials ignoring allegations of domestic violence and includes a witness list full of prominent Pierce County residents and law enforcement officers.

Gosselin, leading a team of attorneys defending the city, said that since the suit involves allegations of official corruption and favoritism, it's especially important to maintain fairness as well as the appearance of fairness.

"Our approach is to look at each assigned judge and determine if that judge ... can act or be perceived as acting fairly," Gosselin said.

Paul Luvera, attorney for Crystal Brame's family, said the city is "judge shopping" - trying to get judges they don't like to recuse themselves, without using their one-time right to bump a judge without giving a reason.

Luvera's team didn't oppose the first judge set to preside over the case, but the city's lawyers did. Luvera later called it "intimidation" to even ask another judge about potential conflicts of interest.

Judges always must be careful about lawyers manipulating the system through recusals, experts say.

"Some people will use rumor and innuendo to try to force a judge to recuse himself," said Judge James Orlando, Pierce County's presiding Superior Court judge.

Many times lawyers try to get judges to recuse because they don't like what they think the judge will do, Althoff said. A judge might be known to be particularly tough at sentencing, or might have ruled against the lawyer in the past.

If a lawyer asks a judge to recuse and the judge won't, that decision can be appealed later. If the lawyer wins on appeal, the case likely would start over again.

When to recuse isn't a new dilemma for judges, and judges at even the highest levels have disagreed for ages. Recent decisions show no consensus.

After Washington State Supreme Court Justice Bobbe Bridge was charged with drunken driving and hit and run last February, she agreed not to hear similar cases for two years.

U.S. Supreme Court Justice Antonin Scalia is under fire for going hunting with Vice President Dick Cheney after the court agreed to take up Cheney's appeal in lawsuits over the way he handled an energy task force. Scalia says he can be impartial.

Most judges say that if anything even vaguely hints of a conflict, they want the lawyers on the case to decide whether they should stay on.

"Ordinarily, if you believe something reasonably could be questioned, you disclose that to the attorneys, and let them make the call," Orlando said.

"If I had a car accident, and I'm presiding over a personal injury case, I don't think my impartiality could be questioned, but I still might want to disclose it."

With a case as notorious as the Brame scandal, people will scrutinize every step, every decision.

Ardith DeRaad, president and founder of the Alliance Against Domestic Violence, said she thinks the county should get a judge from another area, "somebody who isn't part of the city or county structure."

Any judge with even a shadow of a doubt about fairness should step aside, she said.

"This is a very important thing, because the victims are looking," DeRaad said. "They want to be assured they're not going to be another Crystal Brame. And we have the obligation to assure them that we learned our lesson and history won't repeat itself."

Karen Hucks: 253-597-8660

karen.hucks@mail.tribnet.com





SIDEBAR: Six Superior Court judges say they can't hear Brame case



Six Pierce County Superior Court judges have said they can't hear the Crystal Brame lawsuit.

Judge John McCarthy stepped aside after attorneys for the City of Tacoma asked him to because they thought he had too many contacts with witnesses in the high-profile case.

Then, Judges Brian Tollefson, Katherine Stolz, James Orlando and Vicki Hogan recused themselves when they were randomly assigned the case.

Orlando said one of his relatives might be a witness. The others didn't return calls about why they withdrew.

Two other judges - Rosanne Buckner and Kitty-Ann van Doorninck - let Orlando, the presiding judge, know they would do the same if the lawsuit came to them.

Friday, Judge Sergio Armijo disqualified himself after questions arose about whether he'd have a conflict of interest in a case where a major issue is officials accused of ignoring domestic violence in the Brame household.

Armijo was investigated in 1992 for allegedly hitting his daughter with a belt, but was never charged with a crime.

Karen Hucks, The News Tribune

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