Lee Davis: The Baumgartner Debacle Continues

The state Attorney General’s Office earlier appealed Blackwood’s first retrial order, and on May 24 the Supreme Court issued an opinion saying that former judge Baumgartner’s misconduct off the bench was not reason enough to justify new trials. The high court said that the defense would have to show that actual error or bias had occurred. The justices further questioned Judge Blackwood’s ruling that Baumgartner’s inability to serve as the 13^th juror was justification for new trials. The Court did leave open the possibility that if witness credibility were essential, Baumgartner’s behavior could be used as support. 

Blackwood took the opportunity to revisit his ruling and quickly decided he had been right the first time. The Supreme Court never overruled him and did not bar him from again granting new trials. The justices simply asked that he review his initial order using their opinion as a guide.

Blackwood did base his second retrial order on language contained the Supreme Court’s opinion, specifically mentioning the importance of witness credibility to the ultimate outcome of the trials. Blackwood said because witness credibility was such an “overriding and important issue" at trial he did not feel he was able to step into the role of the 13^th juror left open thanks to Baumgartner’s resignation. 

The order came just a few days after Knox County District Attorney General Randy Nichols filed a motion asking that Blackwood recuse himself from the case. Prosecutors argued that Blackwood was biased against them, having planned to grant new trials before allowing the state to make its case. It is hard to understand their position, given that they are arguably the only ones who could have had knowledge or power to do anything about Baumgartner's misbehavior.

Current law in the state is vague about what is to happen when a motion to recuse is before a judge. The current Rule 10 of the state’s Code of Judicial Conduct states only that: 

“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or] (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.”

The Supreme Court recently adopted a new Rule 10 that is set to go into effect on July 1 of this year. The new rule would prevent a judge whose recusal is being sought from issuing any orders or rules until the motion to recuse has been dealt with. The new rule also gives the petitioning party a right to automatic emergency appeal should the judge deny the motion. Because the rule is not yet in effect Blackwood is permitted to issue his second order despite the current motion for him to recuse himself.