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Hypothetically, in a court of law, if a lawyer notices that a particular judge is biased and unfair, can he request that another judge be present to ensure that there's no bias?

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  • I don't know if they can, but generally issues of bias are generally dealt with after the fact, via appeal.
    – sharur
    Commented Feb 14, 2018 at 17:02
  • Wouldn't the normal process be to wait for the judge to demonstrate bias, then use that as the basis of a mistrial or appeal?
    – user
    Commented Feb 14, 2018 at 17:04
  • Do you mean "as a personal favor", or do you mean "require another judge, who has some legal status beyond being in the gallery"?
    – user6726
    Commented Feb 14, 2018 at 17:10
  • I mean if a judge is being very biased and unfair, can a lawyer simply request that another judge handles the case to avoid bias? Can the lawyer request that another judge supervises to ensure that there's no bias? (Hypothetical question).
    – Jason
    Commented Feb 14, 2018 at 17:21

3 Answers 3

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Judges simply do not supervise each other in a courtroom in terms of keeping each other "honest." That's simply not how the courts work. Judges are independent in order to not be influenced by bias.

A judge would look very unkindly upon a lawyer who requested another judge be in the courtroom in an extra-judicial sense, or in some sort of legal sense as (wrongly) perceived by the lawyer. A lawyer is an officer of the court, and as such, knows what is legal in an administrative sense, and would simply not request another judge be in the courtroom.

A lawyer can request a different judge be assigned or take over a case, but the request must generally have a legitimate reason that has a legal basis, i.e., a documented conflict of interest on the part of the judge, or evidence of racial bias. And it is up to the court to grant a change.

Yes, judges have been found to be corrupt and have been removed from the bench. But that doesn't happen very often, and that removal is part of the judicial process to keep judges honest and get rid of "bad" judges.

Yes, judges do issue rulings that are struck down on appeal; that's why there is an appeal process. That is the legal mechanism to keep judges "honest." So, the remedy for what is perceived as an unfair judge or a biased ruling is an appeal to a higher court.

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A lawyer can request anything, but a good part of a lawyer's job is knowing what not to request.

A lot of clients believe a judge is biased. Usually the client is wrong, or at least the bias is within the bounds permitted by law. And usually the judge is trying to do the right thing.

Judges are human, and a lot of them will be biased in some way without being so biased that someone else needs to hear the case. That would usually require explicit and massive and unreasonable bias, such as the judge turning to your client and saying "I am going to make sure you lose because you are too short."

Instead, judicial recusal is about things that create the appearance of bias than it is about actual bias. For example, if the judge used to represent a party in a case (other than in a criminal case, where they can be a former prosecutor who represented the state) or if the judge is has been in litigation against you or your lawyer, they are likely to recuse themself, especially if you file a motion to that effect.

But there is lots of bias that does not rise to the level of recusal. Judges have a great deal of discretion in what they do, and human biases creep into their decision-making as they see more and more cases of a particular type. This is basic pattern-recognition. If I see a hundred cases like X, I start thinking of them all in a similar way.

For example, certain judges in landlord-tenant court will be more landlord-friendly or more tenant-friendly, although they all will try to follow the law. Similarly, in immigration asylum proceedings, the judge you get assigned to is one of the two biggest factors in determining whether you will get asylum.

Even so, most of those biases are not so extreme that it makes sense to try and have the judge recused. Most of the time you will fail, and then the judge will remember what you tried to do.

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So there are a few things that one can do. The most obvious is to file a "Motion for Refusal" where a party to the case polity outlines the biased concerns in the case and asks the judge to pass the case off to another judge. As a general rule of thumb, these biases must have existed from sources not related to the court room (i.e. the Judge says something prejudicial to the press or in passing and evidence to that prejudice can be shown). It does not have to be out of court, but it helps as it shows that this is how the judge thinks off the bench. This is resolved by the judge himself and his own assessment of his biases. If he says yes, go you... get your new judge. If he says no, this at the least documents that you have concerns that the judges own personal issues could affect his impartiality in the trial. It should also be noted that a judge cannot recuse himself if there is no other judge capable of hearing the case is available (the classic example is the case deals with an issue regarding pay of the judicial branch of government. A party cannot claim that the judge needs to recuse himself because the judge is a judge, as this creates a situation where no other judge can hear the case without bring in the biases that they are also judges).

In the case that the judge does refuse and his bias is so blatant and over the top in some way (say you have a picture of him in KKK robes shaking the local klan leader's hand) and your client's skin color is remotely not white, you can also file a petition to a higher court for a "Writ of Prohibition". These are ordinarily to keep lower courts in line with the scope of their jurisdiction, but can be used by superior court to manage bad behavior of the lower courts before they can take action. This includes telling a judge that, in our hypothetical case, he's clearly racist and cannot sit on the bench for this case. This option should be done before the judge can rule on any decision, as Writs of Prohibition can only stop actions that have not happened, they cannot stop actions that the judge already decided (Those are handled through appeals).

TL;DR: You can motion for a judge to recuse himself during the trial for a provable reason. The more unrelated to the trial the better, though if its deferentially signs of prejudice during the trial, do not let that stop you. This is decided entirely by the judge's own self review and if the biases continue is evidence against the decision on appeal at worst (if he still sits but the case is not as biased as you feared, it could have been a non-issue or the judge realized that he was getting close to the line and reeled himself back to the center).

If it's very blatant that the judge is biased and will not recuse himself or stop his biases, you can file for a Writ of Prohibition with the superior court. This is rare, but it will stop the damage before it is done.

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