Prosecutors, defense attorneys spar over move to routinely reject judge

Hennepin County District Judge Robert Small, a longtime federal prosecutor, is at the center of a fight over whether criminal defense lawyers can consistently remove a judge they don't like from hearing their cases.Some public defenders have groused privately for months about their perception that Small is brusque and dismissive with them and openly favors prosecutors.

The feud came to the fore earlier this month with a filing by County Attorney Mike Freeman's office, seeking an end to "blanket filings of notices to remove" by the Fourth District Public Defender's office.

The five-page motion signed by assistant county attorneys Marlene Senechal and Michael Richardson seeks Small's reinstatement on 30 cases from which he was removed during the week of Feb. 14. Small handled criminal first appearances that week.

Small's law clerk said, "He's aware of the motion but doesn't want to comment on it while it is pending."

In Minnesota district courts, both the prosecution and defense can ask for the removal of one assigned judge per case without stating a reason. The removal is automatically granted.

Additional removals by either side require the lawyers to provide an acceptable reason and are much more difficult to obtain.

Freeman said the motion is designed to put a stop to a burdensome practice that results in wasted time and resources for everyone. "It's frustrating, and it's not the right thing to do," he said. "We have never blanket filed in our lives." Freeman's office has, however, filed on judges in high-profile cases -- even taking one recent fight to the state Supreme Court in a losing bid to remove the judge.

"They have the responsibility to do the best they can for their client," Ward said. "I'll be damned if I'm going to have a case in front of a judge where people think they're not getting a fair shake."

Ward declined to say why public defenders are removing Small from cases, saying the issues would emerge at a hearing on the motion before Chief Judge James Swenson. No date has been set.

Freeman's office says defense lawyers are violating a state Supreme Court ruling from 1999. In that case, the Kandiyohi County attorney's office was dissatisfied with a judge's ruling in a juvenile case and began routinely removing the judge from other cases, as did the Willmar city attorney. The court held that the practice of blanket removal does nothing to further the spirit of the free first-removal rule, "but instead strikes at the very heart of judicial independence," according to Senechal and Richardson's motion.

"It is beyond [doubt] that blanket filings are being used by the Hennepin County Public Defender's office -- and not for any particular purpose applicable to a particular case," their motion said.

Although the Supreme Court's ruling applied only to the prosecutors, the Hennepin County motion says it should also apply to the defense.

The motion came a year after Freeman wrote to Ward, raising concerns about his belief the office was blanket filing for removal of Hennepin County District Judge Patricia Kerr Karasov.

In the sharply worded letter attached to the motion, Freeman accused Ward of wasting time and money during a "time of dwindling resources." Ward called the letter Freeman's "ruminations on something he was in error on."

Ward said public defenders are being efficient by removing Small at defendants' first appearances. "I think Mr. Freeman, for whatever reason, believes if a case is assigned to a judge it should stay there, and I completely disagree," Ward said.

The issue of removal can be nettlesome for judges, in part, because it isn't uncommon for political opponents to cite an incumbent judge's removal statistics.

The topic was discussed at length in ethics hearings earlier this year involving now-retired Judge Jack Nordby. He was removed from the same types of hearings by then-Chief Judge Dan Mabley, also a former prosecutor, after complaints from the county attorney, according to testimony.

A Vietnam war veteran, Small, 66, was an assistant U.S. attorney from 1981 to 2006 and ranked high in that office for much of that time. He was acting U.S. attorney during 9/11. His son Andrew Small is a Twin Cities criminal defense lawyer.