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Recuse you!

 

When Senior Resident Superior Court Judge Ola Lewis determined that there was a conflict of interest between the state and defendant Jeffrey Smith, a Town of Dublin commissioner facing multiple charges related to gaming machines, she went full Oprah on the local district attorney’s office.

You get a recusal! You get a recusal! Everybody gets a recusal!

In her sua sponte, oral order (put in writing two days later), Lewis removed Jonathan David, district attorney for the 13th Judicial District, and his entire office from prosecuting Smith’s 20 indictments, all of which involved his wife’s businesses. After his arrest, Smith filed a civil suit against David and the Bladen County sheriff — alleging damages to his wife’s company during the raid that led to his charges — and motioned to have his charges dismissed for prosecutorial vindictiveness.

In Lewis’ mind, the civil filing created a conflict of interest that warranted disqualifying the entire DA’s office from prosecuting not only Smith, but also his five co-defendants.

In review, however, the state Court of Appeals vacated the order, finding that the trial court exceeded its lawful authority in part because 1991’s State v. Camacho holds that a prosecutor cannot be disqualified unless an actual conflict of interest exists. It defines an actual conflict of interest as arising when a DA or one of his or her staff members has obtained confidential information through an attorney-client relationship — having represented the defendant against the charges he is currently facing — that could be used against him at trial.

And even then, the Camacho court found, only those individuals “who have been exposed to such information” should be DQ’d.

“The mere filing of a civil suit” fails to meet Camacho’s criteria for ousting the DA or any of his staff, Judge Lucy Inman wrote for the appeals court.

Much less, the DA and everyone who works for him.

“Additionally, the order applies not only to defendant Smith, but to five unnamed co-defendants,” Inman wrote.

This Sidebar reporter was going to ask Lewis whether she ever thought that her broad-sweeping order was much of a…gamble. Alas, she’d already commented to the extent that she was going to, writing in a text message to one of Sidebar’s colleagues, simply, that she “shall yield graciously to the ruling of the high court.”

It’s been nearly five years since Smith was arrested, so finally, perhaps, the lower court will have an opportunity to make its own ruling.

 

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