"For never was a story of more woe than this of Juliet and her Romeo."The story you are about to read is true. The names have not been changed, as nobody is innocent. This is the city...Miami. Millions of residents. Twenty eight (or so) are Judges assigned to the criminal circuit court. This is the story of one of them: (cue Dragnet theme.. dum da dum dum. Dum da dum dum dum....)Judge Milt Hirsch does not like fingerprints. He told the prosecutors he doesn't like fingerprints and then told them in any fingerprint case to ask him to recuse himself. They did. He didn't. This appeal follows. "The affidavit further avers that, subsequent to this disclosure, in a separate conversation with another prosecutor, David Gilbert, Judge Hirsch suggested that the State file a motion to disqualify him because of his preconceived opinions on the subject of fingerprint evidence. When Mr. Gilbert suggested to Judge Hirsch that he should recuse himself based on his expressed feelings, Judge Hirsch stated he would prefer that the State file a motion to disqualify him, which he would grant. In addition to these statements, the affidavit states that Judge Hirsch told a third prosecutor, Christine Zahralban, that if the judge had a case in which the issue of the reliability of fingerprint evidence was raised prior to trial, he would recuse himself from hearing that case. Based on these statements made by Judge Hirsch and, in light of the defendant’s challenges to the fingerprint evidence and the defendant’s pending motions, the prosecutor in the instant cases took Judge Hirsch at his word and orally requested that he recuse himself. Judge Hirsch replied that he would not disqualify himself sua sponte, but he was expecting the State to file a motion to disqualify him..." "However, despite the averments in these affidavits that Judge Hirsch acknowledged having preconceived opinions on the subject of fingerprints, urged two separate prosecutors on different occasions to file motions to disqualify him in cases where the reliability of fingerprint evidence was raised prior to trial, and told these prosecutors that if they filed such a motion he would grant it, Judge Hirsch denied the motion to disqualify filed by Mr. Ko. This was error." "Although Judge Hirsch’s disclosure of his writings on the issue of fingerprints most likely do not require his disqualification1, his invitations to file motions to disqualify him in cases where the reliability of fingerprint evidence becomes an issue, and his assurances that he would grant such motions if filed, certainly would cause a reasonable person to question the judge’s ability to fairly and impartially adjudicate the issues surrounding the reliability and admissibility of fingerprint evidence in a judicial proceeding."An appeal in the form of a writ of prohibition was taken on Judge Hirsch's refusal to recuse himself on a fingerprint case in State v. Borrego.In a moment....the results of that appeal. "Have more than thou showest, speak less than thou knowest, lend less than thou owest". ( King Lear, Act I, Scene IV).We therefore hold, as our sister courts and as we have previously held, that where a judge makes a disclosure, invites the parties to file a motion to disqualify him, and suggests that such a motion will be granted, the motion, if filed, must be granted...Because we conclude the judge should have granted the motions to disqualify him, his subsequent rulings were without authority and are hereby vacated."Milt for this blog is like a wet t-shirt reality TV show on Fox. Ratings go through the roof. We see a minimum 20% jump in unique hits and readers and a corresponding increase in comments. See you in court. Site Feed
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