The Travis County criminal courts were recently shaken up by the recusal of recently elected Judge Dimple Malhorta, presiding judge of Travis County’s family violence County Court at Law #4. A motion was filed requesting that Judge Dimple be removed from a protective order case because of her bias against criminal defendants charged with family violence offenses. The motion cited her social media posts to support the assertion that she was unfairly biased.
It is extraordinarily uncommon for a judge to be recused from a case in Travis County. Requests for recusal are not uncommon, but actual recusals are rare. The rarity of the recusal and the conduct on which the recusal was based certainly raises eyebrows. This recusal may have a significant impact on this case in particular and the court at large.
It’s Just Social Media…or is it?
Social media platforms were created for people to freely post opinions, read news articles, laugh at memes, and communicate with others. There is no shortage of individuals making a living by carefully crafting a public image. In the case of Judge Dimple, she was using hers to boost her election efforts. This is a common practice in judicial campaigns where a candidate communicates to potential voters where he/she stands on various topics. A candidate is carefully crafting their public persona. And it is really no surprise that a former prosecutor would post things such as:
“If you know me personally, you know the only reason I’m running is because fighting against domestic violence has been a lifelong passion of mine. I have never run for a different court and never will.”
Alongside a news article, she posted with the headline “Boyfriend strangled and killed missing Austin woman, according to the affidavit.” she’s quoted as saying, “This is a tragic reminder that domestic violence is also an epidemic and one that continues to take lives. In this particular incident, a former partner of the suspect alleges that he also strangled her during their relationship. Strangulation is one of the many risks of lethality in relationships where abuse is occurring. … Agencies are still providing assistance with protective orders. County Court 4 will remain open so that those cases can be heard.”
But as a judge, one may not have as much latitude in posting their public opinions, especially when these opinions can be used as fodder to allege bias against those who are supposed to have the constitutional protections to be presumed innocent.
How Does a Recusal Happen?
First, here’s the lawyerly boring stuff.
Recused – when a judge, prosecutor, or juror is unqualified to perform certain legal duties because of a conflict of interest or impartiality
The motion was brought pursuant of the Fifth Amendment (Due Process Clause) and Fourteenth Amendment to the United States Constitution as well as Rule 18b of the Texas Code of Civil Procedure which states:
“A judge must recuse in any proceeding in which: (1) the judge’s impartiality might reasonably be questioned and (2) the judge has a personal bias or prejudice concerning the subject matter…”
In the situation involving Judge Dimple, a motion was filed that outlined her offending conduct. A retired judge was brought in to hear the motion and arguments. Based on the details in the motion and those oral arguments, the visiting judge ordered Judge Dimple “recused”, finding that significant evidence existed that she was biased in favor of those labeled as alleged victims.
The extra-judicial statements pulled from her social media profiles appear to support the accusations that she was an advocate for victims. Herein lies the problem. A judge must remain impartial (even if only maintaining the appearance of impartiality). An individual who is charged with a criminal offense must be presumed innocent until such time they are proven or plead guilty. In the case of a family violence offense, the “other party” (often referred to as the alleged victim) cannot be a victim until guilt of the accused is proven.
Judge Dimple’s statements call into question her ability to see the defendant with a presumption of innocence because she “advocates for victims” and victims merely need to state that an incident occurred. No trial. No evidence review. Just someone stating something happened. The motion asserted and the visiting judge agreed: her social media posts did not equate fairness to all parties of the case, creating an image of a judge who will not give an impartial verdict in a Family Violence Case involving a restraining order.
Even with evidence provided, there’s a grey area of what social media actions make a judge come off as biased.
Facebook Friends Have Tripped Up Other Judges
A simple Facebook friend request can completely derail a case’s conclusion. A Wisconsin judge made this mistake when accepting a friend request from a mother in a domestic violence case he was working on.
The judge liked posts, sent well wishes, and posted pictures of her with her kids. The judge didn’t engage in any interaction with her and stated that none of her actions on social media persuaded the judge’s decision in granting her primary care of her children.
The judge asserted that he already had his mind made up about the case before he accepted the friend request.
The father of the children filed a motion for reconsideration of the judge’s decision because of access to off-the-record facts. The court reviewed: (1) the timing of the Facebook friend request and the judge’s affirmative acceptance; (2) the volume of the mother’s Facebook activity and the likelihood the judge viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) the judge’s lack of disclosure.
Ultimately, the judge’s decision was reversed, and another judge was assigned because of the “serious risk of actual bias.”
So, What Should Judges Post?
Judges accept the duty to respect the judicial office and uphold a public image that places confidence in the community. Since their digital footprint will be under scrutiny if anything stands out, Judge Herbert B Dixon Jr. specifically created four helpful commandments for judges to take into consideration before making something public:
1. Maintain dignity in every comment, photograph, and other information shared on social networking sites.
2. Do not make any comment on a social networking site about a pending matter.
3. Do not view a party’s or a witness’s pages on a social networking site or use social networking sites to obtain information regarding a pending matter.
4. Recuse from any case where the social networking relationship with an attorney or party creates bias or prejudice concerning the lawyer or party.
The above commandments stem from the Model Code of Judicial Conduct.
Judge Dimple is a kind, compassionate and fair individual. Her actions should be an example to not only judges but also prosecutors, defendants, alleged victims, and even defense attorneys about the perils of such public broadcast of opinions and positions. Is Judge Dimple biased? Maybe so…probably so. But we see bias in nearly every aspect of the criminal justice system…bias is human nature. It is not whether or not the bias exists – because it certainly exists – it is how well your advocate, your attorney can manage and overcome the bias to unstack the deck. It is your attorney’s job to shield you from the biases that exist and safely guide your case to a conclusion.
It is important to understand that, at this time, she is only recused from that particular case. And it’s not the first time that a defense attorney has tried to get Judge Dimple recused. While the previous motions were declined, it is expected that this will open the door to many more requests for her recusal. And this recusal could certainly have implications well beyond this particular case.
If you or a loved one has been arrested, reach out to receive a fair shot with someone who doesn’t let systemic bias dictate your future.
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