Analysis: Judge swapping part of legal process

Newspapers across northwestern Montana have been covering two stories with ties to Lake County: the court cases of Montana State Sen. Greg Barkus, who faces two counts of negligent vehicular assault and one count of criminal endangerment, and Allen Metzger, who faces a charge of deliberate homicide.

In both cases, judge substitutions have forced out-of-county judges to hear the cases. In Barkus’ case, all three Flathead County judges stepped aside saying they couldn’t hear the case because they had worked with Barkus on legislation. After that, Judge Nels Swandel of Livingston was recruited to hear the case.

However, the prosecution substituted him and Judge Kim Christopher, of Lake County, was chosen to hear the case. After hearing Barkus plead not guilty, the defense substituted Christopher and Judge John McKeon, of Malta, has stepped in to hear the case.

McKeon will get his first official appearance in this case on Dec. 14 when lawyers for both Barkus and the state will meet for an omnibus hearing.

Judges in Metzger’s case have faced similar issues and after Christopher and C.B. McNeil were both substituted, Swandel was tapped to hear the case.

But how and why do judges get substituted?

According to Montana Annotated Code 3-1-804, “each adverse party is entitled to one substitution of a district court judge” and each party does not have to justify their desire for a substitute.

In civil cases, each side has 30 days to file a motion of substitution and in criminal cases the time line is cut down to 10 days.

DEFENSE

For defenders, there are various reasons to file a motion of substitution, Noel Larrivee, a defense attorney in the Lake County public defenders office, said. “It varies with the type of case, the judge and the attorney.”

“For defenders, it’s the client’s decision,” he said. “A lawyer does it in consultation with the client.”

“An attorney may not have a favorable experience with a particular judge,” Larrivee said. “And so that attorney would tell their client ‘I don’t have a good relationship with that judge,’ and the client would have to decide if they want a different judge.”

Another reason for substitutions are perceived biases that the judge has for or against certain cases or charges, Larrivee said.

If a judge has a strong record of being harsh with sex offenses, a defendant charged with a sex offense might want a different judge, he said.

In Polson, Larrivee said, both McNeil and Christopher work hard to maintain a level of consistency in sentencing.

Substituting judges could be beneficial, but it is also a double-edged sword, Larrivee said.

Once a judge is substituted, it is the original judge’s responsibility to find replacements.

According to Montana Code, in multi-judge districts — like Lake County — “all other district judges in that district shall be called before a district judge from another district is called.”

For example, in Lake County, if Judge McNeil is substituted then Judge Christopher would hear the case. If she were substituted as well, then Judge McNeil would find a replacement judge from outside Lake County.

The double-edged sword is you could end up with someone who is “worse,” said Larrivee.

If a judge hands down harsh sentences for people with more than four children and a client has five kids, then a substitution might be made, Larrivee said giving an example.

“However, we might end up with someone who hands down harsher sentences if a defendant has more than two kids.

“It’s just an example, but that’s the kind of risk you run with substitutions,” he said.

PROSECUTION

In Lake County, the prosecutor’s office does not substitute judges unless the defense council has already used their substitution, Mitchell A. Young, Lake County attorney, said.

“If you look at our substitutions over the last few months, you’ll see that ours are always second,” Young said.

He said his office had noticed a pattern that the public defenders office would substitute Judge Christopher on many cases.

Rather than overload Judge McNeil, Young said he decided that any case where Christopher was excused the prosecutor’s office would send the case to an out-of-county judge.

“It isn’t the ideal situation, but it’s better than bogging down the local system,” Young said.

Aside from these kinds of substitutions, Young said his office doesn’t substitute judges.

“Our judges are really good about recusing themselves from a case where they might have a conflict of interest,” he said.

“I can’t think of an example where we knew about a conflict of interest where the judge didn’t step aside and using our substitution would be necessary.”

Past personal issues or a negative experience is not a good enough reason for Young, or any of his deputy county attorneys, to ask a judge to step aside, Young said.

“At some point, you’re going to do more damage to the system than is worth it,” Young said. “If you’re going to substitute any judge you don’t agree with, you wouldn’t be able to appear before any judge in the state.”

If one of Young’s deputy county attorneys wished to file a motion for substitution, they would speak with Young first.

“We just haven’t had the cases where substitutions have been necessary, except for the cases where the defense has substituted first,” Young said.