Orlando Law Firm: Motion to Disqualify

Orlando Law Firm: Motion to Disqualify State Attorney’s Office

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  • What is a Motion to Disqualify the State Attorney’s Office?
    • It is a motion filed by the Defense requesting that the State Attorney’s Office be removed from the case.
  • When is disqualification an appropriate remedy?
    • Disqualification is an appropriate remedy where the Defense is actually prejudiced by the State Attorney remaining on the case
    • An example would be where a person at the State Attorney’s Office is a victim to a crime.
    • Talk to an Orlando Law Firm to see whether a motion to disqualify is appropriate for your case.
  • Consider some of the key language, found in State v. Hayes, describing when a motion to disqualify the State Attorney’s Office:
    • “The disqualification of Government counsel is a drastic measure and a court should hesitate to impose it except where necessary.”  United States v. Bolden, 353 F.3d 870, 878 (10th Cir.2003) (quoting Bullock v. Carver, 910 F.Supp. 551, 559 (D.Utah 1995)). Recognizing the significant separation of powers issues implicated by such judicial action, the federal appeals courts have uniformly reversed the disqualification of an entire United States Attorney’s Office. See Bolden, 353 F.3d at 879 (noting that “every circuit court that has considered the disqualification of an entire United States Attorney’s Office has reversed the disqualification”). As recently as last year, the Fifth Circuit Court of Appeals has, in an unreported opinion, reminded us that disqualification of an entire governmental attorney’s office, even as a sanction, “must not be imposed cavalierly.”  In re Harris County, Texas, 240 Fed.Appx. 644, 646 (5th Cir.2007) (quoting FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1316 (5th Cir.1995)).
    • “Our Supreme Court of Florida has held that disqualification of a prosecutor is proper “only if specific prejudice can be demonstrated.”   Huggins v. State, 889 So.2d 743, 768 (Fla.2004) (quoting State v. Clausell, 474 So.2d 1189, 1190 (Fla.1985));  see also State v. Fields, 954 So.2d 1218, 1220 (Fla. 3d DCA 2007) (a party seeking disqualification of the State Attorney’s Office must demonstrate actual prejudice).”
    • “Actual prejudice is ‘something more than the mere appearance of impropriety’ ” Huggins, 889 So.2d at 768 (quoting Meggs v. McClure, 538 So.2d 518, 519 (Fla. 1st DCA 1989)), and disqualification of a prosecutor is only proper when it is necessary “to prevent the accused from suffering prejudice that he otherwise would not bear.”  Id. Even where an Assistant State Attorney is a state witness or victim, disqualification of the entire State Attorney’s Office has been found unjustified.   See Clausell, 474 So.2d at 1191 (“no inherent right to disqualification when a member of the State Attorney’s Office is called as a witness in a case prosecuted by an Assistant State Attorney in the same office”);  Brown v. State, 455 So.2d 583 (Fla. 5th DCA 1984) (other members of a State Attorney’s Office not disqualified from prosecuting a criminal case merely because one prosecuting attorney in the office is the alleged victim and a State’s witness in the case).   See also United States v. Cope, 2006 WL 196966 (E.D.Ky.2006)(denying habeas relief and finding no ineffective assistance of counsel where trial counsel failed to file a motion to recuse entire U.S. Attorney’s Office on grounds that target of defendant’s murder for hire scheme was an Assistant U.S. Attorney).”

Call and talk to a lawyer at an Orlando Law Firm today. We can assess your case and determine whether a motion to disqualify is an appropriate motion to file in your case.

Orlando Law Firm. 407-930-8912

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