A HIGHLY UNUSUAL LOCAL JUDICIAL CONTROVERSY

It's not unusual for a judge to be asked to recuse themselves from a trial when there is reason to believe that he or she would not be able to rule over the proceedings with an even hand. But it's almost always the defense counsel to make such a request, not the prosecution. And the Tenth Judicial Circuit State Attorney's Office is not just asking Judge Susan W. Roberts to recuse herself from one case, but 22 first degree homicide cases in Polk, Highlands, and Hardee counties.

This whole issue began last month when the State Attorney's Office sought to have Judge Roberts disqualified from the pending first degree murder trial against 65-year-old Roy Ballard, who is charged with murder in the death of his stepdaughter, Autumn Traub. Her body has never been found, but prosecutors believe they have enough evidence to not only carry on with the trial, but to seek the death penalty in the case.

The issue with Judge Roberts is that prosecutors believe she is biased against using the death penalty, and it was based on this status conference as reported by the Lakeland Ledger on January 20:

At a status conference Wednesday, Assistant State Attorney Victoria Avalon and defense lawyer Byron Hileman appeared before Roberts.

Hileman told Roberts the state is seeking the death penalty, and if the state persists in seeking the death penalty, he would not be prepared for the penalty phase of the trial if it proceeds as scheduled.

According to the motion filed by the State Attorney's Office, Roberts asked Ballard how old he was, and he told her he was 65 and would turn 66 in May.

Roberts said to Hileman, "Well, you can imagine what I might be thinking," according to the motion. Then she turned to Avalon and said, "That might be a waste of the state's resources. You might want to re-evaluate given his advanced age."

According to the motion, Hileman stated again that if the state were to persist in seeking death in the Ballard case, he would not be prepared for trial.

Roberts said she wanted another status conference on the issue, and asked Avalon, "What would be a reasonable time for it (the issue of the death penalty) to go get it re-evaluated?"

In its motion, the State Attorney's Office pointed out that the trial judge is the one who imposes sentence in a capital case, although the jury makes a nonbinding recommendation.

"Here, the court's comments regarding the suitability of the death penalty in the defendant's case show that the court has prejudged the decision regarding the death penalty in this matter. The court's comments to ASA Avalon, particularly its instruction to ASA Avalon to have the state's intent to seek the death penalty re-evaluated, create an appearance that the court would disregard a death recommendation."

Since then, the controveresy has escalated to where the State Attorney's Office has made another request requesting that Judge Roberts recuse herself from seven homicide cases involving two Lakeland Police Department detectives which have been investivating her adult son, Carson Brawley in a case where a child he had been caring for suffered a significant head injury.

The Ledger today noted that:

The motion said Roberts has already been inteviewed by Kercher in the child injury case. "It is reasonable to assume that Judge Roberts will be questioned further as this investigation continues." The investigation is described as a "criminal, felony matter."

Due to the issues with Judge Roberts, the State Attorney's Office last month requested Governor Charlie Crist to reassign it's handling of the Brawley case to another SAO, which is now being handled by the 13th Circuit SAO in Hillsborough County.

Judges are usually rotated into new divisions every 18 months, and Judge Roberts' tenure in her current division ends in July. Chief Judge J. David Langsford has been reported as saying that he has no plans to transfer Roberts from her current assignment.

This promises to become more interesting...stay tuned.

UPDATE - 02/24 @ 18:27 PM ET: The Lakeland-based Second District Court of Appeals ruled Friday that Judge Roberts should not preside over the trial of Roy Phillip Ballard, which is what primarily sparked the whole controversy between the judge and the Tenth District State Attorney's Office.

Judges Charles Canady (yes, the former State Representative and 12th District Congressman), Craig Villanti, and Douglas Wallace ruled:

"Upon a careful review of the motion filed in the circuit court for disqualification of the judge, we conclude that the motion was legally sufficient. Accordingly the circuit judge should have … disqualified herself. The State's fear that Judge Roberts had prejudged the question of the appropriateness of the death penalty was thus a reasonable fear, and that fear was a legally sufficient reason for the judge's disqualification."

You can view the entire ruling by clicking here (.pdf file). The DCA has not ruled on the prosecutor's motion for Judge Roberts to be removed from other first degree murder cases in the Tenth Judicial Circuit.