Sunday, January 20, 2013

Florida Judge Disqualified, But Not for His Writings on Fingerprints

"Florida Trial Court Excludes the Opinion of a Latent Fingerprint Examiner — Maybe" (Oct. 31, 2012) described a vague "order" of Miami-Dade Circuit Court Judge Milton Hirsch. This order, embellished with some poetry, stated that when the time comes in a burglary case, the judge would exercise his “common sense” to fulfill his “gatekeeping function” for scientific evidence under Florida law to prevent “excessive and unsupportable claims made by fingerprint examiners.” Now that order--whatever it may have meant--has been vacated.

On January 16, 2013, the Florida District Court of Appeal ruled that Judge Hirsch should have disqualified himself rather than issue his earlier order. The court of appeal emphasized that it was not disqualifying the judge because he had written on the subject of scientific evidence and fingerprints. The problem was that in two other cases Judge Hirsch had suggested to prosecutors that that he would grant a motion to disqualify him "because of his preconceived opinions on the subject of fingerprint evidence."

These statements, the court of appeal concluded, "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." This is not the first case in which remarks from Judge Hirsch led to his removal from a case he was trying.

Thanks to former Arizona Superior Court Judge Ronald Reinstein for directing me to this latest opinion in State v. Borrego.

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