Ethics and Criminal Practice

Is Counsel 'Obligated' to Seek a Judge's Recusal?

, New York Law Journal

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In his Ethics and Criminal Practice column, Joel Cohen writes: Some defense attorneys (usually on the fringe and more so years ago) have been willing to "bait" judges. They engage the (prosecution-friendly?) judge and cause him to react, creating a palpable bias against counsel and client—a deliberate ploy to create sympathy, or justify recusal. Or these attorneys try their case, in part, by confronting the judge, particularly when the jury is seated, in a manner designed to induce error. But what about when recusal is warranted—can a failure to move constitute "ineffective assistance"? Consider the disturbing facts of a recent Third Circuit case.

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