[Thus begins an editorial in the Dayton Daily News, May 20, 2010. The editorial continues:]
His desire not to serve clearly applies to all death penalty cases.
This is unusual. Several law school professors around the state who follow these matters were contacted by the Dayton Daily News. None could think of a case of a judge making such a request.
Presiding Judge Barbara Gorman approved the request, saying she has approved all requests for recusal.
Judge Wagner made his request not by filling out the usual form, but by putting together a 135-page submission. It includes material from a respected group of lawyers that has studied how the death penalty is applied.
Despite the length, his argument comes down to a simple matter: He cannot justify the death penalty on moral, constitutional or religious grounds. So is he right in recusing himself?
Well, if he is not going to impose the death penalty no matter what, then, of course he should not be sitting on a death penalty case. The law obliges him to proceed on a case-by-case basis. A judge has to follow the law.
The larger question here is whether somebody who can’t follow the law should run for a position as a common pleas judge. Capital cases are part of the territory, after all. Could he have done something short of recusing himself?
Lori Shaw, assistant dean for student affairs and professor of lawyering skills in the University of Dayton School of Law, suggested one option might have been hearing the case but then ruling that the death penalty is unconstitutional. That ruling wouldn’t prevail, but it would fight the fight, at least more than simply passing the case on to somebody else.
Judge Wagner wonders, however, whether it would be appropriate to preside all the way through a capital case in the full knowledge that he wouldn’t apply the ultimate sanction.
Judge Wagner isn’t slated to face voters until 2014. Whether pro-death penalty voters should be upset with him is not so clear. After all, if he refuses to hear a case, the case might go to a judge they might like better.
Still, some voters are likely to have an opinion on this matter.
Even before that, though, the question arises: Should a judge stay in a job in which he refuses to do the biggest, toughest tasks?
Judge Wagner says the question isn’t compelling because death penalty cases are rare. This is his first, except for one in which a plea bargain had been arranged, he said.
Recusing oneself from a case is a respected mechanism. It’s used when a judge knows a person involved in the case or has some other potential conflict of interest. But it’s typically used one case at a time, not for a category of cases.
And not for such a tough category. After all, many judges dread death penalty cases. Some oppose the death penalty as law, but feel they must enforce the law. When a judge declines to take up the burden, that means somebody else ends up with it, in this case Judge Mary Wiseman.
Judge Wagner says that when he first ran for judge at the beginning of the last decade, he thought he could handle a death penalty case. His thinking gradually changed. But he was last elected in 2008 (unopposed).
He has now thrown the court and the public a curve ball, and some people have a right to be upset.
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