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Molestation Convictions Vacated and New Recusal Hearing Ordered

April 2, 2018

In Serdula v. State, the Georgia Court of Appeals vacated the defendant’s convictions for multiple counts of unlawful surveillance, child molestation, aggravated sodomy, sexual assault against a person in custody, and aggravated child molestation.

The Court remanded the case to the trial court, though to a different judge, to decide the defendant’s motion to recuse the original trial judge. The Court held that the impartiality of the trial judge could have reasonably been questioned, so it was error for the trial court to deny the defendant’s motion to recuse.

The record showed that, after being indicted, the defendant moved to recuse the trial judge based on his close relationship with the District Attorney. The trial judge himself heard the motion and denied it, stating that he could see no reason why his impartiality might be questioned.

The Georgia Court of Appeals noted that the trial judge had admitted in a subsequent motion for recusal that the District Attorney had served as the judge’s campaign treasurer in 2010. Though that campaign was eventually abandoned after an appointment to Superior Court by the Governor, the defendant’s case was assigned to the judge that same year. The Court was uncertain whether the assertion of a “close relationship” between the trial judge and the District Attorney required a recusal due to the lack of objective facts in the defendant’s motion.

Regardless of the facts set forth in the motion, the Court noted that a trial judge has a duty to recuse himself if he is independently aware of grounds for it and has a duty to disclose information on the record in open court that the parties and attorneys may consider relevant to the issues of recusal or disqualification. Here, the trial judge erred by not making any disclosures regarding his past relationship with the District Attorney.

As a result, the Court remanded the case to develop the facts and judicial disclosures concerning that relationship and noted that, at the very least, the motion should be referred to another judge.

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