recusal brief final

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

STATE OF WASHINGTON,

Plaintiff,

vs.

AARON LYON,

Defendant.

))))))))))

No. 09-1-00002-7

MOTION FOR RECUSAL (MT)

I. DEFENDANT’S MOTION

Aaron Lyon, through his attorney Carol Dee Huneke, moves the Court

for an order of recusal and/or disqualification of the Honorable Judge Jerome

Leveque in these matters. This motion is made pursuant to the Due Process

Clause of the United States and Washington Constitutions, Washington’s Code

of Judicial Conduct, and the Appearance of Fairness Doctrine. The Motion is

supported by the record, clerk’s papers in this matter, verbatim report of

SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 1 of 57

SPOKANE COUNTY PUBLIC DEFENDEROrddism.doc <DEPTADDRESS>

SPOKANE, WASHINGTON 99260-0280(3/01) (509) 477-4246 FAX: (509) 477-2567

proceedings from a pre-trial conference held on October 16, 2009 and a court

conference held on January 29, 2010, Certificate of Carol Dee Huneke, and

attached email correspondence.

DATED this 8 day of April, 2023, in Spokane County, Washington.

Respectfully submitted,

____________________________________

Carol Dee HunekeAttorney for Mr. LyonWSBA 23065

II. STATEMENT OF FACTS AND CERTIFICATE OF COUNSEL

I, Carol Dee Huneke, am the attorney of record for Aaron Lyon in this

matter, and am over 18 years of age and competent to testify in the court of

law. I declare under penalty of perjury pursuant to the laws of the State of

Washington that the following is true:




The attached exhibits are accurate copies of the verbatim record,

clerk’s papers, and email. Excerpts of email correspondence listed below and

in the included memorandum of law have been formatted for easier reading

(first in time placed first) with signature lines removed and some relevant

portions emphasized with bold print that does not appear in the original. The

attachments, however, are printed from my county computer without edits. A

few punctuation marks and capitalization have been changed in excerpts from

the verbatim record of proceedings for easier reading; however, again, an

unedited copy of the verbatim record is attached.

Below are relevant facts that I believe would be elicited at an

evidentiary hearing on this matter:

The case against Aaron Lyon was filed January 2009. The trial date

was continued from its original trial setting of March 9, 2009 to August 3,

2009, because the assigned prosecutor, Matthew Duggan, had accepted a

position at the United States Attorney’s Office to begin on March 9, 2009 and

a new prosecutor would be assigned to the case. The defense investigation

of the case and an evaluation of the defendant were also not yet complete.




In July 2009, the trial date was continued to November 2, 2009, at the

defense request for negotiations and the ongoing evaluation process, which

involved voluminous records.

In October 2009, I requested a continuance of the November 2, 2009

trial date, because I had not yet received the report from Dr. Mark Mays, the

psychiatrist we had retained. I had spoken with my client about a

continuance, and persuaded him to agree to a January trial date. My client,

although charged with murder, had no prior felony convictions, had spent

only a handful of days in jail previously, and was charged with “felony

murder,” a concept that can be difficult for anyone to comprehend, but is

even more difficult to process for a person like Aaron Lyon with significant

mental health issues and learning disabilities. Aaron has experienced a

considerable amount of distress while incarcerated in the Spokane County

Jail, especially considering the amount of time inmates spend in “lock-down”

(often 23 hours per day).

Aaron did agree to a continuance of the trial date to January, because

we were still waiting for Dr. Mays report, which I hoped to use to pursue a




negotiated settlement on Aaron’s behalf, among other things. Also, because

I was waiting for this report, and conducting trials and investigation on my

other felony cases, I had not completed my trial preparation, and would not

be ready for trial on the November 2 trial date. The state was aware of my

continuance request, and did not object to a January trial setting.

Because trials are “sent out” every week in Spokane County Superior

Court to one of 11 Superior Court Judges, usually prioritized based on

“speedy trial,” and because criminal cases take priority over civil cases, I did

not discuss continuing the case beyond January with Aaron, especially in

light of the fact that the judges are always pressuring the lawyers for faster

resolution of cases. In my experience with jury trials in Spokane County,

which is extensive, a case that is called ready for trial on any given Monday

will be sent out for trial either the week it is scheduled, or, if the trial docket

is congested, the trial might in some cases get bumped one week, or, in rare

occasions, two weeks. In my experience, the court administrator, Ms. Heidi

Clarke, prioritizes these cases based on “speedy trial.”




Aaron’s case was pre-assigned to Judge Jerome Leveque. In my

experience in Spokane County Superior Court, more complex cases are

sometimes “pre-assigned” to a specific judge in order to, in theory, allow

that judge to become familiar with the case and provide legal rulings on pre-

trial matters, as well as to provide a more definite trial date. However, the

order of pre-assignment does not change the defendant’s speedy trial rights,

nor does it guarantee a trial date. Pre-assigned cases will sometimes be

preempted by cases with a higher speedy-trial priority, or sometimes more

than one pre-assigned case will be scheduled with the same judge on the

same date. When a case that is pre-assigned to a particular judge is sent to

another judge to hear the trial—usually because the pre-assigned judge is

unavailable—this transfer is referred to locally as “brokering.”

On October 16, 2009, Judge Leveque heard my (uncontested) motion

for continuance. The prosecutor, Mark Cipolla, did not object to a January

trial setting, although he did object to a trial date later than January. At the

time of the October 16 hearing, the trial date was scheduled for November 2,

2009. At the hearing, the parties proposed a January 4, 2010 trial setting.




The following are excerpts from verbatim report of proceedings and

email corresponded regarding this case. Copies of these documents are

attached as exhibits.

Excerpts From Verbatim Report Of Proceedings: October 16, 2009 Pre-Trial

Conference and Defendant’s Motion to Continue

MR. CIPOLLA: [ … ] I am gone the last part of December for the holidays so I

have no problem with the January 4th trial date. I would ask

that we do the pretrial motions in December though. RP, 5.

[ … ]

THE COURT: The problem with the January date [ … ] is that the scheduling

of this matter in a civil month. Although I would like to be

able to accommodate based on matters now that are

complicating scheduling, I am going to be very diligent in

making certain that I don’t schedule criminal matters

in civil months and civil matters in criminal months.

November/December are the criminal setting months SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 7 of 57



and then we’d be in March/April. So these are the

months that we’re talking about if this matter is

continued. RP, 5.

[ … ]

It’s going to be tough to put this into place other than kicking

it into the next scheduled month which was going to place us

on the docket in March of 2010. That’s the only place we can

go with it. The other thing is to leave it scheduled where we

are and see if your report comes quickly enough to put the

information before the State that’s going to generate some

action. RP, 6.

MS. HUNEKE: I think the problem with that is—and I would hope that that

would work out—I won’t be ready for that trial date

[November 2], so we’ll be back. If it fails, we’ll be back where

we are now.




THE COURT: So there’s really two reasons. One for potential negotiations

based upon whatever this report may or may not have, and

the other regardless even if we had it two weeks ago you

wouldn’t be ready.

MS. HUNEKE: Right.

[ … ]

MR. CIPOLLA: [ … ] I’m asking the Court to set the most reasonable trial

date and if January is when Ms. Huneke can be ready the

State would be ready and if the Court has to I’d ask the Court

to broker the trial. RP, 7.

[ … ]

I understand Ms. Huneke’s position and what she’s trying to

do, but I also think, on the other side, justice at least requires

of me to ask the Court to find a way to have this case tried in

January and that’s what I’m asking today. RP, 7-8.




THE COURT: And the way to do that would be bring a motion to have it pre-

assigned to a different judge.

MR. CIPOLLA: Would I bring that motion before this Court?

THE COURT: I would think so but I would want to talk to the court

administrator to see what we can do to get this reassigned.

To me from a practical standpoint the first thing to do is to get

down to the court administrator’s office to see whether or not

this can be reassigned as a pre-assigned to a judge available

in January. You don’t file a motion, you don’t go through the

effort, you just get a new judge. I’m not comfortable pre-

assigning to another judge on my own because I’m

somewhat stepping all over the court administrator’s

scheduling issues and I can’t broker the case on a date

that hasn’t yet come before me. I just can’t do it.

What you’re suggesting is we set it on a criminal setting in a

civil month and when the date comes broker it. That runs




the risk of having a judge available on that date for

brokering. RP, 8.

MR. CIPOLLA: Well, I guess I’m asking the Court to set it on the January 4 th

trial date with a pretrial and I would be happy to do the leg

work to see if I can get it pre-assigned to a different Court or if

we get to that court date and we have to get it brokered on

that date then I would do so.

THE COURT: That’s a risk.

MR. CIPOLLA: It’s the risk that would be taken but I’m saying I think we need

to set a realistic trial date and I’m asking for the January trial

date with a pretrial. I’d be happy to talk with Ms. Clarke or

whoever the Court wishes me to talk to about potential re-

assignment of this to another judge, or the Court can certainly

make that inquiry or we’ll just stay here on the 4th and at that

day see who we got. RP, 9.




THE COURT: The word “realistic” is the issue with me. It’s not a realistic

trial date for this department and it isn’t realistic to think have

we’re going to be able to have a judge if we can’t get it out.

Obviously, it was pre-assigned for a reason and that

reason was to have some certainty on the date that it’s

assigned to go is what I would guess. I don’t know

whether brokering fits the bill on that.

[to Ms. Huneke] What are your thoughts?

MS. HUNEKE: I find myself agreeing with Mr. Cipolla that –

THE COURT: What you’re telling the Court is you’ve got something

that you want me to set on a scheduled month that

I’ve already been told not to set criminal cases on that I

already have a ton of other matters set and we’re now having

rescheduling issues for next year because of budgetary

problems where we’re going to be asked to sit on dockets

we’ve never sat on before, and that particular request is




understandable but if doesn’t necessarily mean it’s one I can

accommodate of this request for a continuance. I mean, I’m

not the one that put us here.

MS. HUNEKE: Your honor, I understand the court’s administrative concerns.

It seems like something we can work out, though. I think the

State and I are in agreement that the January trial setting is

the right amount of time. My client doesn’t want to go into

March. The State doesn’t want to go into March. From what

I’m hearing, the victim’s family doesn’t want to go into there

either and we have trials occurring all along then. [ … ] It

sounds to me like it’s more an administrative issue where all

the right people that authorize it aren’t in the same room

together. So maybe if we could just get an agreement in

theory that we will ask for that date, go see what we can do

with Ms. Clarke and another judge and then come back with

the final order. RP, 10.




MR. CIPOLLA: Your honor, I’d also note Mr. Lyon is agreeing to a January

date. Anything beyond that would potentially be

unconstitutional.

THE COURT: I haven’t heard him say that he –

MR. CIPOLLA: Well, I’m just saying—I just heard from the defendant—

THE COURT: Let me finish.

I have not heard the defendant tell me that they do not want

a continuance if this is going to go beyond January on the

refiling. [sic] If that’s the defendant’s position, we’re

going on the date scheduled. I want to hear it on the

record, not from the prosecutor. RP, 10-11.

MS. HUNEKE: Of course we couldn’t say that, Your Honor. We’re not ready

for trial as currently set.

THE COURT: You’re requesting a continuance?

MS. HUNEKE: We are requesting a continuance.




THE COURT: Whether it goes in January or February?

MS. HUNEKE: Well, we would like it to be in January.

THE COURT: I understand, but that’s not my question. I want an answer.

Are you requesting a continuance knowing that in this

department it will be continued to March or April?

MS. HUNEKE: Yes.

THE COURT: Okay. So that’s done.

MR. CIPOLLA: That’s fine, Your Honor, I just wanted clarification because I

didn’t mean to –

THE COURT: We got it.

Now, with the suggestion that we find another date, that’s

great for me. I mean, I think it’s wonderful. I just don’t

want it coming back on me on the record saying well

you set a realistic trial date in January and now we’re

going to go. I didn’t and I’m not going to make that




commitment to the parties that we’ve got a realistic

trial date in this department in January because I can’t

make that commitment especially with the request as

it stands. RP, 11-12.

At the end of this hearing, it was decided that the parties would

discuss with Ms. Clarke the possibility of “brokering” the case to a different

judge to accommodate a January trial setting. When I spoke with Ms. Clarke,

she indicated that she had already discussed the matter with Judge Leveque

or his staff; I can’t specifically remember which person from Judge Leveque’s

court, or whether it was Judge Leveque himself, Ms. Clarke indicated that she

had spoken to, but she was familiar with the “brokering” issue on Mr. Lyon’s

case. She said that “brokering” was not possible for Mr. Lyon.

From: Huneke, Carol Sent: Thursday, October 22, 2009 2:35 PMTo: McCrow, KahrenCc: Cipolla, MarkSubject: RE: State vs. Lyon

Hi Karen and Mark,




I talked to Heidi last friday, and she indicated that we could

not switch judges to accommodate a january setting. I

wasn't able to get back to you earlier this week, because I

had two trials I had to deal with this week (luckily (just

kidding) jared cordts got the flu and I didn't have to do the

second one). I think it would be best to have the court

decide the date--we are still absolutely not ready for

November and are requesting a continuance.

From: McCrow, Kahren Sent: Thursday, October 22, 2009 2:41 PMTo: Huneke, Carol; Cipolla, MarkCc: Clarke, Heidi; Jury MailSubject: RE: State vs. Lyon 09-1-00002-7

Counsel:

We can set it for March 1st - I don't know if it is intended to be

heard at the same time as the State vs. Connor 09-1-00001-9

case, but that is where the Connor case is currently set. The

parties should submit that order ASAP so the prospective jurors

currently scheduled for 11/2 can be called off.From: Huneke, Carol Sent: Thursday, October 22, 2009 3:00 PM




To: McCrow, Kahren; Cipolla, MarkCc: Clarke, Heidi; Jury MailSubject: RE: State vs. Lyon 09-1-00002-7

I would like it set on a different date than connor. [the co-defendant]From: McCrow, Kahren Sent: Thursday, October 22, 2009 3:04 PMTo: Huneke, Carol; Cipolla, MarkCc: Clarke, Heidi; Jury MailSubject: RE: State vs. Lyon 09-1-00002-7

Between vacation and remanded premeditated murder 1 cases, I don't have

any other viable dates in March. So it looks like it needs to be March 1.

Almost three months later, the following email exchange occurred,

indicating that Judge Leveque would not be available to hear Aaron Lyon’s

trial the week of March 1, 2010. It would later come to Ms. Huneke’s

attention that the vacation that would prevent the trial from being heard on

March 1 had been scheduled for “over a year” and was therefore already

scheduled when the October 16 continuance motion was heard (see, email

message from Ms. McCrow to Ms. Huneke with copies to Mr. Cipolla and Ms.

Clarke on May 11, 2010, 9:48 a.m., in relevant part: “As a heads up, we have




rearranged our schedule considerably to accommodate defense counsel's

requests during this case—going so far as to cancel a vacation that had been

scheduled for over a year.”).

At the October 16 continuance hearing, the court gave Mr. Lyon the

choice of going to trial on November 2, 2009 with a lawyer the court was

aware was not ready for trial or “agreeing” to a trial date of March 1, 2010—

a continuance two months longer than the incarcerated Aaron Lyon had

voluntarily agreed to—a date that the court said it could commit to, as

opposed to a January trial setting, even though the court apparently had

previously scheduled a vacation for the week of March 1.

_____________________________________________From: McCrow, Kahren Sent: Thursday, January 14, 2010 9:49 AMTo: Cipolla, Mark; Huneke, Carol; Sterett, Rachel; Nordtvedt, Anna; Carroll, Edward; Steinmetz, Larry; 'Trageser Law Office P.S.'Cc: Clarke, HeidiSubject: Judge Leveque's March trials

Counsel:

There is an issue with trial of the State vs. Lyon case which is currently set

for trial on March 1st. I do not have identified how many trial days that case




is expected to take, but, this department goes on vacation on March 4th and

is gone through the 15th. We currently have the State vs. Terry Connor case

and the State vs. Aleksandr Pavlik scheduled for trial on March 16th. The

following Monday, March 22nd, State vs. Doney is scheduled to go out. If all

of these cases are expected to go, Counsel need to be doing some

prioritizing. Also, Mr. Steinmetz, obviously this severely impacts State vs.

Devlin….

Our department is gone for one day on April 5th, but April 6th we are open

for trial, BUT, State vs. Parkins is scheduled to begin a 2 wk trial the following

Monday on April 12th.

Counsel, I really need some guidance….. Of course, we can just let the

chips fall where they may and attempt to broker any cases that

we're not available to hear, but I'd rather know what the priorities are

before letting that happen._____________________________________________From: McCrow, Kahren Sent: Wednesday, January 20, 2010 10:51 AMTo: Cipolla, Mark; Huneke, CarolCc: Clarke, HeidiSubject: State vs. Lyon, Aaron 09-1-00002-7




Counsel:

The above case is scheduled for trial on March 1st. Unfortunately, this court

is scheduled to be on vacation from March 4th through March 15th. Are you

available for a status conference next Friday, January 29th at 10:30 for a

brief status conference in order to reschedule this trial? Heidi, defendant is

in custody.

Excerpts From Verbatim Report Of Proceedings: January 29, 2010 Hearing

Scheduled By The Court To Address The Court’s Unavailability On Scheduled

Trial Date

MR. CIPOLLA: Your Honor, we’re here on the Court’s motion for a

continuance.

THE COURT: Well …

MR. CIPOLLA: Your Honor, this was presently set when you’re on vacation.

The court specially set this to address the issue of the trial

date.

[ … ]




THE COURT: Ms. Huneke, in terms of settings, what on behalf of the

defendant are your suggested times. Are you ready?

MS. HUNEKE: That’s a big question. What court dates is the court

proposing? I wasn’t totally clear on that.

THE COURT: Well, first of all let me know, are you ready to go?

MS. HUNEKE: Right this second, no. I had planned on getting ready by the

trial date. I’m not at this point because it’s not here yet so …

THE COURT: Well, when you say that, are you ready?

MS. HUNEKE: I’m telling the Court I’m not ready right now. My plan was to

try to get ready by the trial date currently set. It’s always a

promise to try to do something in the future. At this particular

moment, no, of course, I’m not ready.

THE COURT: If you’ll go back to the question, I didn’t ask if you were ready

now. I guess are you ready to try the case and if you’re not

what time frame are you thinking about in terms of being

ready to try the case? I heard an answer saying, well, you’re

ready to try the case by the trial date currently set. Is that

what your response is?




MS. HUNEKE: I said that was my plan to be.

THE COURT: And is that plan something you think you would be able to

meet?

MS. HUNEKE: Perhaps. I can’t say for sure if I could or not. I mean, if this is

the Court’s motion for continuance.

THE COURT: We’ve got a trial date of March 1st; is that right?

MS. HUNEKE: Right.

THE COURT: And March 1st isn’t going to work so you’re saying had had a

plan to be ready by March 1st.

If that date was going to be the date, would you be able at

this point to be ready to try the case?

MS. HUNEKE: I feel like the court is asking me to predict the future. The

best I could tell the Court is that I planned to do my best to be

ready by that date.

THE COURT: I don’t want you feeling something that isn’t a fact. I don’t

want predictions and I’m not asking you to be a soothsayer or

prophet. I’m asking this question: if the trial date was March

1st as you sit here now would you be ready to try the case on

March 1st?




MS. HUNEKE: I think so.

THE COURT: Okay. So, in other words, the time frame to be able to get

this thing done if it’s beyond March 1st is going to provide you

enough time. I mean, if you thought you cold be ready by

March 1st certainly then you could be ready for date following

March 1st.

MS. HUNEKE: If that seems to follow.

I’m not sure exactly what the point of the Court’s inquiry is. I

was brought here because the Court wants to continue the

trial date. It’s not my motion and so I’m feeling a little put on

the spot.

THE COURT: Don’t do this. Don’t do this. What I’m trying to find out is

we’ve got to move from March 1st. I’ll be picking dates for

that. I don’t want to pick dates that you’re going to tell me

that’s too soon, I can’t be ready.

MS. HUNEKE: Well, there are no dates that I’m going to say that to beyond

March 1st.

THE COURT: That’s what I was driving at. And if it was a question so

obtuse, I apologize. If it wasn’t … RP, 17.




[ … ]

THE COURT: Ms. Huneke, are you going to have any concerns with a

Tuesday start if it’s March 16th? RP, 19.

MS. HUNEKE: For myself personally, I wouldn’t, but Mr. Lyon isn’t interested

in agreeing to a continuance just because of the speedy trial

issues and things like that. So we are objecting to any

continuance, for the record.

[ … ]

THE COURT: Okay. At this particular time and because we do have some

serious doubts about the availability of that date those doubts

goes both ways. I don’t believe that Court can continue this

from the 1st because that date of March 1st may be available

and unless I had some definitive information to say it is simply

not available I’d feel uncomfortable continuing this case from

the March 1st date. So under those circumstances and

because of that potential this date is still available I’m going

to deny the motion to continue.

MR. CIPOLLA: Your Honor, it’s actually the Court’s motion.

THE COURT: Yeah, but you know.




[At this point, the judges’ judicial assistant, Ms. McCrow, entered the

courtroom and approached the judge. It was apparent from what was

overheard that the assistant was reminding the court that the court had

vacation starting that week.]

MR. CIPOLLA: Your Honor, I’ll note to the Court the Court’s vacation is good

cause under State v. Greeley. [sic]

THE COURT: No, I understand it’s good cause. I’m willing to reschedule my

vacation and try this case March 1st. So the motion to

continue this is unnecessary and it’s to go out on March 1st.

RP, 19.

On February 4, the state filed a Note for Motion, Memorandum in

Support of Continuance, and Certificate of Mark Cipolla, all based on the

unavailability for trial of Detective Kip Hollenbeck.1 The parties signed an

1 In his certificate, Mr. Cipolla wrote that he had not verified Det. Hollenbeck’s availability for the March 1 trial date, because he had been lead to believe by Ms. Huneke that she would agree to the court’s motion to continue. I do not recall making any such representation to Mr. Cipolla. I can find no email correspondence between Mr. Cipolla and myself that would verify this claim. It also seems that Mr. Cipolla would have mentioned my agreement to the court at the hearing on the matter. Mr. Cipolla’s use of my supposed “agreement” to the court’s continuance as a justification for not verifying the SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 26 of 57



agreed order continuing the trial date to April 26, 2010. The order

continuing the trial date to April 26, 2010, was signed off by the parties, the

court, and Mr. Lyon, and entered on February 10, 2010.

On April 26, 2010, Mr. Lyon pled guilty to the amended charge of

Murder 2. The court set sentencing for May 13, 2010 while the parties were

still present in the courtroom. Ms. Huneke indicated that she needed to

check whether Aaron’s parents were available to travel to Spokane on that

date, and would correspond with the court as soon as she checked.

detective’s availability for the trial date caused me distress at the time I read it. I did not believe that I had represented that I would agree to the court’s continuance, but I felt that by pointing this out, I would be sabotaging any hope of negotiating a settlement with Mr. Cipolla. I also felt that Judge Leveque might not treat me fairly in a credibility dispute with Mr. Cipolla, based on my perception that Judge Leveque believed that I had caused him to cancel his vacation by objecting to the court’s continuance. Ultimately, I decided not to raise the agreement issue or a recusal motion at that time. Even though I do not believe I communicated that I would agree to the court’s motion to continue, I assumed that the court would grant its own motion—there were at least 30 days of speedy trial remaining, and the court could easily, with or without good cause, move the trial date to accommodate its vacation. My main objectives in voicing an objection to the continuance were 1) to help maintain my relationship with my client, who had felt forced into agreeing to a longer continuance than he wanted at our January hearing; and 2) to “burn up” some speedy trial time in order to make brokering a trial easier by giving us a higher priority on speedy trial. I also considered a motion to recuse at that time—my client was upset by the court’s statement that it was foregoing its vacation due to his trial. Aaron was worried that Judge Leveque might not treat him fairly if the judge perceived that it was Aaron’s fault that the court’s vacation was cancelled. I discussed this issue with Aaron, and told him that I thought that the Judge’s reaction to our objection was odd; but that I thought the court would realize upon reflection the impropriety of publicly canceling a vacation based on the assertion of a right. For these reasons, Aaron agreed to the state’s motion to continue based on Detective Hollenbeck’s unavailability, thus moving the trial date into April. When the new April trial date was chosen, it was chosen off the record with the parties in the court’s office. I agreed to the date chosen by Mr. Cipolla and the court, and had my client sign off on that date.SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 27 of 57



_____________________________________________From: Huneke, Carol Sent: Monday, April 26, 2010 4:12 PMTo: McCrow, Kahren; Cipolla, MarkSubject: Lyon sentencing date

Hello,

I request to reschedule the sentencing date that was set this morning. Unfortunately, the May 13th date will be impossible for Aaron's father (Dr. Ken Lyon) to attend, and I believe his attendance is crucial.

Dr. Lyon is a superintendent of schools in the Seattle area, and chairs an interview committee which has previously scheduled interviews for a new principal at one of the schools, scheduled all day on May 12 and May 13. As the chair of the interview committee, he is not able to transfer his duties (he is the only one trained to chair amongst the participants), and it would be a dereliction of his duty to the school board to fail to attend the interviews, which have been long-scheduled.

Would you have anything open on Friday May 21st? I am not available on May 18th or 19th. I can provide more availability dates if the 21st will not work.

Thanks, Carol_____________________________________________From: McCrow, Kahren Sent: Tuesday, April 27, 2010 4:21 PM




To: Huneke, Carol; Cipolla, MarkSubject: RE: Lyon sentencing date

Judge Leveque's motion docket is full on May 21st. How about

May 27th at 4:00?_____________________________________________From: Cipolla, Mark Sent: Wednesday, April 28, 2010 7:15 AMTo: McCrow, KahrenSubject: RE: Lyon sentencing date

works for me_____________________________________________From: McCrow, Kahren Sent: Wednesday, April 28, 2010 8:26 AMTo: Cipolla, Mark; Huneke, CarolCc: Clarke, HeidiSubject: RE: Lyon sentencing date

Assuming this is okay with Ms. Huneke, please prepare an amended

scheduling order and provide it for the judge's signature. Heidi/Kim, please

change transport from May 13th at 4:00 to May 27th at 4:00. Thanks.

Two weeks later, on May 10, 2010, the following email exchange occurred:




On May 10, 2010, at 11:02 AM, "McCrow, Kahren"

<[email protected]> wrote:

Counsel:

How would you feel about moving the sentencing on Mr. Lyon

two days earlier to May 25th at 4:00? From: Huneke, Carol Sent: Monday, May 10, 2010 11:07 AMTo: McCrow, KahrenCc: Cipolla, Mark; Clarke, HeidiSubject: Re: State vs. Lyon 09-1-00002-7

I’ve got people who have made travel arrangements

based on the current date.

From: McCrow, Kahren Sent: Monday, May 10, 2010 11:12 AMTo: Huneke, CarolCc: Cipolla, Mark; Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

I'll check with the judge, but they may need to make

other arrangements.

From: McCrow, Kahren Sent: Tuesday, May 11, 2010 8:37 AM




mailto:[email protected]

To: Cipolla, Mark; Huneke, CarolCc: Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

Counsel, I do need to move it from the current

sentencing date, and May 25th at 4:00 remains the

best date and time for rescheduling. I expect

counsel will cooperate in preparing and presenting

an amended scheduling order.

From: Huneke, Carol Sent: Tuesday, May 11, 2010 9:43 AMTo: McCrow, Kahren; Cipolla, MarkCc: Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

Good morning,

I do not believe that May 25th will work for my

client's family and witnesses. It required some

amount of juggling to arrange for everyone's travel

to Spokane on the date that is currently set. My

client's father, Dr. Ken Lyon, is an superintendent of




schools on the East side, and has a very time-

committed schedule. A witness, Jeff Jones, is a

plaintiff's lawyer in private practice who has

arranged his schedule to accommodate the current

setting. I understand, of course, that conflicts in

scheduling arise; however, I will need to re-

synchronize everyone's schedule, and this will

necessitate a later setting than the currently

scheduled date, rather than an earlier one.

Kahren, if you could send me possible dates in June, I

will attempt to re-juggle the schedules.

__________________________________From: Cipolla, Mark Sent: Tuesday, May 11, 2010 9:49 AMTo: Huneke, Carol; McCrow, KahrenSubject: RE: State vs. Lyon 09-1-00002-7

The State is not aware of any authority that

defendant's family has any statutory right to be at

sentencing or a that a civil attorney has such a

right. SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 32 of 57



The present date works or the 25th works. The

victims family would like closure and they do have a

statutory right to have it scheduled to accommodate

them and they are available on the 25th and 27th. I

will prepare the order.

Thank you

Mark Cipolla

From: McCrow, Kahren Sent: Tuesday, May 11, 2010 9:48 AMTo: Huneke, Carol; Cipolla, MarkCc: Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

I'll check with the judge and to see if a June date is

acceptable. As a heads up, we have rearranged

our schedule considerably to accommodate

defense counsel's requests during this case -

going so far as to cancel a vacation that had

been scheduled for over a year.




From: Huneke, Carol Sent: Tuesday, May 11, 2010 9:56 AMTo: McCrow, Kahren; Cipolla, MarkCc: Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

I will be filing a motion for Judge Leveque to recuse himself

from hearing this case. When will the court be available to

hear this motion?

From: McCrow, Kahren Sent: Tuesday, May 11, 2010 9:57 AMTo: Huneke, Carol; Cipolla, Mark; Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

At the time of the sentencing on May 25th.

From: Huneke, Carol Sent: Tuesday, May 11, 2010 10:05 AMTo: McCrow, KahrenCc: Cipolla, MarkSubject: RE: State vs. Lyon 09-1-00002-7

I am requesting an earlier date for the court to hear this motion,

preferably this week. I will be out of the office May 18-21.




From: McCrow, Kahren Sent: Tuesday, May 11, 2010 10:37 AMTo: Huneke, Carol; Cipolla, MarkCc: Clarke, HeidiSubject: RE: State vs. Lyon 09-1-00002-7

I have spoken with Judge Leveque, and he states the sentencing can remain

on the original date - May 27th at 4:00. He told me that I should find his first

available time for Ms. Huneke to bring her emergency motion for his recusal

- that time is May 19th at 8:30. Heidi, will you arrange transport for that

date and time and also return the sentencing transport to May 27th at 4:00?

Thanks.

From: Clarke, Heidi Sent: Tuesday, May 11, 2010 10:42 AMTo: McCrow, Kahren; Huneke, Carol; Cipolla, MarkSubject: RE: State vs. Lyon 09-1-00002-7

Transport scheduled for 5-19, 8:30 a.m., and for 5-27, 4:00 p.m. Thanks.

_____________________________________

From: Huneke, Carol




Sent: Tuesday, May 11, 2010 11:00 AM

To: Clarke, Heidi; McCrow, Kahren; Cipolla, Mark

Subject: RE: State vs. Lyon 09-1-00002-7

Heidi, I am out of town and not available May 18-21; therefore, the May 19th hearing should not be set on that date.

Because I had not heard back from either Ms. Clarke or Ms. McCrow by

almost 3:00 p.m. despite having sent my email message at 10:42 a.m., I

forwarded an email confirmation of my trip to San Francisco May 18-19 (I had

a separate trip and furlough day immediately following the San Francisco

trip, which accounts for my unavailability through May 21. I can, of course,

provide confirmation of this as well.) I had never found it necessary to

provide “proof” that I would be out of town on a date of stated unavailability

before this email exchange.

-----Original Message-----

From: Huneke, Carol

Sent: Tuesday, May 11, 2010 2:40 PM

To: McCrow, Kahren; Clarke, Heidi; Cipolla, Mark

Subject: FW: E ticket issued CONFIRMATION




-----Original Message-----From: Angela Auyong [mailto:[email protected]]Sent: Tuesday, April 13, 2010 3:35 PMTo: Huneke, CarolCc: Tamara ApartonSubject: Fw: E ticket issued CONFIRMATION

Hi Carol,

See attached e ticket for your flights. I will book the hotel for you and

will send you the details in a later email.

Angela

Angela AuyongExecutive AssistantOffice of the Public Defender555 Seventh StreetSan Francisco CA 94103Tel: 415-553-1677Fax: 415-553-1607

----- Forwarded by Angela Auyong/PUBDEF/SFGOV on 04/13/2010 03:32 PM -----

From: francis <[email protected]>




To: Angela Auyong <[email protected]>

Date: 04/13/2010 03:28 PM

Subject: Re: Tentative schedule form SPOKANE - E ticket issued CONFIRMATION

*** ELECTRONIC TICKET ISSUED

*** UNITED CONFIRMATION - VLGCH8

*** VALID GOVT ISSUED PICTURE ID REQUIRED AT AIRPORT CHECK IN

*** AISLE SEATS PREASSIGNED

HUNEKE/CAROL

Within an hour, I received an email response to my travel confirmation,

stating that it [now] appeared that I had a conflict with the May 19 hearing

set by Judge Leveque. The court rescheduled the motion to recuse to be

heard on May 27 at 3:30, 30 minutes prior to the sentencing hearing.

-----Original Message-----

From: McCrow, Kahren


To: Huneke, Carol; Clarke, Heidi; Cipolla, Mark

Subject: RE: E ticket issued CONFIRMATION

As it appears that Ms. Huneke has a conflict with the court's

availability, the defendant's motion for judicial recusal will be heard pursuant




to the attached Amended Order. Heidi, please strike transport on May 19th

and reschedule the May 27th hearing to half an hour earlier at 3:30. Thank

you.

________________________________________

From: Huneke, Carol


To: McCrow, Kahren; Clarke, Heidi; Cipolla, Mark

Subject: RE: E ticket issued CONFIRMATION

Is there any way that we can have my motion to recuse scheduled on a

different day than the sentencing? We are requesting an exceptional

sentence downward, and it is essential that our witnesses be present;

however, I would prefer that they not waste a trip over here.

Thanks, Carol

In response to my request that the motion to recuse be heard on a

different day, I received a letter from the Court. In part this letter reads:

“Your request for the hearing within the next three days unfortunately cannot be accommodated, and your statement that you will not be available after the 18th of May, coupled with your intent to have this as soon as




possible leaves May 27th at 3:30 as the time and date to hear your argument regarding recusal.

Scheduling conflicts burden everyone and sometimes there are no good solutions, and again unfortunately this may be one of those times in spite of the Court’s best effort.”

I am not sure from what source the court receives its

information; however, I did not insist that the recusal motion be

heard within the next three days; I asked for a date for the recusal

motion “earlier” than the sentencing date (which at the time I

wrote this request was still set for May 25th). I also did not say that

I was not available after May 18, I wrote that I was unavailable May

18-21. I also never asked that the sentencing be heard as soon as

possible, I simply asked that the recusal motion please be heard on

a date earlier than the sentencing hearing, so that Dr. and Mrs.

Lyon and family friend Jeff Jones would not waste a trip to Spokane.

“I am requesting an earlier date for the court to hear this motion, preferably

this week. I will be out of the office May 18-21.”




“It required some amount of juggling to arrange for everyone's travel to

Spokane on the date that is currently set. My client's father, Dr. Ken Lyon, is

a superintendent of schools on the East side, and has a very time-committed

schedule. A witness, Jeff Jones, is a plaintiff's lawyer in private practice who

has arranged his schedule to accommodate the current setting. I

understand, of course, that conflicts in scheduling arise; however, I

will need to re-synchronize everyone's schedule, and this will

necessitate a later setting than the currently scheduled date, rather

than an earlier one.

Kahren, if you could send me possible dates in June, I will attempt

to re-juggle the schedules.”

Regarding the timing of this brief:

_____________________________________________From: Huneke, Carol Sent: Tuesday, May 11, 2010 10:14 AMTo: McMaster, TammeySubject: transcript request Good morning Tammey, I request a transcript of the pre-trial conference hearing held on Jan 29, 2010, (I think at 10:30?) on case no. 09-1-00002-7, State v. Aaron Lyon. I request that this be expedited, please. Could you please let me know how long you anticipate that it will take to prepare this transcript?




Thanks, Carol.

_____________________________________________From: Huneke, Carol Sent: Tuesday, May 11, 2010 12:08 PMTo: McMaster, TammeySubject: ADD'L transcript request Hi again Tammey, I will also need a transcript of the hearing held on Mr. Lyon's case on October 16, 2010. I believe it was either a scheduling hearing or a pretrial conference. Could you please let me know when you will be able to get these to me? I will need both transcripts as quickly as possible. Thanks, Carol

________________________________________

From: McMaster, Tammey


To: Huneke, Carol

Subject: RE: ADD'L transcript request

Hi Carol,

I should be able to have them to you fairly quickly. I'm thinking Monday at the latest but will be shooting for Friday.

Thanks,




Tammey

_____________________________________________From: Huneke, Carol Sent: Monday, May 17, 2010 3:01 PMTo: McMaster, TammeySubject: RE: ADD'L transcript request Hi Tammey--any chance these are done yet?

________________________________________From: McMaster, TammeySent: Monday, May 17, 2010 3:19 PMTo: Huneke, CarolSubject: RE: ADD'L transcript request

Hi Carol,

Almost. On my last proof and then I'll be putting it together. I'll email you when I'm done.

Thanks,Tammey

_____________________________________________From: McMaster, Tammey Sent: Monday, May 17, 2010 3:46 PMTo: Huneke, CarolSubject: Lyon Your vrp is ready and available for pick up at your convenience.

_____________________________________________From: Huneke, Carol SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 43 of 57



Sent: Monday, May 17, 2010 4:58 PMTo: McMaster, TammeySubject: RE: Lyon Would it be possible to email a copy?

_____________________________________________From: Huneke, Carol Sent: Monday, May 17, 2010 4:58 PMTo: McMaster, TammeySubject: RE: Lyon Would it be possible to email a copy? ________________________________________From: McMaster, TammeySent: Thursday, May 20, 2010 1:22 PMTo: Huneke, CarolSubject: RE: Lyon

Hi Carol,

Apologies for the delayed response. I've been out ill and just returned today. I have it in my office probably be faster than waiting for me to have time to email it. Want me on our next recess to deliver it somewhere or interoffice mail?

Thanks,Tammey

I am extremely grateful for Ms. McMaster’s quick preparation of the

transcript on these matters. Unfortunately, I wasn’t able to get the reports SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 44 of 57



before leaving town. I thought an emailed copy of the reports would suffice;

however, unfortunately Ms. McMaster became ill, and wasn’t able to respond

to my request for an emailed copy until Thursday, May 20. This was no fault

of Ms. McMaster, of course. However, due to the nature of my travel that

week, I was not able to begin writing the recusal brief until this Monday, May

24, 2010.

Besides mandatory court appearances and pre-schedule client

appointments, I have done little else this week, other than the preparation of

this brief; including foregoing preparation for sentencing. (I did stop for a

glass of Iced Tea on my way home from work yesterday.) I have slept 3

hours the last two nights. If the court is able to read this document this

morning, and the reading of my documents leads the court to believe that

sentencing will not occur today, I ask that the court let me know, so that I

may prevent the Lyons and Mr. Jones from flying to Spokane. To halt the

Lyons travel plans, I would need to know by 9:30 a.m. To halt Mr. Jones

travel plans, I would need to know by 10:30.

It may also be appropriate for another judge to hear the recusal

motion.SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 45 of 57



I certify under penalty of perjury that the foregoing is true.

SIGNED in Spokane County, WA, this 27th day of May, 2010

Carol Dee Huneke, WSBA No. 23065

A. Legal Background

Due Process principles, Washington’s Code of Judicial Conduct, and the

Appearance of Fairness Doctrine require a judge to disqualify himself if he is

biased against a party or his impartiality may reasonably be questioned. See

State v. Dominguez, 81 Wn.App. 325, 328 (1996). An unbiased judge and

the appearance of fairness are hallmarks of due process. See, e.g., Ward v.

Village of Monroeville, 409 U.S. 57 (1972); State v. Cozza, 71 Wn.App. 252,

255 (1993). See also Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (Due

Process Clause requires a judge “with no actual bias against the defendant

or interest in the outcome of this particular case”).




“The Due Process Clause entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases.” Marshall v. Jerricho,

Inc., 446 U.S. 238, 242 (1980). The neutrality requirement of the Fourteenth

Amendment “preserves both the appearance and reality of fairness,

‘generating the feeling, so important to a popular government, that justice

has been done,’ by ensuring that no person will be deprived of his interests

in the absence of a proceeding in which he may present his case with

assurance that the arbiter is not predisposed to find against him.” Marshall,

446 U.S. at 242.




Indeed, “justice must satisfy the appearance of justice,” Offutt v. United States, 348 U.S. 11, 14 (1954), and this stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” In re Murchison, 349 U.S. 133, 136 (1955).

Marshall, 446 U.S. at 243.2

2 The United States Supreme court reaffirmed these core principles in the very recent case of Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009). In that civil case arising from a law suit against a coal mining company in West Virginia, the state’s highest court had ruled that the due process clause protected against only actual, subjective, judicial bias, and did not protect against objective, appearance-of-bias, problems. In fact, the U.S. Supreme Court explained that the challenged West Virginia high court judge – Judge Benjamin – refused to recuse himself from hearing the Caperton case because he “had no direct, personal, substantial, pecuniary interest in this case,” and that judge concluded that “a standard merely of ‘appearances,’ … seems little more than an invitation to subject West Virginia’s justice system to the vagaries of the day – a framework in which predictability and stability yield to supposition, innuendo, half-truths, and partisan manipulations.” Id., 129 S.Ct. at 2259 (citations omitted) (internal quotations omitted). The Supreme Court reversed, however, on the ground that the Due Process Clause protected against more than just actual, subjective, judicial bias.




More than fifty years ago, the Washington Supreme Court affirmed the

granting of a new trial to the plaintiff on the grounds that the actions of the

trial judge’s former law partner made it impossible for the judge to preside

over the trial and to satisfy the constitutional requirement of maintaining the

appearance of fairness. The issue in that case was who owned certain

property situated on a river which had changed its course. The judge heard

the case and entered a decision in favor of the plaintiff. But then the

defendant moved for a new trial on the grounds that the judge’s former law

partner had given a legal opinion to the plaintiff which was favorable to the

plaintiff. Although the judge never saw the letter until after the trial was

over and after he had ruled in favor of the plaintiff, the defendant argued

that given the prior legal opinion given by his former law partner, there was

an appearance of fairness problem. The trial judge agreed, and granted a

new trial to be held before a different judge. The trial judge’s order stated:

Notwithstanding the fact that the Court has no independent recollection of the letter or the contents thereof and has no prior knowledge of the facts involved in said action, nevertheless the integrity of the Court is made an issue, and the plaintiff may justifiably feel that he has been denied a fair trial.

Dimmel v. Campbell, 68 Wn.2d 697, 699 (1966).SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 49 of 57



The plaintiff appealed and the Supreme Court affirmed the decision to

grant a new trial on appearance of fairness grounds, holding that a new trial

was required even though there was no indication that the trial judge was

actually biased in favor of the position that had been taken by his former law

partner:

We are in complete agreement with the observation made by appellants that the record does not give the slightest hint that the forthright trial judge gave other than open mind and impartial ear to the cause tried before him. Even so, we are not disposed to hold that the trial court abused his discretion in granting a new trial. While we are of the opinion that the cause was impartially decided, the conclusion cannot be escaped that the very existence of the letter beclouded the entire proceeding. It is incumbent upon members of the judiciary to avoid even a cause for suspicion of irregularity in the discharge of their duties. Why the nature of the letter was not disclosed to the court prior to trial eludes out speculation. We have no doubt that, had the letter been presented at the proper time, the trial judge would have removed himself from the case.

Dimmel, 68 Wn.2d at 699 (bold italics added).3

3 The Dimmel rule recognizing a trial judge’s responsibility to disqualify himself when circumstances indicate that his impartiality would reasonably be questioned is now codified in CJC (3)(D)(1) which provides in part: “Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .” State v. Gamble, ---_Wn.2d ---, ¶ 65, 2010 WL 315024 (Jan. 28, 2010).SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 50 of 57



The principle recognized in Dimmel has been repeatedly affirmed.

See, e.g., State v. Gamble, __ Wn.2d __, ¶ 65, 2010 WL 315024 (Jan. 28,

2010) (“The law goes farther than requiring an impartial judge, it also

requires that the judge appear to be impartial.”); State v. Madry, 8 Wn.App.

61, 69-70 (1972) (“A judge should disqualify himself in a proceeding in which

his impartiality might reasonably be questioned.”); State v. Romano, 34

Wn.App. 567, 569 (1983) (“Next in importance to rendering a righteous

judgment, is that it be accomplished in such a manner that no reasonable

question as to impartiality or fairness can be raised.”).

The Code of Judicial Conduct (“CJC”) is binding upon all judges in

Washington. See generally In re Anderson, 138 Wn.2d 830 (1999) (as

amended). The CJC provides in relevant part:

Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to incidences in which:

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;




CJC 3(D)(1). In applying the CJC, courts should view the canons broadly and

should “err, if at all, on the side of caution.” State v. Graham, 91 Wn.App.

663, 670 (2001).

The Appearance of Fairness Doctrine, implicit within the CJC, requires a

court to inquire as to how the proceeding would appear to a reasonably

prudent and disinterested person. See Smith v. Behr, 113 Wn.App. 306

(2002). “The test to determine whether a judge’s impartiality might

reasonably be questioned is an objective one that assumes that a reasonable

person knows and understands all the relevant facts.” Id. (citations and

internal quotations omitted). See also Sherman v. State, 128 Wn.2d 164,

205-06 (1995) (stating the canon’s “reasonable person” standard and

remanding the case to a different judge).

B. Recusal is Required in this Case

Recusal is required in Aaron Lyon’s case, because the court apparently

holds Mr. Lyon and his attorney responsible for the cancellation of the court’s

vacation last March. First, the court made the decision to forego its vacation

immediately following the defendant’s objection to the court’s proposed

continuance of the trial date. After the defendant’s objection was SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 52 of 57



articulated, the Court stated on the record in Mr. Lyon’s presence that it was

foregoing its vacation, and it was obvious from the context that the cancelled

vacation was in direct response to the defendant’s objection to the

continuance.

The court’s implied request for Mr. Lyon’s consent to a continuance to

accommodate the court’s vacation created the appearance of bias.

Assuming that the court’s vacation was something desirable to the court, the

court created the appearance of prejudice by asking for Mr. Lyon’s

agreement to the court’s continuance request, and again by foregoing its

vacation based on Mr. Lyon’s objection to the continuance. Furthermore, the

Court violated the Appearance of Fairness Doctrine by implying, through its

own statements or statements of its agent, that Mr. Lyon or Ms. Huneke

caused the court to cancel its vacation.

At the time of the January continuance hearing, a buffer period

provided by Criminal Court Rules CrR 3.3 (b)(5) allowed the court to continue

the trial date at least 30 days beyond march 1, 2010. For speedy trial

purposes, the court had no need for Mr. Lyon’s consent to continue the trial

date to accommodate its vacation, a fact the state was aware of. SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 53 of 57



Additionally, as suggested in State v. Kenyon, 167 Wn.2d 130 (2009)(holding

that a court’s vacation is not good cause for a continuance unless the court

has taken action to find another court available to hear the trial and the

court makes a careful record that no other judicial officers in the county are

available to hear the trial), if the court has a vacation that conflicts with a

trial date, the court should assign the trial to another judge, as contemplated

by Ms. McCrow’s January 14, 2010 email regarding the court’s conflict with

the March 1, 2010 trial date.

“Counsel, I really need some guidance….. Of course, we can just let the chips fall where they may and attempt to broker any cases that we're not available to hear, but I'd rather know what the priorities are before letting that happen.”

After a guilty plea was entered, the Court set a sentencing date that

involved the travel of Aaron’s parents and a witness. In correspondence

regarding the rescheduling this date, the court’s judicial assistant stated, “As

a heads up, we have rearranged our schedule considerably to accommodate

defense counsel's requests during this case - going so far as to cancel a

vacation that had been scheduled for over a year.” Following this statement

were more summarily scheduled court dates: The recusal motion was set for SUPERIOR COURT MOTION FOR RECUSAL (ORDSM) PAGE 54 of 57



the same date as the re-scheduled sentencing date, which Ms. Huneke had

already indicated was not available; the recusal motion was re-set to a date

that Ms. Huneke had indicated she was out of the office; there was no

response to a message from Ms. Huneke reiterating that she was out of state

on May 19th. Finally, after the forwarding of air travel confirmation to the

court, the re-rescheduling of the sentencing hearing with the recusal motion

to be heard on the same date and time; obviously affecting Mr. Lyon’s

family, since they won’t know where the sentencing hearing will be heard on

May 27th, and whether their travel to Spokane will be necessary.

Most concerning to the defendant are the court’s statement on the

record that it was missing its vacation due to Mr. Lyon’s trial, and the recent

statement by the court’s judicial assistant, which blames the cancellation of

the court’s (and presumably the court’s staff’s) vacation on the defendant

and his attorney’s schedule (“As a heads up, we have rearranged our

schedule considerably to accommodate defense counsel's requests during

this case - going so far as to cancel a vacation that had been scheduled for

over a year.”)




This sentencing hearing is a matter of grave importance to Aaron Lyon

and his family. No matter what the outcome, years of his life will be

determined by the judgment of the court. Because the amount of time that

will be served is not agreed, it is especially important that the process by

which Mr. Lyon’s sentence is determined appear to be fair and appear to be

pronounced by a neutral and detached magistrate. It is apparent that the

Court holds Mr. Lyon and his attorney responsible for the cancellation of its

March vacation. It is hard to imagine a situation that would appear more

unfair than a judge passing sentence on a defendant whom the court blames

for the loss of his vacation.

As the case law (and the canons) recognize, the absence of proof of

actual bias or actual prejudice will almost universally be the case, absent

some public statement that a judge cannot be fair to a litigant. It is the

appearance of bias or prejudice that the cited cases condemn. The

threshold for this inquiry “is evidence of a judge’s or decisionmaker’s actual

or potential bias.” State v. Post, 118 Wn.2d 596, 618 (1992) (emphasis

added).




For the foregoing reasons, a “reasonably prudent and disinterested

person” would question whether this Court’s participation would be impartial

or would appear to be impartial, and the Honorable Judge Jerome Leveque

should be recused/disqualified from hearing this case.

Submitted May 27, 2010,

Respectfully,

_____________________________________Carol Dee HunekeAttorney for Mr. LyonWSBA 23065




recusal brief final

Documents

spokane county superior

trial date

spokane county jail

asuperior court motion

court of law

court conference

speedy trial

trial preparation