A Florida judge was disqualified from a wrongful death tobacco case after comparing the defendant’s former CEO to Nazi war criminal Josef Mengele.
No brainer decision? I’m not so sure. Here is what happened. During trial, a hearing was held outside of the presence of the jury on whether a 1971 – remember 1971 – a videotape of Philip Morris’s CEO Joseph Cullman should be admissible at trial. In the video, the CEO says that lower birth weights caused by smoking may actually be better for women who “might prefer having smaller babies.”
All right, so exactly what is the appropriate response. “Gee, that remark is unfortunate,” probably does not quite cut it. So the judge took it a little further, comparing the remark to Dr. Josef Mengele who conducted some of the evilest experiments on humans in modern times at Auschwitz.
Clearly, when you involve the Nazis in general and Mengele in particular, you up the ante far beyond this CEO’s comment which is only modestly criminally insane. But do you disqualify a judge for making these remarks about the defendant’s CEO from 41 years ago? I’m not so sure.
Florida’s First District Court of Appeals was really sure. Under Florida law, the key question in a motion to disqualify a trial judge is whether the moving party has reason to fear that the judge is not impartial. While acknowledging the judge did distance himself from the comments a little – ‘I’m not saying it’s that serious’ or ‘I’m not saying he is” – the Mengele comparison is a bell you can’t unring. A reasonably prudent person would, the court found, be in fear of judicial bias. “Put simply, no amount of qualifiers negate[s] the fact that the trial judge made the connection between Petitioner’s former CEO and a Nazi war criminal, and remarked that this would be a plausible comparison for the jury to draw.”
Ah, I want to argue with this but I think I may have changed my mind in the middle of this post. The tobacco companies are indeed the worst. But it grounds for disqualification sometimes when judges speak the truth.
You can read the full opinion and the text of the judge comments that started the hubbub in Phillip Morris v. Brown here. Interesting to me is that the judge also somehow throws Hall of Fame offensive lineman Tony Boselli into it. That is a hard seque but he pulls it off.
Maryland Law on Disqualifying a Judge
A judge in the State of Maryland “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned…” Maryland Rule 16-813, CJCR Rule 2.11 (a) (the “Rules”). Every judge must “avoid conduct that would create in reasonable minds a perception of impropriety.” Maryland Rule 1.2 (b). Judges should also abide by the Code of Civility, Judges Responsibilities promulgated by the Maryland State Bar Association that requires (?) that judges not “use hostile, demeaning or humiliating words in opinions or in written or oral communications with lawyers, parties or witnesses.” (This one gets abused a little sometimes.) If a judge violates these rules, there is a “perception of impropriety” that should result in the judge’s disqualification.