Hennepin County attorney's request to remove judge from felony cases improper, public defender says

The Hennepin County attorney and public defenders offices are clashing over a blanket request from prosecutors to remove a judge from all felony cases despite legal precedent that prohibits such moves and the county attorney's previous criticism of blanket bans.

County Attorney Mike Freeman filed a request Jan. 21 to ban District Judge William Koch from presiding over all felony cases, including hearings, trials and sentencings, and from signing off on search warrants and charges.

Freeman did not specify reasons for the blanket removal — a rare request — but in a recent statement, his office questioned Koch's conduct. The office declined to provide examples to support its accusations.

"As far as Judge Koch is concerned, this office is undertaking a more comprehensive removal," Freeman's office said a statement. "It is based on issues with the judicial temperament and decisions made by Judge Koch that appear based on arbitrary factors and not the law. We have not been required to do this in the past."

Hennepin County Chief Public Defender Kassius Benson disagreed with Freeman's assessment and plans to challenge the request.

"Our take on Judge Koch is different from that," Benson said. "He holds us to high standards, including prosecutors. He has a fair courtroom."

Koch has not publicly addressed the matter via a request for comment placed through a court spokesperson. He was appointed to the bench by Gov. Tim Pawlenty in 2007 and is known for holding police and attorneys to exacting standards and limiting evidence when it is collected improperly.

He also has served as an assistant U.S. Attorney in Minnesota, a special assistant U.S. Attorney in Maryland and an Air Force judge advocate, according to his official court biography.

"[T]he Hennepin County Attorney's Office … exercises its right to remove the Honorable William Koch from presiding over all felony cases assigned to him on or after today's date," Freeman said in his request. "This is notice also intended to apply to all felony calendars assigned to Judge Koch, as well as the felony signing calendar."

Freeman's request was outlined in a letter sent to Benson, Hennepin County Chief Judge Toddrick Barnette and District Court Administrator Sarah Lindahl-Pfeiffer.

A court spokesperson said Wednesday that Freeman's letter was not filed with an existing criminal case so it could not be denied or approved. Freeman's office and Benson said the same request was filed in multiple criminal cases.

Just before noon Wednesday, the county attorney filed an identical copy of the letter in at least two criminal cases — felony fleeing-police charges filed against the same defendant in two incidents.

A retired Hennepin County judge who requested anonymity expressed surprise at Freeman's request.

"I'm actually quite baffled about why they would take such an aggressive stance against Judge Koch, because he's not known as a wildly liberal judge, nor is he known as a judge who is not appropriate in demeanor or temperament," the retired judge said.

"I honestly believe that Bill Koch is among the better or best criminal court judges in Hennepin County."

The Minnesota Rules of Criminal Procedure that govern courtroom conduct allows defense attorneys and prosecutors to request a judge's removal from a specific case without explanation within seven days of the judge's assignment to the case. Such automatic re-assignments are common and made with little fanfare.

Benson said the county attorney's request falls outside the rule's boundaries.

"The spirit of the rule is that a judge should be removed if he or she is not a good fit for a particular case, so a blanket removal of Judge Koch or any other judge from all cases, I look at it as an abuse of the removal rule," Benson said. "You can't do that."

Hennepin County Attorney spokeswoman Lacey Severins said the office's request is "ongoing" and that it filed notices of removal against Koch in individual cases and "they were reassigned accordingly." Koch oversaw some felony cases this week.

Benson declined to speculate on Freeman's motives for removing Koch. The judge is known for his formality in the courtroom and for carefully considering both sides.

The retired judge said judges like Koch who are former federal prosecutors tend to be "sticklers" for the rules and that Koch is no different from such peers on the Hennepin County bench. The retired judge also said it is "almost unheard of" to request banning a judge from signing warrants, charges and other court documents.

In 1999, the Minnesota Supreme Court ruled against blanket removals, noting that the action "strikes at the very heart of judicial independence."

In 2011, Freeman criticized the public defenders office for filing notices to remove then-Hennepin County District Judge Robert Small in 30 cases.

Freeman's office cited the 1999 state Supreme Court decision in its fight against removing Small, who some public defenders reportedly believed favored prosecutors.

Benson said his office will challenge Freeman's removal of Koch on a case-by-case basis and is discussing lodging an officewide response to the blanket removal. Benson said he believed an officewide pushback against Freeman would likely rise to Barnette for resolution.

"This will be subject to litigation and we'll sort it out," Benson said.