Opinion
Nos. CR05-0124284, MV05-0341969
April 5, 2006
RULING ON DEFENDANT'S MOTIONS TO TRANSFER PROSECUTION
The function of the trial court is not to decide whether a prosecutorial office will be more "comfortable" handling a particular case or trial, but whether a conflict exists that is so grave that it is unlikely that the defendant will receive a fair trial. No member of the Danbury state attorney's office was a direct victim or a witness in this case, nor is there any evidence that Mary Comstock, an investigator in the office, is either a direct victim or a witness in this case. While Ms. Comstock is the wife of the victim, the court finds no evidence that any member of the state attorney's office acted inappropriately. See People v. Petrisca, Court of Appeal of California, Second District, Division Eight, Docket No. B188294 (Cal.App. March 30, 2006).
"Unlike Canon 9 under the Code of Professional Responsibility . . . the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety. Even when Canon 9 was applicable, [our Supreme Court] rejected the notion that an `appearance of impropriety' was alone a sufficient ground for disqualifying an attorney. In State v. Jones, [ 180 Conn. 443, 452, 429 A.2d 936 (1980)], [it was] stated that the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases . . . Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney's representation risks violating the Rules of Professional Conduct." (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 399-400, 623 A.2d 489 (1993).
The Connecticut Bar Association has cautioned against the promiscuous use of the "appearance of impropriety" standard as a "convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules." State v. Jones, supra, 180 Conn. 452.
Accordingly, the motions to transfer are denied.