In a fairly recent case, the Georgia Supreme Court set out the standard to be followed in cases where the partiality of a judge might be questioned. In that case, a judge presided in a case where the lawyer for one of the parties was also a judge in that same judicial circuit. The Supreme Court was harsh in its condemnation of such a perceived partiality:

"The professional relationship ... was such that persons of reasonable minds might perceive that the Judge's ability to carry out his responsibilities with impartiality and integrity was compromised," the Court held. "By presiding over this case, [the judge] potentially brought the impartiality and unbiased nature of the judicial office into question, something this Court will not countenance."

Now we have the Brian Nichols courthouse shooting case in Fulton Superior Court where defense lawyers are asking that newly appointed replacement Judge James Bodiford recuse himself because of his friendly relationship with Judge Rowland Barnes, who allegedly was killed by Nichols.

The Nichols defense bases its motion to recuse upon a newspaper article published shortly after the shooting in which Bodiford describes his feelings of loss. The murder of Barnes hit close to Bodiford's heart, "almost as close as it can be. He was a friend of mine. All the nice things said about him are true," Bodiford is quoted as saying. That describes a close friendship, one that goes beyond a merely collegial professional relationship, in my opinion.

Reasonable people, upon learning that Bodiford was a close friend of Barnes, "might perceive that the judge's ability to carry out his responsibilities with impartiality" was compromised. And let there be no doubt about it, those responsibilities are legion. The judge in any case, but particularly in a death penalty prosecution, is the arbiter of granting or denying motions for funds, for the admission of evidence, the discovery of information, the scheduling of hearings, the selection of jurors and in general the way the trial is conducted.

Let's imagine a jury trial being scheduled where the issue is one of liability arising from an automobile collision. The widow of a man killed in the collision has sued the driver of the other vehicle seeking compensation for the wrongful death of her husband. The lawyers for the person being sued learn that the trial judge knew the widow's husband and had been quoted in the local paper that his death had hit close to the judge's heart.

Now, would anyone fault the lawyers for the other driver for asking the judge who was the friend of the deceased man to step aside? I think not.

In fact, if the lawyers did not act to protect their client they might well be in jeopardy for not having represented their client vigorously.

Can we expect Nichols' lawyers to be any less vigilant in the representation of their client?

> Thomas M. West is an Atlanta criminal defense attorney.