UPDATE: Louisville judge will remain on murder case despite a finding that his actions were 'reprehensible'
On Monday, Judge Cunningham filed a notice of disqualification, potentially removing himself from the case because his impartiality "might reasonably be questioned." However, the judge ultimately left it up to prosecutors and defense attorneys to decide whether he should recuse. Both sides filed a response saying the attorneys had no objection to Cunningham presiding over the case.
LOUISVILLE, Ky. (WDRB) -- The Kentucky Court of Appeals on Friday blasted attorneys for a man accused of murdering a 12-year-old boy in Cherokee Park in 2014 and the judge presiding over the case, saying a series of secret actions that excluded prosecutors was "deceptive" and "reprehensible."
The three appellate judges unanimously found that defense attorneys developed a "secret ally" in Jefferson Circuit Court Judge Charles Cunningham, who omitted prosecutors in meetings, court orders and other communications -- a "covert practice we deem reprehensible."
The "clandestine and improper" procedures only came to light after the Louisville Metro Police Department revealed it to prosecutors, allowing the appellate court to "explain its impropriety and forbid it," according to the ruling.
On Monday, Judge Cunningham filed a notice of disqualification, potentially removing himself from the case because his impartiality "might reasonably be questioned."
However, Cunningham ultimately left it up to prosecutors and defense attorneys to decide whether he should recuse. Both sides filed a response saying the attorneys had no objection to Cunningham presiding over the case.
Chief Public Defender Dan Goyette on Wednesday issued the following statement about the opinion from the appeal's court:
“We intend to file a motion for modification of the opinion to correct the inaccuracies and mischaracterizations it contains. The intemperate language it employs and the unfair conclusions it draws are uncalled for and inappropriate, especially with regard to Judge Cunningham, a jurist with an impeccable reputation, who was elected Chief Judge of the Jefferson Circuit Court General Term in 2016 because of the respect he enjoys among his peers, and who also received the highest ratings in the Judicial Evaluation recently conducted by the Louisville Bar Association.”
The prosecutor (Chris Foster) and the public defender (Mike Lemke) handling the case in circuit court both filed separate waivers (attached) this afternoon in response to Judge Cunningham’s Notice of Disqualification. Neither believes that the judge will be anything other than impartial nor that he should be disqualified from presiding over the case."
Over a 13-month period, Judge Cunningham entered more than 30 "ex-parte" orders in the murder case against Joseph Cambron, meaning only the defense knew about the sealed orders, according to the ruling. A judge is generally not allowed to communicate with lawyers representing just one side of a case.
The defense and judge also talked several times without prosecutors, according to the ruling, which added that the appellate court judges were "baffled" by Cunningham's actions. Cunningham could not immediately be reached for comment Friday.
Cambron is accused of stabbing 12-year-old Ray Allen Etheridge in Cherokee Park on Sept. 30, 2014. He has admitted he pulled a knife from his pants and chased after Ray, stabbing him in the back. He has pleaded not guilty and the case is pending.
Ray was found unresponsive in a wooded area near a campsite where Cambron was living in Cherokee Park. He died of two stab wounds, in his chest and back, according to an autopsy report.
The appellate court judges accuse Cunningham of violating a judicial canon by improperly communicating with one side of a case multiple times.
"Quite simply, this case is about the proper way to seek records," the appellate judges wrote.
The Jefferson Commonweath's Attorney's Office found out about the orders after one request for records was sent to the Louisville Metro Police Department, which alerted prosecutors.
Cunningham "chastised" police because the order was sealed. But the appeals court ruled that the court's "habit of routinely acceding to cloak-and-dagger" requests would not have been "exposed to the light of day" if LMPD had not notified prosecutors.
The defense and prosecution then had a hearing in Cunningham's office, which was not recorded, according to the ruling.
Defense attorneys with the Louisville Public Defender's office said the ex-parte communication with the judge is "common practice in Jefferson County and throughout the state," according to the ruling. Officials with the public defender's office did not immediately respond to requests for comment.
Judge Cunningham's reason for granting the ex-parte motions was to expedite getting records for Cambron's defense attorneys -- records he believed they were entitled to, according to the ruling.
But the court of appeals found there was no evidence Cambron's attorneys had been denied records and the judge based his decision "on an unsupported premise and abused" his discretion.
The higher court ordered Cunningham to unseal any documents the judge improperly sealed.
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