– Summary by Sofia Azpurua
The Florida Supreme Court examines whether when a criminal defendant asserts that the
trial court erroneously denied a motion to disqualify the trial judge for alleged bias or prejudice,
should an appellate court review the erroneous denial for harmless error and, if so, what harmless
error test should the appellate court apply. The question was certified by the Second District Court
of Appeals as a question of great public importance.
Joshua Davis was indicted by a grand jury on two counts of first-degree murder, one count
of attempted first-degree murder, and one count of child abuse after he shot three coworkers in the
presence of his seventeen-year-old daughter. The case was scheduled before Judge Donald
Jacobsen, who had ruled on all pretrial matters. Judge Jacobsen announced he would be leaving
the capital felony division and his replacement was Judge Jalal Harb. Davis moved for Judge
Jacobsen to remain on the case because Judge Harb had been a prosecutor in the homicide division
of the state attorney’s office while Davis’ case was pending. Judge Jacobsen denied Davis’ motion
but clarified that this did not prejudice Davis’ right to file a motion to disqualify Judge Harb. Davis
moved to disqualify him under section 38.10 of the Florida Statutes and Florida Rule of Judicial
Administration 2.330(e)(1). Judge Harb denied the motion as legally insufficient and Davis did
not file a petition for writ of prohibition. Upon being convicted, Davis moved for a new trial
arguing, among other things, that Judge Harb showed bias in his rulings toward the State; Judge
Harb denied the motion for a new trial. On appeal, the question before the Second District was
whether the allegations of the disqualification motion were legally sufficient to show a reasonable
fear that Davis would not receive a fair trial and thus, require that Judge Harb recluse himself. The
Second District found that Davis’ motion was legally sufficient and should have been granted
relying on Reed v. State. The Second District reasoned that DiGuilio’s harmless error test was an
“awkward fit,” and unproductive to use when the error was not tied to the jury’s factfinding
mission.
The Supreme Court agrees with the Second District that Davis’ motion for disqualification
was legally sufficient. The Court also agrees with the conclusion that the erroneous denial of the
motion for disqualification is not reversible error per se. The classes of error the Court treats as so
categorically harmful as to always require reversal, are few. The Court defaults to the harmless
error test and reserves a per se rule lonely for those errors that always vitiate the right to a fair trial
and therefore are always harmful. If the appellate court cannot say beyond a reasonable doubt that
the error did not affect the verdict, then the error is considered harmful. Per se errors generally fall
into two categories. First, when application of the harmless error test to the type of error involved
will always result in a finding that the error is harmful, then it is proper to categorize the error as
per se reversible. Second, the Court has also applied the per se reversible error rule to those cases
where the appellate court is unable to conduct a harmless error analysis because it would have to
engage in pure speculation in order to determine the potential effect of the error on the jury. The
alleged error in this case does not require the court to engage in pure speculation to determine the
potential effect of the error on the jury; the result of the alleged error is in the trial record. Judge
Harb made several consequential decisions that could have altered the outcome of the trial. Most
notably, Davis’ alternative theory of defense at trial was that he suffered a preexisting mental
disease or infirmity. Under that standard, the Court concluded harmful error occurred and
remanded for a new trial.
