Judge refuses to recuse himself in Lexington murder case

Defense makes second request for recusal, alleging bias

jhewlett@herald-leader.comApril 19, 2011 

Glenn Doneghy

Fayette Circuit Judge James Ishmael refused Monday for a second time to recuse himself from the case of Glenn Doneghy, who is accused of murder in the death of a Lexington police officer.

Doneghy's attorneys made their second request for recusal at a hearing concerning whether toxicology test results on urine and blood samples taken from Doneghy should be suppressed as evidence, and thus not used, for Doneghy's trial. There was no ruling Monday on the suppression issue.

Doneghy's trial is scheduled to begin June 13.

Doneghy, 34, is accused of being behind the wheel of a sport utility vehicle when it fatally struck Officer Bryan Durman, 27, on North Limestone on April 29, 2010.

Defense attorneys Kate Dunn, Gayle Slaughter and Sally Wasielewski maintained in the motion for recusal that Ishmael has "exhibited a personal bias against the defendant and for the alleged victim in this case." The motion also stated that the judge has ordered that Durman's widow, Brandy Durman, has a right to advise the judge on the admissibility of evidence on Doneghy's behalf.

The latter claim stems from comments Ishmael made Thursday during another hearing in the case. Then, Ishmael said repeatedly that he would decide whether to unseal a document from Bryan Durman's police department personnel record after prosecutor Lori Boling and Brandy Durman conferred on the matter. The judge said he didn't want to invade Bryan Durman's privacy, and if it's determined that privacy isn't an issue, "we're good to go." Prosecution and defense attorneys have been provided with the sealed material, but the defense attorneys are questioning whether the material — because it's sealed — may be used at trial. They want the document unsealed.

Dunn told Ishmael on Thursday that the defense thinks that information in the document indicating whether Bryan Durman was a sworn police officer and had completed police training is pertinent to the murder case. Dunn also said she doesn't think Brandy Durman is the arbiter of whether the document is admissible evidence.

On Thursday and on Monday, Ishmael said he would base his decisions on the facts and the law. On Monday, he denied showing bias, saying he was sensitive to Doneghy's rights and to Bryan Durman's rights.

On Thursday, with a machine that prevents courtroom visitors from hearing what is said switched on, the judge discussed with attorneys, who were standing in front of the judge's bench, the prescribed medicine Doneghy has been taking while incarcerated. Ishmael cited a federal medical privacy law before he turned on the machine.

After Monday's hearing, Brandy Durman, when asked about the accusation of bias, said: "I've never met Judge Ishmael. I didn't know him or his name."

In Monday's motion for recusal, written by Dunn, the defense also mentions comments Ishmael made in a March 17 hearing. In that hearing, the judge told Brandy Durman that the court and attorneys were treating her husband's death with "great reverence and sympathy" and apologized if she had gotten a different impression.

Dunn said that never in her nearly 20 years as a criminal defense attorney has she experienced a trial judge expressing "tremendous sympathy or reverence" for a victim before a trial has ended, or a trial judge "raising a family member of a victim to the position of arbiter of what evidence is or is not admissible at trial."

Brandy Durman has been at most of the hearings held in the case.

After Ishmael declined again to step down, Dr. Harry Plotnick, a toxicology expert and a lawyer from Cincinnati, testifying at the request of the defense, said that cocaine and marijuana metabolites found in a urine specimen don't indicate whether a person is impaired, just that the person has used the drugs. Plotnick, who has reviewed Doneghy's toxicology reports, said he could not draw a conclusion as to whether a hypothetical driver would be impaired at a given time based on such information. A urine test shows what a person has ingested, but not when, he said.

Plotnick told Dunn that, based on information she'd provided him, there's nothing he can conclude, except that the hypothetical driver has probably used marijuana within 24 hours before a specimen was taken and cocaine possibly less than 24 hours before.

Boling showed Plotnick a laboratory report indicating the presence of cocaine in Doneghy's blood. Plotnick said the report did not indicate the quantity found in the blood.

The defense attorneys said blood and urine samples were taken from Doneghy nearly seven hours after Durman was fatally struck — too long afterward to be pertinent. Allowing such evidence, they said, could prejudice a jury.

Boling said the amount of time that passed before blood and urine samples were taken is not in dispute. She said the prosecution thinks that the relevance of the toxicology test results outweighs any danger of prejudice.

Reach Jennifer Hewlett at (859) 231-3308 or 1-800-950-6397, Ext. 3308.

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