Prosecutor asks Kentucky Supreme Court to disqualify judge from all criminal cases
A Kentucky prosecutor is asking for the state’s highest court to disqualify a judge from all criminal cases in the judge’s circuit after the judge claimed he had a personal bias against her.
The move comes after the judge, David Barber, in an unusual move, verbally recused himself last week from cases involving Commonwealth’s Attorney Ashton McKenzie.
Barber then sought to reverse the decision. But McKenzie is asking the state’s highest court to follow through and indeed disqualify the judge who oversees cases in Rowan, Bath and Menifee counties.
“We can not, with any level of confidence, tell the community that their prosecutions will be given fair treatment in front of Judge Barber,” McKenzie wrote in an affidavit to the Kentucky Supreme Court.
Barber denied the motions to recuse, and in court documents said if he did recuse himself, it would overburden the local court system. He suggested McKenzie should instead deploy assistants to prosecute cases over which he presides.
“To grant said recusal would overly burden the system, including the clerks and other court personnel and impose a great waste of financial resources in paying special judges, when a more practical and feasible alternative exists in having one of the three paid assistants appear,” Barber wrote in response to McKenzie’s affidavit.
The spat began March 6, when Barber said in a Bath County courtroom that McKenzie, the top prosecutor in the Kentucky district about an hour east of Lexington, was biased against Barber because she was prosecuting a criminal case against a family member of Barber’s.
During proceedings for unrelated cases, Barber said in open court McKenzie was engaging on an “assault” on his family because prosecutors moved to confiscate a house from one of Barber’s family members who was charged with dealing drugs, according to court documents.
According to the affidavit McKenzie filed with the Supreme Court, she responded in court that Barber should recuse himself if he “believes it is a personal attack (when prosecutors) do their job.”
Barber agreed, and he said he would recuse himself from all criminal cases involving McKenzie. He dismissed hearings for the rest of the day.
It’s common for judges to recuse themselves from specific cases when they have a conflict of interest. The case is normally transferred to another court when that happens.
But it is unusual for judges to recuse themselves from all cases involving a particular prosecutor, especially when that prosecutor is the top law enforcement official in the circuit.
“This is an unprecedented situation, and one that the Commonwealth never anticipated being placed in as a consequence of doing their job,” McKenzie wrote in court documents.
Barber seeks to proceed with criminal cases
One day after Barber recused himself from all of McKenzie’s criminal cases in Bath County, he showed up to court in Rowan County and intended to proceed with cases anyway.
He said in court he didn’t take issue with the entire office — just McKenzie, the top prosecutor, according to McKenzie’s affidavit.
But McKenzie is now asking the Kentucky Supreme Court to officially bar Barber from all criminal cases involving her office.
In addition to the accusations of impartiality, McKenzie claims Barber bullied her staff and used his power as a judge to gather information for the pending prosecution against his family member.
“The actions and statements made by Judge Barber were not something that the Commonwealth could ignore given that there are victims in the circuit who must be able to rely upon his ability to be impartial and unbiased when making decisions,” McKenzie wrote in the request.
Barber is one of two circuit judges in the 21st Circuit.
If he were to be disqualified from presiding over criminal matters, his cases would be transferred to another judge in a different division.
Barber was appointed to the position by Governor Andy Beshear in 2020.
McKenzie appointed to the position in 2023, and elected to serve in November 2024.
This story was originally published March 14, 2025 at 5:00 AM.
