Superior Court panel considers recusing ‘defiant’ county judge
A state Superior Court panel appears willing to consider ousting a veteran Allegheny County judge from a case under appeal after one member on Wednesday called her “defiant” and publicly criticized her record — not for the first time — on sentencing sex offenders.
Common Pleas Judge Donna Jo McDaniel, 72, had no comment on the harsh words by Superior Court President Judge Emeritus John T. Bender. The two have clashed in the past, with Judge Bender raising concerns last year about whether Judge McDaniel leveled unduly severe sentences on defendants in sex assault cases.
Judge McDaniel has seemingly ignored the appellate court and gone about her business. Ordered last year by the court to redo an “unreasonable” sentence, she responded by imposing the exact same punishment.
“She’s great on all kinds of areas of criminal law,” Judge Bender said Wednesday during oral argument before a three-member Superior Court panel meeting in Downtown Pittsburgh. “She’s in the normal range. On these sexual assault cases, she’s crazy. She’s defying our court.”
Superior Court Judge Anne E. Lazarus said Judge McDaniel appears to give out “uniformly maximum sentences” in all sex offenses.
“You can take each sentence verbatim, for each defendant,” Judge Lazarus said. “It doesn’t seem she individualizes her sentences. It could appear she has a particular bent on sex assault cases as opposed to other cases.”
If so, Judge Lazarus continued, a case could be made that Judge McDaniel is displaying bias.
Assistant District Attorney Francesco Nepa countered, “The judge is adamant she’s not doing that.” Judge Lazarus scoffed. The case in question involves a second resentencing of convicted sex offender Gabino Bernal, 40, of Pittsburgh. His attorney, Assistant Public Defender Veronica Vidt, wants Judge McDaniel removed, arguing that she has shown an appearance of bias.
Until now, Superior Court has refrained from directly criticizing Judge McDaniel, who has been on the bench since 1986. In a 36page opinion by Judge Bender, issued in January 2017, he wrote, “We note our awareness of a possible emerging pattern in this particular sentencing court of routinely sentencing sex offenders in the aggravated sentencing range and/or outside the guidelines.”
His comments Wednesday were more direct.
In asking what course of action the Superior Court could take, Judge Bender said that simply sending Bernal’s case back to Judge McDaniel would not work because she would impose the same penalty as before.
“She’s just defiant, and recusal is really the only remedy.”
Bernal was found guilty in 2013 of sexually assaulting an 8-year-old girl, who was the daughter of the woman with whom he was living. He was convicted on charges of indecent assault of a child younger than 13, unlawful contact and corruption of minors.
Judge McDaniel ordered Bernal to serve nine to 18 years in prison.
On his first appeal, Superior Court remanded the case, saying that the grading of the charges at sentencing was wrong.
When Bernal appeared before Judge McDaniel to be resentenced in 2015, she ordered him to serve six to 17 years in prison, running each penalty consecutively.
That penalty was significantly higher than the recommended guidelines range, which, if run consecutively would have called for six to 27 months incarceration. Even in the aggravated range, stacked consecutively, the penalty would have been three years in prison.
Bernal again appealed, noting in his briefs that Judge McDaniel appeared to have a history of sentencing sex offenders to the maximum penalty.
The Superior Court remanded the case again, in December 2016, finding that Judge McDaniel failed to order a pre-sentence report in the proceeding and failed to address why she departed from the guidelines range. It also took note of a possible pattern of overly harsh sentences by her in sex offenses.
Prior to the second resentencing, Ms. Vidt asked Judge McDaniel to recuse herself from the case based on an appearance of bias. The judge refused, but offered no explanation.
When the parties convened for Bernal’s third sentencing in June 2017, Judge McDaniel took the bench with a lengthy written document, Ms. Vidt said, and read aloud statistics she had gathered regarding her sentencing history with sex offenders.
“This court has conducted a complete, statistical analysis of cases since 2012,” Judge McDaniel said at the time.
She recounted that from 2012 to 2016, she sentenced defendants on 8,391 offenses. Of those, 3,886 received no penalty. Of the remainder, she said, she sentenced at or below the recommended guideline range 90 percent of the time.
For sex offenses, the judge continued, those charges were sentenced at or below the guidelines 77 percent of the time.
“Those numbers are comparable to other judges in this division,” she said from the bench and “demonstrate that this court does not automatically sentence above the guidelines.”
Judge McDaniel then gave Bernal the exact same sentence that she’d handed down before.
He has been in prison, his attorney said, for five years, six months, one week and three days and continues to maintain his innocence.
During oral argument Wednesday, Ms. Vidt criticized the statistics recounted by Judge McDaniel.
“I have a problem with them because they’re so general,” she said.
Ms. Vidt said Judge McDaniel’s numbers don’t explain the sentencing she sees for her own clients charged with sex offenses. She also told the appellate court panel that, at Bernal’s third sentencing, Judge McDaniel did not give her the opportunity to make an argument on behalf of her client and allowed the defendant to speak only as an afterthought.
“I believe there’s an appearance of bias here,” she told the court.
She asked the panel to reverse Judge McDaniel’s refusal to recuse from the case and assign Bernal’s resentencing to a new judge.
Judge Bender said, “Just her action in relation to our multiple remands, I think, is a basis, in itself, for recusal.
“It’s been down twice. We’ve been trying to get to this recusal issue forever with this judge.”
He then went a step further and said he believes any defendant charged with sexual offenses who appears before Judge McDaniel should be asking for recusal.
“If we publish this, granting her recusal, that will get the message out,” Judge Bender said.