Legal experts: Judge in Josey case, married to cop, should have recused himself

MUNICIPAL JUDGE Patrick Dugan brushed aside video evidence when he acquitted ex-cop Jonathan Josey on Tuesday of assaulting a woman last September.

Does it matter that he's married to a cop?

A chorus of criticism swelled Wednesday after word spread that Dugan is married to Philadelphia Police Officer Nancy Farrell Dugan, who has been on the force since 1997, city payroll records show.

She also attended Josey's Feb. 12 nonjury trial, sources said.

Josey was fired from the police force and charged with simple assault for throwing a punch that knocked down and injured Aida Guzman, 40.

Josey testified that he thought she had thrown water on him and that he swung to knock a beer bottle from her hand at 5th Street and Lehigh Avenue during revelry following the city's annual Puerto Rican Day Parade on Sept. 30.

Some members of the city's Puerto Rican community who denounced Dugan's acquittal of Josey were bristling over the revelation about his wife.

"It's ridiculous. His wife is a police officer, and I understand he was endorsed by the FOP," said Quetcy Lozada, president of the Philadelphia chapter of the National Conference of Puerto Rican Women.

"We're all human beings," Lozada said. "There is no possible way that a judge put in a situation like that will be able to make an unbiased decision."

Guzman's attorney, Enrique Latoison, said he learned Tuesday that the judge is married to a cop.

"When it was brought to my attention that his wife was a police officer, it was very surprising and I consider it to be a conflict of interest," said Latoison, who has asked the U.S. Department of Justice to investigate the case and intends to file a civil suit against Josey on behalf of Guzman.

Asked about a possible conflict of interest, Dugan, 52, appeared pained Wednesday and paused in a courthouse hallway only long enough to say that the Code of Judicial Conduct constrained him from answering questions.

Frank M. McClellan, professor of law emeritus at Temple University's Beasley School of Law, said the standard for a judge to recuse himself is if he has a personal interest in a case that would prevent him from being impartial, or if his presiding would create an appearance of impropriety.

"It certainly would have been appropriate, even if not required," for Dugan to recuse himself, said McClellan, who teaches legal ethics and malpractice law. "We want to give the public confidence that there has been a fair and impartial decision made."

Lynn A. Marks, executive director of Pennsylvanians for Modern Courts, a nonpartisan reform organization, said that although Dugan was not required to recuse himself, maybe he should have.

"Given the fact that this had the potential of being a high-profile case, it would have been wise to [step aside] so that people would not question his decision," she said.

Marks, a lawyer, said that "at the least he should have disclosed to the attorneys that his wife is a police officer so they could decide if they wanted to bring a motion to recuse."

A Daily News call to Municipal Court President Judge Marsha H. Neifield for comment was not returned.

Tasha Jamerson, spokeswoman for District Attorney Seth Williams, said her office did not know that Dugan's wife was a cop. She declined to answer when asked whether Williams would have asked Dugan to recuse himself had he known about the judge's wife.

Attempts to reach Josey's attorney, Fortunato Perri Jr. - whose fees were paid by the Fraternal Order of Police and who frequently represents officers on trial - were unsuccessful.