John N. Mitchell v. Honorable John J. Sirica, Judge, United States District Court for the District of Columbia

ORDER

PER CURIAM.

On consideration of petitioners’ petition for writ of mandamus or prohibition, and of the pleadings filed with respect thereto, it is

Ordered by the Court en banc that the aforesaid petition for writ of mandamus or prohibition is denied.

The Judges reserve the right to file opinions at a later Sate.

MacKINNON, Circuit Judge:

I object to the foregoing order denying the petition in this en banc case without opinion and without allowing petitioners to argue the matter orally to this court. The five judges who join in the foregoing order completely deny petitioners a hearing in this court and then by a mere order without any written opinion, in effect deny petitioners their most fundamental rights.

The issues raised by petitioners are substantial. They were deprived of their right in the trial court to develop evidence to support their allegations that the trial judge had acted in an accusatory manner, and it appears admitted on this record that the trial judge has prejudged their ability to obtain a fair trial in this district. The refusal of the majority even to answer these allegations operates, in effect, to ignore the evidence both of prejudgment and of the contacts between the trial judge and the prosecutors. The petitioners are entitled to have this evidence produced, cf. Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and they are entitled to have their case tried by a judge who has not stated in effect that he has prejudged a material issue.

I would remand to afford petitioners an evidentiary hearing but if I were required to act on the existing record I would grant the writ. I will file a written opinion as soon as possible.