People v. Coones

*731 J. M. Batzer, J.

(concurring). I concur in the judgment and in large part with the opinions of the other members of the panel. I would, however, go further and say that defendant’s motions for disqualification were legally frivolous. In Liteky v United States, 510 US _ ; 114 S Ct 1147 ; 127 L Ed 2d 474, 488 (1994), the Supreme Court of the United States pertinently states:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and indeed sometimes (as in a bench trial) necessary to completion of the judge’s task. As Judge Jerome Frank pithily put it: “Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.” In re J P Linahan, Inc, 138 F2d 650, 654 (CA 2 1943). Also not subject to deprecatory characterization as “bias” or “prejudice” are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.

The Supreme Court of the United States in Liteky further states:

For all these reasons, we think that the “extrajudicial source” doctrine as we have described it, applies to [28 USC 455 (a)]. As we have described it, however, there is not much doctrine to the doctrine. The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for bias or prejudice recusal, since predisposition developed during the course of *732 a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for “bias or prejudice” recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge’s view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) “extrajudicial source” factor, than of an “extrajudicial source” doctrine, in recusal jurisprudence.

The facts of the present case do not require us to describe the consequences of that factor in complete detail. It is enough for the present purposes to say the following: First, judicial rulings alone almost never constitute valid basis for a bias or partiality motion. See United States v Ginnell Corp, 384 US 563, 583 , 16 L Ed 2d 778 , 86 S Ct 1698 (1966). In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps the former as well) is the statement that was alleged to have been made by the District Judge in Berger v United States, 255 US 22 , 65 L Ed 481 , 41 S Ct 230 (1921), a World War I espionage case *733 against German-American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 , 65 L Ed 481 , 41 S Ct 230 . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after being confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration-even a stem and short-tempered judge’s ordinary efforts at courtroom administration-remain immune. [ 127 L Ed 2d 490 -491 (emphasis in the original).]

See also Kolowich v Ferguson, 264 Mich 668 ; 250 NW 875 (1933); People v Upshaw, 172 Mich App 386, 388 ; 431 NW2d 520 (1988); People v Denny, 114 Mich App 320, 325 ; 319 NW2d 574 (1982); Wayne Co Prosecutor v Doerfler, 14 Mich App 428, 440 ; 165 NW2d 648 (1968); United States v Shibley, 112 F Supp 734, 738 (SD Cal, 1953) (favorably cited by the Michigan Supreme Court in Mahlen Land Corp v Kurtz, 355 Mich 340 ; 94 NW2d 888 [1959]).

Though I agree that it is usually the better practice to wait for another judge to rule on a motion for disqualification if one is requested pursuant to MCR 2.003(C), in the circumstances here I disagree that the trial judge should have postponed the trial scheduled for the following day, so that the chief judge could hear the motion. The trial judge correctly concluded that the motion for disqualification was untimely and that the defendant early on had the information forming the core of his motion, but did nothing. The trial judge concluded that defendant’s counsel deliberately mischaracterized what occurred in the earlier contempt proceeding. The record supports the trial judge’s conclusions. For the trial judge to have post *734 poned the trial in order to give another judge time to rule on the motion for disqualification on a patently frivolous motion and sham pleadings would not only disrupt the trial docket, but it could place the trial judge’s imprimatur on a new way to postpone trial. The trial judge concluded that this was a motion filed at the last minute (filed on a Friday, heard on the following Monday, with trial scheduled for the next day, Tuesday) for purposes of delay. Again the record supports the trial judge. Interestingly enough, defendant, as part of his original motion, asked for the chief judge to rule on the motion in the event the trial judge denied the motion for disqualification. Apparently defendant’s counsel did not want to even hear and consider the trial judge’s reasons for denial before deciding that he wanted a second judge to rule on the motion.

Moreover and importantly, defendant’s counsel was rude and impertinent to the trial court in commenting on the court’s attitude. I do not wish to be misunderstood. I can understand why in some circumstances counsel might feel bound to make a motion for disqualification, even if such a motion were legally frivolous and not supported by case law. An attorney can certainly advocate for a change in the controlling law and make a record of such advocacy. Of course, as part of such advocacy, an attorney can be ejected to invite the court’s attention to the controlling precedent that is contrary to the position advanced. I can understand vigorous advocacy in support of such a motion. I do not, however, see a contemptuous ad hominem to the judge as being a proper part of vigorous professional advocacy. It seems to me that, as a point of professional advocacy, an argument inviting *735 the trial court’s attention to its “attitude” can and should be made in accordance with basic courtroom etiquette and courtesy.

I concur, however, that a hearing should have occurred with the presence of defendant and his counsel and, perhaps, additional court-appointed counsel for defendant, who could independently advise and counsel defendant of any basis for concern of whether “defendant’s interests were being lost sight of by his trial counsel,” before any decision was made to remove his counsel and appoint another.

I concur with Judge O’CONNELL that we need not reach the issue whether infringement of the Sixth Amendment right to counsel operable through the Fourteenth Amendment can ever be harmless error, because it cannot be demonstrated to have been harmless at the sentencing here. Clearly defendant’s new counsel at sentencing was insufficiently prepared to advocate on defendant’s behalf and to advise and counsel defendant on his allocution opportunity. Accordingly, I agree that defendant is entitled to resentencing even though I perceive no violation of the principle of proportionality in the sentences imposed.