Scott v. United States

SCHWELB, Associate Judge,

concurring in the result:

This is, I think, a melancholy case for the judges of this court who must participate in it. It comes before us as a criminal appeal from a felony conviction, but the issue which we must decide en banc has only an incidental connection with Scott. Rather, eight judges, most or all of whom know Judge Murphy well, are required to grit their teeth 1 and pass on allegations that he transgressed ethical proscriptions in violation of the Code of Judicial Conduct. This duty is particularly unpleasant in this era of Operation Greylord and similar examples of judicial corruption, for we are not dealing here, by any stretch of the imagination, with a corrupt, dishonest, or incompetent judge. On the contrary, Judge Murphy has long been known in this community to be not just an able jurist but an outstanding one. 2 I hope that if the decision in this case is reported in the daily press or in publications which specialize in recounting developments in the legal community, someone will find it worthwhile to mention Judge Murphy’s unchallenged probity and extraordinary accomplishments as well.

Deal with the issue we must, however, and given the government’s belated concessions during oral argument when the case was heard en banc, I concur in the reversal of Scott’s conviction. I reach that result, however, with far more hesitation than do my colleagues in the majority, and by an appreciably different route. Even today, after the government dramatically changed course and acknowledged that Judge Murphy violated Canon 3(C), I find this to be a very close and troubling case in which only the prosecutor’s critical concessions have put Scott over the top.

I

I begin by remarking that I have no quarrel with much — perhaps most — of *762 Chief Judge Rogers’ legal analysis. As one who has emphasized the nobility of the law as a calling and the high standards to which its practitioners should be held, 3 I agree that, like that of Caesar’s wife, the conduct of judges must be beyond reproach. In fact, I think that this obligation applies with even greater force to those of us who have been accorded the privilege of serving our fellow-citizens from the bench than it does to members of the legislative and executive branches. Aristotle taught two millennia ago that judges should be the very personification of justice. Nicomachean Ethics, Bk. V, ch. 4 (D.Ross.tran. 1975). His precision and eloquence come through even in translation; he called it like it is.

I also share the majority’s view that traditional harmless error analysis, with its emphasis on a showing of prejudice, cannot apply when the issue is whether there is an appearance of partiality. Although there may be a narrow class of cases in which appearance of impropriety exists but is so attenuated that reversal is unnecessary, see Liljeberg, supra, — U.S. at-, 108 S.Ct. at 2203, 4 any requirement that a defendant demonstrate actual prejudice in this kind of case would so blur the difference between appearance of partiality and partiality in fact that the two concepts would all but merge. Not only must justice be done, but it must also seem to be done.

Finally, I agree with the proposition, implicit in the majority’s allusion to the prosecutor’s concessions, that the government’s change of position put a different face on this appeal. Indeed, the government’s effective acknowledgment during the argument en banc that Judge Murphy violated the Canon, and that Scott would have been entitled to a writ of mandamus requiring Judge Murphy’s recusal if the negotiations with OMISS had been disclosed pretrial, makes affirmance of the conviction very difficult. The case differs in this respect from many of the precedents and, I think, from the progeny which it may well spawn, for such concessions are not made every day.

My disagreement with my colleagues, then, relates to the application to the facts before us of legal principles to which they and I subscribe. Here, our differences are profound. In my view, any connection between OMISS and a felony trial in the Superior Court is far less significant than my colleagues suggest. The proposition that “an objective disinterested observer fully informed of the facts” 5 would reasonably apprehend that Judge Murphy might be influenced in his disposition of Scott’s case by his negotiations with OMISS appears to me to be very dubious indeed. Accordingly, if there was any violation of the Canon at all, I view it more as an unfortunate but understandable slip-up on Judge Murphy’s part than as a consistent and culpable failure to appreciate and carry out responsibilities that should have been obvious to him. This case is not Liljeberg, in which the judge was a trustee of a university which had a financial stake in the proceedings before him, and I cannot agree with my colleagues that “these facts present precisely the kind of appearance of impropriety that Canon 3(C)(1) is designed to prevent.” Majority op. at 755 (emphasis added).

II

An appearance of partiality or impropriety is not a pretty thing. Like beauty, however, it is in the eye of the beholder. Perspective is everything. It is therefore important, when we speak of an appearance of impropriety, to identify the observer to whom the judge’s conduct must be shown to appear improper.

*763 Canon 3(C)(1) provides simply that the judge should disqualify himself when his impartiality might reasonably be questioned. It does not further elaborate on who might be doing the questioning. Judge Posner added some flesh to the bare bones of the language of the Canon when he framed the test as being

whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.

Pepsico, Inc. v. McMillen, supra, 764 F.2d at 460 (emphasis added). Moreover, the critical perspective is not that of a super-sensitive or highly suspicious individual who may perceive a conspiracy in every judicial nook and cranny, but that of a reasonable person. In re Searches Conducted on March 5, 1980, 497 F.Supp. 1283, 1291 (E.D.Wis.1980).

Applying these principles to the present case, we must first identify the facts that would be available to the “fully informed” observer. We must then determine whether, armed with those facts and the requisite impartiality, the observer would have a significant doubt, in light of Judge Murphy's dealings with OMISS, that he would treat Scott fairly. So far as I can discern, my colleagues do not contest that this is the issue before us.

Judge Murphy negotiated for and ultimately accepted employment with OMISS, which is within the Executive Office for United States Attorneys (EOUSA). The functions of EOUSA are outlined in 28 C.F.R. § 0.22 (1988). They are entirely nonlitigative in character. As the Department of Justice explains in a publication which describes the Department’s legal activities,

[wjhile the legal divisions are responsible for the supervision of litigation conducted by U.S. Attorneys, the Executive Office for United States Attorneys 6 has certain supervisory responsibilities with regard to U.S. Attorneys’ non-litigative functions.

The Department of Justice ... The Nation’s Litigator 43-44 (1987) (emphasis added). Judge Murphy confirmed in his affidavit that “a litigative function was not contemplated as a part of my position at the time I was hired, nor is it anticipated at any time in the future.”

The activities of OMISS are described in the Department’s Annual Report for 1984, at 82, as follows:

The Office of Management Information Systems and Support gathers information about the litigation workload and performance of U.S. Attorneys and their staffs, prepares statistical reports to improve the management of those offices, and provides the office automation products and services which make litigation activities more cost-effective.

Judge Murphy’s affidavit also describes OMISS as having “essentially a record-keeping and computer systems management function.” The Debt Collection Staff, of which Judge Murphy became Assistant Director, provides oversight and policy guidance to the Debt Collection Units in the United States Attorney’s offices, and has no direct litigation control. Debt collection is, of course, purely a civil function. I must therefore disagree with the majority’s intimation that Judge Murphy was seeking employment “in the prosecutor’s executive office in the department prosecuting the [Scott ] case.” Majority op. at 750. (Emphasis added). He was negotiating with OMISS, not with the Justice Department’s Criminal Division. His new job would have nothing to do with prosecuting wrongdoers.

Chief Judge Rogers compares Judge Murphy’s situation to that of a judge who is seeking employment with a large law firm while presiding in a case which the firm is litigating. I do not find this to be *764 an apt analogy. 7 Colossal as today’s legal conglomerates may be, the Department of Justice is a horse of a different color. In 1984, that Department was comprised of twenty-seven different offices, bureaus, and divisions. There were ninety-four United States Attorney’s offices, employing 2,350 Assistant United States Attorneys. These offices filed over 30,000 criminal cases. Monroe Scott’s was one of them and, in the entire scheme of things, hardly a potential litmus test for deciding whether OMISS should employ Judge Murphy.

Given the foregoing, it is far from obvious to me that a reasonably well-informed and fair-minded person would believe that Judge Murphy’s prospects of obtaining the OMISS job would in fact have been enhanced in any way if he sided with the prosecution against Mr. Scott. Moreover, it appears to me questionable, to say the least, whether a person possessing these attributes could reasonably apprehend that Judge Murphy would think that his job prospects would be improved if he tilted to the government, or that OMISS would evaluate his qualifications with such tilting or the lack thereof in mind. Judge Murphy was a judge in regular service for 18V2 years and a senior judge for some time after that. His record was well known. He could not recast his image overnight. In the context of OMISS’ purely non-litiga-tive responsibilities and the tens of thousands of criminal cases handled by the Department of Justice, the incentive for Judge Murphy to take it out on Monroe Scott appears very remote indeed. Disqualification should not be based on tenuous speculation; the fear of partiality must be real enough and strong enough to warrant such a result. In re United States, 666 F.2d 690, 694-95 (1st Cir.1981). 8

III

The majority concludes that “this case falls at a point along the continuum of conduct reached by the Canon that requires a new trial in order to assure continued public confidence in the integrity of the judiciary.” Majority op. at 756. I agree that there is such a continuum, but I would place negotiations with OMISS roughly in the middle of it, perhaps to the innocent side of center. If Judge Murphy had been negotiating for a position in the United States Attorney’s office in the District of Columbia, or in the Criminal Division of the Department of Justice, then the appearance of partiality would have been substantially greater. If, on the other hand, he had been seeking employment at the Department of Agriculture or with the United States Information Agency, the appearance of partiality would have been less. This case, in my view, falls roughly at the same place on the continuum as would job negotiations with the Civil Division or Lands Division of the Department of Justice, which are also, in the broadest sense, a part of the same “team” as the Superior Court prosecutor. These Divisions, like EOUSA, cooperate with and sometimes supervise the United States Attorney’s offices, but deal with entirely different subject matter and have only the remotest stake, if any, in the local criminal prosecutor’s success.

The somewhat illusory character of Judge Murphy’s perceived incentive to tilt against Scott can be assessed by comparing his situation to that of a judge who is under consideration for a promotion within the judiciary, or for an important position in the executive branch (e.g., Director of *765 the Federal Bureau of Investigation, Solicitor General, War Crimes Prosecutor, or United States Attorney). That judge may be considering criminal cases even though the President, who must decide who is to fill the post for which the judge aspires, has made it clear (as several Presidents have) that he is for “law and order,” opposed to the “coddling of criminals,” and against releasing defendants on “legal technicalities.” A decision against the government in a publicized case — e.g., the suppression of an alleged terrorist’s confession — could well derail the judge’s hopes. 9 The incentive to tilt in the government’s favor is surely far greater in such a case than in the situation which confronted Judge Murphy here. The precedents strongly suggest, however, that recusal would not be required in the case of a judge under consideration for a new appointment. See, e.g., Laxalt v. McClatchy, 602 F.Supp. 214, 217-18 (D.Nev.1985), and authorities there cited.

In Laxalt , the court held that a United States Magistrate was not required to re-cuse herself in a case brought by Senator Laxalt although she had asked the Senator

in the past to recommend her for a federal judgeship (over which appointment he had considerable authority) and might do so again. The court stated that this holding is not dependent on whether Magistrate Atkins plans again to apply for a judgeship in the future, does not plan ever to apply again, or doesn’t know in her own mind whether she might seek a future judicial opening.

Id. at 218 . Senator Laxalt’s stake in the Magistrate’s decision in private litigation in which he was the plaintiff was obviously far more direct than any interest OMISS might have in Judge Murphy’s handling of suppression motions or other issues raised by Monroe Scott, of whom the OMISS officials had in all probability never heard. The incentive for the Magistrate to tilt to the Senator was necessarily greater than any corresponding incentive for Judge Murphy here.

The present case is distinguishable from Laxalt and from other decisions proclaiming that there is no appearance of impropriety when a judge presides over a case involving his former political supporters. 10 *766 Judge Murphy’s negotiations with OMISS were proceeding while Scott’s case was pending before him, and this contempora-neousness might reasonably be viewed as heightening the appearance of partiality. Nevertheless, I find the lack of any appreciable practical connection between OMISS and this criminal prosecution in the Superi- or Court to be a factor which tends to dissipate any appearance of impropriety.

IV

In the affidavit which he filed in relation to his negotiations with EOUSA, Judge Murphy certified, under oath, that his discussions about the position at OMISS did not affect the performance of his judicial responsibilities. Scott’s counsel stated in his brief that the “requisite evidentiary facts are contained in Judge Murphy’s affidavit” and that “Appellant does not dispute these facts.” It is thus undisputed that, for purposes of the issue before us en banc, 11 Judge Murphy was an impartial judge.

The cost of reversing a conviction solely for the sake of the appearance of justice is high. The direct consequences are formidable in themselves. See, e.g., Helm v. United States, 555 A.2d 465 (D.C.1989). It is not easy to reassemble witnesses many years after the fact. If they are found, their memories may have faded. If they are required to come to court several more times as a case is repeatedly postponed because of congested calendars — an event that occurs quite often in our crime-ridden capital — their enthusiasm for testifying (as well as their faith in the system) may wane as well. The addition of an old case to an overloaded docket requires the deferral of newer ones, in some of which presumptively innocent defendants may be in pretrial detention. If the prosecutor cannot put the pieces together again, a wrongdoer may go free for reasons unrelated to the merits, and more innocent victims may be harmed. Moreover, if the appearance of justice is critical, we should also consider how the fact of justice appears to the victims of the crime when the perpetrator is released, not because he is innocent or did not receive a fair trial, but because a concededly fair judge failed to avoid a deceptive appearance of prejudice.

The indirect consequences of reversal here may be even more severe. When this court decides a case en banc, lawyers look for opportunities to use the decision as precedent in situations which may not seem to us to resemble this one. Our defense bar includes ingenious attorneys who will not need my concurring opinion to conclude that, if there is an appearance of impropriety in the present case, then such an appearance may exist a fortiori in some of the kinds of situations discussed in Part III. Other convictions, too, will be attacked on grounds which have no relation to the merits or to actual judicial bias. There is a potential Pandora’s box waiting to be opened. 12

I do not suggest that this case is about to provide an ironic solution to our capital’s problem of prison overcrowding. For one thing, I do not anticipate dramatic concessions by the prosecutor in every case. I also appreciate the profound societal value of the appearance of justice. Good things seldom come free, and we must be ready to *767 pay a price for applying the standard of Caesar’s wife. I summarize some of the obvious costs, however, because I find them to be very high indeed where, as here, the appearance of partiality seems to me so attenuated.

V

I have some procedural concerns as well. This is a criminal appeal. The only parties are Scott and the United States. There is a third person, however, whose interests are formidably affected by the issue we hear en banc. He is Judge Murphy.

The government’s concession that Judge Murphy violated the Canon is described by the majority as “commendable.” That, too, depends on the eye of the beholder. The prosecutor’s change of position has surely had a devastating effect on Judge Murphy’s prospects for a ruling that he did not violate the Canon. Earlier in the case, the government was vigorously defending the judge’s actions. As of the date of the en banc argument, however, the prosecution and the defense were both telling us that there was an ethical violation. Nobody is arguing to the contrary. In light of the evolution of the government’s position, since Judge Murphy’s compliance with ethical standards was being challenged, and since our decision could have collateral consequences for him, it might well have been appropriate for this court, despite traditional notions of standing, to take the rare step of inviting the judge to file a memorandum addressing the issue whether he violated the Canon. I concede that such a procedure would have been unusual, but this is not an ordinary case.

Alternatively, this court could remand the case to Judge Murphy for further findings. Indeed, there is authority suggesting that this is what ought to be done. In In re Federal Skywalk Cases, 680 F.2d 1175, 1183 (8th Cir.1982), the court said:

28 U.S.C. § 455 (a) requires a judge to disqualify himself if a reasonable person would have factual grounds to doubt the impartiality of the court. Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). The determination for the district judge to make is whether “his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a). Once that determination has been made, our role on review is limited to deciding whether the district court’s evaluation of the claim of partiality or prejudice amounted to an abuse of discretion. Blizard v. Frechette, 601 F.2d at 1221 .

Although I think the term “abuse of discretion” does not readily apply to the question whether Judge Murphy violated the Canon, there may be merit to a procedure under which the trial judge makes initial findings on the existence or non-existence of appearance of prejudice and the appellate court then addresses the issue under an appropriate standard of review.

In the present case, Judge Murphy filed a reasonably detailed affidavit which has provided much of the information which could be secured through a remand. 13 This is a criminal appeal, the resolution of which has long been delayed. Scott has served more than four years of a sentence of twelve to thirty-six years. If he has been improperly convicted, we should correct the injustice with dispatch. I therefore agree that we should not remand here, but express the hope that such a procedure will be considered in comparable cases in the future. 14

VI

When this case was presented to the panel, the government vigorously contended that there was no appearance of impro *768 priety. During oral argument before the court sitting en banc, however, government counsel conceded

1. that a reasonable person knowing the pertinent facts could have a reasonable doubt of the trial judge’s impartiality; and

2. that, if the trial judge had disclosed the facts at the time of trial, he would have had a duty to recuse himself, and that if he had declined to do so, a writ of mandamus from this court would properly have issued.

The prosecutor argued that even though mandamus would have been appropriate before the trial, the situation changed once Scott had been convicted, and that we should now affirm the conviction despite what the government acknowledges to have been reasonable concerns about the appearance of impartiality.

Like the majority, I find this position untenable. If Scott was entitled to be tried before a judge other than Judge Murphy if he had asked for such relief pretrial, he surely cannot now be denied that right simply because Judge Murphy — wrongfully, the government effectively concedes— failed to disclose the pertinent facts to him in timely fashion and thus denied him the information necessary for the exercise of his right to seek recusal. Just as no man may take advantage of his own wrong, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232-33 , 79 S.Ct. 760, 761-62 , 3 L.Ed.2d 770 (1959), so the government should not be permitted to profit from an error which it now says Judge Murphy made at Scott’s expense. With its concession that mandamus would have been appropriate before trial, the government in my view effectively conceded the case.

We are thus faced with a criminal appeal in which the government has admitted trial court error, and in which all members of the court agree that reversal is required if such error in fact occurred. Although, for the reasons described in this opinion, I have serious reservations as to whether an impartial observer fully informed of the facts would perceive any appearance of impropriety, it is difficult to vote to sustain a conviction where the prosecutor now says that the appearance of justice was flawed. Under the adversary system, judges may ignore or reject concessions of this kind, but they should pause and reflect carefully before they do so.

My own assessment of the facts tempts me to adopt a position more “extreme,” relatively speaking, 15 than that taken by either of the litigants. The timing of the negotiations, however, does raise a question. Moreover, the United States Attorney’s office and OMISS are both within the Department of Justice. The prosecutor in the Scott case, or his boss, could conceivably be asked to comment on Judge Murphy’s candidacy. I find the connection between the job and the criminal case tenuous, but I cannot say that it does not exist. At least in retrospect — and the advantages of hindsight are inordinate — I agree that it would have been better for Judge Murphy to err on the side of caution and to make disclosure.

In a case that is even reasonably close, a judge will ordinarily honor a litigant’s concession. On balance, I think I should do so here. Accordingly, with very little enthusiasm, but with sincere respect for the views of my colleagues in the majority, 16 1 concur in the judgment of the court.

. That is true, at least, of me. In Liljeberg v. Health Services Acquisition Corp., — U.S.-, 108 S.Ct. 2194 , 2205 n. 12, 100 L.Ed.2d 855 (1988), the Supreme Court characterized a judge’s task in passing on the integrity of a fellow member of the bench as a “difficult" one. That is surely no overstatement.

. After Judge Murphy had completed his first term on the bench, he was evaluated for reappointment, as required by the Home Rule Act, D.C.Code § 11 App. 433 (c) (1981 & 1988 Supp.), by the District of Columbia Commission on Judicial Disabilities and Tenure. The Commission stated in its report, in pertinent part, as follows:

The Commission reserves the term "exceptionally well qualified” for those judges whose work product, dedication, demeanor, restraint, efficiency and legal scholarship are preeminent on the bench.

******

Based upon the tabulated results of polls and individual comments of scores of attorneys, Judge Murphy is the type of judge who by his daily example instills confidence in our judicial system. The comments indicate that persons who come into his courtroom feel they will receive a fair hearing. He is repeatedly described as "diligent”; "competent"; "fair”; "courteous”; "attentive”; "conscientious"; "always asks for more than his share of work"; and "pays attention to individuals in sentencing”.

For the foregoing reasons, the Commission finds that Judge Murphy’s judicial service merits his automatic reappointment to the bench. The outstanding manner in which he has performed his duties as a judge, winning the respect and the confidence of the community in his courtroom and in the Superior Court require placement of Judge Murphy in the highest category. We therefore determine Judge Murphy exceptionally well qualified for reappointment.

104 Daily Wash.L.Rptr. 1756-57 (1976).

. See In re Shillaire, 549 A.2d 336, 337-38 (D.C.1988); In re Dory, 552 A.2d 518, 522 (D.C.1988) (concurring opinion).

. As the Supreme Court said in Liljeberg , "there is surely room for harmless error committed by busy judges who overlook a disqualifying circumstance. There need not be a draconian remedy for every violation_” — U.S.at-, 108 S.Ct. at 2203 .

.See Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985).

. It is true that Scott is being prosecuted by the United States Attorney for the District of Columbia, and that OMISS is a part of the Executive Office for United States Attorneys. Since there are almost a hundred United States Attorney’s offices, however, the italicized "s" is important and dissipates any supposed close link between the prosecutor before Judge Murphy and the prospective employer with whom the judge was negotiating.

. Cf. United States v. Zagari, 419 F.Supp. 494, 505 (N.D.Cal.1976), in which the court rejected as implausible or worse the contention that, since the United States Attorney’s office is a “law firm,” a judge must recuse himself in a criminal case because an Assistant United States Attorney represented him in connection with a motion to quash a subpoena.

. The government contended in its brief to the panel, taking a position which it has since abandoned, that

the sheer unlikelihood that EOUSA, seeking an administrator for the Debt Collection Staff, would be aware of, much less care about, Judge Murphy's handling of appellant’s individual case dispels any rational basis for questioning the judge’s impartiality.

Although not pressed to the court en banc, this argument has considerable force.

. Any stake that Judge Murphy might be thought to have in pleasing the government in the present case surely pales in comparison to that of an elected judge who is presiding over a trial in which community feelings run high at the very time that he is campaigning for reelection. This was the situation that confronted the judge in the famous Dr. Sam Sheppard murder case. In Sheppard v. Maxwell, 346 F.2d 707, 729-30 (6th Cir.1965), rev’d on other grounds, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966), the court rejected, almost contemptuously, the contention that the judge’s circumstances had prejudiced Dr. Sheppard's rights:

Much has been made of the fact that the Sheppard trial began on the eve of a judicial election at which the trial judge and one of the prosecution staff were candidates. We must assume that this is emphasized to imply that desire for victory may have led the judge to conduct prejudicial to Dr. Sheppard's rights. We would have to entertain a low estimate of the integrity of our fellow judicial officers to join in any such inference.... As realists we know that those who seek reelection to judicial office hope that their conduct will find public approval, but we do not think that judicial misconduct would be more attractive to the electorate than conduct marked by the integrity which we as judges like to believe is possessed by elected judges as well as those who have the security of tenure during "good behavior." Nor are we prepared to presume that any judge is so far enamored of his position as to betray its responsibilities, no matter what he thinks would most please the electorate.

(Emphasis in original.) "Judges remain human even after assuming their judicial duties,” Green v. United States, 356 U.S. 165, 198 , 78 S.Ct. 632, 651 , 2 L.Ed.2d 672 (1958) (Black, J., dissenting), and one might reasonably ask whether, in the foregoing passage, mere mortals are not viewed as sprouting angels’ wings and as exercising superhuman ability to allow compelling considerations of self-interest to pass them by. Compare the excellent opinion of the Supreme Court of Florida in State ex rel. La Russa v. Himes, 144 Fla. 145, 147 , 197 So. 762, 763 (1940), holding that a candidate for elective judicial office is disqualified from sitting in any case relating to issues or policies which he espoused during the campaign. But even if one disagrees with the Sheppard analysis, the holding that a judge may properly sit even in that case places in perspective the considerably more remote incentive at play here.

. See, e.g., Schultz v. Newsweek, Inc., 668 F.2d 911, 918-20 (6th Cir.1982) (trial judge nominated for appellate judgeship not required to recuse *766 himself although publisher of defendant Detroit News had strongly supported her nomination); cf. Warner v. Global Natural Resources PLC, 545 F.Supp. 1298, 1300-02 (S.D.Ohio 1982); Baker v. City of Detroit, 458 F.Supp. 374, 375-77 (E.D.Mich.1978).

. I do not address here, as the majority does not, those of Scott's contentions on appeal which are unrelated to Judge Murphy’s negotiations with EOUSA.

. Virtually every Superior Court judge who has been a member of the court for more than a year or two has a substantial number of criminal cases on his or her calendar, primarily probation revocations, even while assigned to a Division other than Criminal. If every judge who is under consideration for promotion to a higher judicial office or for selection to a position in the executive branch is disqualified from criminal cases, large numbers of such cases will have to be reassigned. There is, I think, broad agreement among judges that it is in the interest of justice for the judge who placed a defendant on probation to handle revocation proceedings, so that the offender must face the judge to whom he gave his promise to comply. Unnecessary reassignment of such cases would, in my view, be counter-rehabilitative.

. I note, however, that Judge Murphy's affidavit does not disclose whether the issue of appearance of partiality never occurred to him or whether he considered it and, for reasons which he could presumably articulate on remand, concluded that the appearance of justice had been preserved. There is a difference, for purposes of appellate review, between a considered decision and a failure to recognize that there was anything to decide.

. Since Judge Murphy accepted the position at OMISS, he would not have been available for proceedings on remand at an earlier stage of this case.

. In principle, the position that Judge Murphy did not violate the Canon is not, in my view, extreme at all.

. Although my analysis differs from theirs, the very fact that my colleagues discern an appearance of partiality supports the conclusion that reasonable people might do so.