Scott v. United States

ROGERS, Associate Judge,

dissenting.

This appeal presents a question of first impression: what “the average citizen” 1 who is facing prosecution by the United States Department of Justice would think about the appearance of partiality if he knew the judge to preside at his trial was negotiating future employment with that department. So stated, I think the answer is clear notwithstanding the trial judge’s good reputation 2 and the absence of actual prejudice. Accordingly, I would hold that the trial judge was required either to re-cuse himself from Scott’s case or to inform the parties he was actively pursuing employment with the Justice Department and obtain their consent to his participation in the case, and because this did not happen, Scott is entitled to a new trial “in the interest of justice.” Super.Ct.CRIM.R. 33.

*1052 Our criminal justice system is founded on the public’s faith in the impartial execution of duties by the important actors in that system. Young v. United States ex rel. Vuitton et fils S.A., — U.S. -, 107 S.Ct. 2124, 2139, 2141 , 95 L.Ed.2d 740 (1987). It is beyond dispute that the trial judges perform a unique and pervasive role in that system, 3 and that they are expected to adhere to high standards of conduct. See generally Code op Judicial Conduct For United States Judges, approved by the Judicial Conference of the United States (Rev. May, 1987); In re Evans, 411 A.2d 984, 996 (D.C.1980) (Code of Judicial Conduct adopted for the District of Columbia Courts); see also Byrd v. United States, 377 A.2d 400, 404 (D.C.1977) (“[t]he essence of the judicial role is neutrality”). 4

Canon 3(C)(1) of the Code of Judicial Conduct provides that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned....” (Emphasis added). 5 An objective standard is to be applied, Heldt, supra note 1, 215 U.S.App. D.C. at 239, 668 F.2d at 1271, in the interest of providing justice in individual cases and in the interest of maintaining public confidence in the integrity of the judicial process, 6 “which in turn depends on a belief in the impersonality of judicial decision making,” United States v. Nobel, 696 F.2d 231, 235 (3rd Cir.1982), cert. denied, 462 U.S. 1118 , 103 S.Ct. 3086 , 77 L.Ed.2d 1348 (1983); neither bias in fact nor actual impropriety is required to violate the canon. Hall v. Small Business Administration, 695 F.2d 175, 178-79 (5th Cir.1983) (federal disqualification statute “focuses on what is revealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice [and] cannot ... extend to ... the judge’s actual virtue ... ”).

The Supreme Court has stated that due process requires that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 , 75 S.Ct. 11, 13 , 99 L.Ed. 11 (1954)). The Court has adhered to the “stringent rule” of Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 (1927) 7 even though it “may *1053 sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scale of justice equally between contending parties[ ]” precisely because “our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, supra, 349 U.S. at 136 , 75 S.Ct. at 625 . The Court also has long recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824, 827 , 17 L.Ed. 2d 705 (1967); see Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 3106 & n. 6, 92 L.Ed. 2d 460 (1986) (biased adjudicator never harmless error) (citing Tumey v. Ohio, supra, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed.741)). Most recently in Vuitton, supra, 107 S.Ct. 2124 , the court reversed a conviction where counsel for an interested party had been appointed contempt prosecutor. Four justices rejected the view that harmless error analysis is “equal to the task of assuring [essential public] confidence [in the ‘disinterested conduct’ of the prosecutor].” Id. at 2141 . Although “the standards of neutrality for prosecutors are not necessarily as stringent as those applicable to judicial or quasi-judicial officers,” id. at 2139 , the justices concluded that harmless error analysis is nevertheless inappropriate because “[a] concern for actual prejudice in such circumstances misses the point, for what is at stake is the public perception of the integrity of our criminal justice system.” Id. at 2140 . A majority of the court emphasized the fundamental and pervasive effects of the error on the contempt prosecution, the fifth justice viewing the defect even more fundamental than the plurality because the appointments were not an exercise of judicial power under Article III §§ 1, 2, and hence were void. 107 S.Ct. at 2141-42 (Scalia, J., concurring).

The majority here distinguishes between the cases dealing with the issue of appearances and the “reasonable grounds to question impartiality” of Canon 3(C) as a basis for concluding that Scott must demonstrate a potential for harmfulness. A prejudice test cannot apply where the appearance of partiality taints the entire proceeding. See Vuitton, supra, 107 S.Ct. at 2139-41 . 8 As the Supreme Court has recently stated, harmless error analysis “is best suited for the review of discrete exercises of judgment by lower courts, where information is available that makes it possible to gauge the effect of a decision on the trial as a whole.” Id. at 2141 . It “presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Rose v. Clark, supra, 106 S.Ct. at 3106 (footnote omitted). It is simply inadequate to accomplish what this court repeatedly has affirmed is vital to the criminal justice system. For example, in In re Campbell, 522 A.2d 892, 895 (D.C.1987), 9 the court embraced, as “correctly captur[ing] society’s expectations for members of the judiciary,” a statement by the District of Columbia Board of Professional Responsibility which read in part:

[W]hen one contemplates the essence of judicial office, society commits enormous power into the hands of judges, particularly trial judges, because of an abiding faith that those judges will act impartially and without fear or favor. * * * Society grants judges such enormous power exactly because of its confidence that judges will act fairly and impartially. * * * In other words, the appearance of justice is as important as the fact of justice where those who sit in judgment are concerned. It is precisely because of our strongly held beliefs about the ap *1054 pearance and the fact of impartiality that judges are subject to the excruciatingly high ethical standards that we impose on them. * * * put another way, society must protect the integrity of the judicial system so that people will submit their disputes to that system and abide by its judgments, at least in part, of their own free will.[ 10 ]

522 A.2d at 896 .

The timing of Scott’s objection can offer no basis for a prejudice test by this court. See ante at 1045 note 5. Scott and his counsel did not learn about the trial judge’s employment negotiations with the Justice Department until after his trial was over and he had been sentenced, and hence had no opportunity to raise a pretrial or midtrial objection. 11 The motions judge declined to rule on the merits of Scott’s claim that the trial judge’s failure to disclose his employment negotiations had violated Canon 3(C) and he had been denied due process of law, viewing the issue as more properly raised on direct appeal rather than in the trial court as a collateral attack. It is entirely fitting for this court, in the exercise of its supervisory powers, 12 to make clear the procedure which must be followed by a trial judge who is engaged in negotiations about future employment with the Justice Department, a party to the case. That we find neither precedent nor Canon illustration directly on point should not cause us to demur.

Requiring a trial judge, in the absence of recusal, to disclose to the parties the fact of on-going negotiations for future employment with the Justice Department and to obtain their consent to the judge’s participation in the criminal proceedings 13 need not unduly inconvenience the Superior Court. 14 The societal cost of a new trial is a small price to pay in order to ensure that Scott and the general public continue to have faith in the judiciary’s impartiality. Indeed the history of the common law judge in the United States convinces me that the success of our system of justice hinges on the public perception and confidence that judges are neutral and impartial participants in the cases they hear. 15 Al *1055 though the trial judge's reputation and Scott’s disavowal of any claim of actual bias cause me to reach with some reluctance the conclusion that Scott is entitled to a new trial, as Judge Posner wrote for the Seventh Circuit in fairly similar circumstances, “[t]he dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary.” Pepsico v. McMillen, supra, 764 F.2d 458, 461 (7th Cir.1985). 16

The suspicion of harm in Scott’s case is, in any event, ever present. Despite the fact that Scott’s trial was before a jury, the trial judge, inevitably, was a major participant in the conduct of the proceedings. Scott not only made a motion to suppress evidence which required the judge to find facts, but, as is apparent from the very issues which Scott has raised in his direct appeal, the trial judge made a number of critical rulings in which the importance of a defendant’s faith in the judge’s impartiality assumes heightened significance: these rulings include the denial of Scott’s motion for an instruction on self-defense and his objections to prosecutorial misconduct during closing arguments. Notably, the latter issue gives the majority some pause in that it finds the prosecutor probably meant to supply the inference of which Scott complains and holds prosecutorial misconduct did occur at the trial. 17 Thus, even under the majority’s test, that Scott must show that “the judge made critical rulings against him during trial in the posture of a factfinder,” ante at 1048, Scott has met his burden and thereby demonstrated “a potential for prejudice.”

From the beginning to the end of Scott’s trial, the trial judge’s active negotiations for employment with the prosecutor’s employer presented the specter of partiality which the Judicial Canons and the Supreme Court entreat all judges scrupulously to avoid. The employment sought by the trial judge involved “oversight responsibility and policy guidance to the Debt Collection Units in the United States Attorney’s offices,” 18 and, consequently, a fully informed defendant might reasonably question whether the judge “could decide the case with the requisite aloofness and disinterest when he had just solicited ... employment by the [agency] in the case.” Pepsico Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir.1985). The situation does not change because of the trial judge’s general reputation among his colleagues and the legal community. See id. Nor does it change because the prospective employer is the Department of Justice; the negotiations at issue are ethically indistinguishable from negotiations for employment with a large private law firm. The standards for judges are “stringent,” and, under the circumstances, this court should view the potential for prejudice “intolerable.” Vuitton, supra, 107 S.Ct. at 2137 n. 18.

*1056 Accordingly, I respectfully dissent, and do not reach the issues discussed in Part II of the majority opinion.

. See United States v. Heldt, 215 U.S. App.D.C. 206, 239, 668 F.2d 1238, 1271 (1981) (discussing federal recusal statute, 28 U.S.C. § 455 , mandating Canon 3 (C)(1) standard), cert. denied, 456 U.S. 926 , 102 S.Ct. 1971 , 72 L.Ed.2d 440 (1982).

. See ante at 1045 note 6.

. See United States v. Quattrone, 149 F.Supp. 240, 242 (D.D.C.1957) (Youngdahl, J.) ("confidence in the Judiciary is essential to the successful functioning of our democratic form of government”). As stated by Mr. Justice Frankfurter:

Criminal justice is concerned with the pathology of the body politic. In administering the criminal law, judges wield the most awesome surgical instruments of society. A criminal trial, it has well been said, should have the atmosphere of the operating room. The presiding judge determines the atmosphere. He is not an umpire who enforces the rules of the game, or merely a moderator between contestants. If he is adequate to his functions, the moral authority which he radiates will inspire the indispensable standards of dignity and austerity upon those who participate in a criminal trial.

Sacher v. United States, 343 U.S. 1, 37-38 , 72 S.Ct. 451, 468-69 , 96 L.Ed. 717 (1952) (Frankfurter, J., dissenting).

. See also O’Donoghue v. United States, 289 U.S. 516 , 531-32, 53 S.Ct. 740, 743-44 , 77 L.Ed. 1356 (1933) (quoting Tub Federalist No. 78 (A. Hamilton) ("The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”) and Chief Justice John Marshall's remarks during the debates of the Virginia State Convention of 1829-1830 (It is "to the last degree important, that he [the judge] should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience[]_")).

. The Canon provides that its statement of the instances in which recusal is required is not all inclusive. In one Justice’s view, recusal is required

[w]hen there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges re-cuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. (Emphasis added).

Public Utilities Comm’n of the District of Columbia v. Pollak, 343 U.S. 451, 466-67 , 72 S.Ct. 813, 822-23 , 96 L.Ed. 1068 (1952) (Frankfurter, J., concurring).

. See generally Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 746 (1973).

. In Tumey v. Ohio, the Court said:

the requirement of due process of law in judicial procedure is not satisfied by the argu *1053 ment that men of the highest honor and the greatest self-sacrifice could carry on without danger of injustice. Every procedure which would offer a possible temptation to the average man as judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.

273 U.S. at 532 , 47 S.Ct. at 444 .

. See also Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 , 106 S.Ct. 1580, 1587 , 89 L.Ed.2d 823 (1986) (quoting In re Murchison, supra, 349 U.S. at 136 , 75 S.Ct. at 625 ) (state supreme court justice).

. The case involved the disbarment of a trial judge upon conviction of a crime involving moral turpitude—receipt of an illegal gratuity on or because of an official act ( 18 U.S.C. § 201 (g)).

. Cf. Sloan v. United States, 527 A.2d 1277, 1287 (D.C.1987) (recusal may be necessary where judge receives ex parte information that renders the judge unable to function as impartial adjudicator, although in some cases disclosure to counsel may satisfactorily address the problem); cf. also Banks v. United States, 516 A.2d 524, 528-29 (D.C.1986) (judicial disqualification upon exposure to information during aborted plea proceeding), cert. denied, — U.S. -, 108 S.Ct. 485 , 98 L.Ed.2d 483 ; In re C.S. McP., 514 A.2d 446, 452 (D.C.1986) (new judge required for resentencing after prosecutor violated plea agreement); White v. United States, 425 A.2d 616, 620 (D.C.1980) (resentencing before another judge where judge, although faultless, was exposed to information disclosed in violation of plea agreement); Butler v. United States, 414 A.2d 844 (D.C.1980) (en banc) ("destruction of the appearance of impartiality” in violation of due process required recusal where trial judge, sitting as trier of fact, learns from defense counsel the merits of defendant’s case and that defendant plans to commit perjury).

. After learning about the judge’s negotiations, Scott filed a motion under D.C.Code § 23-110 (1981) to vacate the judgment of conviction and for a new trial, or, in the alternative, for resen-tencing before a new judge.

. See Oliver v. United States, 384 A.2d 642 (D.C.1978); see also Aetna Life Insurance Co. v. Lavoie, supra note 8, 106 S.Ct. at 1589 ("Congress and the States, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated [by due process] here today.”)

. Canon 3(D), Remittal of Disqualification, provides that, except in circumstances set forth in (a) through (d) of Canon 3(C)(1), a judge may, instead of withdrawing from the proceeding because his impartiality might reasonably be questioned, disclose on the record the basis of the disqualification, and if the parties and lawyers, "independently of the judge’s participation,” agree in writing to waive the judge’s disqualification, the judge may preside in the proceeding. See Interim Advisory Comm, on Judicial Activities, Advisory Op. 25 (1972), on the procedure for assuring the voluntary nature of the consent.

. The Superior Court of the District of Columbia has over fifty trial judges who, from time to time, receive rotating assignments from the chief judge to one of five divisions of the court.

. Iam indebted to the stimulating and informative course taught by Calvin Woodard, Doherty Professor of Law, University of Virginia, as part of the Master of Laws in the Judicial Process program at the University.

. In Pepsico v. McMillen, supra, the Seventh Circuit granted a petition for mandamus notwithstanding the absence of any actual impropriety were the judge to preside at trial. The court concluded that recusal was required because a “headhunter” acting on the trial judge’s behalf had contacted the law firms of the parties to the litigation. The judge was “of unblemished honor and sterling character,” but the court was satisfied that the parties "would entertain a significant doubt that justice would be done in the case," and "wonder whether Judge McMillen might not at some unconscious level favor the firm ... that had not as definitively rejected him.” 764 F.2d at 460, 461 . The Seventh Circuit acknowledged its conclusion was a reluctant but necessary one notwithstanding the fact that the firms had declined to consider the judge for future employment and there was no indication that the judge was disappointed, since he had set several conditions for his future employment.

. See ante at 1050-1051. This was a one-witness case where Scott’s defense was justification. In his brief in this court Scott argues that the government’s case was hardly overwhelming and the prosecutor compensated in closing argument for the thinness of the evidence of specific intent to kill by putting words in Scott’s mouth ("I’ll teach you”) which, as the majority opinion states, ante at 1051, were nowhere in the record. See Jones v. United States, 512 A.2d 253, 258 (D.C.1986) (plain error found where prosecutor argued fact not in evidence which "significantly strengthened the inference" of guilt).

. See affidavit filed by the trial judge at 2.