concluding that defendant’s absence from hearing on Batson violation did not violate his right to be present because the defendant “had nothing to do or gain from his presence”
How later courts described this case
- concluding that defendant’s absence from hearing on Batson violation did not violate his right to be present because the defendant “had nothing to do or gain from his presence”
- concluding that defendant’s absence from hearing on Batson violation did not violate his right to be present *559 because the defendant “had nothing to do or gain from his presence”
- holding that defendant's absence from hearing on whether the prosecution had violated Batson did not violate his constitutional right to be present
- finding that a statement made more than two months after the crimes occurred was not spontaneously made
Written by the judges who cited it.
The opinion
LIMBAUGH, Judge,
concurring in part and dissenting in part.
I concur in the affirmance of the conviction, but I dissent in the reversal of the Rule 29.15 proceeding.
Racial prejudice is the scourge of our society, and in my mind, there is no more damning criticism than to be called a bigot. To every extent possible, our trial judges must conduct themselves so that there can be no basis upon which a reasonable person could harbor doubt about a judge’s racial impartiality. That said, neither neutral language, inoffensive to objective observers, nor isolated events remote in time or circumstance, should require the disqualification of a trial judge.
According to Part XVII of the majority opinion, recusal is required “when the [trial] judge’s on-the-record comments are coupled with his status as a potential witness to off-the-record issues.” In my view, not only are the “on-the-record comments” grossly mis-characterized, but the “off-the-record issues” do not confer “potential witness” status upon the trial judge because they are not actionable as a matter of law.
I.
The majority begins by reviewing the laundry list of the trial judge’s past sins as alleged in defendant’s motion to disqualify. Those allegations, as the majority acknowledges, are “not conclusive of defendant’s claim of bias,” and under close scrutiny, the allegations should have no bearing at all. Evidence that the judge swore at defense counsel over a controversy about counsel’s request to bring a private court reporter to record in-chambers proceedings is intemperate and unbecoming, but it has nothing to do with racial prejudice, and neither the majority nor defense counsel purport to show otherwise. Similarly, the majority offers no explanation how a 16-year-old verdict of sexual harassment against the trial judge is indica *28 tive of discrimination on the basis of race. Indeed, under Part III of its opinion, the majority persuasively explains why the 16-year-old verdict does not disqualify the judge from deciding gender discrimination claims in the gender-üaísore hearing that he conducted in this very same case! If the evidence of the sexual harassment verdict does not disqualify him from hearing claims of sexual discrimination, how possibly does it disqualify him from hearing claims of racial discrimination?
The allegation concerning a racial slur made in the company of just a few people at a private social event back in 1983 fares no better. Even if the allegation is true (in fact, it is hotly contested), no reasonable person would find an appearance of impropriety in the fact that the judge presided over race- Batson hearings years later. As the majority aptly noted in its Part III discussion about the gender-Paisow hearing, a reasonable person would consider the passage of time and the difference between matters outside the courtroom and the task of judging.
The final allegation — the disparate treatment of whites and blacks — is even more baseless than the others. The outline of the “expert testimony5’ set out in the affidavit filed in support of defendant’s motion to disqualify, identifies six cases in which Judge Corrigan supposedly treated blacks differently than similarly-situated whites in three other cases. Under defendant’s theory, these cases establish a pattern and course of conduct that prove conclusively that the trial judge is hopelessly bigoted and unworthy of his office.
To the contrary, six cases from this judge’s 20-year-plus judicial career — a career in which he has presided over scores of trials and has taken hundreds of guilty pleas — are hardly proof of a pattern of racial bias. Moreover, to fully discredit this theory, one need only examine the substance of the alleged disparate treatment. Defendant does not contend that sentences were meted out unevenly or that rulings were one-sided. By far the worst claim is that the judge referred to the defendants in derogatory terms, and even that happened only in four of the cases. In one case, the judge called the defendant an animal; in another, a coward; in another, a manipulator; and in another, a clown. In the first case, the defendant had beaten, bloodied and raped an elderly woman. Given those circumstances, the judge’s characterization was appropriate, maybe even understated. The other three cases are comparable. In short, this kind of claim is nonsense.
II.
The majority’s criticism of the trial judge’s on-the-record comments stems from an illogical and overzealous attack on the judge’s use of race-neutral language. Although their analysis begins with the tacit concession that the trial judge’s language was indeed race-neutral, they conclude that the same language, when viewed “in context,” somehow becomes offensive, if not scandalous. I am puzzled by the majority’s statement that race-neutral language is inappropriate in the Batson setting; at the least, that statement is counterintuitive. What I do understand about the majority’s position, however, is their belief that prejudiced persons “disguise their bias by hiding behind neutral-sounding language,” and that “we may not simply accept ostensibly neutral language as showing an absence of prejudice.” While I don’t necessarily disagree with that proposition, a person using race-neutral language, which by definition is innocuous on its face, should be entitled to a presumption that he or she is not biased. I perceive great risk in any standard that mandates an inquiry to determine whether the words used mean something different than what they say, as if all speech is suspect. Under this kind of subjective review, even the most saintly of us may be the target of overzealous scrutiny and quite often, false claims. The majority’s pronouncement that “[i]t is not the judge to whom we should affirm the benefit of the doubt” is a misstatement of the law. Instead, the analysis should begin with recognition of the well-established tenet that the honesty and integrity of judicial officers is presumed. Withrow v. Larkin, 421 U.S. 35, 47 , 95 S.Ct. 1456, 1464 , 43 L.Ed.2d 712 (1975).
The focus of the majority’s wrath was first, the judge’s indication that he would not take *29 judicial notice of the race of the jurors, and second, the judge’s remark that “one drop of blood constitutes black.” On each of these matters, the majority purports to evaluate the comments in context, but in fact takes the comments out of context. At the time the comments were made, the day after voir dire when none of the prospective jurors were present, defense counsel was attempting to make a record with the court that Ms. Sidney was the only black juror remaining out of the 30 persons on the panel. In response to the request, the judge agreed that Ms. Sidney was black, but he refused to take judicial notice of the final makeup of the jury, and he required “direct evidence as to who is black and who is white.” His statement that it is “counsel’s responsibility to prove who is black and who isn’t” comports with the threshold requirement for any Bat-son challenge that defense counsel identify the cognizable racial group to which the veni-reperson in question belongs. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 566 (1992). In many circuits, that identification can be established from answers on jury information sheets filled out and sworn to by each prospective juror. Furthermore, except for the rare case in which there is a dispute about the race of a particular juror, it is customary for the prosecutor to stipulate to the identification. Without information sheets or a stipulation, it is incumbent on defense counsel who wish to press a Batson claim to make a proper record of the racial makeup of the jury. Although the majority finds it offensive that the trial judge was unwilling to take judicial notice of a person’s race, it is equally offensive for the judge to presume what race another person ought to claim.
The fact that it is sometimes difficult to ascertain a person’s race is a bona fide concern for all trial judges. I have found no case from any jurisdiction, state or federal, that states, or even proposes, any criteria for determining a person’s race in order to afford proper consideration under Batson. In his comments, taken as a whole, the judge does nothing more than convey his difficulty in ascertaining which members of the jury are black.
In that regard, the trial judge’s remark that “one drop of blood constitutes black” is simply his observation that years ago the phrase was used to categorize persons as blacks who were of mixed/black race to whatever degree. Although the phrase was used by those who would identify blacks in order to deprive them of the same status as whites or, at the very least, to invoke a racial slur, the evidence in this case is insufficient to show that the trial judge used the phrase in that fashion or for that purpose. In context, the phrase does not constitute a racial slur. Indeed, after making that statement, the judge emphasized his intent to be colorblind and unbiased by then stating, “Can somebody enlighten me of what black is? I don’t know; I think of them as people.”
Perhaps the most telling indictment of the majority’s conclusion is that no objection was made at trial by defendant’s counsel. The likely reason for making no objection, had the majority shown any deference to either trial counsel or the judge, was that the remarks were made innocuously. The reasonable inference from trial counsel’s failure to object is that the judge’s remarks were made without a smirk on his face or a derogatory tone in his voice or any other conduct that would support a claim of bias from the use of race-neutral words.
Arguably, the fact that “one drop of blood” was used historically to disparage blacks makes its use in any context insensitive. A mere incident of insensitivity, however, which by all appearances was unwitting, does not rise to the level of “words or conduct [that] manifest bias or prejudice ... based upon race” under Rule 2, Canon 3(C), or “personal bias or prejudice concerning the proceeding” under Rule 2, Canon 3(D). In my view, when the remark is considered in context, there is not even an appearance of impropriety.
III.
To conclude, I am unwilling to convict a person of racial prejudice on evidence- as scanty as this. In these times of racial sensitivity, the zeal with which we should rightful *30 ly root out prejudice should not turn into a witch hunt.
Accordingly, I dissent in the reversal of the Rule 29.15 proceeding.