Amicus Curiae Brief — Rogers Lacaze, Petitioner v. Louisiana

Supreme Court briefJun 21, 2018

Ask Donna

What actually matters in this document.

Text

No. 17-1566

Supreme Court of the United States

ROGERS LACAZE,

Petitioner,

STATE OF LOUISIANA,

Respondent.

On Petition for Writ of Certiorari to

the Supreme Court of Louisiana

BRIEF OF AMICUS CURIAE

PROFESSOR JED HANDELSMAN SHUGERMAN

IN SUPPORT OF PETITIONER

Jed Handelsman

Shugerman

Professor

FORDHAM SCHOOL OF LAW

150 West 62nd Street

New York, NY 10023

Susannah P. Torpey

Counsel of Record

Mulan Cui

WINSTON & STRAWN LLP

200 Park Avenue

New York, NY 10166

(212) 294-6700

storpey@winston.com

Attorneys for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ................ 1

SUMMARY OF THE ARGUMENT......................... 2

ARGUMENT ............................................................ 4

I. The Louisiana Supreme Court’s

ruling—that an appearance of bias

alone can never amount to a due

process violation—contradicts this

Court’s precedents and diminishes

public confidence in judicial integrity. ......... 4

A. This Court has time and time

again held that the Due Process

Clause prohibits judges from

presiding despite an appearance

of bias. ................................................. 4

B. The view that the Due Process

Clause permits the appearance

of bias diminishes public

confidence in judicial integrity. .......... 8

II. History reveals that states adopted

judicial elections on the assumption of

a legal landscape that would allow an

informed and engaged electorate. ................. 9

A. States adopted new

constitutional limitations on

legislative power in the midnineteenth century, reflecting a

concern for individual rights. ............. 9

B. Judicial elections were meant to

foster a fair and impartial

judiciary, relying on the wisdom

of an informed and engaged

electorate. .......................................... 11

C. Elected judges expanded

individual rights and developed

substantive due process for

property rights, consistent with

the states’ assumption that

federal due process also protects

such rights. ....................................... 14

D. Today, states continue to strive

for fairness and impartiality in

the judiciary by requiring

judges to avoid even the

appearance of impropriety. .............. 16

III. The facts of this case provide a

straightforward vehicle for this Court

to reaffirm that the Due Process

Clause does not allow a judge to hide

potential self-interests. ............................... 17

CONCLUSION ....................................................... 20

iii

TABLE OF AUTHORITIES

Federal Cases

Aetna Life Insurance Co. v. Lavoie,

475 U.S. 813 (1986)......................................... 5, 6

Bracy v. Gramley,

520 U.S. 899 (1997)........................................... 18

Caperton v. A.T. Massey Coal Co.,

556 U.S. (2009)................................................ 6, 7

Offutt v. United States,

348 U.S. 11 (1954)......................................... 2, 19

Taylor v. Hayes,

418 U.S. 488 (1974)............................................. 5

Tumey v. Ohio,

273 U.S. 510 (1927)............................................. 4

Ward v. Vill. of Monroeville,

409 U.S. 57 (1972)............................................... 5

Williams v. Pennsylvania,

136 S. Ct. 1899 (2016)..................................... 6, 7

Williams-Yulee v. Florida Bar,

135 S. Ct. 1656 (2015)..................................1, 2, 7

State Cases

Griffith v. Comm’rs of Crawford Cty.,

20 Ohio 609 (1851) ............................................ 14

Wynehamer v. People,

13 N.Y. 378 (1856) ............................................ 14

Rules

S. Ct. R. 37(2)(a) ....................................................... 1

S. Ct. R. 37(6) ........................................................... 1

State Constitutions

N.Y. Const. of 1846 ................................................. 10

La. Const. of 1852................................................... 10

Periodicals

Jed Handelsman Shugerman, Economic

Crisis and the Rise of Judicial

Elections and Judicial Review, 125

Harv. L. Rev. 1061, 1115 (2010) ..............1, 14, 15

Jed Handelsman Shugerman, In Defense

of Appearances: What Caperton v.

Massey Should Have Said, 59 DePaul

L. Rev. 529 (2010) ........................................2, 7, 9

Non-Periodical Publications

Constitutional Reform, in a Series of

Articles Contributed to the Democratic

Review, upon Constitutional

Guaranties in Political Government

(Thomas Prentice Kettell ed., 1846) ................ 11

Evan Haynes, The Selection and Tenure of

Judges (2005) ...................................................... 9

Jed Handelsman Shugerman, The People’s

Courts: Pursuing Judicial

Independence in America (2012) ............... passim

Publications of the State Historical Society

of Wisconsin: Collections, Volume

XXVII (Milo M. Quaife ed., 1919)..................... 12

Report of the Debates and Proceedings of

the Convention for the Revision of the

Constitution of the State of New-York

(William G. Bishop & William H.

Attree reporters, 1846) ..................................... 12

Sam Medary, The New Constitution (1849) .......... 11

Other Authorities

Comparison of ABA Model Judicial Code

and State Variations – Rule 2:11:

Disqualification, Am. Bar Ass’n Ctr. for

Prof’l Responsibility Pol’y

Implementation Comm. (2018) ........................ 16

The Declaration of Independence

(U.S. 1776) .......................................................... 9

Michael Perlstein & Calvin Baker, New

Orleans Police Officer Charged with

Killing Cop, 2 Others, Times-Picayune,

Mar. 5, 1995 ...................................................... 18

Model Code of Judicial Conduct (Am. Bar.

Ass’n 2010) ...................................................15, 16

Rick Bragg, Killings That Broke the Spirit

Of a Murder-Besieged City, N.Y. Times,

May 13, 1995 ..................................................... 17

INTEREST OF THE AMICUS CURIAE

Amicus curiae Professor Jed Handelsman

Shugerman is an expert on the history of judicial

elections in America. He is the author of the only indepth book on judicial elections, The People’s Courts:

Pursuing Judicial Independence in America (Harv.

Univ. Press 2012).1 See also Jed Handelsman

Shugerman, Economic Crisis and the Rise of

Judicial Elections and Judicial Review, 125 Harv. L.

Rev. 1061 (2010).

Professor Shugerman’s scholarship reveals that

states adopted judicial elections to promote judicial

independence, believing that an informed public

would elect fair and impartial judges who could not

hide their self-interests from informed voters. This

Court cited Professor Shugerman’s work in its

discussion of judicial elections in Chief Justice

Roberts’s opinion for the Court in Williams-Yulee v.

Florida Bar, 135 S. Ct. 1656, 1662, 1672 (2015). See

also id. at 1674 (Ginsburg, J., concurring in part and

concurring in the judgment).

Professor Shugerman has also authored a law

review article tracing the Court’s precedents on due

process in the context of judicial recusal and

disqualification. See Jed Handelsman Shugerman,

1 Counsel of record received timely notice of the amicus curiae’s

intent to file this brief and provided their written consent to

this filing. See S. Ct. R. 37(2)(a). Additionally, no counsel for

either party authored any portion of this brief, and no persons

contributed any money for the preparation or submission of

this brief. See S. Ct. R. 37(6).

In Defense of Appearances: What Caperton v. Massey

Should Have Said, 59 DePaul L. Rev. 529 (2010). In

this article, Professor Shugerman observes that the

Court has demonstrated a concern for the

appearance of bias throughout its precedents. He

then argues that the Court should clarify that, in the

due process inquiry, appearances matter.

Professor Shugerman files this brief to provide

the Court with historical and jurisprudential context

relevant to the Court’s consideration of the Lacaze

petition for certiorari.

SUMMARY OF THE ARGUMENT

As Justice Felix Frankfurter recognized in 1954,

and this Court has repeatedly recognized since, the

Due Process Clause of the Fourteenth Amendment

requires “justice [to] satisfy the appearance of

justice.” See, e.g., Williams-Yulee, 135 S. Ct. at 1666

(quoting Offutt v. United States, 348 U.S. 11, 14

(1954)). In the decision below, the Louisiana

Supreme Court rejected that proposition out of

hand, squarely holding that “proof of an appearance

of bias alone is insufficient to show a violation of

federal due process.” Pet.App. 15a. The Louisiana

Supreme Court’s ruling contradicts this Court’s

recognition that the appearance of bias undermines

the integrity of the judiciary and the protection of

individual rights. See infra Argument § I.

Additionally, by concluding that a judge can

constitutionally preside over a case despite a

concrete self-interest, the Louisiana Supreme Court

renders a decision that also conflicts with the

historical underpinnings of the states’ judicial

election systems. As history shows, states adopted

judicial elections to foster a fair and impartial

judiciary capable of protecting individual rights.

They assumed a legal landscape that would allow an

informed and engaged electorate, who would elect

capable judges who are above political pressure.

They also assumed that individual rights could be

found in the federal Due Process Clause. See infra

Argument § II.

The Lacaze petition presents an ideal

opportunity for the Court to clarify the standard of

judicial disqualification required by the Due Process

Clause and to restore the assumptions underlying

the states’ judicial election systems. Specifically, the

concrete self-interest of Judge Marullo, on this

record, provides a straightforward vehicle for

reaffirming that the Due Process Clause prevents a

judge from presiding over a case despite an

appearance of bias, and for restoring the legal

protections that underpinned the adoption of state

judicial elections in the first place. See infra

Argument § III.

ARGUMENT

I. The Louisiana Supreme Court’s ruling—

that an appearance of bias alone can never

amount to a due process violation—

contradicts this Court’s precedents and

diminishes public confidence in judicial

integrity.

The Louisiana Supreme Court’s ruling narrows

the protections of due process beyond the limits

previously permitted by this Court. By allowing

judges to preside over cases despite a clear

appearance of bias, this ruling also diminishes

public confidence in the integrity of the judiciary.

This Court should grant certiorari to correct the

course of the Louisiana Supreme Court and to

preserve public confidence in judicial integrity.

A. This Court has time and time again held

that the Due Process Clause prohibits

judges from presiding despite an

appearance of bias.

By interpreting the Due Process Clause to permit

the appearance of a biased judiciary, the Louisiana

Supreme Court fails properly to address this Court’s

concern that the appearance of bias undermines the

integrity of the judiciary and the protection of

individual rights—a concern that runs through

nearly a century of Supreme Court precedent.

As early as 1927, the Court rejected the view that

a litigant must prove actual bias to demonstrate the

need for recusal. See Tumey v. Ohio, 273 U.S. 510,

522–23 (1927). Writing for a unanimous Court, Chief

Justice William H. Taft first recognized that due

process requires a judge with “a direct, personal,

substantial[,] pecuniary interest” in a case to recuse

himself. Id. at 522. But the Court explained that the

standard also encompassed any interest presenting

“a possible temptation to the average man”—and

anything that “might lead him not to hold the

balance nice, clear, and true between the state and

the accused.” Id. at 532. Applying this standard, the

Court has repeatedly found a violation of due

process, including in one case based on the “possible

temptation” standard, see Ward v. Vill. of

Monroeville, 409 U.S. 57, 60 (1972), and in a second

case involving “a likelihood of bias or an appearance

of bias,” see Taylor v. Hayes, 418 U.S. 488, 501

(1974).

Subsequently, the Court reiterated the

disqualification standard in Aetna Life Insurance

Co. v. Lavoie, 475 U.S. 813 (1986). Margaret Lavoie

sued Aetna Life Insurance for refusing to pay her

medical claims. Id. at 816. Ms. Lavoie won a jury

award of $3.5 million in punitive damages, which

the Alabama Supreme Court affirmed in a 5–4

decision. Id. It was then revealed that Justice T. Eric

Embry, who authored the per curiam opinion, id. at

818, had filed similar suits against other insurance

companies, id. at 817. After affirming Ms. Lavoie’s

award, Justice Embry settled his claims for a “tidy

sum,” id. at 824, and then resigned from the bench

for “health reasons,” id. at 822 n.2. The Court found

that Justice Embry’s per curiam opinion had the

“clear and immediate effect of enhancing both the

legal status and the settlement value of his own

case.” Id. at 824.

Drawing language from a long line of precedent,

Chief Justice Warren Burger articulated the

disqualification inquiry on behalf of the Court as

“whether the situation is one which would offer a

possible temptation to the average . . . judge to . . .

lead him not to hold the balance nice, clear and

true.” Id. at 822 (quoting Ward, 409 U.S. at 60). He

continued to explain that due process “may

sometimes bar trial by judges who have no actual

bias and who would do their very best to weigh the

scales of justice equally between contending

parties,” but reiterating Justice Frankfurter’s

observation that “to perform its high function in the

best way, ‘justice must satisfy the appearance of

justice.’” Id. at 825 (quoting In re Murchison, 349

U.S. 133, 136 (1955)). Chief Justice Burger’s

unequivocal reiteration of the “appearance of

justice” standard in this context left little room for

doubt that the Due Process Clause requires the

appearance of an unbiased judiciary. The Louisiana

Supreme Court’s out-of-hand rejection of that

proposition conflicts with these foundational due

process precedents.

This Court’s more recent cases have continued to

caution against the appearance of a biased judiciary,

although some lower courts, like the Louisiana

Supreme Court, have incorrectly confused this

Court’s language about “actual bias” or “the

probability of bias” to depart from the Court’s

historical standard. In Caperton v. A.T. Massey Coal

Co., the Court recognized that the facts gave rise to

a “risk of actual bias” too high to be constitutionally

tolerable, without needing to address whether an

independent appearance of bias existed. 556 U.S.

868, 884, 886 (2009). The Court nonetheless

recognized that state efforts “to eliminate even the

appearance of partiality” served a vital state interest

of “maintain[ing] the integrity of the judiciary and

the rule of law.” Id. at 888–89. In Williams v.

Pennsylvania, the Court searched for an

“unconstitutional potential for bias” while

emphasizing that “the appearance of bias demeans

the reputation and integrity not just of one jurist,

but of the larger institution of which he or she is a

part.” 136 S. Ct. 1899, 1905, 1909 (2016). These

precedents recognize that the Due Process Clause

prohibits judges from presiding in the face of an

appearance of bias—and certainly from hiding the

facts giving rise to the appearance.

This case would give the Supreme Court a chance

to clarify that the traditional standard of an

“appearance of bias” remains the standard for due

process, along with concerns about actual bias, and

that the Court’s recent language about “risk” or

“probability” of bias was not intended to shed this

core historical principle of due process. See

Shugerman, In Defense of Appearances, supra, at

539–49.

B. The view that the Due Process Clause

permits

the

appearance

bias

diminishes public confidence in judicial

integrity.

As this Court has recognized, “public perception

of judicial integrity is ‘a state interest of the highest

order.’” Williams-Yulee, 135 S. Ct. at 1666 (quoting

Caperton, 556 U.S. at 889). Because judges are

“charged with exercising strict neutrality and

independence,” id., any perception that a judge is

acting otherwise harms the public perception of

judicial integrity. Indeed, “[b]oth the aspiration and

the appearance of impartiality and nonpartisanship

are crucial for the courts to work.” Shugerman, The

People’s Courts, supra, at 273.

By ruling that an appearance of bias is never

sufficient for a due process claim, the Louisiana

Supreme Court went even further. Under this

ruling, not only may a judge preside despite an

appearance of bias, but he need not even disclose the

facts giving rise to the appearance. This rule creates

an untenable risk that parties will never even learn

about facts giving rise to an improper appearance of

bias.

In a judiciary that allows judges to stay silent

regarding self-interests that have the potential to

create an appearance of bias, the public knows less

and is less assured that judges are acting with the

independence, fairness, and impartiality attendant

to their role. To preserve public confidence in the

integrity of the judiciary, it is essential for this Court

to reaffirm that the Due Process Clause requires

recusal—and certainly disclosure—in cases giving

rise to an appearances of bias. In doing so, the Court

can preserve public confidence in the integrity of the

judiciary and create a system that allows judges to

disclose potential or apparent self-interests with

candor and dignity, without a confession of probable

bias. See Shugerman, In Defense of Appearances,

supra at 541.

II. History reveals that states adopted judicial

elections on the assumption of a legal

landscape that would allow an informed

and engaged electorate.

An important underpinning of judicial elections

was the assumption that an informed and engaged

electorate would choose fair and impartial judges

who were emboldened to protect individual rights,

which reveals a second crucial assumption: that the

state and federal constitutions would provide such

individual rights.

A. States adopted new constitutional

limitations on legislative power in the

mid-nineteenth century, reflecting a

concern for individual rights.

As far back as the colonial era, the people viewed

an independent judiciary as a crucial feature of

republican government. See, e.g., The Declaration of

Independence para. 11 (U.S. 1776) (“[King George]

has made Judges dependent on his Will alone, for

the tenure of their offices, and the amount and

payment of their salaries.”). Once the colonies won

their independence, the states sought to structure

their judiciaries to prevent judicial dependency on a

central power. Early state judiciaries reflected

experiments in appointment and consent, legislative

elections, and limited tenures. See Evan Haynes,

The Selection and Tenure of Judges 101–33 (2005).

Despite these efforts, state judiciaries of the early

nineteenth century were nonetheless beholden to

the political branches of government and, by

extension, the parties that controlled them.

Against this backdrop, states plunged into a

severe economic depression in the 1840s,

exacerbated by legislative overspending. See

Shugerman, The People’s Courts, supra, at 85–86.

Outraged citizens demanded constitutional reforms

to limit legislative power, leading New York to

convene a constitutional convention in 1846. The

convention produced a new constitution that limited

government spending by requiring the legislature to

collect taxes to cover each spending measure and to

seek public approval for new debts. N.Y. Const. of

1846, art. VII, § 12. A new provision limiting each

state statute to a single subject made it harder for

legislators to insert unpopular provisions into

popular bills. Id. art. III, § 16. The new constitution

also sought to eliminate the banks’ monopoly power

by restricting the legislature’s ability to grant

special charters. Id. art., VIII § 4. These examples

are among the numerous measures in the new

constitution that curtailed government powers and

expanded individual property rights.

New York’s constitutional convention triggered a

wave of constitutional conventions around the

country. See Shugerman, The People’s Courts, supra,

at 101–02. Louisiana was among the states to follow

New York’s lead, amending its constitution in 1852

to limit the legislature’s power to undertake debts,

to prohibit the legislature from passing a sanctions

law, and to clarify the state’s power to tax property.

See La. Const. of 1852, tit. VI, arts. 111, 119, 123.

These articles represented a significant curtailment

of legislative power in favor of individual property

rights.

B. Judicial elections were meant to foster a

fair and impartial judiciary, relying on

the wisdom of an informed and engaged

electorate.

With new constitutional protections for

individual rights in place, convention delegates

sought to ensure a judiciary that could enforce these

rights. As one writer questioned, “Why have a

constitution at all, if the legislature is unrestrained

and may violate its plainest provisions with

impunity?” Veto, reprinted in Sam Medary, The New

Constitution (1849). At the New York constitutional

convention, the plain solution was to switch from a

judiciary composed of appointed judges—who were

seen as “puppets” in the hands of the legislature, see,

e.g., id.—to a judiciary composed of elected judges

who would assert their power on behalf of the people.

See Shugerman, The People’s Courts, supra, at 95–

99. Thus, reformers turned to judicial elections with

the hope of fostering a less partisan, less politicized

judiciary that was emboldened by popular

legitimacy to act as a stronger check on the other

branches. Id.; see, e.g., Letter from Hon. Michael

Hoffman, “On a Reorganization of the Judiciary of

the State of New-York” (Sept. 12, 1845), reprinted in

Constitutional Reform, in a Series of Articles

Contributed to the Democratic Review, upon

Constitutional Guaranties in Political Government

58–63 (Thomas Prentice Kettell ed., 1846).

A crucial assumption underlying the adoption of

judicial elections was that an informed and engaged

electorate would choose candidates “based on

honesty, integrity, a commitment to constitutional

principles, and an understanding of the legal

system.” Shugerman, The People’s Courts, supra, at

273. Reformers believed that the people—who went

to the polls with no selfish bias—would create a fair

and impartial judiciary, id. at 112, because only

judges who “present themselves with clean hands

and a pure life” could win the popular vote. Report of

the Debates and Proceedings of the Convention for

the Revision of the Constitution of the State of NewYork 645 (William G. Bishop & William H. Attree

reporters, 1846) (remarks of delegate Ira Harris).

Indeed, supporters of judicial elections warned

that, while the legislature preferred partisan judges,

the voters would never tolerate partisan judges.

Nothing in this country would sooner seal

the political doom of any judge, by all

parties and every honest man, than the

attempt to bend his decisions from the line

of justice to make political capital. . . . He

alone can be a popular judge who is honest,

impartial, decided, and fearless . . . .

Publications of the State Historical Society of

Wisconsin: Collections, Volume XXVII, at 290 (Milo

M. Quaife ed., 1919) (remarks of delegate Charles M.

Baker). Only on this assumption—that informed

voters would elect judges who would rise above

political pressures—could states realize the goal of a

truly fair and impartial judiciary capable of checking

the other branches.

For judicial elections to produce a fair and

impartial judiciary, however, the people must be

informed. Thus, disclosure of self-interests by

judicial candidates was a crucial component of the

judicial election process. Without transparency from

judicial candidates, the states feared that the public

could not effectively cast their vote, undermining an

important rationale for the adoption of judicial

elections. “When judicial elections are quiet and

under the radar, the voters are ignorant of the

candidates, and the elections have problems with

democratic legitimacy.” Shugerman, The People’s

Courts, supra, at 273.

As discussed below, the Louisiana Supreme

Court’s conclusion—that Judge Marullo was

permitted to preside over Petitioner’s trial without

disclosing his apparent connection to the case, see

infra Argument § III—undermines this bedrock

principle underlying judicial elections.

C. Elected judges expanded individual

rights and developed substantive due

process for property rights, consistent

with the states’ assumption that federal

due process also protects such rights.

State convention delegates in the mid-nineteenth

century had intended for elected judges to be more

assertive in enforcing the new constitutions and

their limits on government powers, and to apply

judicial review more boldly. It turns out that the first

generation of elected judges was aggressive, striking

down state statutes as unconstitutional more than

ever before. See Shugerman, Economic Crisis, supra,

at 1115. In doing so, elected judges expanded

individual rights and developed the doctrine of

substantive due process for property rights. Id. at

1123. Ordinarily, due process allowed states to

encroach on property and liberty interests if they

adhered to procedural requirements. Shugerman,

The People’s Courts, supra, at 128. But substantive

due process was broader, entirely restricting the

state from infringing on property and liberty

interests. Id.

The New York Court of Appeals established a

major precedent for substantive due process for

property rights when it struck down a liquor

prohibition act in 1856. See Wynehamer v. People, 13

N.Y. 378 (1856). Speaking to the innovative grounds

of substantive due process, the court observed that

legislation is sometimes the result of mistaken

“theories of public good or public necessity . . . [that]

command popular majorities,” id. at 387, and that

the judiciary must protect the “vital principles” of

“free republican governments” against popular

abuses, id. at 390. A judge on the Ohio Supreme

Court similarly sought to protect individual property

rights in 1851. Condemning local referenda, he

described the “taking [of] private property, or

subjecting it to unusual burdens without the consent

of the owner, as a great stride toward despotic

power.” Griffith v. Comm’rs of Crawford Cty., 20

Ohio 609, 623 (1851). Many other courts echoed

similar sentiments when striking down state

statutes that encroached on individual property

rights. See Shugerman, Economic Crisis, supra, at

1125–29.

With the explosion of decisions striking down

state statutes, the elected judiciary established a

more widespread practice of judicial review in

America. Id. at 1115. To justify the exercise of

judicial review, one might expect judges elected by

the people to rely on the theory that the courts must

defend the people and their constitution against

abuses of power by the ruling elites (a majoritarian

theory of judicial review). Id. at 1124–25.

Surprisingly—and perhaps counterintuitively—

elected judges tended to rely on the theory that the

courts must defend individuals and minority

communities against abuses of power by the

majority (a countermajoritarian theory of judicial

review). Id.

Notably, the widespread practice of judicial

review and development of substantive due process

realized another underlying commitment in the

adoption of judicial elections. States had turned to

judicial elections as part of a commitment to limited

government powers and the protection of individual

rights.

D. Today, states continue to strive for

fairness and impartiality in the judiciary

by requiring judges to avoid even the

appearance of impropriety.

A fair and impartial judiciary is no less

important today than it was in the mid-nineteenth

century. The states’ continued concern for fairness

and impartiality is reflected in widespread rules

requiring judges to avoid the appearance of

impropriety and recuse themselves in the face of

potential self-interests.

The American Bar Association’s Model Code of

Judicial Conduct directs judges to “act at all times in

a manner that promotes public confidence in the

independence, integrity, and impartiality of the

judiciary,” as well as to “avoid impropriety and the

appearance of impropriety.” Model Code of Judicial

Conduct r. 1.2 (Am. Bar. Ass’n 2010). Any conduct

that “undermines a judge’s independence, integrity,

or impartiality” would be improper. Id. at

Terminology. Accordingly, the Model Code directs

judges to disqualify themselves “in any proceeding

in which the judge’s impartiality might reasonably

be questioned.” Id. at r. 2.11. Under this rule, a

“personal bias or prejudice concerning a party or a

party’s lawyer” would suffice. Id.

Twenty-nine states have adopted language

similar to the language of the Model Code,

demonstrating a national consensus that broad

rules requiring the disclosure of potential selfinterests are necessary to ensure an informed public

and protect the sanctity of the judiciary. See

Comparison of ABA Model Judicial Code and State

Variations – Rule 2:11: Disqualification, Am. Bar

Ass’n Ctr. for Prof’l Responsibility Pol’y

Implementation

Comm.

(2018),

https://www.americanbar.org/content/dam/aba/

administrative/professional_responsibility/2_11.pdf.

III. The facts of this case provide a

straightforward vehicle for this Court to

reaffirm that the Due Process Clause does

not allow a judge to hide potential selfinterests.

The facts of this case make it an ideal candidate

for certiorari. The relevant facts begin with a 9 mm

gun in the New Orleans Police Department’s

evidence room. Shortly before the murders in this

case, the gun was released from police custody

pursuant to a release order apparently bearing the

signature of Judge Frank Marullo. Pet.App. 3a.

When the gun came under suspicion as the murder

weapon, the police department began to investigate

the circumstances surrounding its release. Pet.App.

3a. Judge Marullo was questioned as part of the

investigation. Pet.App. 4a. After Petitioner’s case

was assigned to Judge Marullo, he declined to

participate further in the investigation until the end

of trial. Pet.App. 4a. This led the police department

to keep its investigation open, throughout

Petitioner’s trial, so it could obtain a statement from

Judge Marullo at the close of trial. Pet.App. 4a.

While presiding over Petitioner’s case, Judge

Marullo failed to disclose these facts. Pet.App. 4a.

He did not inform the parties that an order

apparently bearing his signature made it possible

for the suspected murder weapon to travel from the

police evidence room to the scene of the crimes. He

did not mention that the police department was

investigating the release of the gun. And he did not

reveal his involvement in the investigation.

Judge Marullo’s potential involvement in the

release of the gun and the subsequent investigation

create a clear appearance of bias, further supported

by several additional factors. Notably, at the time of

Petitioner’s trial, Judge Marullo was facing

uncertain reelection. Disclosure of a personal

connection to the high profile murders2 in this case

could have had the potential to devastate his

chances for reelection. A looming reelection and a

trio of high profile murders also created an incentive

to remain on the case. As noted above, Judge

Marullo was able to use his involvement in the case

to avoid further police questioning related to the

2 The murders in this case garnered significant media attention

partly due to numerous ties to law enforcement. A police officer

was murdered, a police officer was tried for the murder, and a

police officer obtained the suspected murder weapon from

police evidence. Pet.App. 2a–3a; see Rick Bragg, Killings That

Broke the Spirit Of a Murder-Besieged City, N.Y. Times, May

13, 1995, at 1, 6 http://www.nytimes.com/1995/05/13/us/

killings-that-broke-the-spirit-of-a-murder-besieged-city.html;

Michael Perlstein & Calvin Baker, New Orleans Police Officer

Charged with Killing Cop, 2 Others, Times-Picayune, Mar. 5,

1995,

http://www.nola.com/crime/index.ssf/1995/03/new_

orleans_police_officer_cha.html).

release of the suspected murder weapon. Moreover,

Judge Marullo’s insistence on rushing Petitioner’s

case to trial in three months—a pace nearly unheard

of in capital murder cases—demonstrates a

potentially improper eagerness to remain on the

case and end the case quickly to avoid the need to

disclose any connection to the high profile murders.

See Bracy v. Gramley, 520 U.S. 899, 909 (1997)

(recognizing that a trial attorney—and former

colleague of the judge—may have rushed a capital

case to trial to “deflect any suspicion” of the judge’s

bias). And as shown by Judge Marullo’s reelection

campaign literature, “presid[ing] over many of New

Orleans’ most complicated and high profile cases”

allows a judge to tell voters that he is “tough on

crime.” Writ.App. 443. The trials of Petitioner and

his codefendant topped the list of high profile cases

in Judge Marullo’s campaign literature, which even

touted that Petitioner and his codefendant had been

sentenced “to die by lethal injection.” Id.3

In the decision below, the Louisiana Supreme

Court even acknowledged that Judge Marullo had

an objectively ascertainable self-interest in keeping

silent. The court recognized that, “[r]ealistically, the

3 Further supporting an appearance of bias, Judge Marullo

became enraged with defense counsel at the start of trial for

speaking with the media in violation of a gag order. See Trial

R. Supp. Vol. 6 at 3–5 (July 17, 1995); Trial R. Vol. 3 at 527.

This type of behavior, as the Court has recognized, threatens

“the fair administration of justice.” Offutt, 348 U.S. at 12, 17

(1954) (“The judge again and again admonished petitioner for

what he deemed disregard of rulings and other behavior

outside the allowable limits of aggressive advocacy . . . hardly

reflect[ing] the restraints of conventional judicial demeanor.”).

average judge would be vigilant to avoid being

unjustly

associated

with

any

wrongdoing

surrounding the release of the possible murder

weapon” and would “harbor[] some sensitivity”

about any such disclosure. Pet.App. 24a. The

appearance of bias in this case is further supported

by Judge Marullo’s atypical insistence on rushing

Petitioner’s capital case to trial and his outraged

behavior towards defense counsel at trial—both

behaviors that this Court has recognized as

supporting an appearance of bias.

Judge Marullo’s concrete self-interest in this case

provides the Court with a straightforward vehicle

for reaffirming that, under the Due Process Clause,

a judge cannot preside over a case while harboring—

and hiding—facts giving rise to an appearance of

bias.

CONCLUSION

For the reasons above, this Court should grant

certiorari to clarify its standard for judicial

disqualification under the Due Process Clause.

June 21, 2018

Respectfully submitted,