# Opposition Brief — Whisenhant v. Allen (No. 09-220)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

| — % : Supreme Court, U.S.
. & F FILED

No. 09-220 | OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

e

THOMAS WARREN WHISENHANT,

Petitioner,
y.

RICHARD ALLEN, Commissioner of the
Alabama Depariment of Corrections,

Respondent.
p

on rs
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit

BRIEF IN OPPOSITION

Troy King

Attorney General

J. Clayton Crenshaw*
*Counsel of Record
STATE OF ALABAMA
Office of Attorney General

500 Dexter Avenue

Tel: (334) 242-7300
October 21, 2009 Fax: (334) 353-3637

Assistant Attorney General

Montgomery, AL 36130-0152

CAPITAL CASE
QUESTION PRESENTED
(Rephrased)

Should this Court grant certiorari to review
whether the Court of Appeals correctly determined
that the Alabama courts’ denial of Whisenhant’s
claim of judicial bias did not violate 28 U.S.C. §
2254(d) where Whisenhant’s sole claim is that he
was entitled to relief based on the probability of
actual bias?

TABLE OF CONTENTS

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OPTI EOI Bey ionic vcseccscccesccccscces sees 1
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CONSTITUTIONAL PROVISIONS INVOLVED ...... 1
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A. Facts Concernimg The Crime.............................- 2
B. State Corre Peete wascessnsccccsccccsccccccecccsccceess 4
C. Facts Relating to Whisenhant’s Claim That
The Trial Judge Was Biased...................ceceeeeeee es 5
REASONS WHY THE PETITION SHOULD BE
JOR hee Ee 9

I. THE STATE COURTS’ DENIAL OF
WHISENHANTS CLAIM THAT THE
STATE TRIAL JUDGE WAS BIASED AND
IMPARTIAL WAS NOT CONTRARY TO, OR
AN UNREASONABLE APPLICATION OF,
CLEARLY ESTABLISHED FEDERAL LAW..... 10

A. The Legal Principles Announced In ‘Tumey
and Murchison Are Inapplicable To This
OF er 12

B. The Legal Principles Recently Announced
By This Court in Caperton Are Also
Inapplicable to Whisenhant’s Case. ................. 1&

CON CLUB rca seescrccsecncscccesccseees 21

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11]

TABLE OF AUTHORITIES

CASES
Aetna Life Ins. Co v. Lavoie, 475 U.S. 813

RR er ne a LaNR ee er A Ne ATMO NAL TE DIA 17
Bracy v. Gramley, 520 U.S. 899, 117 S.Ct.

I ogc ah eee eat rae 13
Caperton v. A.T. Massey Coal Co., Inc., 129

A ee CE ick cecidcctscssevackcunitardemedvaee passim
Ex parte Whisenhant, 482 So. 2d 1241 (Ala.

IE cove nc coca ea bstcusassa enact ie ae 4
Ex parte Whisenhant, 482 So. 2d 1247 (Ala

NOI os osc eee i ee 4
Ex parte Whisenhant, 555 So. 2d 235 (Ala.

DE saris sari ls i see ee cee tk 5
In re Murchison, 349 U.S. 133 (19585)............... passim
Mavberry v. Pennsylvania, 400 U.S. 455

PE Ee vrcescacolccrcsenk nas ee aes ee 17
Offutt v. United States, 348 U.S. 11 (1954) ............. 17
Tumev v. Ohio, 173 U.S. 510 (1927)................. passim
Ward v. Village of Monroeville, 409 U.S. 57

Ce IE hcnsscdckcscdsae eins sae 17
Whisenhant v. Alabama, 496 U.S. 943 (1990) ........... 5
Whisenhant v. Allen, 556 F.3d 1198 (11th. Cir.

ENED cakscccovcisdaccnevccsidiesee aac eee bys 2a LO

Whisenhant v. State, 370 So. 2d 1080 (Ala.
Crete, Fe; YTD wees svcsaccicicdneccteee een eee 4

Whisenhant v. State, 482 So. 2d 1225 (Ala.

NF cca usu sanvanseaniookvsiacinxkasooues 4
Whisenhant v. State, 482 So. 2d 1246 (Ala.

PE I css cc edepcnnvucuseressarsiserisniwacintincwonees 4
Whisenhant v. State, 555 So. 2d 219 (Ala.

on SRR IRE se tpn on ea ht ee ee aD Ee 5
Williams v. Taylor, 529 U.S. 362 (2000)................... 13
Withrow v. Larkin, 421 U.S. 35 (19785)...............s.se0 12
STATUTES
United States Code
cs Gissss i aasnianavvaieessvonees 2, 10, 20
BH TC © SIN oasis kcssct ns esessssncecsesnessensscisoscecaee i, 20
Mec ED aki cicedccecensaseesapsacacicnsccdcarenns Bs
OTHER AUTHORITIES

Anti-Terrorism and Effective Death Penalty
PG PN os cah.cia cage staceneetiarse i cheeniacdsarieses 2, 20

]

OPINIONS BELOW

The United States District Court for the Southern
District of Alabama issued an order denying all
habeas relief. (Pet. App. 28-165) The United States
Court of Appeals for the Eleventh Circuit affirmed.
Whisenhant v. Allen, 556 F.3d 1198 (11th. Cir. 2009);
(Pet. App. 1-27) Whisenhant’s petition for rehearing
and his petition for rehearing en banc were denied.
(Pet. App. 166-167)

°
JURISDICTION

The Respondent does not dispute Whisenhant’s
statement of jurisdiction. (Pet. 1-2)

+

CONSTITUTIONAL PROVISIONS
INVOLVED

Whisenhant accurately identifies and sets forth
the text of the Fourteenth Amendment to the United
States Constitution, but that amendment was not
violated in this case.

2
STATEMENT OF THE CASE

Petitioner Thomas Whisenhant attempts to
stretch the Court’s freshly-minted “probability of
actual bias” recusal standard to the limits. Caperton
v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2263
(2009). Whisenhant argues that the Alabama state
courts wrongly failed to find a probability that his
trial judge was biased based solely on the judge
issuing an order granting Whisenhant’s motion for
expert funding—an order that was drafted by the
prosecution. This claim is unworthy of certiorari
review for two reasons. First, Caperton certainly
does not stretch that far. Second, and perhaps more
clearly, Whisenhant’s claim arises from the denial of
federal habeas relief under the Anti-Terrorism and
Effective Death Penalty Act (“‘AEDPA”). See 28
U.S.C. § 2254. Even if Capterton reached the facts of
this case (and it does not), Caperton was not “clearly
established” law at the time the state court decision.
See 28 U.S.C. § 2254(d) (1). Thus, habeas relief is
clearly foreclosed.

A. Facts Concerning The Crime

On the night of October 16, 1976, Cheryl Lynn
Payton was working alone at a convenience store in
Theodore, Alabama. Vol. 24, R. 182-191. Sometime
before 10:00 p.m. that night, Whisenhant entered the
convenience store with a gun and forced Mrs. Payton
to walk out of the store and get into his pickup truck.
Vol. 25, R. 77-80. Whisenhant drove Mrs. Payton to
a remote area where he raped her in the front seat of
the truck, then led her into the woods at gunpoint
and shot her once in the head, killing her. Vol. 25, R.
45, 61, 81-82.

3

The following day, Whisenhant returned to the
location of Payton’s body, but left when he was
accosted by some boys. Vol. 24, R. 201-06, Vol. 25, R.
77-80. The next day, Whisenhant returned to the
location of the body and moved it approximately 60
feet so that it would more likely be found. Vol. 25, R.
77-80. On one or both of these occasions,
Whisenhant mutilated Payton’s body, using a knife
to cut the left breast and abdomen, as well as the
vaginal area. Vol. 25, R. 32, 46-47, 55, 64-65, 80, 85.

On the second occasion when Whisenhant
returned to Payton’s body, he was seen by a local
farmer who also alerted the police that he had
discovered a body. Vol. 24, R. 222, 225-27, Vol. 25, R.
244. Still in the area when the police arrived on the
scene, Whisenhant tried to escape in his pickup
truck, but was apprehended after a_ high-speed
chase. Vol. 25, R. 245-256. Whisenhant eventually
abandoned his truck and retreated into the woods.
Vol. 25, R. 251. While hiding there, his wife was
brought to the scene to communicate with him by a
police loudspeaker. Vol. 25, R. 254. Upon hearing
her voice, Whisenhant yelled, “I’ve done everything
they said I did,” and indicated that rather than
surrender the police would have to kill him. Vol. 25,
R. 254-55.

After being taken into custody, Whisenhant
confessed to the rape, murder, and mutilation of
Payton. Vol. 25, R. 24-91. He admitted that if
someone had walked into the store during the course
of the crime he would have left. Vol. 25, R. 90. He
also confessed to murdering two other female
convenience store clerks - one of whom he admitted
to mutilating in the same fashion as he did Payton —
in the preceding 12 months. Vol. 25, R. 24-91.

4

B. State Court Proceedings

Whisenhant was originally convicted and
sentenced to death in 1977 for the rape/murder of
Cheryl Payton. Vol. 9 at 1745-49. However, his
conviction was reversed because the _ prosecutor
engaged in improper closing argument by suggesting
that Whisenhant would be released from custody if
he were found not guilty by reason of insanity and
because of a fatal variance between the indictment
and the judgment. Whisenhant v. State, 370 So. 2d
1080, 1097-1102 (Ala. Crim. App. 1979).

In 1981, Whisenhant was tried and again
convicted and sentenced to death. Vol. 12 at 103-07.
This second conviction was affirmed by the Alabama
Court of Criminal Appeals, but the sentence was
reversed due to an improper remark during the
prosecutors penalty phase opening’ statement.
Whisenhant v. State, 482 So. 2d 1225, 1239-40 (Ala.
Crim. App. 1982). After cross petitions for certiorari
were granted, the Alabama Supreme Court
remanded the case for a determination of whether
the penalty phase error was harmless. Ex_parte
Whisenhant, 482 So. 2d 1241 (Ala. 1983). On
remand, the Court of Criminal Appeals held that the
error was harmless and affirmed the death sentence.
Whisenhant v. State, 482 So. 2d 1246 (Ala. Crim.
App. 1983) The Alabama Supreme Court, however,
determined that the error was not harmless and
remanded for a new penalty phase trial. Ex parte
Whisenhant, 482 So. 2d 1247 (Ala. 1984).

After remand, in 1987, Whisenhant received
another penalty phase trial, and after a jury
recommendation of death the trial judge sentenced
Whisenhant to death. Vol. 19 at 168-76. ‘The Court

5)

of Criminal Appeals and the Alabama Supreme
Court affirmed the death sentence. Whisenhant v.
State, 555 So. 2d 219 (Ala. Crim. App. 1988), aff d,
Ex parte Whisenhant, 555 So. 2d 235 (Ala. 1989).
The United States Supreme Court denied certiorari.
Whisenhant v. Alabama, 496 U.S. 943 (1990).

Whisenhant then commenced post-conviction
proceedings in state court by filing a Rule 32
petition. Vol. 35 at 31-52. In one of his claims,
Whisenhant alleged that “the trial judge’s bias and
appearance of partiality at the time of the 1987
penalty phase hearing violated his rights under the
Eighth and Fourteenth Amendments to the United
States Constitution...” After an evidentiary hearing,
the Rule 32 trial court denied the petition. Vol. 37,
R. 403-89. The Alabama Court of Criminal Appeals
entered an unpublished memorandum opinion
affirming the denial of the Rule 32 petition. Vol. 42,
R-44. Specifically rejecting Whisenhant’s claim of
judicial bias on the merits, that court held that
Whisenhant failed to offer any evidence of personal
bias or partiality on the part of the trial judge. The
Alabama Supreme Court denied certiorari. Vol. 43,
R-49.

C. Facts Relating to Whisenhant’s Claim
That The Trial Judge Was Biased.

The facts underlying this claim relate to a motion
filed before the 1987 penalty phase requesting funds
to hire a psychiatrist. Vol. 19, 33-38. Prior to tral,
defense counsel filed numerous motions with Judge
Ferrill McRae! including a motion for access to a
psychiatrist. Vol. 19, at 33-38. The motion is

|! Judge McRae presided over all three of Whisenhant’s trials.

6

virtually identical to the motion for funds defense
counsel filed before the 1981 trial. The motion
mentioned the two psychiatrists that had performed
an evaluation before the 1977 trial, Dr. Claude
Brown and Dr. Emanuel 'Tanay. Id. The motion
requested $2,200 for Dr. Brown and $2,000 for Dr.
Tanay. Id. Specifically, the motion requested funds
to hire Dr. Brown and Dr. Tanay for the following
reasons: (1) to present evidence to establish that
Whisenhant was insane when he committed the
crime, (2) to establish the relevant statutory
mitigating circumstances, and (3) to assist defense
counsel in cross-examining the State’s' more
numerous mental health experts. Id.

Judge McRae, although granting Whisenhant’s
motion in part, stated that Whisenhant was not
“entitled” to have the motion granted. Vol. 19 at 39-
40. In that regard, the order stated:

Defendant presented abundant
psychiatric evidence at the first trial
and the same evidence was available to
him at the second trial and is still
available to him. Had he desired to do
so, Defendant could have read the
psychiatric testimony from the first trial
into the record before the jury at the
second trial, and he could also do so
now. The Defendant also could have
subpoenaed at least one of his expert
psychiatric witnesses to present live
testimony at his second trial, and he can
do so now. Dr. Claude Brown was a
member of the Lunacy Commission, he
testified on behalf of the Defendant at
the first trial, and he was within the

7

jurisdiction of the Court at the time of
the second trial, and he still is. Dr.
Brown has previously testified that he
would obey a subpoena to testify again
in this case.

Id. The order also noted that the Southern Poverty
Law Center, Whisenhant’s counsel, could easily
provide the funds to provide psychiatric assistance at
trial and that the failure to do so must be a
“litigation tactic.” Id. Nevertheless, the order
granted up to $2,200, plus “reasonable expenses” “to
hire an independent psychiatric expert to assist the
Defendant in any way he and his counsel see fit.” Id.
at 40. The order noted however that if Dr. Brown
was not retained, “the Court will enforce a subpoena
to Dr. Brown and will see that he attends trial and
testifies, since he was a member of the Lunacy
Commission and is within the jurisdiction of the
Court, if Defendant and his counsel! desire that he do
so.” Id.

As a part of the Rule 32 proceedings, Whisenhant
presented documents tending to show that District
Attorney Chris Galanos, one of the prosecutors at the
1987 penalty phase trial, gave Judge McRae a draft
order concerning the motion for funds to hire a
psychiatrist. Vol. 36, at 314. Attached to the order
was a handwritten note from Galanos that stated,
among other things, that the order granting funds to
hire a psychiatrist “enumerates facts intended to
preclude Ake error during the guilt [sic] stage.” Vol.
36, at 314. The handwritten note further stated
“(l]jet me know what you want to do.” Vol. 36, at 314.
The handwritten note is dated “2/4,” presumably the
day before the order granting funds to hire a
psychiatrist was entered on February 5, 1987. Vol.

8

19, at 39-41. Galanos testified at the Rule 32
evidentiary hearing that he did not serve the draft
order on counsel for Whisenhant.? Vol. 37 at 58.
The draft order (that contains Galanos’s handwritten
revisions) and the order entered by Judge McRae are
substantially the same. Judge McRae’s order
changed the format of the draft order, corrected a
mistake caused by one of the revisions, and changed
the amount of “$2,000” that was stated in the draft
order to “$2,200.”

“ For reasons unknown, Whisenhant’s brief elevates the role of
then-Assistant Attorney General (now Eleventh Circuit judge)
Ed Carnes in the purported “clandestine scheme.” The
undisputed evidence demonstrates that District Attorney
Galanos hand delivered the draft order to Judge McRae. Vol.
37 at 57-58. In addition, Whisenhant’s brief (on more than one
occasion) labels Judge Carnes as “lead counsel” at the 1987
penalty phase trial. However, the record of that trial reflects
that Judge Carnes did not handle any witnesses nor did he
make an opening statement or closing argument.

9

REASONS WHY THE PETITION
SHOULD BE DENIED

The gist of Whisenhant’s petition to this Court
consists of this: he asks this Court to apply a
standard that does not apply to his case.
Whisenhant’s sole claim of error is that the Court of
Appeals should have considered whether’ the
“probability of actual bias” on the part of Judge
McRae violated due _ process.? However, as
Whisenhant fails to acknowledge, this Court has only
applied this objective standard in three hmited
instances: 1) when a_ mayor-judge benefited
financially from a defendant's conviction; 2) when a
judge was the object of a defendant's contempt; and,

3 In his petition to this Court, Whisenhant does not allege that
Judge McRae was actually biased against him, although this
claim was raised in the courts below. Therefore, the issue of
whether Judge McRae was actually biased is not properly
before this Court. Regardless, this claim was rejected by the
state court and by the District Court below on habeas review.
The Alabama Court of Criminal Appeals, in denying
Whisenhant’s claim of actual bias, held that Whisenhant “failed
to offer any evidence of personal bias or partiality on the part of
Judge McRae” and that “the order entered by Judge McRae
granted [Whisenhant] all of the funds he had sought.” The
Federal District Court below held that it “cannot conclude that
Judge McRae was actually biased or prejudiced against
Whisenhant.” (App. 124-25) That court went on to conclude
that the fact that Judge McRae “apparently signed the State’s
proposed order granting a defense motion without input from
the defense on the form of that order simply does not evince the
kind of bias or prejudice that rises to the level of a
constitutional violation” and therefore, held that “the Alabama
courts’ denial of Whisenhant’s judicial bias claim was neither
contrary to, nor involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court.”
(App.125-26)

10

as determined recently by this Court 3) when a
person with an interest in a case provided extreme
campaign contributions to the particular judge
hearing that case.

The facts of Whisenhant’s case do not fall within
those categories. Accordingly, the Court of Appeals
correctly determined that Whisenhant’s case was not
analogous to the situations noted above and that,
therefore, Whisenhant was not entitled to relief
under 28 U.S.C. § 2254.

Il THE STATE COURTS’ DENIAL OF
WHISENHANT’S CLAIM THAT THE STATE
TRIAL JUDGE WAS BIASED AND
IMPARTIAL WAS NOT CONTRARY TO, OR
AN UNREASONABLE APPLICATION OF,
CLEARLY ESTABLISHED FEDERAL LAW.

This case is not worthy of certiorari review
because the Eleventh Circuit Court of Appeals
correctly determined that the Alabama courts’ denial
of Whisenhant’s judicial bias claim was neither
contrary to, nor involved an_ unreasonable
application of, clearly established federal law as
determined by this Court. The Court of Appeals
rejected Whisenhant’s claim that Judge McRae’s
order during the 1987 penalty phase retrial created
an “appearance of partiality” which violated his due
process rights because that court found that there
was no decision from this Court clearly establishing
that the “appearance of bias or partiality” alone,
absent actual bias, violated the Due Process Clause.
Whisenhant v. Allen, 5456 F.3d 1198, 1209 (11th. Cir.
2009). The Court of Appeals further rejected
Whisenhant’s claim that the “probability of actual
bias” on the part of Judge McRae denied him due

11

process, noting that this Court had only identified
certain situations in which the probability of actual
bias became “constitutionally intolerable”, namely,
cases “in which the judge has a pecuniary interest in
the outcome or has been personally abused or
criticized by the party before him.” Id. That court
held that these judicial bias cases were not
analogous to the facts of Whisenhant’s case and that,
therefore, the Alabama _ courts’ denial of
Whisenhant’s claim was not contrary to, or an
unreasonable application of, clearly established
federal law. Id. at 1210.

In an effort to gain certiorari review in this Court,
Whisenhant mischaracterizes the Court of Appeals’
hoiding and further, ignores critical distinctions in
this Court’s precedent. Whisenhant claims that the
Court of Appeals failed to apply the correct “objective
standard” to determine when recusal is required and
instead required Whisenhant to “establish actual
judicial bias by showing that ‘the judge has a
pecuniary interest in the outcome of the case or has
been personally abused or criticized by the party
before him.” Whisenhant’s petition at p. 10.
Whisenhant, citing Tumey v. Ohio, 173 U.S. 510
(1927), In re Murchison, 349 U.S. 133 (1955), and
this Court’s recent decision in Caperton v. A.T.
Massey Coal Co., 129 S.Ct. 2252 (2009), argues that
the Court of Appeals should have considered whether
the facts involving Judge McRae led to a potential or
probability for actual bias. Whisenhant’s petition at
pp. 11-12.

Whisenhant’s assertion is flawed. No error
occurred in this case. The Court of Appeals properly
determined that the “probability of actual bias”
standard did not apply to Whisenhant. That court

12

correctly concluded that, based on the facts of his
case, Whisenhant’s claim of judicial bias did not fall
within the limited category of cases in which this
Court has held that the probability of actual bias
resulted in a violation of due process.

Whisenhant’s problem is that his case simply
does not fall into those limited categories. Notably,
in his petition to this Court, Whisenhant ignores the
specific circumstances in which this Court has held
that the “probability of actual bias on the part of the
judge or decisionmaker is too high to be
constitutionally tolerable.” Withrow v. Larkin, 421
U.S. 35, 47 (1975). Further, Whisenhant makes no
real attempt in his petition to articulate how the
facts of his case align with the particular categories
in which this Court has required recusal on due
process grounds based on the “probability of actual
bias.” More importantly, there is no Supreme Court
precedent on point to the situation presented by this
case. Accordingly, the Court of Appeals correctly
determined “that the Alabama courts’ denial of
Whisenhant’s judicial bias claim was neither
contrary to, nor involved an_ unreasonable
application of, clearly established federal law as
determined by the Supreme Court.” Whisenhant, 556
F.3d at 1210.

A. The Legal Principles Announced In

Tumey and Murchison Are Inapplicable
To This Case.

Whisenhant contends that the state court applied
a rule that contradicted the rule espoused in Tumey
v. Ohio, 273 U.S. 510 (1927) and In re Murchison,

349 U.S. 133 (1955) and that the Court of Appeals
likewise failed to apply this rule in reviewing the

13

state court decision. However, a federal court’s
review of a state court adjudication is limited to
whether the state court decision was contrary to or
an unreasonable application of the _ clearly
established precedent of this Court. Walliams v.
Taylor, 529 U.S. 362, 412-413 (2000). Although not
explicitly stated in his petition, Whisenhant
apparently contends that it is “clearly established”
that under the facts of his case — where a hand-
delivered draft order, granting Whisenhant’s motion
for funds was not served on the defense — Judge
McRae’s recusal was required under the Due Process
Clause based on “a probability of actual bias.”
Contrary to the view espoused by Whisenhant, this
rule is far from clearly established; in fact, this Court
has not established such a rule at all.

“A fair trial in a fair tribunal is a_ basic
requirement of due process.” Murchison, 349 U.S. at
136. The general guiding principle is that the “Due
Process Clause clearly requires a fair trial in a fair
tribunal before a judge with no actual bias against
the defendant or interest in the outcome of his
particular case.” Bracy v. Gramley, 520 U.S. 899,
117 S.Ct. 1793 (1997). However, this Court has
cautioned that “[ajil questions of judicial
qualification may not involve constitutional validity.”
Tumey, 273 U.S. at 523. In fact, “most questions
concerning a judge's qualifications to hear a case are
not constitutional ones, because the Due Process
Clause of the Fourteenth Amendment establishes a
constitutional floor, not a umiform standard.” Bracy,
520 U.S. at 904.

This Court has traditionally required judicial
recusal based on a probability of actual bias in only
two specific instances, neither of which apply to

14

Whisenhant’s case: 1) when a judge _ benefits
financially from the outcome of a case and 2) when a
judge was the object of a defendant's contempt. See
Caperton, 129 S.Ct. at 2262. Tumey represents the
first instance, in which a judge has a financial
interest in the outcome of a case that leads to a
constitutionally impermissible probability of actual
bias. In Tumey, the defendant was arrested on
charges of unlawfully possessing intoxicating liquors
and was brought before the mayor of the village of
North College Hill. 273 U.S. at 514. Under Ohio
law, the mayor had authority to try cases involving
the possession of alcoholic beverages. Additionally,
state law provided that the mayor would receive fees
for serving as a judge and for trying such cases;
however, the mayor would only be paid fees if he
convicted the defendants who appeared before him.
Id. at 520. This Court then held that a defendant’s
due process rights were violated and_ that
disqualification is required where, as in the facts
presented in Tumey, a mayor/judge had a direct,
personal, substantial necuniary interest in reaching
a conclusion against the defendant in that case. Id.
at 523, 535.

Murchison exemplifies the second instance where
a judge acted as a “one-man grand jury” and,
through his prior relationship with the defendant,
therefore, was the object of the defendant’s contempt.
In In re Murchison, 349 U.S. 133 (1955), this Court
was called upon to address the constitutionality of a
Michigan law that allowed the same judge who
served as a “one-man grand jury” before which
certain witnesses had testified to also preside over
the contempt hearing where the same
witness/defendants were found guilty of perjury. In

15

addition to his role of being a one-man grand jury
and petit jury, the trial judge made a comment that
he would personally investigate whether an apparent
alibi offered by the defendant was untruthful. Id. at
137. The Murchison Court found that “(flair trials
are too important a part of our free society to let
prosecuting judges be trial judges of the charges they
prefer.” Id. Accordingly, this Court ruled that “it
was a violation of due process for the ‘judge-grand
jury’ to try these petitioners, and it was therefore
error for the Supreme Court of Michigan to uphold
the convictions.” Id. at 140.

Tumey and Murchison are off point as “clearly
established precedent” in Whisenhant’s case. They
stand merely for the principles that a trial judge
should be disqualified (1) when the judge has a
pecuniary interest in the outcome of the case or (2)
where state procedure allows for the trial judge to
serve also as the grand jury and prosecutor, resulting
in the judge becoming an object of the defendant’s
contempt. Put simply, the principles announced in
Tumey and Murchison are not applicable — let alone
“clearly” applicable — to this case. In the present
case, after Whisenhant filed a motion before the 1987
penalty phase trial that requested funds to hire two
hand-picked psychiatrists, Mobile County District
Chris Galanos hand delivered a draft order to Judge
McRae without serving a copy on defense counsel.
However, Judge McRae’s eventual order, although
similar to the draft order which Galanos hand
delivered to Judge McRae, granted Whisenhant’s
request for funds to hire mental health experts. The
legal principles stated in Tumey and Murchison have
no application because Judge McRae did not have
anything like a pecuniary interest in the outcome of

16

the case and Judge McRae did not serve as a one-
man grand jury or investigate the crime resulting in
the defendant’s contempt.

The Court of Appeals correctly identified these
two limited instances in which this Court has held
that recusal was required under the Due Process
Clause based on a probability of actual bias on the
part of a judge and correctly determined that
Whisenhant’s case did not fall within those
categories. Specifically, that court held that “[i]t is
clear that the judicial bias cases cited by Whisenhant
involve totally different facts from his own case.”
Whisenhant, 556 F.3d at 1210. That court found
that Whisenhant’s case was neither analogous to
Murchison, nor comparable to other decisions relied
on by Whisenhant which involved criminal contempt
proceedings in which the judge was “the one reviled
by a contemnor.” Id. at 1209-10. However, as the
Court of Appeals determined, Whisenhant’s case was
“totally different”: there was no evidence that Judge
McRae was involved in a “running controversy” with
Whisenhant, no personal attacks were made by any
party, Judge McRae never displayed a _ hostile
attitude towards Whisenhant, and most importantly,
Judge McRae’s order granting Whisenhant’s motion
for funds benefitted the defense. Id.

The standard which Whisenhant espouses for
reviewing his claim of judicial bias simply does not
apply to his case. Whisenhant ignores the clear cut
factual scenarios in which this Court has reviewed
whether the “probability of actual bias” warrants
recusal because plainiy, his case does not fall into
such limited instances. Attempting to support his
contention that the Court of Appeals wrongly held
that “the potential for actual bias” standard has only

17

been applied in limited instances by this Court,
Whisenhant cites a list of cases in which he claims
this Court has identified “numerous factual
circumstances where the potential for judicial bias
was too great to be constitutionally tolerable.”
Whisenhant’s petition at p. 13. However,
Whisenhant’s analysis of this Court’s decisions
regarding judicial bias misses the mark.

The cases cited by Whisenhant in his petition do
not support his argument, but instead, support the
complete opposite conclusion, which was reached by
the Court of Appeals. All of the cases cited by
Whisenhant fall neatly within the two limited
instances in which this Court has held that recusal is
required under the Due Process Clause based on a
“probability of actual bias”: 1) when a judge benefits
financially from the outcome of a case and 2) when a
judge was the object of a defendant's contempt. See
Tumey v. Ohio, 273 U.S. 510 (1927) (judge benefited
financially from outcome of case); Offutt v. United
States, 348 U.S. 11 (1954) (judge was object of
defendant’s contempt); In re Murchison, 349 U.S. 133
(1955) Gudge was object of defendant’s contempt);
Mayberry v. Pennsylvania, 400 U.S. 455 (1971)
(judge was object of defendant’s contempt); Ward v.
Village of Monroeville, 409 U.S. 57 (1972) (judge
benefited financially from outcome of case); Aetna
Life Ins. Co v. Lavoie, 475 U.S. 813 (1986) Gudge
benefited financially from outcome of case).
Whisenhant’s petition at pp. 13-14. The facts of
Whisenhant’s case do not compare with the facts of
those cases in which this Court has found that the
probability of actual bias warrants recusal.

Tumey, Murchison, and their progeny have no
application in deciding whether the Alabama courts’

18

decision was contrary to clearly established Supreme
Court precedent. Whisenhant has not cited a
decision from this Court that discusses the situation
where a trial judge receives a draft order from the
prosecutor that is not served on defense counsel but
grants the relevant motion filed by defense counsel.
Thus, the state court decision is not contrary to, nor
an unreasonable application of, clearly established
federal law as determined by this Court.

B. The Legal Principles Recently
Announced By This Court in Caperton
Are Also Inapplicable to Whisenhant’s
Case.

This Court’s recent decision in Caperton does not
provide any support to Whisenhant’s claim that the
Alabama courts’ denial of his judicial bias claim was
contrary to, or involved an unreasonable application
of, clearly established federal law; nor does the Court
of Appeals’ holding below conflict with Caperton.
The legal principles announced in Caperton are off
point and the extreme facts of Caperton are not
present in Whisenhant’s case.

Claiming that the Court of Appeals’ holding is in
“direct conflict” with this Court’s precedent,
Whisenhant contends that the Court of Appeals
failed to follow the rule reaffirmed in Caperton that
“the Due Process Clause has been implemented by
objective standards that do not require proof of
actual bias.” 129 S.Ct. at 2263; Whisenhant’s petition
at p. 11. However, Whisenhant fundamentally
misconstrues this Court’s holding in Caperton.
Contrary to Whisenhant’s suggestion, this Court did
not announce a rule that all claims of judicial bias
raised under the Due Process Clause do not require

19

proof of actual bias. Instead, this Court
acknowledged in Caperton that the objective
standard of inquiring into the probability of actual
bias in judicial bias cases had only been applied in
two instances: 1) when a mayor-judge benefited
financially from a defendant's conviction and 2) when
a judge was the object of a defendant's contempt. See
Caperton, 129 S.Ct. at 2259-2262. This Court simply
extended this objective standard in a limited fashion
to claims of judicial bias in which a person with an
interest in a case provided extensive campaign
contributions to the particular judge hearing that
case.

Specifically, this Court concluded that “there is a
serious risk of actual bias-based on objective and
reasonable perceptions-when a person with a
personal stake in a particular case had a significant
and disproportionate influence in placing the judge
on the case by raising funds or directing the judge's
election campaign when the case was pending or
imminent.” Id. at 2263-2264. This Court further
noted that even among judicial bias cases involving
campaign contributions and election, that the facts of
Caperton were extreme and that “[a]pplication of the
constitutional standard implicated in this case will
thus be confined to rare instances.” Id. at 2265, 2267.

Accordingly, Caperton is off-point as “clearly
established precedent” in the context' of
Whisenhant’s case. The facts which comprise
Whisenhant’s claim of judicial bias regarding Judge
McRae have nothing to do with raising campaign
funds or directing Judge McRae’s election campaign.
Moreover, nothing in Caperton requires a state court

under the Due Process Clause to consider a judge’s
“probability of actual bias” in a factual situation

20

where a judge receives a proposed order — benefiting
the defendant — that was not served on the defense.

Even if Caperton could be stretched beyond its
holding to apply to this specific factual situation
although it does not apply — Whisenhant would still
not be entitled to habeas relief because the state
courts’ decision must be viewed through the
deferential lens of AEDPA. See 28 U.S.C. § 2254. At
the time of the state court Rule 32 proceedings,
Caperton had not been decided and thus, the legal
principles announced in Caperton were not “clearly
established” for purposes of reviewing the state
courts’ decision. See 28 U.S.C. § 2254(d) (1). In any
event, this Court need not go that far in its review
because the legal principles announced in Caperton
simply do not apply to the facts of Whisenhant’s
claim.

Therefore, the Court of Appeals’ determination
that Whisenhant’s case did not fall within the
limited instances in which this Court has held that
the “probability of actual bias” on the part of a judge
requires recusal under the Due Process Clause is
correct, even in light of Caperton. More important to

the immediate question before this Court, the
Alabama courts’ denial of Whisenhant’s judicial bias
claim was neither contrary to, nor involved an
unreasonable application of clearly established law
as determined by this Court. 28 U.S.C. § 2254(d).

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CONCLUSION

The Court should deny Whisenhant’s petition for
writ of certiorari.

Respectfully submitted,

Troy King
Alabama Attorney General

s/ J. Clayton Crenshaw
J. Clayton Crenshaw*
Assistant Attorney General
Counsel of Record*

Thomas R. Govan, Jr.
Assistant Attorney General

State of Alabama
Office of the Attorney General
500 Dexter Avenue
Montgomery, Alabama 36130
Tel: (334) 242-7300
Fax: (334) 353-3637

October 21, 2009 ccrenshaw@ago.state.al.us

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0843%3A2. Public record. Not legal advice.