Alfred Ray Bradshaw v. O.L. McCotter Director, Texas Department of Corrections

796 F.2d 100

Opinions

GEE, Circuit Judge,

concurring specially:

Further reflection has persuaded me that a rule which requires recusal on the basis of appearances alone is too broad, and I therefore concur in the judgment only. In this case, there is not even a claim that Judge Vollers had anything to do with resisting Bradshaw’s appeal, only that an uninformed observer might believe that he did. Doubtless he might, Judge Voller’s name having been placed on the state’s brief on the direct appeal as a matter of courtesy by the prosecuting attorney. By the same token, it would follow that Judge John Jones should not sit in the trial of an unrelated person named John Jones, Jr., for fear that it might be thought that he presided over the trial of his own son. I do not think that is necessary. Where there is in fact no ethical question whatever involved, I do not think there is any necessity to disrupt settled arrangements in order to preserve appearances to the uninformed. Nor do I think the Supreme Court has said so.

In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), cited by us in our earlier opinion, concerned a case where genuine bias was likely when one who had actually sat in a quasi-prosecutorial capacity earlier in the case came along later to sit in a judicial one. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), cited by the Court in Murchison and by us, involved another such case, where a magistrate made money from “guilty” findings, but not from findings of “not guilty.” And Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954), also cited by us and the Murchison court, concerned a judge who, having exchanged insults with a lawyer through the entire course of a lengthy trial, held him in contempt at its conclusion. The common thread running through these cases is that each presented a “procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the state and the accused ...” Murchison, 349 U.S. at 136, 75 S.Ct. at 625. And it was in that context that the Court, having observed that “[s]uch a stringent rule may sometimes bar trial by judges who have no actual bias,” went on to quote from Offutt the tag “justice must satisfy the appearance of justice.” Id.

The meaning of this saying, taken in context, is that where a real possibility of bias against a given defendant exists on the part of a judge, the rule to apply is a prophylactic one keyed to the ability and temperament of the average man, even though the particular judge in question might be capable of rising above the situation. Thus the average man, who judges by his own lights, will perceive injustice as having been avoided, even though sometimes a nobler character than he is unnecessarily disqualified. But this has no application, it seems to me, to a case like ours, where the average man (and the defendant as well) — if he knew the facts — would immediately perceive that there was not even ground for argument that the judge bore personal prejudice against him: indeed, he had never even heard of him!

Another way to look at the case is, when we speak of appearances, are we referring to how the case appears to the uninformed observer or how it seems to one who has the facts? Appearances or reality? Canon 3 C. of the Code of Judicial Conduct opts for reality, it seems to me:

C. Disqualification

(1) A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a). He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

The words that I have emphasized indicate that the Canon is addressing reality; a focus on appearances would have called forth different language: “might appear to be in question,” “he appears to have a personal bias ...,” and so on. For what it is worth, the considerable body of precedent that exists regarding lawyer disqualification opts for reality also, although the considerations involved are not precisely the same. See Model Rules of Professional Responsibility Rule 1.7; Article, 94 Harvard Law Review 1244, and cases cited, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751 (2nd Cir.1975).

In sum, where there is room for doubt about the existence of bias I quite agree that appearances must be served. Doing so will sometimes require one who feels no bias to disqualify himself despite this. But where there is in fact no room for doubt and no contention whatever of actual bias — as is the case in this appeal — I do not believe that naked appearances should be held to require a magistrate’s recusal.