Foster v. United States

618 A.2d 191, 1992 D.C. App. LEXIS 352, 1992 WL 387487

Opinions

ORDER

PER CURIAM.

Appellant, claiming error in a trial court refusal to recuse, seeks resentencing, or at least consideration of his motion to reduce sentence,¹ before a different judge. In refusing to recuse, the trial court relied on two erroneous principles of law. First, it stated that the Code of Judicial Conduct had no binding effect, a proposition refuted by the en banc decision in Scott v. United States, 559 A.2d 745 (D.C.1989).² Second, it stated that movant had not complied with Super.Ct.Civ.R. 63-1, but that Rule, at least in that regard, relates to out-of-court conduct or utterances disclosing a personal prejudice against the moving party, not what the judge might have gleaned from proceedings before him or her, as here. In re Bell, 373 A.2d 232 (D.C.1977). Accordingly, the case is remanded for further consideration of the issue of recusal.³

1 . Super.Ct.Crim.R. 35(b).

2 . The Scott decision had been decided en banc barely two weeks prior to the trial court’s ruling and was not cited by either side.

3 . As we read the record, the trial court as a result of these two misconceptions of applicable law and procedure did not squarely reach the issue of the alleged Canon violation discussed in Judge Reilly’s dissent. Cf. Johnson v. United States, 398 A.2d 354, 365 (D.C.1979). Accordingly, we do not at this point mean in any way to intimate or take any position on that ultimate issue, nor on any procedural issues as to the extent or scope of available appellate review in the posture of this case. ¡