Connelly v. United States Dist. Court
Decision Date | 10 September 1951 |
Docket Number | No. 13053.,13053. |
Citation | 191 F.2d 692 |
Parties | CONNELLY v. UNITED STATES DIST. COURT IN AND FOR THE SOUTHERN DIST. OF CALIFORNIA, CENTRAL DIVISION et al. |
Court | U.S. Court of Appeals — Ninth Circuit |
Ben Margolis and Daniel G. Marshall, Los Angeles, Cal., for petitioner.
Ernest A. Tolin, U. S. Atty. Alexander Macdonald and Jackson W. Chance, all of Los Angeles, Cal., for respondents.
A. L. Wirin, Los Angeles, Cal., amicus curiae, for American Civil Liberties Union.
Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.
Petitioner seeks our writ of prohibition1 forbidding the respondent judge to act on petitioner's motion to reduce petitioner's bail, theretofore fixed at $75,000.00 by the respondent judge, for his release pending his trial under an indictment filed in respondent's District Court for the Southern District of California.
The indictment charged, inter alia, that petitioner and some eleven other persons conspired to commit the offense against the United States of:
Petitioner, pursuant to 28 U.S.C. § 1442 filed with the respondent judge the affidavit of himself and the eleven other indicted persons alleging certain facts respecting the statements of the respondent judge.
It was agreed at the hearing that, since petitioner so was indicted, a colloquy, stated in the affidavit, occurred between Daniel C. Marshall, then appearing in the indictment proceeding as attorney for the petitioner Connelly, the respondent judge and another attorney. The affidavit's statement of the colloquy is as follows:
A part of the facts to be proved against petitioner and his alleged co-conspirators are those facts of the indictment's allegation that the Communist Party of the United States is an "assembly of persons who teach and advocate the overthrow of the Government of the United States by force and violence." A part of the affidavit concerns a statement of the respondent judge who, prior to his appointment as a district judge, was United States Attorney for the Southern District of California and had prosecuted a number of the petitioner's alleged co-conspirators for contempt in refusing to answer questions found by us to be incriminating.3 This statement was made in an address by respondent judge at a meeting of the Lions Club in Los Angeles, in which he was discussing the contempt proceedings he was then conducting. He was called as a witness in one of the contempt proceedings concerning his Lions Club statement and admitted he there described such persons as he was prosecuting as "hiding behind the Bill of Rights and the Constitution." (Emphasis supplied.) Of this it was admitted at the hearing here that he further stated:
None of the above facts are stated on information and belief. The admitted facts are that the respondent judge believed the petitioner to be a Communist, a fact which well may be a part of the case against petitioner; that the judge believed Communists, of which he believed petitioner to be one, were persons hiding behind the Constitution here in seeking to reduce a bail claimed excessive in violation of the Sixth Amendment, and that they "at the same time apparently would overthrow that very document and the country that it rests upon," and that "the Communist Party was an illegal conspiracy to overthrow the government of the United States." Furthermore, the respondent judge warned the petitioner's attorney that petitioner, a Communist, was one of those "just trying to use you" and commented,
Every accused person has a constitutional right to counsel and there is a correlative duty on the bar to see that every accused, no matter how unpopular, is represented competently. In addition to this sense of duty, many eminent lawyers would welcome the professional challenge involved in this case.4
Here the judge's bias shown is clearly personal, against the petitioner. In the cases cited in favor of the judge, it was held that the alleged bias was not a "personal bias or prejudice either against him the affiant or in favor of any adverse party" in the action, as required by Section 144 supra.
In Price v. Johnston, 9 Cir., 125 F.2d 806 at page 811, we stated:
In Loew's, Inc., v. Cole, 9 Cir., 185 F.2d 641 at page 646, we held that the affidavit showed no more than the judge's view of the law, stating:
In Eisler v. United States, 83 U.S.App. D.C. 315, 170 F.2d 273, at page 278, the court stated:
Unlike that case, in the instant case the judge, then United States Attorney, in the cases cited in footnote 3 had prosecuted and secured the conviction of some of the petitioner's co-defendants for refusing to answer grand jury questions, which, in reversing, we held the record showed would tend to convict them of being Communists seeking to overthrow the government by force.
In Foster v. Medina, 2 Cir., 170 F.2d 632, the indictment was like the instant one and the affidavit claimed a remark of the judge showed personal prejudice. Of this the court said, 170 F.2d at page 634: "The court's remark so construed — and this is the only reasonable interpretation to ascribe to it in its context — does not give `fair support' to the defendants' charge that the judge has expressed in advance of trial his view that they have in fact advocated the doctrine which the indictment charges them with having conspired to advocate." No such construction can be given to the judge's statements in the instant case.
We think these statements of fact in the affidavit, admitted to be true at the hearing, are a sufficient showing of personal prejudice against the petitioner to deprive the respondent judge of the jurisdiction to hear and determine any issue, of bail or otherwise, affecting petitioner.
The affidavit further alleges, not on information and belief, the following facts concerning Dorothy Healey, one of defendants charged to be co-conspirators in the above indictment. These facts are that:
To continue reading
Request your trial-
Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng.
...found the affidavit sufficient to disqualify the judge. Once more, however, that case is not this one. In Connelly v. United States District Court, 191 F.2d 692, 695 (9th Cir. 1951), the trial judge had stated his belief that petitioner was a Communist, that Communists hid behind the Consti......
-
Oliver v. Michigan State Bd. of Ed.
...decision than a disposition of a mind in which there is a personal ingredient. (Id. at 35-36, 41 S.Ct. at 234) In Connelly v. United States, 191 F.2d 692 at 697 (9th Cir. 1951), the Court It is not enough that the judge, despite his predetermination of essential facts, may put them aside an......
-
Brown v. State
...235 F.2d 129 (6th Cir.), cert. denied 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); Connelly v. United States Dist. Court In and For the Southern Dist. of Cal., Cen. Div., 191 F.2d 692 (9th Cir.1951), open hostility and predetermination mandated recusal in the politically sensitive case;......
-
U.S. v. Allen
...See, e.g., Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1931) (German Americans); Connelly v. United States District Court, 191 F.2d 692 (9th Cir. 1951) (Communists). Neither the source nor the content of Judge Conti's views on marijuana smuggling indicate that recusal ......