Doering v. Fader

• Decision Date: 01 September 1989
• Docket Number: No. 10,10
• Citation: Doering v. Fader, 316 Md. 351, 558 A.2d 733 (Md. 1989)
• Parties: Al Wayne DOERING v. John F. FADER II, Associate Judge, Circuit Court for Baltimore County. Misc.,
• Court: Maryland Court of Appeals

Page 351

316 Md. 351

558 A.2d 733

Al Wayne DOERING v.John F. FADER II, Associate Judge, Circuit Court for Baltimore County.

Misc. No. 10, Sept. Term, 1989.

Court of Appeals of Maryland.

June 8, 1989.

Nancy M. Cohen, Asst. Public Defender and David L. Addison, Asst. Public Defender, for petitioner.

J. Joseph Curran, Jr., Atty. Gen. and Cathleen C. Brockmeyer, Asst. Atty. Gen., for respondent.

Submitted to MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

McAULIFFE, Judge.

Al Wayne Doering was convicted of first degree murder and sentenced to death at a trial in the Circuit Court for Baltimore County.Judge John F. Fader, II, presided, and a jury decided the issues of guilt and sentencing.This Court affirmed the conviction, but vacated the sentence and remanded the case for a new sentencing proceeding, finding that evidence relating to parole had been improperly excluded.Doering v. State, 313 Md. 384, 545 A.2d 1281(1988).

Upon remand, Judge Fader advised both parties that he intended to recuse himself.On motion of the defendant, Judge Fader held a hearing on the question of his disqualification, and ruled that he would recuse himself because he had previously formed and expressed an opinion that death was not the appropriate sentence for Doering.Within thirty days of that action, the defendant filed in this Court a "Petition for Writ of Prohibition, Mandamus or Other Appropriate Relief," asking that we direct Judge Fader to preside at the new sentencing proceeding.We will not grant the requested relief, but we will direct that Judge Fader reconsider recusal in light of the following discussion of the requirements of Canon 3C of the Maryland Code of Judicial Conduct,Maryland Rule 1231.

Canon 3 C provides in pertinent part that:

(1) A judge should not participate in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

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

Judge Fader apparently felt that he was biased or prejudiced within the meaning of Canon 3 C because he had previously heard evidence and arguments in the case, and had expressed an opinion based upon that knowledge.At the recusal hearing, he recounted the facts as follows:

Mr. Doering, after the trial of the case and the guilty findings, elected to be tried before the Court before a jury on sentencing.The jury indicated that a sentence of death should occur.The Court of Appeals requires certain forms to be filled out in a report of a trial judge and one of the questions that they ask is whether the trial judge feels that the sentence of death was appropriate.I said, in answer to that question, that it is doubtful.Make no mistake about it, I would not have imposed the death sentence on Al Wayne Doering.I felt that it was a case for life imprisonment.But he wanted a jury.

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The fact of the matter is that now the defendant, Al Wayne Doering, has filed a motion that I be the trial judge in the case and understandably why.I do not feel and did not feel that it was fair to the State that I should sit in judgment of this particular case.

The report of the trial judge to which Judge Fader referred is required by Maryland Code(1957, 1987 Repl.Vol.) Art. 27, § 414(b), and by Maryland Rule 4-343.¹In addition to providing other information, the trial judge is required to state the "Recommendation of Trial Court As To Whether Imposition of Sentence of Death is Justified."Judge Fader's statement on the trial judge's report in this case was, "It is doubtful."

Interpreting a federal statute² which also requires recusal when the assigned judge "has a personal bias or prejudice," the United States Supreme Court said:

The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481.Any adverse attitudes that [the trial judge] evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make.What he said reflected no more than his view that, if the facts were as the Government alleged, stringent relief was called for.

United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778(1966).The District of Columbia Court of Appeals, in Matter of Evans, 411 A.2d 984, 995(D.C.App.1980), summarized a number of holdings that are relevant here:

Ordinarily, a trial judge is not required to recuse when an affiant alleges bias arising from a source within the "four corners of the courtroom."Tynan v. United States, 126 U.S.App.D.C. 206, 210, 376 F.2d 761, 765, cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111(1967).The "four corners of the courtroom" test is really an alternative formulation of the rule that bias must be personal rather than judicial before recusal will be required.The proper distinction is "between a judicial determination derived from evidence and lengthy proceedings before the court, and a determination not so founded upon facts brought forth in court, but based on attitudes and conceptions that have their origins in sources beyond the four corners of the courtroom."In re Federal Facilities Realty Trust Co., 140 F.Supp. 522, 526(N.D.Ill.1956).Essentially, the importance of the distinction lies not in the physical location of the incidents from which bias is alleged to arise, but in the nature of the incidents as inside or outside the scope of official judicial conduct in regard to the instant or a prior case.SeeUnited States v. Haldeman, 181 U.S.App.D.C. 254, 356 n. 301, 559 F.2d 31, 133 n. 301(1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250(1977);United States v. Gilboy, 162 F.Supp. 384, 394(M.D.Pa.1958)."The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778(1966).

To the same effect, seeFitzgerald v. Penthouse Intern., Ltd., 691 F.2d 666, 672(4th Cir.1982);United States v. Partin, 552 F.2d 621, 636-39(5th Cir.1977);United States v. Falcone, 505 F.2d 478, 485(3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432(1975);United States v. English, 501 F.2d 1254, 1263(7th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811(1975);Barry v. Sigler, 373 F.2d 835, 836(8th Cir.1967);Barkan v. United States, 362 F.2d 158, 160(7th Cir.1966), cert. denied, 385 U.S. 882, 87 S.Ct. 170, 17 L.Ed.2d 109;Gregory v. United States, 393 A.2d 132, 143(D.C.App.1978).

State courts considering similar statutes or rules have reached similar results.SeeMedical Arts Clinic, P.C. v. Henry, 484 So.2d 385, 387-88(Ala.1986);People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200, 203(1987);In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1041(1984);Moreland v. State, 469 So.2d 1305, 1307(Ala.Cr.App.1985);Jones v. State, 416 N.E.2d 880, 881(Ind.App.1981);Taxation and Revenue Dept. v. Van Ruiten, 107 N.M. 536, 760 P.2d 1302, 1305(App.1988);State ex rel. Bardacke v. Welsh, 102 N.M. 592, 698 P.2d 462, 473(App.1985);Reading v. Ball, 291 S.C. 492, 354 S.E.2d 397, 398(App.1987);Payne v. Holiday Towers, Inc., 283 S.C. 210, 321 S.E.2d 179, 183(App.1984);People v. Diaz, 130 Misc.2d 1024, 498 N.Y.S.2d 698, 701(Co.Ct.1986).

This Court recently discussed Canon 3C in State v. Calhoun, 306 Md. 692, 749, 511 A.2d 461(1986), and noted that a judge is not disqualified because he has expressed his opinion as to the case.More recently, the Court of Special Appeals stated in Boyd v. State, 79 Md.App. 53, 555 A.2d 535(1989), that:

"Personal knowledge of disputed evidentiary facts" concerning the proceedings, has been defined as "knowledge acquired from extra-judicial sources, not what the judge learned from his participation in the case."Jones v. State, [416 N.E.2d 880(Ind.App.1981) ];United States v. Mitchell, 377 F.Supp. 1312(D.C.D.C.1974);United States v. English, [501 F.2d 1254(7th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811(1975) ].

We find nothing in this record to suggest that Judge Fader has received any information other than that which was properly produced ³ during previous court proceedings in this case.Moreover, this is not a case in which reversal occurred because evidence was improperly received and those who heard the prior evidence could thereby be biased.Nor do we have the situation of a defendant seeking recusal because he fears retribution from a judge whose ruling was reversed on appeal.

The record indicates the trial judge misperceived the nature of the extrajudicial facts he was precluded from considering.

THE COURT: In other words, I would be sitting in one proceeding and be aware of facts that had been received in another judicial proceeding.They would have been extrajudicial to the proceeding before me.

[DEFENSE COUNSEL]: No, respectfully, Your Honor, I disagree with that.This is all arising out of the case86-CR-6128.

THE COURT: I understand you disagree with it, sir.

It seems clear that the decision to recuse was based upon Judge Fader's belief that he would have to be able to completely put out of his mind all that he had heard before in this case in order to be competent to sit.In this belief he was wrong.We conclude he must be given an opportunity to consider the question of recusal without the pervasive influence of this misperception of the law.

The appropriate question is whether the trial judge is confident...