Ex parte White
| Decision Date | 16 July 1974 |
| Docket Number | 3 Div. 278 |
| Citation | 300 So.2d 420,53 Ala.App. 377 |
| Parties | Ex parte Howard L. WHITE, Jr. |
| Court | Alabama Court of Criminal Appeals |
Jackson & Sikes, Selma, for petitioner. at William J. Baxley, Atty. Gen. and William G. McKnight, Asst. Atty. Gen., for respondent.
This petition was filed by Howard L. White, Jr. on June 3, 1974, the date set for his trial. The petition prayed that the Court of Criminal Appeals grant a writ directing the Honorable Richard P. Emmet, a Judge of the Circuit Court of Montgomery County, to recuse himself from the petitioner's case (State of Alabama v. Howard L. White, Jr., Montgomery Circuit Court case 9461) or to show cause why he should not be so required.
Specifically, the petitioner avers that the said trial judge has a personal interest in the outcome of the petitioner's case within the meaning of Title 13, Section 6, Code of Alabama and/or that the Honorable Richard P. Emmet possesses such bias and prejudice in favor of the State of Alabama, and against the petitioner, that require his removal under the common law.
After the hearing a rule nisi was issued requiring the respondent to show cause why the writ of mandamus should not issue as prayed. The temporary restraining order was continued in effect until final determination of the petition for writ of mandamus.
The response to the rule nisi was argued and submitted to the Court of Criminal Appeals on June 20, 1974.
The issue in this matter is before this Court on the petition, and respondent's demurrer, motion to strike, and answer. Essentially, the facts show that Howard L. White, Jr., the purchasing agent for the State of Alabama, was indicted on December 17, 1973, by the Montgomery County Grand Jury and charged with three violations of Title 57, Section 109, Code of Alabama.
The indictment 1 alleges that petitioner, as such purchasing agent, accepted 'kickbacks' from vendors of goods to the State contrary to law. Specifically, the alleged 'kickbacks' were:
1. Free use of an apartment (value in excess of $25.00).
2. Free use of telephone service (value in excess of $25.00).
3. A 20 h.p. Mercury outboard motor (value of $350.00).
Indictments were also returned on December 17, 1973, by the Montgomery County Grand Jury against Ruby Lee Latham, Robert O. Wilson, and V. E. Richey. As evidenced by newspaper articles attached to the petition as exhibits, charges against petitioner and the other indictees have been generally referred to by the news media as the 'Highway Department Scandal'.
Ruby Latham was convicted on the evening of January 23, 1974, after a jury trial and, although on bond, she was ordered to jail to await sentencing the next morning. The sentencing was again postponed to await a pre-sentence report by the Probation Officer. On January 29, 1974, after the Court of Criminal Appeals ordered her released on appeal bond, she was sentenced, and then released from custody on January 30, 1974.
Petitioner filed a motion of recusal against the respondent on February 19, 1974. Two days later it was heard and subsequently denied by the respondent.
On March 5, 1974, petitioner's counsel learned that charges were filed against respondent by the Judicial Inquiry Commission, and pursuant to Section 6.19 of the Judicial Article (now Title 1 Section 158, Article 6, Alabama Constitution, 1901 as last amended), he was disqualified to act until the Court of Judiciary heard the complaint and rendered a decision.
The complaint stated that while the respondent was acting in his judicial capacity, he wrote a letter and caused it to be delivered to the Judges of the Court of Criminal Appeals, and that such act constituted misconduct. The letter in its entirety reads:
'December 17, 1973
'Gentlemen:
'I am contacting each of you in this extraordinary and confidential manner concerning several indictments recently handed down in this circuit against Ruby Latham, Robert O. Wilson and Howard White.
'I have set high bonds for the following reasons:
'u. Relative to Ruby Latham, I have received two anonymous telephone calls that she plans to flee if indictments are returned against her and that she has been given a significant financial inducement to flee.
'2. Both the Attorney General and the District Attorney of this circuit are of the opinion (which opinion I share) that these persons can give convincing evidence which goes to the very core of a great deal of corruptior. in various governmental departments.
'It is seldom that in matters such as these, the prosecuting authorities ever have the opportunity of getting to the core of corruption.
'Maintaining these high bonds may very well materially assist in getting to the heart of this matter.
'Lowering these bonds will only serve to bolster those at the core and heart of this matter in their continuing to be able to engage in graft and corruption with impunity.
'I hope each of you can view these cases in this same light and should you be called upon to review these bonds that you will maintain them at the same level.
'Sincerely,
/s/ Richard P. Emmet
'Richard P. Emmet
'RPE/lb'
Subsequently, the Court of the Judiciary met and found that the respondent's unauthorized, ex parte, confidential communication to the Court of Criminal Appeals was improper, and that such action did constitute misconduct in office. 'The Court, therefore, expresses disapproval of the conduct of the respondent judge, which conduct this Court condemns as being improper.' That matter is now pending before the Alabama Supreme Court for review.
Judge David W. Crosland, Presiding Judge of Montgomery County Circuit Court's Criminal Division, continued the petitioner's case until June 3, 1974. On that date, after the jury was impaneled, Judge Crosland, over the objections of petitioner, referred the case to Judge Emmet for trial. We now turn our consideration to whether the facts supporting the petition show such bias or prejudice on the part of respondent to warrant disqualification.
Petitioner contends that the first evidence of bias or prejudice exhibited was the excessive bond of $50,000 set in petitioner's case.
Mrs. Pauline C. Eubanks, the Circuit Clerk, testified at the hearing on the motion to recuse on February 21, 1974, the the order fixing bail had been signed by Judge Emmet. She further stated she had looked at all the indictments involving Ruby Latham, Robert Wilson, and the petitioner, and all of them bore his personal signature rather than a stamp.
During the same hearing, Michael H. Capps, an investigator for the law firm of Jackson and Sikes, Selma, Alabama, attorneys for petitioner, testified that he had researched more than a thousand criminal indictments of closed cases in Montgomery County for the past year. His testimony reflected these findings:
RANGE OF
OFFENSE NO. OF INDICTMENTS BOND
---------------------------------- ------------------ ---------------
Buying, receiving and concealing
stolen property 24 $500-$2,000
Grand Larceny 246 500- 5,000
False Pretense 71 300- 2,500
" " 2 (unsigned) each 5,000
Murder 3 1,200- 5,000
Assault to murder 32 300-10,000
Indecent Exposure 4 750- 4,000
Assault with attempt to ravish 2 each 7,500
Kidnapping 4 each 10,000
Drug violation (marijuana) 43 highest 10,000
Drug violation (LSD, heroin, etc.) 11 1,000- 3,000
Selling LSD 1 1,000
Of the indictments checked, $30,000.00 was the highest bond, and this involved child molestation. All the indictments reviewed were stamped with the respondent's name in fixing the amount of bond, with the exception of those dealing with Wilson, Latham, and White, and these were signed in respondent's own handwriting. Further, he stated his examination of Ruby Latham's twenty-three indictments showed each carried bail of $5,000.00. The indictments involving Sarah Gross revealed only six bonds of $1,000.00 each, and according to George Jones, Register of the Circuit Court of Montgomery County, she had been charged with embezzling $103,180.39 from the State of Alabama.
W. D. Smiley, Chief Deputy Sheriff of Montgomery County, testified that he had been warned by Judge Emmet to be careful with the bonds of Latham, Wilson and White and make sure they were good.
Petitioner refers to the allegations against him as being inextricably intertwined with those against Ruby Latham. Counsel points out that petitioner is charged with accepting 'kickbacks' as State Purchasing Agent from Ruby Latham or the corporation of which she was secretary or treasurer. At the same time, Miss Latham is charged with using said corporation to defraud the State through an artifice whereby the State would pay for items allegedly purchased, but never delivered.
Counsel claims these allegations make the petitioner and Ruby Latham co-defendants in the scheme, and that conduct directed toward Ruby Latham by respondent subsequent to her first conviction on January 23, 1974, supports his allegations of bias and prejudice.
After sentencing, she requested to be allowed to remain free on an existing bond which was denied by the respondent. At a hearing the following morning, Judge Emmet stated:
' e court: t/he Defendant, Ruby Lee Latham, will come forward.
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