Mitchell v. Sirica, 74-1492

• Decision Date: 07 June 1974
• Docket Number: No. 74-1492,74-1492
• Citation: 502 F.2d 375,163 U.S.App.D.C. 373
• Parties: John N. MITCHELL et al., Petitioners, v. Honorable John J. SIRICA, Judge, United States District Court for the District of Columbia, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 375

502 F.2d 375

163 U.S.App.D.C. 373

John N. MITCHELL et al., Petitioners, v. Honorable John J. SIRICA, Judge, United States District

Court for the District of Columbia, Respondent.

No. 74-1492.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1974, Dissenting Opinion July 9, 1974, Certiorari

Denied July 25, 1974, See 94 S.Ct. 3232.

Plato Cacheris, Washington, D.C., for John N. Mitchell.

Edmund D. Campbell, Washington, D.C., for Kenneth Wells Parkinson.

John M. Bray, Washington, D.C., for Gordon Strachan.

Sidney Dickstein, James VanR. Springer, Washington, D.C., for Charles W. Colson.

Leon Jaworski, Sp. Prosecutor, Philip A. Lacovara, Counsel to Sp. Prosecutor, James F. Neal, Sp. Asst. to Sp. Prosecutor, and Sidney M. Glazer, Asst. Sp. Prosecutor, Washington, D.C., on response of United States.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON and MacKINNON, Circuit Judges.

ORDER

PER CURIAM.

On consideration of petitioners' petition for writ of mandamus or prohibition, and of the pleadings filed with respect thereto, it is

Ordered by the Court en banc that the aforesaid petition for writ of mandamus or prohibition is denied.

The Judges reserve the right to file opinions at a later date.

MacKINNON, Circuit Judge:

I object to the foregoing order denying the petition in this en banc case without opinion and without allowing petitioners to argue the matter orally to this court. The five judges who join in the foregoing order completely deny petitioners a hearing in this court and then by a mere order without any written opinion, in effect deny petitioners their most fundamental rights.

The issues raised by petitioners are substantial. They were deprived of their right in the trial court to develop evidence to support their allegations that the trial judge had acted in an accusatory manner, and it appears admitted on this record that the trial judge has prejudged their ability to obtain a fair trial in this district. The refusal of the majority even to answer these allegations operates, in effect, to ignore the evidence both of prejudgment and of the contacts between the trial judge and the prosecutors. The petitioners are entitled to have this evidence produced, cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and they are entitled to have their case tried by a judge who has not stated in effect that he has prejudged a material issue.

I would remand to afford petitioners an evidentiary hearing but if I were required to act on the existing record I would grant the writ. I will file a written opinion as soon as possible.

MacKINNON, Circuit Judge (dissenting):

This criminal case has been called one of the most important cases in American judicial history. At this time ¹ it involves an indictment against a former Attorney General of the United States, a former Assistant Attorney General, four former presidential advisers and one lawyer for alleged unlawful conspiracy arising out of the so-called Watergate affair. Other offenses charged against some but not all defendants include obstruction of justice, perjury, false declarations and false statements to agents of the Federal Bureau of Investigation.

Four of the defendants (hereinafter petitioners) ² petition this court for a writ of mandamus or prohibition directing United States District Judge John J. Sirica to proceed no further and to disqualify himself as presiding judge in United States v. Mitchell, (D.D.C., indictment filed March 1, 1974), the alleged 'Watergate cover-up' case. The petition is brought under the All Writs Statute, 28 U.S.C. 1651, and Fed.R.App.P. 21 to review the denial by Judge Sirica of petitioners' disqualification motion, premised upon 28 U.S.C. 144 ³ and 455, ⁴ the fifth and sixth amendment rights to a fair trial and the Code of Judicial Conduct. ⁵ United States v. Mitchell, 377 F.Supp. 1312 (D.C.D.C.1974).

This court handled the petition as an en banc case. Under the Federal Rules of Appellate Procedure en banc hearings are

not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

Fed.R.App.P. 35(a). The exceptional importance of the case presumably was the basis for en banc consideration. Notwithstanding the recognized importance of this case, a majority of this court deprived petitioners of their right to oral argument, never provided the prior notice required by local Rule 11 ⁶ and disposed of the matter by a mere one-sentence order denying the petitioner. ⁷ Such disposition is improper where the case admittedly is of 'exceptional importance.' These circumstances compel me to raise my single and obviously futile objection to the irresponsible and peremptory manner in which this petition was denied. I simply cannot agree that the majority's handling of this petition was an appropriate method to administer justice in this most important of criminal cases.

More substantively, I dissent also because I believe that under the law petitioners are entitled to relief. Petitioners' contentions are divisible into four general categories. They maintain that Judge Sirica must disqualify himself in this case in view of (a) his involvement in the prosecutorial investigation and his prior exposure to evidence, (b) his prejudgment of a material issue, (c) his alleged personal interest in the outcome, and (d) his representation in other cases by some counsel in this case. Petitioners also requested the district court (1) to grant them an evidentiary hearing to develop information concerning Judge Sirica's private meetings with the prosecutors and his submission to the prosecution of a list of witnesses to be called before the grand jury, and (2) to refer the disqualification question to the Calendar Committee of the district court as an appropriate disinterested panel.

The special Prosecutor agreed in his brief that 'it might be reasonable under all the circumstances' to refer the matter to the Calendar Committee of the district court. As amicus curiae, the American Civil Liberties Union has also urged both Judge Sirica and this court to grant petitioners the evidentiary hearing they request.

Nevertheless, on April 30, 1974, Judge Sirica entered an opinion and order in which he refused to disqualify himself, to conduct an evidentiary hearing or to refer the matter to a disinterested panel. ⁸ The opinion relied strongly on the claim that all the instances cited by petitioners in support of their motion, including the judge's prior involvement in the prosecutors' investigation of this case, arose in the course of official judicial activity. The opinion stated that all counsel would have access to the transcript of the meeting with the prosecutors where the judge urged further grand jury inquiry of certain persons, including one defendant here. Although he admitted having additional ex parte contacts with Special Prosecution Force personnel, Judge Sirica refused petitioners' request for an evidentiary hearing because he independently concluded that nothing relevant to this case occurred at those meetings. In regard to his televised statement that these defendants could receive as fair a trial in the District of Columbia as anywhere else in the United States, Judge Sirica denied that this statement reflected any bias or prejudgment of a material issue.

I.

Recusal of a federal judge may be either voluntary, where a judge himself believes the fair administration of justice would be furthered by recusal and does so on his own motion, or mandatory, where required by statute. A classic statement on voluntary recusal was made by Justice Frankfurter in Public Utilities Comm. v. Pollak, 343 U.S. 451, 466-467, 72 S.Ct. 813, 822-823, 96 L.Ed. 1068 (1952).

But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.

Mandatory disqualification of a federal judge to preside over a particular case may be premised on either of two statutes, 28 U.S.C. 144, 455 (1970). ⁹ Under Section 144, whenever a party to a proceeding files

a timely and sufficient affidavit that the judge . . . has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein . . ..

The facts alleged in the affidavit must be taken as true, the only question being whether they are legally sufficient to establish personal bias or prejudice. ¹⁰ Berger v. United States, 255 U.S. 22, 35-36, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Tynan v. United States, 126 U.S.App.D.C. 206, 209, 376 F.2d 761, 764, cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967). The facts alleged must be material and stated with particularity. United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973); cf. Berger v. United States, supra. We have held that if the facts well pleaded satisfy the statutory standard, the judge must recuse himself even if he knows them to be false. Tynan v. United States, supra, 126 U.S.App.D.C. at 209, 376 F.2d at 764.

Section 144 requires that the bias or prejudice for or against a party be 'personal' in nature. This does not mean that the judge must be shown to have a venal antipathy against the individual but merely that the alleged bias or prejudice must be shown to apply in some way to the case of the individual. Here the district court mistakenly assumed that personal bias cannot be established when such bias...