Moran v. Clarke
| Decision Date | 02 August 2002 |
| Docket Number | No. 4:98-CV-556 CAS.,4:98-CV-556 CAS. |
| Parties | Thomas MORAN, Plaintiff, v. Anne-Marie CLARKE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
C. John Pleban, Partner, Greensberg & Pleban, St. Louis, MO, Mark H. Neill, St. Louis, MO, Stanley E. Goldstein, Eli Karsh, Liberman & Goldstein, Clayton, MO, for Plaintiff.
Erin M. Matis, Gallop & Johnson, Clayton, MO, Joy Urbom Taylor, Greensfelder & Hemker, St. Louis, MO, Priscilla F. Gunn, Rabbitt & Pitzer, St. Louis, MO, for Defendants.
This case has been remanded to this court for retrial and, among other things, reconsideration of plaintiff Thomas Moran's recusal request. In preparing to undertake these responsibilities, this court is compelled to examine the facts and proceedings which weigh heavily on the mind of the undersigned.
On April 14, 1997, St. Louis police officers mistook a mentally impaired teenager, Gregory Bell, for a burglar in his own home. During his arrest, Bell resisted and was left seriously injured with severe head lacerations and a broken ankle. Within three days, Police Chief Ronald Henderson publicly apologized for the mistake and promised to take appropriate action if there was any wrongdoing. On April 19, 1997, Police Officer Barry Greene gave a tape-recorded statement to Chief Henderson, Major Gregory Hawkins and Captain Paul Nocchiero that he saw Sergeant Moran assault Gregory Bell. The previously submitted police report had placed Moran at the scene only after Bell was outside his home.
Henderson, along with Hawkins, Nocchiero and other officers, took Greene to speak with the prosecuting attorney for the City of St. Louis, Circuit Attorney Dee Joyce-Hayes. Joyce-Hayes subsequently took the matter to a grand jury, which issued an indictment against Moran. During the St. Louis Police Department's continuing investigation, Attorney Richard Barry, who represented Moran, and Attorney Andrew Leonard, who represented other officers, spoke with Chief Henderson. Attorney Barry stated that Chief Henderson said he wanted "the white sergeant." Attorney Leonard stated that he could not recall a racial overtone or any reference to "the white sergeant" during this same conversation. Chief Henderson denied making such a statement.
Moran was criminally prosecuted by the Circuit Attorney's Office and was acquitted after trial by jury in May of 1998. Thereafter, in June and July of 1998, a St. Louis Police Department Administrative Hearing Officer reviewed charges against Moran. The Hearing Officer recommended to the Board of Police Commissioners that Moran be acquitted on the assault and excessive force charges, but the charges that Moran directed another officer to file a false report on the Bell beating be sustained. The Board accepted all of these recommendations and further concluded that Bell was beaten after he had been subdued by police officers, Moran was on the scene and was in charge at the time and, therefore, Moran was guilty of failing to exercise his authority to prevent the beating of Bell. The Board punished Moran by sustaining his earlier suspension without pay and demoting him to patrolman.
Moran filed suit against eighteen defendants in this court alleging that they conspired to and did violate his constitutional right to substantive due process, and maliciously prosecuted him. Thereafter, Moran took the deposition of Anne-Marie Clarke, President of the Board of Police Commissioners, in which she was asked the following questions:
Based on these questions and answers, Moran requested that this court recuse itself from the case. The request was denied.
Following the presentation of Moran's evidence and a motion from defendants to grant judgment as a matter of law, this court dismissed the case. Moran appealed the dismissal and other rulings. The appeal was heard and decided by a threejudge appellate panel, Moran v. Clarke, 247 F.3d 799 (8th Cir.), vacated and reh'g granted, 258 F.3d 904 (8th Cir.2001), and was reheard by the Eighth Circuit en banc. The full court by a majority of six to four reversed and remanded the case. Among other things, the appellate court directed this court to "revisit and more thoroughly consider and respond to Moran's recusal request." Moran v. Clarke, 296 F.3d 638, 649 (8th Cir.2002) (en banc).
Based upon Moran's request for recusal and the deposition of Clarke, the appellate majority stated the following:
We are troubled by the record in this case. The district judge's appearance at the same social events as Clarke and Smith brooks little mention. Judges, attorneys and public officials will often share public appearances. This does little to create the appearance of impropriety. The social relationship, however, invites more scrutiny. The image of one sitting in judgment over a friend's affairs would likely cause the average person in the street to pause. That the judge and Clarke enjoyed a friendship of sufficient depth and duration as to warrant several reciprocal visits to one another's homes only exacerbates the problem. We find particularly worrisome the district court's failure to disclose this conflict himself, as permitted by section 455(e). Moreover, the record suggests a fractious relationship between the district court and Moran's attorneys. We do, however, have the utmost faith in the district court's ability to rule impartially, and have imposed on ourselves an obligation to reverse a district court only where we can say with certainty that it has abused its discretion. Accordingly, rather than remand to a different judge, we remand this question to the district court with the suggestion that it revisit and more thoroughly consider and respond to Moran's recusal request.
Moran, 296 F.3d at 649 (emphasis added).
The majority assumes a conflict exists, but the facts show otherwise. Neither Clarke nor the undersigned have ever been in each other's homes on a personal, family or "reciprocal" basis. Clarke was last present in the undersigned's home eight years ago in 1994, when I permitted the Mound City Bar Association to host a reception for a candidate running for the Presidency of the National Bar Association. Approximately one hundred people attended the event in my home, almost all of whom were members of the bar. Between 1987 and 1993, the undersigned was present in Clarke's home on three occasions. The first occasion was a Missouri Bar Association reception in conjunction with the annual Missouri Bar Conference. The second was a Mound City Bar Association social event. The third was a birthday party for Clarke's husband, who had been President of the St. Louis Board of Education. At each of these gatherings, there were between one to two hundred guests, most of whom were members of the bar or public officials.
Between 1977 and 1978, Clarke and the undersigned were present in each other's homes two to three times as part of a group meeting of approximately half a dozen people attempting to plan and organize an effort to encourage young African-American professionals in St. Louis to meet, network and socialize. Subsequently, during this same period of time, Clarke was present in the undersigned's home for such a social gathering, attended by more than one hundred people.1 This court's relationship with Clarke was based on our being members of the bar and of the same small generation of African-American attorneys in St. Louis, rather than on personal matters.
With all due respect, this court's faith in the appellate majority herein has been shaken. While the majority claims to have the "utmost faith" in this court's impartiality, it strongly suggests a lack of faith by stating that it was troubled and worried by "this conflict," which was "exacerbated" by this court's failure to disclose the alleged conflict itself.
Webster's Third New International Dictionary 816 (1965) defines "faith" as a "firm or unquestioning belief in something for which there is no proof" or "confidence: esp: firm or unquestioning trust or confidence in the value, power or efficacy of something." Another authority described it in the following manner:
[F]aith is the substance of things hoped for, the evidence of things not seen. For by it the elders obtained a good report.
Hebrews 11:1-2 (King James).
What was seen by the appellate majority was this court's ruling that its relationship with Clarke was insufficient reason for recusal. What was unseen was this court's reasoning for the conclusion. "Faith," and particularly "utmost faith," would seem to require belief or confidence that this court would not reach such a conclusion without a basis. Having such faith, my appellate brethren could have required that I revisit this issue and state my reasoning. Instead, they chose to...
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