Scott v. U.S., 85-206.

• Decision Date: 10 May 1989
• Docket Number: No. 86-423.,No. 85-206.,85-206.,86-423.
• Citation: 559 A.2d 745
• Parties: Monroe W. SCOTT, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

559 A.2d 745

Monroe W. SCOTT, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-206.

No. 86-423.

District of Columbia Court of Appeals.

Argued October 3, 1988.

Decided May 10, 1989.

James Klein, Public Defender Service, with whom Maureen T. Cannon and Jennifer P. Lyman, Public Defender Service, Washington, D.C., were on the brief, for appellant.

Saul M. Pilchen, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell and Zinora M. Mitchell, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

ON REHEARING EN BANC

Before ROGERS,^* Chief Judge, MACK, NEWMAN, FERREN, TERRY, STEADMAN, and SCHWELB, Associate Judges, and PRYOR, Senior Judge.^**

ROGERS, Chief Judge:

We must decide the appropriate remedy for a violation of Canon 3(C)(1) of the American Bar Association's Code of Judicial Conduct which requires that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." CODE OF JUDICIAL CONDUCT Canon 3(C)(1).¹ The trial judge presided at a trial prosecuted by the United States Attorney for the District of Columbia, a division of the United States Department of Justice, while the judge was negotiating for employment with the Executive Office for United States Attorneys in the Department of Justice. The defendant, appellant Monroe W. Scott, Jr., learned of the judge's negotiations after he had been sentenced and he had noted an appeal from his conviction. Applying the special harmless error test of Liljeberg v. Health Servs. Acquisition Corp., ___ U.S. ___, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), we hold that Scott is entitled to a new trial.

I.

The case of the United States against appellant Monroe W. Scott, Jr., was assigned for trial to Judge Tim C. Murphy on November 15, 1984. The prosecutor was an Assistant United States Attorney for the District of Columbia.² Following Judge Murphy's denial of Scott's motions to suppress identification evidence and to release Scott on bond, trial commenced before a jury on November 30, 1984. The jury found Scott guilty of assault with intent to kill while armed. D.C.Code §§ 22-501, -3202 (1981 & Supp.1988). On January 28, 1985, Judge Murphy sentenced Scott to imprisonment for twelve to thirtysix years and fined him $500. Scott filed a timely notice of appeal.

During Scott's trial and sentencing, Judge Murphy was engaged in discussions with the United States Department of Justice about employment as an attorney in the Executive Office for United States Attorneys. The discussions began in October 1984, when Judge Murphy mentioned to the Director of the Office of Management Information, Services, and Support (OMISS) of the Executive Office for United States Attorneys, that he was contemplating a career change in 1985 and learned that the position of Assistant Director for the Debt Collection Staff was vacant.³ On October 31, 1984, and on December 10, 1984, Judge Murphy had lunch with the Director who described the position in detail. The Director advised that the Debt Collection Staff provided policy and oversight guidance to the debt collection units of the United States Attorneys Offices across the country and operated as a part of OMISS, which had essentially a record-keeping and computer systems management function. The position of Assistant Director was managerial in nature and did not have direct litigation control. The Director offered the position to Judge Murphy "subject to higher approval.⁴ On December 24, 1984, Judge Murphy told the Director that he was interested in the position and asked the Director to discuss the matter with his superiors. Judge Murphy was formally offered the job on or about February 6, 1985. Two days later he advised the Chief Judge of the Superior Court and the District of Columbia Commission on Judicial Disabilities and Tenure that he would leave the bench by April 15, 1985, to accept the Debt Collection position of "senior litigation counsel," a title of distinction given in recognition of Judge Murphy's judicial position.

Judge Murphy did not disclose the fact of his negotiations to Scott or his counsel at any time. Scott first learned of the judge's negotiations for employment with the Department of Justice approximately two weeks after he had been sentenced. On February 14, 1985, an article in the Washington Post announced Judge Murphy's pending retirement from the Superior Court. On August 20, 1985, with leave of this court, Scott filed a motion to vacate his conviction and sentence, D.C.Code § 23-110 (1981), on the grounds that the judge's failure to disclose the employment negotiations violated the American Bar Association Code of Judicial Conduct and denied Scott due process of law. The motion was denied by Judge Reggie Walton, citing Womack v. United States, 129 U.S.App. D.C. 407, 395 F.2d 630 (1968), on the ground that it would be inappropriate and unnecessary to resolve Scott's claim since a direct appeal was pending and Scott could raise the issue of judicial disqualification in his appeal from the denial of his motion. Scott filed a timely appeal. Since the issue of judicial recusal is before us on an adequate record, we turn to that issue.

II.

Our criminal justice system is founded on the public's faith in the impartial execution of duties by the important actors in that system. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810-811, 813-815, 107 S.Ct. 2124, 2139, 2141, 95 L.Ed.2d 740 (1987). It is beyond dispute that the trial judges perform a unique and pervasive role in that system: "confidence in the judiciary is essential to the successful functioning of our democratic form of government." United States v. Quattrone, 149 F.Supp. 240, 242-43 (D.D.C. 1957) (Youngdahl, J.). As eloquently stated by Mr. Justice Frankfurter:

Criminal justice is concerned with the pathology of the body politic. In administering the criminal law, judges wield the most awesome surgical instruments of society. A criminal trial, it has well been said, should have the atmosphere of the operating room. The presiding judge determines the atmosphere. He is not an umpire who enforces the rules of the game, or merely a moderator between contestants. If he is adequate to his function, the moral authority which he radiates will inspire the indispensable standards of dignity and austerity upon those who participate in a criminal trial.

Sacker v. United States, 343 U.S. 1, 37-38, 72 S.Ct. 451, 468-469, 96 L.Ed. 717 (1952) (Frankfurter, J., dissenting). See also Byrd v. United States, 377 A.2d 400, 404 (D.C.1977) ("The essence of the judicial role is neutrality.").⁵

To obtain the public trust in the judiciary judges are required to adhere to high standards of conduct. See generally CODE OF JUDICIAL CONDUCT. According to the chairman of the ABA committee which drafted the Code of Judicial Conduct, the Code was designed to protect public confidence in the integrity of judges since "[a]n independent and honorable judiciary is an indispensible condition of justice in our society." Judicial Disqualification: Hearings on S. 1064 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 80 (1973).

Canon 3(C)(1) of the Code of Judicial Conduct provides in relevant part: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. . . ." CODE OF JUDICIAL CONDUCT Canon 3(C)(1) (emphasis added).⁶ The necessity for recusal in a case is premised on an objective standard⁷ impersonality Because Canon 3(C) is incorporated into the federal judicial qualification statute, 28 U.S.C. § 455, see Appendix II, federal decisions interpreting the statute are instructive.⁸ Thus, even before the recent decision of the Supreme Court in Liljeberg, supra, ___ U.S. ___, 108 S.Ct. 2194, 100 L.Ed.2d 855, it was clear from the federal circuit court opinions that a judge must recuse from any case in which there is "an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question [the] judge's impartiality." United States v. Heldt, 215 U.S.App.D.C. 206, 239, 668 F.2d 1238, 1271 (1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982) (footnote and citations omitted). The objective standard is required in the interests of ensuring justice in the individual case and maintaining public confidence in the integrity of the judicial process which "depends on a belief in the impersonality of judicial decision making." United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983). See generally, Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV.L.REV. 736, 746 (1973). Neither bias in fact nor actual impropriety is required to violate the Canon. Hall v. Small Business Admin., 695 F.2d 175, 178-79 (5th Cir.1983) (federal disqualification statute "focuses on what is revealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice [and] cannot . . . extend to . . . the judge's actual virtue").

Judge Murphy served as a Superior Court Judge in active service for over eighteen years before he assumed senior status, and his good reputation is not at issue here. Violations of the Canons based on appearances is unquestionably a difficult area in which reasonable people can harbor differing views. Nevertheless, presented with the facts before us, the court concludes that there is a violation of Canon 3(C)(1) when the trial judge who is presiding at the prosecution by the United States Department of Justice through the United States Attorney's Office is actively negotiating for employment with the Department's Executive Office for United States Attorneys. This circumstance presents the specter of partiality that the Canon and the Supreme Court entreat all judges...