Sommers v. Com., 89-SC-882-MR
| Decision Date | 24 September 1992 |
| Docket Number | No. 89-SC-882-MR,89-SC-882-MR |
| Parties | David Louis SOMMERS, Appellant v. COMMONWEALTH of KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Marie Allison, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.
Chris Gorman, Atty. Gen. and Denise Garrison McElvein, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
David Louis Sommers was convicted in McCracken Circuit Court of two counts of murder, and sentenced to two consecutive 500-year terms of imprisonment. He appeals as a matter of right.
The victims were sisters, 13-year-old Carrie and 12-year-old Stephanie VanMeter. In the summer of 1988, the girls' parents apparently abandoned them in the care of their neighbors, David and Elizabeth (Sherry) Sommers. In September 1988, the girls' mother petitioned the district court to appoint the Sommerses as her daughters' guardians. Sommers failed to appear at the guardianship hearing, and the petition was never officially granted. The girls continued to live with the Sommerses, however.
On December 1, 1988, the Sommerses' house was destroyed by fire. Carrie's and Stephanie's bodies were discovered in the ruins. Forensic tests indicated that the deaths had not resulted from the fire or from smoke inhalation, but rather from suffocation prior to the fire. Other physical evidence indicated to arson investigators that the fire had been deliberately set.
On December 15, 1988, Sommers was indicted on two counts of murder. The Commonwealth's thesis was that Sommers had previously abused the girls sexually; that he had killed them in order to silence them; and that he had burned the house in an attempt to conceal the homicides.
The first issue raised on appeal is whether the trial judge abused his discretion in denying the defendant's motion of recusation.
After the indictment, in late December 1988, the news media gave the case extensive coverage. Of particular relevance to this appeal, the reportage included interviews with and unveiled criticism of District Court Judge Graves, who had presided over the guardianship proceedings begun in September. We cite examples of the media coverage, all taken from the Paducah Sun. On December 15, 1988, under the front-page banner "Sommers indicted in sister deaths," and the sub-headline "Officials say system failed due to lack of knowledge, personnel," the lead paragraph read:
McCracken County District Judge Bill Graves said if he had known more about the background of David L. Sommers, he probably would not have granted him limited guardianship of two teen-age girls he is accused of murdering earlier this month.
The article went on:
"Hindsight is always 20-20, but these types of guardianships are routine," Graves said.
. . . . .
Why were Sommers and his former wife, who were under indictment on drug charges, granted guardian [sic] of the two girls on Sept. 26?
. . . . .
Graves said that at the time he signed the guardianships for the VanMeters in September, he wasn't aware that Sommers had been indicted two months earlier on four drug charges.
He also said he wasn't aware that Sommers had been charged a month earlier in Christian County with sexual abuse of a five-year-old girl.
On the following day the Sun reported:
District Judge Bill Graves said today that he never signed a petition by Angela VanMeter making Sommers and his ex-wife, Elizabeth, the girls' guardians.
. . . . .
Graves said he didn't have all the evidence Thursday when he told The Paducah Sun he apparently signed the petition, validating it.
. . . . .
"I assumed I had signed it routinely," Graves said today, explaining why he thought he had signed the paper.
An editorial appearing on December 18, 1988, and entitled "Who protects the children?" commented:
So there were failures at every step in this tragedy:
1. Judge Graves' casual handling of these serious matters means that he probably would have entrusted two young girls to the care of a man under drug indictment and with a child-molestation warrant pending.
. . . . .
4. The state, which has a wide variety of child protection services, didn't have a chance to protect these two because nobody ever asked for its help.
In yet another interview, reported on December 22, 1988:
Graves said that if the documents had been presented to him he would have been obligated under the guardianship law to sign them....
A story appearing on December 29, 1988, under the headline "Graves says change needed in state's guardianship law," began:
The fact that David Sommers ... was facing drug trafficking charges when he sought guardianship of two sisters whom he allegedly killed later was not in itself enough to rule against him, District Judge Bill Graves said.
. . . . .
Graves said that had Sommers been in jail on that [sexual abuse] warrant when the petition hearing was scheduled,
In January 1989, Judge Graves was appointed interim circuit judge, to serve until the November election (in which he was a candidate). In that capacity, Judge Graves presided over the trial of the instant case, which began on October 23, 1989.
On September 11, 1989, the defense, citing KRS 26A.015 and SCR 4.300 (the Code of Judicial Conduct), moved Judge Graves to surrender the case. The defense argued that Judge Graves' impartiality might reasonably be questioned in view of all the circumstances--his involvement in the guardianship proceedings, his statements to the press following the indictment, his extra-judicial knowledge of Sommers' background, and his insistence on an October 23rd trial date while being a candidate for election in November, juxtaposed with the adverse publicity which he had received as a result of the girls' deaths.
Canon 3 C(1) of SCR 4.300 provides, in part, that "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned...." According to KRS 26A.015:
(2) Any justice or judge of the Court of Justice ... shall disqualify himself in any proceeding:
. . . . .
(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.
Viewed in totality, the circumstances of the instant case persuade us that Judge Graves' impartiality might reasonably be questioned, and moreover that Judge Graves had knowledge of these circumstances.
Underlying the media coverage concerning Judge Graves and the guardianship question were the more or less concealed presumptions that the deaths were homicides and that Sommers was guilty. Absent those presumptions, there would have been no reason to link so conspicuously the indictment of Sommers with criticism of "the system," and particularly Judge Graves. The coverage began with the premise that the child-protection system had failed, and undertook to explore how and why. But the premise itself was valid only if the children's presence with Sommers exposed them to unusual peril, which in turn was evident only if Sommers was guilty.
The same bias was attributed to Judge Graves: "Officials say system failed ..."; "Graves says change needed in state's guardianship law." From his own statements that he would have denied the petition had he been aware of Sommers' background, and that, "Hindsight is always 20-20," one might reasonably infer that Judge Graves, consciously or otherwise, in fact shared the presumption. While some of his statements clearly constituted explanation of procedures of the court, these statements as clearly did not. In any event, it appears to an objective observer that Judge Graves, too, felt that the law had failed. As we have said, that publicly expressed view necessarily carried with it a presumption of Sommers' guilt, which could only be reinforced by knowledge that Sommers had been charged with other crimes, including child sexual abuse. And if Sommers was presumably guilty it follows that he was presumed responsible for the unfavorable publicity, and likely embarrassment, to which Judge Graves was subjected. The negative information about Sommers was likewise available to the reading and viewing public, who also perhaps absorbed the biases exhibited in the daily press coverage. Aware as well of much of the state's evidence, surely the public generally believed Sommers guilty, more likely than not, and would applaud a conviction. It would not be unreasonable to argue that Judge Graves stood to gain significant public favor by conducting a trial in which a guilty verdict was returned in this high-profile case, shortly before the November election.
Were it not for this last consideration, we might be swayed by the Commonwealth's argument that the motion recusing was not timely filed. It may well be unreasonable to question a judge's impartiality months after all the circumstances tending to justify the challenge are known, and after the case has substantially progressed. Here, however, the order setting the case for trial on October 23, and overruling the defense motion to set the trial for February, was entered on August 30, 1989. This proximity of the trial date to the forthcoming election, in view of all the circumstances, was a substantial and, we believe, not unreasonable factor in the motion of recusation filed on September 11.
We are confident of Judge Graves' integrity. We do not conclude that he entertained a conscious bias, or that his judicial performance was influenced by improper sub-conscious motivation. But the issue is not whether Judge Graves was in fact impartial. On the true issue, i.e., whether his impartiality might reasonably be questioned, we hold that under the circumstances it was indeed reasonable for the defense to question Judge Graves' impartiality, and that denial of the motion of...
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