Glenn E. Thompson, circuit judge, Decatur, for respondent.
PER CURIAM.
The State of Alabama filed this petition for a writ of mandamus directing Judge Glenn Thompson to recuse himself from presiding over the retrial of Daniel Wade Moore's capital-murder case. In 2003, Moore was convicted of capital murder for murdering Karen Croft Tipton during the course of committing a sexual abuse, a kidnapping, a robbery, and a burglary. The jury recommended that Moore be sentenced to life imprisonment without the possibility of parole. The circuit court sentenced Moore to death. Moore moved for a new trial alleging that the State failed to disclose exculpatory evidence. The circuit court granted Moore's motion. Moore then moved that the indictment against him be dismissed and that any subsequent retrial be barred because, he argued, it would be a violation of the Double Jeopardy Clause. The circuit court granted Moore's motion to dismiss the indictment. The State appealed. We reversed the circuit court's dismissal of the capital-murder indictment and directed the court to reinstate the case to its active docket. See State v. Moore, 969 So.2d 169 (Ala.Crim.App.2006). Moore's retrial is scheduled for July 2007.
In July 2006, the State moved that Judge Thompson recuse himself from presiding over Moore's retrial. On January 29, 2007, the circuit court issued an order denying the motion. This petition for a writ of mandamus followed.1
Initially, we note that this issue is correctly before this Court by way of a petition for a writ of mandamus. "Mandamus is the appropriate vehicle by which to review a trial court's ruling denying a motion to recuse." Ex parte Bentley, 849 So.2d 997, 998 (Ala.Crim.App.2002).
The State asserts that Judge Thompson should recuse himself from Moore's retrial because, it says, he has "pre-judged and denounced the state's evidence," and because, it says, he has shown a personal bias against the State's prosecutor and investigator. It further asserts that the people of Morgan County view this case as Judge Thompson versus the State; therefore, the State argues, there is a public perception of impropriety in Judge Thompson's presiding over Moore's retrial.
Both Moore and Judge Thompson have filed responses to this petition. Judge Thompson asserts that he is not biased against either the State or Moore; therefore, he says, there is absolutely no reason for him to recuse.
"In the administration of justice by a court of law, no principle is better recognized as absolutely essential than that every case, be it criminal or civil, and the parties involved therein are entitled to the `cold neutrality of an impartial judge.' The right of litigants to a fair trial must be scrupulously guarded. Due to human limitation and imperfection, even judges, lest they are on constant guard, are susceptible to the manifestation of predilection by their conduct or remarks and thus incur the suspicion that they are biased. Particularly in a criminal case, it is imperative that a judicial tribunal accord to the prosecution a treatment no less fair and impartial than that to which the defense is entitled when it is common knowledge that the former is without right to receive an appellate review. In the words of Mr. Justice Cardozo, Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 [(1934)], `But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'"
Peters v. Jamieson, 48 Haw. 247, 262-63, 397 P.2d 575, 585 (1964).
Canon 3.C.(1), Alabama Canons of Judicial Ethics, governs when a trial judge is required to recuse himself or herself from presiding over a case. The Canon states, in pertinent part:
"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it."
The Alabama Supreme Court has stated the following concerning Canon 3.C.(1):
"Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when `facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.' Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: `Would a person of ordinary prudence in the judge's position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?' Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge's impartiality — whether there is an appearance of impropriety. Id. see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983)."
Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.1994).
In Ex parte Fowler, 863 So.2d 1136, 1138-40 (Ala.Crim.App.2001), we stated:
"The Canons of Judicial Ethics have the force and effect of law. Balogun v. Balogun,
516 So.2d 606 (Ala.1987). Subsections (a) through (d) in Canon 3.C.(1) of the Canons of Judicial Ethics are examples of situations where a trial court's impartiality might reasonably be questioned. The list does not purport to be inclusive. As subdivision (1) states, `including but not limited to instances where....'
"The United States Code includes a statute similar to Canon 3.C.(1), which defines when a judge must recuse from a case. See 28 U.S.C. § 455. This section reads, in part, as follows:
"`(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
"`(b) He shall also disqualify himself in the following circumstances:
"`(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"`(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it....'
"Interpreting this statute, the United States Supreme Court stated the following:
"`Subsection (a), the provision at issue here, was an entirely new "catchall" recusal provision, covering both "interest or relationship" and "bias or prejudice" grounds, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) — but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever "impartiality might reasonably be questioned."'
"Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
"....
"We have never had occasion to specifically address whether Canon 3.C.(1) — a situation where the impartiality of a judge might reasonably be questioned — and Canon 3.C.(1)(a) — a situation where there is a direct personal bias — are separate provisions of Canon 3.C. However, we believe that prior caselaw and the wording of the Canon [imply] that the two provisions are separate and distinct. See Crowell v. May, 676 So.2d 941 (Ala.Civ.App.1996) (actual bias is not necessary in order to mandate recusal but `only a reasonable appearance of bias or impropriety')....
"The United States Supreme Court, when interpreting 28 U.S.C. § 455, stated that provisions similar to our Canon 3.C.(1) and Canon 3.C.(1)(a) are separate provisions that are to be evaluated under the facts presented in each case. We agree; we likewise hold that Canon 3.C.(1) and Canon 3.C.(1)(a) through 3.C.(1)(d) are separate and distinct provisions. Thus, a situation where the impartiality of a judge might reasonably be questioned may not always involve direct personal bias on the part of the judge."
According to the cases cited above, the State is not required to prove that Judge Thompson is in fact biased; instead it must show that there is an "appearance of impropriety" in Judge Thompson's
remaining on the case. See Ex parte Atchley, 951 So.2d 764, 769 (Ala.Crim.App. 2006).2 "A fair and impartial judge is the cornerstone of the integrity of the judicial system. Even the appearance of partiality can erode the public's confidence in the integrity of the judiciary." In re Judicial Disciplinary Proceedings Against Laatsch, 727 N.W.2d 488, 491 (Wis.2007). "`[T]o recuse where there is an appearance of impropriety, is a duty owed to the public in order to promote confidence in the impartiality of the judiciary.' Robin Farms, [Inc. v. Bartholome, 989 S.W.2d [238] at 247 [(Mo.Ct.App.1999)]." Moore v. Moore, 134 S.W.3d 110, 115 (Mo.Ct.App. 2004).
"The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a `reasonable basis for questioning the judge's impartiality.' [Ex parte] Cotton, 638 So.2d [870] at 872 [(Ala.1994)]. ...
