U.S. ex rel. Perry v. Cuyler

• Decision Date: 29 September 1978
• Docket Number: No. 77-2290,F-5241,A,77-2290
• Parties: UNITED STATES of America ex rel. Arthur PERRY,ppellant, v. Julius T. CUYLER, Superintendent of Graterford State Prison, F. Emmett Fitzpatrick, District Attorney of Philadelphia, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 644

584 F.2d 644

UNITED STATES of America ex rel. Arthur PERRY, F-5241, Appellant, v. Julius T. CUYLER, Superintendent of Graterford State Prison,

F. Emmett Fitzpatrick, District Attorney of

Philadelphia, Appellees.

No. 77-2290.

United States Court of Appeals, Third Circuit.

Argued July 24, 1978.

Decided Sept. 29, 1978.

William T. Cannon, Philadelphia, Pa., for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Michael F. Henry, Chief, Motions Div., Steven H. Goldblatt, Deputy Dist. Atty., Edward G. Rendell, Dist. Atty., Philadelphia, Pa., for appellees.

Before ADAMS, WEIS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Arthur Perry has appealed from the district court's denial of his petition for a writ of habeas corpus. Petitioner contends that he was deprived of his right under the Sixth and Fourteenth Amendments to a fair trial because the judge who presided at his trial had attended the funeral of petitioner's alleged murder victim. Although we share the dissent's concern that even the appearance of judicial bias be avoided, we do not believe that there was such an appearance of bias here as would deprive petitioner of his constitutional right to a fair and impartial trial. We will therefore affirm the order of the district court.

In affirming the judgment of the district court, we are mindful that our sole standard of review is whether there has been a "violation of the Constitution . . . of the United States." 28 U.S.C. § 2254(a). Thus we cannot exercise here the far broader supervisory powers that this court has over the federal district courts within our circuit. Under those supervisory powers, federal trial courts can be required to comport with standards far more rigorous than those set by the Constitution or by federal statute. See McNabb v. U. S., 318 U.S. 322, 341, 63 S.Ct. 608, 87 L.Ed. 819 (1942); U. S. v. Schiavo, 504 F.2d 1, 7 (3d Cir.) (in banc), Cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974). In all due respect and despite the thoughtfulness of his opinion, we submit that the dissenting judge seeks to enforce a standard that would be appropriate only if this court had supervisory powers to set standards for state trial courts even in the absence of a constitutional violation.

I.

The Pennsylvania Supreme Court recited the events giving rise to this action as follows:

On February 9, 1972, two men entered the Choo-Choo Bar in Philadelphia. The first, later identified as the appellant Perry, ordered a beer and then left. Shortly thereafter, he returned and sat down toward the front of the bar. The second man, identified by the barmaid as Joseph Watson with whom the barmaid attended school, entered through the side door armed with a shotgun. Watson announced that there was to be a robbery and the two men ordered all the patrons into the restrooms at the rear of the bar. One patron, Douglas Alexander, an off-duty police officer, waited for the other patrons to get to the rear of the bar, then drew his service revolver and shot Watson in the left thigh. Watson fired his weapon at Alexander and fatally wounded him. Perry helped Watson to leave the bar and the two then fled in a stolen automobile . . . (W)hen the police, who were looking for Watson from the personal identification given by the barmaid, questioned Watson in the hospital, he gave a statement which not only incriminated himself but implicated Perry and gave the police an address where he might be found. Patrolmen were radioed, told of the information received from Watson and directed to apprehend Perry.

Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 314 (1976). In April of 1974, two years and two months after his arrest, petitioner was tried in the Court of Common Pleas of Philadelphia County and convicted by a jury on charges of murder, conspiracy, aggravated robbery and burglary. The trial judge, James T. McDermott, informed petitioner's counsel prior to trial that he had attended the funeral of the detective. Counsel moved that Judge McDermott disqualify himself. Judge McDermott denied the motion. He stated that his acquaintance with the detective "was only that as a witness who had oftentimes appeared here in court" and that such acquaintance "is totally irrelevant in the Court's mind to the question of the guilt or innocence of this defendant." Commonwealth v. Perry, 364 A.2d 312, 317 (Pa.1976).

The Supreme Court of Pennsylvania denied petitioner's contention that Judge McDermott's failure to recuse himself required the granting of a new trial. Commonwealth v. Perry, supra. ¹ Petitioner then sought a writ of habeas corpus in the district court, the denial of which is the subject of this appeal.

II.

Petitioner contends that actual prejudice is evidenced by the following actions of the trial judge:

1. Judge McDermott sentenced petitioner to life imprisonment on the murder count and from 10 to 20 years each on the robbery and burglary counts, the sentences to run consecutively.

2. Judge McDermott stated that although voluntary manslaughter was a possible verdict, in his opinion he did not believe it to be a proper one.

3. Judge McDermott refused, on one occasion, to meet with petitioner's counsel at side bar.

4. Judge McDermott asked several questions during the cross-examination of Petitioner (86-88a).

5. Judge McDermott made certain comments, during the jury charge, that allegedly bolstered the credibility of a key witness (66-68a).

6. Judge McDermott refused to sequester the homicide detective, Cecil Willis, who testified for the prosecution.

We have considered these contentions and have examined the relevant excerpts from the trial transcripts and we conclude that no actual prejudice has been shown on this record. Certainly, no individual act of the trial judge revealed a prejudice toward petitioner and we do not believe that such prejudice is observable even when these acts are considered in the aggregate.

We recognize that even the probability of unfairness can result in a defendant's being deprived of his due process rights. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Of course, such probabilities "cannot be defined with precision." In re Murchison,supra, 349 U.S. at 136, 75 S.Ct. 623. To determine whether the disqualification of a judge is necessary, we must examine, in the light of the particular circumstances, the substantiality of the interest of the particular judge in the outcome of the trial. We conclude that Judge McDermott's interest in the outcome of petitioner's case was not so substantial as to make unfairness so probable as to require disqualification.

Judge McDermott's acquaintance with the murder victim was not a close or personal one. He knew the detective only as a result of courtroom appearances. This acquaintance in and of itself would not indicate that Judge McDermott had a substantial interest in petitioner's conviction or sentence. Indeed, petitioner has not argued that this acquaintance alone would require disqualification.

The only factor in addition to this acquaintance is Judge McDermott's attendance at the victim's funeral. That funeral took place over two years before the trial. Justice Roberts, in his dissent to the Pennsylvania Supreme Court decision, commented on the "profound emotional impact" of a funeral on a mourner and the "deep and keenly sensitive responses" that are evoked. ² Even if we accept his description of a mourner's feelings as basically accurate, we believe it takes too little cognizance of the temporal realities of this case where we are concerned with a time span of two years between Judge McDermott's attendance at the funeral and his presiding at petitioner's trial. If a judge's relationship with the victim of a crime is not such a close one as to require disqualification, we believe it unlikely that attendance at a funeral two years before would, by itself, result in such an increased level of emotional involvement as to make prejudice likely and disqualification necessary. A judge's attendance might, in some instances, indicate the closeness of his relationship with the deceased. Here, however, the uncontradicted statement of Judge McDermott is that he knew the victim only as a result of courtroom appearances. It must be noted that, under these circumstances, the mere attendance at the funeral does not necessarily suggest an antagonism or bias towards the perpetrator of the act, but rather it is an expression of respect for a police officer killed in the line of duty. Finally, Judge McDermott was privy to no extra-judicial information concerning this petitioner. Thus, he had no reason, other than the evidence presented at trial, to believe that petitioner was guilty or innocent.

III.

The cases in which defendants' rights were held to have been violated as a result of a probability of unfairness including those cited by the dissent, involve facts significantly different from those here. In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), a defendant's conviction under the state prohibition act was overturned because, under the applicable local ordinance, the judge would only receive costs when he found the defendant guilty. It was this direct financial inducement to which the court referred in stating,

Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.

273 U.S. at 532, 47 S.Ct. at 444. Cf. Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968) (Arbitration award reversed, with citation to Tumey, because of appearance of impropriety arising out of financial dealings between an arbitrator and one of the parties).

The Court, in In re Murchison...