United States v. Pendergast, 14912
| Decision Date | 22 August 1940 |
| Docket Number | No. 14912,14937.,14912 |
| Citation | 34 F. Supp. 269 |
| Parties | UNITED STATES v. PENDERGAST et al. (two cases). |
| Court | U.S. District Court — Western District of Missouri |
Richard K. Phelps, Acting U. S. Atty., of Kansas City, Mo., for plaintiff.
R. R. Brewster, Sr. (of Brewster, Brewster & Brewster), and John G. Madden (of Madden, Freeman & Madden), both of Kansas City, Mo., for T. J. Pendergast.
No judge should step aside from any case merely because a litigant prefers some other judge. The judge is not a referee selected by the parties. He is more than a referee and he is selected by the sovereign power of the nation. It is morally wrong for him to abandon the post the sovereign has assigned him except only when it is required by law. Especially is that true in a criminal case. It is unthinkable that a man indicted of crime should be permitted, by a mere gesture, to dispose of the judge designated to preside at the trial.
The law authorizes an affidavit of bias and prejudice, Section 25, Title 28, U.S.Code, 28 U.S.C.A. § 25, but it is not sufficient that the affidavit shall assert as a conclusion that the judge has bias and prejudice. The statute requires that the affidavit "shall state the facts and the reasons for the belief that such bias or prejudice exists." Controlling decisions hold that the facts and reasons set out must logically support the conclusion asserted. The judge against whom an affidavit is filed must test the affidavit by that rule. The law compels him to accept as true the alleged facts (leaving to the public prosecutor the matter of dealing with the situation when the affidavit is false) and compels the judge to "proceed no further" if the alleged facts support the conclusion of bias and prejudice.
By the rule stated I test the affidavits of bias and prejudice filed against me by T. J. Pendergast in these cases. What I said in the charge to the grand jury which indicted Pendergast is set out as showing prejudice, and particularly the following parts of the charge: (1) The statement that when, on two occasions, the presiding judge of the three-judge court (Honorable Kimbrough Stone) directed the United States Attorney to file contempt charges against Pendergast, O'Malley and McCormack and to submit to the grand jury an inquiry as to whether they should not be indicted for obstructing justice, the statement that "there was then every reason to believe * * * that they * * * had perpetrated an outrageous contempt * * * and had been guilty of the crime of obstructing justice." (2) The statement that, if the same evidence which was presented to the three-judge court was presented to the grand jury, it would justify indictments against Pendergast, O'Malley and McCormack. (3) The statement that there was evidence which existed and could be...
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