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March 3, 2009

Could case on judicial bias standards impact criminal justice adjudication?

The Supreme Court heard argument today in the Caperton case involving judicial bias recusal and the constitutional safeguards of due process.  Though the case arises in a civil setting, some commentors on this blog thought the case could have significant criminal justice implications.  However, this report on the Caperton oral argument from SCOTUSblog suggests to me that any constitutional ruling in the case is going to be very narrow.

The full oral argument transcript is available now at this link.  I welcome post-argument comments from anyone who believes this case could still be a blockbuster with ripples into the criminal justice universe.

March 3, 2009 at 03:57 PM | Permalink


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I'm not sure how this would be a blockbuster with ripples into the criminal justice universe.

First, I think that whatever the court holds, the holding will at least be limited to the recusal context (e.g. not some radical reformulation of the meaning of "due process" that turns the entire universe of litigation upside down). Second, I defer to those with more experience, but I don't think there are a lot of criminal cases where judges are required to preside over proceedings involving their major campaign contributors or people in analogous situations. Are recusals for personal bias a big issue in criminal cases?

At most, if the court makes a broad constitutional ruling on recusals, there may be a small set of cases where a judge's refusal to recuse was controversial, the defendant got convicted, and maybe the lawyers want to try to reopen the case or ask the governor or president for some kind of relief.

Beyond that, my instinct is that this will not have any significant effect on criminal justice.

Posted by: ab | Mar 3, 2009 4:55:50 PM

Doug, I think Caperton could have an even bigger impact in criminal cases than civil cases. First of all, if the court holds that an appearance or probability of effect is the proper standard, I don't think judges will be able to review post conviction motions filed by defendants concerning errors made in trials over which the judge presided. It doesn't look right for a judge to evaluate his own conduct, it has to be an inherent conflict of interest to judge one's own performance fairly.

Second, as briefly alluded to during the argument judicial elections is implicated in this whole issue. As campaigns become more contested, judges will be more tempted to make statements to the press about their views on criminal issues in an effort to get more votes, which consequently will provoke more motions to recuse the judge from presiding over a kind of case which the judge has already spoken out publicly about. (any judge knows that public statements about sex offenses, Driving while impaired cases or capital cases will get more attention and favor from the voters than comments about the Rule in Shelley's Case)

For example, I had two motions to recuse sitting justices on the NC Supreme Court from considering a capital appeal in one case. One was filed after a judge gave an interview to the press, while my case was pending before the court that he believed in the death penalty because he thinks it saves innocent lives. My client shouldn't have to have his case in which he has been sentenced to death judged by someone who thinks if the client dies innocent people will live. The case involved in part prosecutorial misconduct. A prosecutor in another case was under fire. Another sitting justice WROTE A LETTER TO THE EDITOR that he didn't think the prosecutor in the other case would have done anything wrong. what is a judge of a supreme court doing writing a letter to the editor praising a prosecutor when he has before him a claim that the prosecutor engaged in misconduct?

another arena is when the judge in a capital post conviction proceeding delegates to the attorney general the drafting of the order denying a motion to set aside the conviction. this happens fairly often. In my opinion, it certainly creates an appearance of bias for a judge to use counsel for one of the parties as his law clerk.

There are a lot of other scenarios that I think Caperton can have tremendous impact in the criminal context, but that is a sample.

bruce cunningham

Posted by: bruce cunningham | Mar 3, 2009 10:52:00 PM

What about a criminal appeals court candidate who runs on a victim's rights/tough on crime platform?

Posted by: Talitha | Mar 5, 2009 12:35:57 PM

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