10.9 Judicial or Prosecutorial Misconduct, Bias, or Disability

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.9 JUDICIAL OR PROSECUTORIAL MISCONDUCT, BIAS, OR DISABILITY

10.901 In General. The effective functioning of the criminal process depends, in large measure, on public trust and confidence in those charged with the responsibility for the administration of justice. Both the public and persons charged with criminal acts have a right to assume and demand that justice be administered fairly and without regard to individual interests or

[Page 625]

political views. The court and the prosecution must be objective in fact and appearance.

10.902 Judges.

A. Bias or Misconduct. The Supreme Court of the United States has held that an accused has a due process right to a trial before a disinterested and impartial judicial officer. ³¹⁹ Decisions regarding a judge's impartiality are to be made by the trial judge in the exercise of his or her discretion and will be reversed only upon a showing of abuse of discretion. ³²⁰ Many of the problems involving allegations of judicial bias arise in the context of criminal contempt proceedings where the possibility of bias or self-interest is the clearest. ³²¹ A judge is not necessarily disqualified from presiding at a trial just because he or she may have participated in some prior aspect of the case. ³²²

The most difficult case occurs when there is an allegation of judicial bias or prejudice against the accused or the general class of persons or offenders to which the accused belongs. In this situation, the judge should recognize the problem and disqualify himself or herself from the case. ³²³ When the judge does not disqualify himself or herself, defense counsel is placed in a difficult position. Counsel must be sure of the case for bias before making the motion and must take care to support the claim with affidavits and to preserve the record for appeal. ³²⁴

Although the Canons of Judicial Ethics are helpful in deciding whether a judge should recuse himself, the law of the Commonwealth, not the Canons, determines whether refusal to recuse is error. A purported violation of the Canons alone is not enough to require recusal, and the party moving for recusal bears the burden of proving judicial bias or prejudice. ³²⁵

[Page 626]

It is not possible to list the specific claims of bias that would justify a motion to disqualify. ³²⁶ In one controversial decision, however, counsel was successful in removing a federal judge because the judge had stated before trial that he uniformly sentenced persons convicted of this particular offense to 30 months' imprisonment. ³²⁷

The Virginia Code provides that, when the judge of a circuit court in which a prosecution is pending is connected with the accused or party injured or is so situated in respect to the case as in his or her opinion to render it improper to preside at the trial, the judge must enter the fact of record and certify this fact to the Chief Justice of the Supreme Court, and another judge will be appointed as provided by law. ³²⁸ This provision also applies when the judge has rejected a plea bargain agreement and the parties do not agree that he or she may hear the case.

B. Death or Disability. If by reason of death, sickness, or other disability, the judge presiding at a criminal trial is unable to proceed with and finish the trial, another judge of that court or a judge designated by the Chief Justice of the Virginia Supreme Court may proceed with and finish the trial or, in his or her discretion, grant and preside at a new trial. If the death, sickness, or disability occurs after a finding of guilt and before sentencing, another judge of that court or one appointed in the manner previously described may perform those duties or grant and preside at a new trial. In each case, however, before proceeding the judge must certify that he or she has become familiar with the record. ³²⁹

10.903 Prosecutors.

A. Selective Prosecution. It is a familiar principle that prose-cutorial authorities enjoy a great deal of flexibility in the enforcement of the criminal laws. The decision to charge, the nature of the charges, and through the plea-bargaining process, the ability to influence the disposition of charges are all within the control of the prosecution. Challenges to the exercise of that discretion are frequent, but the judicial response has generally been to take a "hands-off" approach to the problem.

[Page 627]

The Supreme Court has held that the conscious exercise of some selectivity in enforcement is not in itself a constitutional violation. ³³⁰ There is a constitutional violation only if the selection was deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classifica-tion. ³³¹ It is not a violation of the Constitution to prosecute for the purpose of "making an example" of the accused for the benefit of others. ³³²

The major problem encountered...