4.1 Right to Fair Trial

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

4.1 RIGHT TO FAIR TRIAL

The defendant has a due process right to trial before a disinterested and impartial judge, ¹ but "while bias may be so pervasive as to offend due process, 'only in the most extreme of cases would disqualification on this basis be constitutionally required.'" ² Such an extreme case arose in Bracy v. Gramley, ³ where the defendant was convicted and sentenced to death before a judge who was later convicted of taking bribes from criminal defendants to fix criminal cases. The defendant alleged that he was denied a fair trial because "in order to cover up the fact that the judge was taking bribes from defendants in some cases, the judge was prosecution oriented in other cases."

Recusal is constitutionally required when there is an impermissible risk of actual bias, such as when a judge had significant personal involvement as a prosecutor in a critical decision regarding the defendant's case. Failure to recuse is structural error "not amenable" to harmless-error review. ⁴ "The Due Process Clause may sometimes demand recusal even when a judge has no actual bias. Recusal is required when, objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" ⁵

On a nonconstitutional level, statutes and the Canons of Judicial Conduct govern motions for recusal of the judge. Section 19.2-153 of the Virginia Code provides that when a circuit court judge is connected with the defendant

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or the victim or is so situated as to render it improper to preside at the trial, the judge must withdraw from the case. ⁶ The Canons of Judicial Conduct provide that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." ⁷ Timeliness is an essential element of a recusal motion because "a defendant cannot take his chances with a judge and then, if he thinks the sentence is too severe, secure a disqualification and a hearing before another judge." ⁸

"While the Canons [of Judicial Conduct] may be helpful, the case law of the Commonwealth determines whether failure to recuse warrants reversal of a judgment. A purported violation of the Canons alone is not enough to mandate recusal." ⁹ If the commonwealth's attorney is related to the accused or so situated as to render it improper for him to act, a fair trial requires the appointment of another attorney to represent the Commonwealth. ¹⁰ "The question whether there is a conflict of interest is dependent upon the circumstances of the individual case, and the burden is on the party seeking disqualification of the prosecutor to present evidence establishing the existence of disqualifying bias or prejudice." ¹¹

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In Yarbrough v. Commonwealth, ¹² the defendant contended that his right to a fair trial was violated when the prosecutor brought in another prosecutor with expertise in capital cases but with no ties or accountability to the local jurisdiction. The court held that "a trial court does not abuse its discretion in permitting the Commonwealth to obtain the assistance of a commonwealth's attorney or assistant commonwealth's attorney from another jurisdiction who has greater familiarity with the issues involved in such prosecutions and whose services are to be rendered without additional expense to the taxpayers."

The defendant's right to a fair trial also can be violated by the prosecutor's misconduct at trial. The test for reversible prosecutorial misconduct generally weighs three factors: (i) whether the prosecutor's misconduct was pronounced and persistent, creating a likelihood that the misconduct would mislead the jury to the prejudice of the defendant; (ii) the strength of the properly admitted evidence against the defendant; and (iii) the curative actions taken by the trial court. ¹³

In Lewis v. Commonwealth, ¹⁴ the Virginia Supreme Court found that the defendant's right to a fair trial was violated as a matter of law when the prosecution's cross-examination of the defendant concerning his involvement in illegal drug-related activities "amounted to nothing more than an attempt to elicit inadmissible evidence of other crimes that were unrelated to the crimes charged. . . ." The court, in considering the denial of the defendant's request for a mistrial, stated "we are required to acknowledge that we live in a 'time of widespread revulsion against the illegal use of controlled drugs.' In light of this fact, we cannot avoid the conclusion that, as a matter of law, Lewis' right to a fair trial was prejudiced by the prosecutor's repeated and unfounded implication that Lewis was engaged in illegal activity for which he was not on trial. Thus, we conclude that the circuit court abused its discretion as a matter of law in denying Lewis' mistrial motion."

Central to the right to a fair trial is the principle that the defendant's guilt or innocence not be determined by the conditions of his pretrial custody. It is unconstitutional to force the defendant to wear prison clothes when...