Don't I know you from somewhere?: why due process should bar judges from presiding over cases when they have previously prosecuted the defendant.

AuthorFriedman, Peter M.

    Picture the following scenario: California voters elect a Superior Court Judge who was formerly a Los Angeles County Deputy District Attorney who prosecuted O.J. Simpson in his criminal case. Some months later, Simpson is arrested and charged with grand larceny in an unrelated matter, and his case is randomly assigned to that judge's chambers. Hopefully, the judge would recognize the possibility that she was likely biased against Simpson, or at least would appear so to many people, and would recuse herself. However, for whatever reason, she presides in Simpson's case. The defendant is convicted, and after exhausting all of his state remedies, files a habeas corpus petition in federal court alleging a due process violation. Simpson's lawyers posit that although the trial record shows no overt bias, Simpson was unable to get a fair trial because the judge may have felt that her failure to convict Simpson in his murder trial allowed Simpson to commit this second crime.

    Could the judge divorce herself from her past involvement with Mr. Simpson and her intimate knowledge of the crime previously alleged? Could she conduct a trial comporting with the due process promise of a neutral adjudicator? Does it matter whether or not the appearance of injustice might compromise her participation in the grand larceny trial?

    The question of whether a defendant has a due process right not to be tried by a judge who has previously prosecuted him on an unrelated offense has not been directly addressed by the Supreme Court. However, the scenario strikes at the heart of our notions of fairness and judicial impartiality.(1) Whatever else due process guarantees, especially in the criminal context, its most vital element is a neutral, independent adjudicator.(2)

    Since the advent of legal realism and modern psychology, it is almost universally recognized that no one's mind is a tabula rasa, and that judges do not live in ivory towers.(3) Even when a party has no direct connection to a judge, subtle and unspoken factors may impact the decision-maker's rulings. As Professor Leubsdorf points out:

    To decide when a judge may not sit is to define what a judge is.... One can scarcely advance the ideal of judicial impartiality without feeling doubts. We all take it for granted that personal values and assumptions help shape every judge's decisions. Suggesting that a judge could escape her prepossessions sounds like a throwback to the days when people believed ... that judges deciding constitutional issues placed a challenged law next to the Constitution and checked whether the one would fit inside the other.(4)

    When a judge has some positive or negative connection to a party, or the judge is tempted to make rulings based on extra-judicial factors, a potentially impermissible bias is added to these accepted "values, assumptions and prepossessions,"(5) and may poison the due process well. As the New Hampshire Supreme Court has stated, "[i]t is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit."(6) Even if the actual outcome is not tainted by bias, the appearance of justice is compromised by the potential for bias.

    This Comment examines whether a criminal defendant can obtain a truly neutral adjudication or a trial satisfying the "appearance of justice" when the presiding judge has previously prosecuted him in an unrelated matter. I do not suggest that judges who previously served as prosecutors are undesirable.(7) On the contrary, those involved in judicial selection often see prosecutorial experience as a valued asset.(8) It is only in specific, easily identifiable circumstances where there is a direct conflict between the judge and the defendant that prosecutors-turned-judges should disqualify themselves or be disqualified. Mandated disqualifications should be limited, as many conscientious judges will disqualify themselves if they recognize the problems that such trials represent both for individual defendants and the whole system.

    First, this Comment reviews Supreme Court decisions defining a neutral and independent adjudicator. Second, because the Court has not addressed whether defendants have a due process fight not to be tried by a judge who has previously prosecuted them, this Comment reviews lower court opinions to show that their inconsistency with the Supreme Court's definition of due process fails to protect defendants in this situation. Third, this Comment briefly examines the differing roles of prosecutor and judge. While there are areas where skill and experience as a prosecutor may benefit a judge, there are also facets of the prosecutorial function that can potentially cause serious tension between the two roles. Fourth, this Comment focuses on two major failings of judicial review in this area. One is the frequent underestimation of the influence trial judges have over the outcome of trials. This influence may unfairly prejudice defendants, even unintentionally, by permitting judges who have previously prosecuted the defendant to adjudicate a new case against the defendant. Also, reviewing courts have failed to reconcile the non-instrumental values due process serves, such as participation, justification and openness, when allowing a defendant to be tried by a judge who has previously prosecuted him. Fifth and finally, this Comment proposes that courts should find that when a judge played a tangible role in previously prosecuting the defendant before them, the defendant has a due process right not to be tried by that judge.


    Before examining the specific question posed by this Comment, it is necessary to understand the types of judicial conflict of interest or bias the Supreme Court and lower federal courts recognize as violating an individual's due process.

    The Supreme Court's first pronouncement on this issue remains its most oft-quoted: a due process violation occurs when some temptation would lead a judge "not to hold the balance nice, clear and true between the State and the accused...."(9) In Tumey v. Ohio, the Court invalidated a scheme under which an unlawful possession of liquor charges was adjudicated by a town mayor empowered to assess fines for culpability.(10) Per a state statute, the proceeds of the fine were split evenly between the municipality and Ohio's state treasury.(11) The municipality allowed the mayor to recover his out-of-pocket costs if the proceeding resulted in a conviction.(12)

    Despite the absence of any evidence showing actual bias by the mayor in adjudicating Tumey's case, a unanimous Supreme Court held that the scheme violated Tumey's Fourteenth Amendment due process rights.(13) The Court was apparently untroubled by the lack of specific evidence showing the mayor's partiality--it recognized the inherent difficulties such a showing would place on both the Tumey and the mayor.(14)

    In deciding Tumey, the Supreme Court stated what has become a central, although somewhat opaque, tenet of due process neutrality:

    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

    the law.(15)

    In defining the outer limits of what "possible temptation" might induce a judge "not to hold the balance nice, clear and true," the Tumey Court set no threshold of incentive automatically triggering a due process violation. In the absence of a bright line, and acknowledging the difficulties of computing such a calculus, "it seems reasonable to conclude that any financial temptation, regardless of how indirect or insubstantial, presents a possibility of temptation."(16)

    While Tumey's holding did not absolutely limit the constitutional due process protection of an unbiased adjudicator to cases in which bias, or the appearance of bias, stemmed from financial temptation, the Court came close in dicta. In finding a constitutional violation in the case before it, the Court stated that "not all questions of judicial qualification ... involve constitutional validity. Thus matters merely of kinship, personal bias, state policy, and remoteness of interest, would seem generally to be matters merely of legislative discretion."(17) However, because the mayor's interest was "direct, personal ... [and] pecuniary," Tumey's due process rights were violated.(18)

    In 1955, the Supreme Court deviated from this focus on financial conflict of interest in In re Murchison, a decision authored by Justice Black.(19) Relying on Tumey, the Court held that a Michigan judge sitting as a one-man grand jury could not punish witnesses for contempt for conduct arising out of the grand jury hearings.(20) The Court ruled that upholding such a system permitted a judge to serve as judge "in his own case and no man is permitted to try cases where he has an interest in the outcome.(21) The Court took pains to note that while the "interest" triggering the judge's disqualification escaped precise definition, it did not necessarily have to be financial temptation.(22) Most strikingly, Justice Black wrote:

    A fair trial in a fair tribunal is a basic requirement of due process.

    Fairness of course requires an absence of actual bias in the trial of

    cases. But our system of law has always endeavored to prevent even the

    probability of unfairness.... Such a stringent rule may sometimes bar trial

    judges who have no actual bias and who do their very best to weigh the

    scales of justice equally between contending parties. But to perform its

    highest function in the best way, "justice must satisfy the appearance of


    In other words, to satisfy due process guarantees, even the possibility of unfairness as manifested through a potentially biased adjudicator must be prevented. Equally important for defendants...

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