The appearance of justice revisited.

• Author: Blanck, Peter David

1. Introduction

   In 1919, the Journal of Criminal Law and Criminology published an article by George Everson, titled "The Human Element in Justice."(1) In that article, Everson described an empirical research project examining variations in over 150,000 cases by forty-one New York City magistrates in their determinations of guilt and sentencing.(2) Among other conclusions, Everson identified what he called the "remarkable degree" to which the disposal of cases reflected the temperament and personality of judges.(3) Everson described the richness and complexity of the "appearance of justice" for the judges studied:

   The warm human attributes of our ministers of justice,... their peculiarities of temperament, their chance of prejudice, their warm openheartedness or their petty tyrannies, their leniencies or their severities are all supposed to be charmed away by the donning of judicial robes and the justice they dispense is supposed to be an abstract thing as immutable as the law of gravitation.(4)

   Everson believed his findings "startling" because the "appearance of justice" seemed to revolve more around the personality of the judges examined than any legally principled approach they may employ in implementing the law.(5) Everson concluded that, regardless of the actual law, much of its enforcement depended solely upon the judges' particular attitudes toward the allegedly guilty party.(6)

   Much has changed, of course, in the appearance and the reality of the administration of justice in the more than seventy-five years since the publication of Everson's article. Yet, much remains the same - indeed, as it has remained since the beginnings of our system of justice. This is particularly true with regard to current conceptions of "the appearance of justice,"(7) as illustrated during the discussions at the Annenberg Washington Program/Woodrow Wilson School Conference.

   Judge Cordell's opening remarks at "The Appearance of Justice" Conference(8) express current conceptions and concerns:

   My view from the bench is that the public has a right to know, and must always have access to proceedings in the courtroom.... It is the check on judicial malfeasance ... to make sure that the system behaves as best it can by having public accountability.(9) ... [But] when we talk about the [current] social norms and the appearance of justice, we have got young [black] men - and Latino males - coming into a system that doesn't appear fair to them.... There's got to be different approaches taken.(10)

   This Article explores the need for future empirical research on "the appearance of justice." In Part II, this Article gives future research a start by examining what the courts, judges, trial lawyers, and social scientists consider to be "the appearance of justice"; that is, what these diverse groups imply from history, legal precedent, and empirical research about the concept of the appearance of justice, particularly as it applies in criminal jury trials. The appearance of justice is then revisited in light of recent Supreme Court decisions that may impact, in yet unforeseen and far-reaching ways, this core concept in American society and jurisprudence.(11)

   In Part III of this Article, the need for future research is reexamined in light of emerging Supreme Court jurisprudence on judicial disqualification and recusal. Particular emphasis is placed on Liteky v. United States. Although explanation into the cases illuminates the relationship between conceptions of the appearance of justice and standards for judicial disqualification and recusal, the relationship cannot be fully understood without the help of future studies. Finally, the Article summarizes the questions posed throughout the text and suggests directions for future research.

2. "The Appearance of Justice" Revisited

   1. HISTORICAL AND LEGAL ROOTS

      Historically, the concept of the appearance of justice has been closely linked with the workings of our judicial system.(12) The possibility of undesirable "appearances" and behavior by trial judges was recognized by the Supreme Court early in our history.(13) Twenty years before Everson's article, the Supreme Court, in Starr v. United States, commented that the manner in which a judge instructs and advises the jury can by itself have an undesirable, although sometimes permissible, influence on jury decision-making processes.(14) In Starr, the Court cautioned that jurors must remain the triers of fact and that the appearance of the judge's behavior must always remain "guarded" so as to leave the jury free to exercise its own judgment.(15)

      During the last quarter century, judicial decisions have reinforced the public's common law right to know,(16) which has, in turn, been tied to the common law notion that "justice must satisfy the appearance of justice."(17) As recently as 1980, the Supreme Court expanded its conception of the appearance of justice to include not only the possibility of judicial influence, but also the general public's right to have meaningful access to the workings of the judicial system. In Richmond Newspapers v. Virginia, the Court held that the closing of a criminal trial to the public violated the Constitution.(18) The Court reasoned that:

      [T]he administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." ... [W]here the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted.... [T]he appearance of justice can best be provided by allowing the people to observe it.(19)

      The Court declared public access to the courtroom essential to the appearance of justice and critical to maintaining public confidence in the judiciary.(20)

      Courts have also recognized that in a criminal jury trial due process requires the absence of actual judicial bias toward the defendant.(21) Professors Redish and Marshall have suggested that the appearance or "perception" of fairness in the courtroom is perhaps the most important or "core" value of procedural due process.(22) Redish and Marshall write that "[f]ew perceptions more severely threaten trust in the democratic process than the perception that a litigant never had a chance because of the special favors that the decider owed the other side."(23)

      Due process not only requires, therefore, that trial judges be fair and impartial, but it also demands that they "satisfy the appearance of justice."(24) Simply put, a trial judge's appearance, conduct, and behavior in a criminal jury trial must never indicate to the jury that the judge believes the accused to be guilty.(25) The appearance of bias alone has served as grounds for reversal or judicial recusal, even when the judge is shown to be completely impartial.(26) Courts have found due process violations sufficient to reverse criminal convictions when a trial judge's behavior created merely the appearance of partiality.(27) Litigants have the right to argue their case fairly before the decisionmaker, and thereby, as Justice Frankfurter stated, "generat[e] the feeling, so important to a popular government, that justice has been done."(28)

      Judges themselves recognize the central effect of their behavior on the appearance of justice and actual fairness in the trial process.(29) "The responsibility for an atmosphere of impartiality during the course of a trial rests upon the trial judge," noted one judge.(30) And, because of the central impact of the judge's behavior in a jury trial, jurors "can be easily influenced by the slightest suggestion from the court, whether it be a nod of the head, a smile, a frown, or a spoken word."(31)

      In a criminal jury trial, judges, like all human beings, develop certain beliefs about the defendant's guilt or innocence.(32) Sometimes these beliefs - often conveyed as "self-fulfilling prophecies" - are communicated by subtle, nonverbal behaviors that impermissibly influence the appearance of fairness and actual justice in the courtroom.(33) Several Conference participants - trial judges and attorneys - described this phenomenon and the importance of the judge's nonverbal behavior alone to the appearance of justice and fairness in the courtroom:

      Judge Cordell: We judges do all kinds of things when we are presiding over trials that are not really good, and that could lead toward this tendency of depriving individuals of fair trials because of our body language and what we are communicating to jurors.(34)

      Judge Carchman: [New Jersey has] a program of videotaping judges.... The judges do find out that we do roll our eyes, and shrug our shoulders, and imperceptibly nod our heads no or yes, and jurors pick that up.(35)

      A New Jersey public defender. In terms of nonverbal communication of judges, I agree that the judges do it .... A judge who was the former prosecutor [was] fully aware of every time he rolls his eyes, turns his back, nods his head, and he plays it right to the jury. And that occurs, and it's almost impossible to put on the record, it's impossible to stop a judge during the course of a jury charge and say, "Judge, I would like to note for the record you are nodding your head or shaking your head in disbelief and commenting upon the defense."(36)

      These anecdotal stories and other formal acknowledgments in state and federal court cases highlight the central importance of a trial judge's behavior. Courts and commentators caution repeatedly that juries accord great weight and deference to even the most subtle behaviors of the judge.(37) Appellate courts recognize that the impermissible appearance of judicial bias or unfairness at trial often manifests itself through judges, subtle nonverbal behavior.(38) A common example is the judge who demonstrates an appearance of partiality by rolling his eyes in apparent disbelief during the testimony of a witness. Appellate courts regularly are called upon to review the propriety of...