Commonwealth v. Perry

¶1(dissenting).

¶2We are presented with a simple question: May a trial judge be a mourner at the funeral of a police officer killed in the line of duty and then, over timely objection, sit in judgment of the person accused of the murder? The maj ority holds that he may. I dissent.

¶3In my view, the trial judge’s actions seriously threatened the appearance of justice, and, therefore, threatened both the public’s and appellant’s rights to an impartial trial. Moreover, the record establishes that appellant may have suffered actual prejudice when the trial court imposed sentence. Appellant’s motion for recusal should have been granted.

¶4*527A trial judge’s duty to avoid the appearance of impropriety is an integral part of his judicial function. This is the universal teaching of cases, rules, standards and commentators. The United States Supreme Court has most often addressed the necessity of maintaining the appearance of acting j ustly, even in the absence of actual injustice, in the context of summary contempt cases. Thus, when holding that a trial judge should not himself try the case of a person who has hurled abuse at him in court, the Court stated:

“In making this ultimate judgment, the inquiry must be not only whether there was actual bias on [the trial court’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ”

¶5Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974), quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921. See also Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S. Ct. 499, 505, 27 L.Ed.2d 532 (1971); Offut v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954); Sacher v. United States, 343 U.S. 1, 37, 72 S.Ct. 451, 468, 96 L.Ed. 717 (1952) (Frankfurter, J., dissenting opinion); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 7.5 (Approved Draft, 1972).

¶6The Pennsylvania Code of Judicial Conduct states:

“CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

A. A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

*528“CANON 8

C(l). A judge should disqualify, himself in a proceeding in which his impartiality might reasonably be questioned.”

The American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 1.7 (Approved Draft, 1972), states:

“The trial judge should recuse himself whenever he has any doubt to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned.”

The commentary to this section explains:

“[T]he trial judge has an obligation to recuse himself whenever necessary to protect the right of the accused and of the public to an impartial trial. . The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of bias or prejudice. .

“Some situations requiring recusation are obvious such as those involving relationships of consanguinity or affinity with the accused, the prosecuting witness, or other key figures in the trial. . . . More subtle and more difficult of resolution are those cases in which the connection between judge and other participants is remote and tenuous. Nothing more can be suggested by way of guidance then that there be a concerned interest in ascertaining whether the public impression will be favorable, even though the judge is convinced of his own impartiality.” (Citations omitted.)

See Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973).

¶7*529Thus, a judge’s duty to avoid the appearance of impropriety is crucial to our system of justice. As Lord Herschell stated at the turn of this century: “[Ijmportant as it [is] that people should get justice, it [is] even more important that they should be made to feel and see that they [are] getting it.” 1 This principle has been reiterated more recently by Professor MacKenzie: “[I]t is not enough that justice merely appear to be done; but the appearance of justice is an indispensible element of justice itself.” 2 See Kramer v. Scientific Control Corp., 534 F.2d 1085, 1091-1092 (3rd Cir. 1976).

¶8The majority apparently believes that the “appearance of justice” standard for recusal applies only when the judge has a familial relationship with one of the parties or a pecuniary interest in the outcome of the case. To the contrary, this Court has not hesitated, even in the absence of a familial or pecuniary relationship, to require a judge to disqualify himself to preserve the appearance of justice. We have done so even when the judge is shown not to be prejudiced. For example, in Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963), decided over a decade ago, the judge at a post-conviction hearing had served as district attorney at the time of the petitioner’s original trial. The record showed that peti*530tioner had not suffered any prejudice from the judge’s prior role:

“The hearing judge in this proceeding was the district attorney at the time the indictment was returned. In that capacity, he signed the bill of indictment and was responsible for the prosecution of the charge against the defendant-petitioner. Our examination of the record satisfies us that the failure of the hearing judge to disqualify himself from passing on this petition was in no way prejudicial to petitioner. The record is entirely free from even the slightest suggestion of prejudice or impropriety on his part.”

¶9410 Pa. at 600, 189 A.2d at 262. However, this Court unanimously held that the judge should have recused himself to preserve the appearance of justice even though his actual impartiality could not be questioned. We therefore remanded the case for a new hearing before another judge. Accord, Commonwealth v. Young, 439 Pa. 498, 269 A.2d 18 (1970). See also Commonwealth v. Goodman, supra.3

¶10Here the trial judge attended the murder victim’s funeral. There is nothing improper in his1 doing so. Judges, *531like other people, feel the need to express their grief in traditional ways. Attending a funeral is a deeply religious and reverent experience. A mourner necessarily becomes emotionally involved in the services. The life of the deceased is remembered and honored. This is particularly true here; the deceased was a police officer who had been killed in the line of duty. The emotional sense of bereavement which accompanies death by natural causes becomes more acute and intense when life is terminated by murder. In our society, reverence for life understandably evokes in mourners deep and keenly sensitive responses. To expect this profound emotional impact to dissipate quickly, particularly when it is recalled at the trial of the deceased’s alleged murderer, is contrary to common experience.

¶11Because the judge attended the funeral, he should have disqualified himself from the trial. Although he stated that he was not prejudiced toward appellant, his impartiality could reasonably be questioned. No other common pleas judge was reported to have been among the mourners at the funeral.4 It is clear, therefore, that, given over eighty common pleas judges in Philadelphia, another judge who did not have even the appearance of bias was available.

¶12This Court would not hesitate to hold that a mourner should not serve as a juror even if he were shown to feel no conscious prejudice toward the accused. The appearance of injustice and the likelihood of unconscious feelings of animosity are too great. Are not judges as much subject to human prejudice as other persons when exposed to emotional influence? If, therefore, it may be reasonably assumed that an ordinary individual attending a funeral would be moved to sorrow at a death, and anger against the murderer, may it not also be assumed that a judge would react the same way? These poten*532tialities require that a judge who was also a mourner recuse himself upon request.

¶13The judge’s failure to disqualify himself violated the basic requirements of impartial judicial conduct. When circumstances reasonably raise doubts that influences from outside the courtroom are affecting his judgment, a judge should disqualify himself to preserve the appearance of justice. As stated in the commentary to Canon 2 of the Pennsylvania Code of Judicial Conduct:

“A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

¶14A diligent observance of impartiality in appearance as well as in fact enhances the perception of a judge’s own scrupulous adherence to the principles of fairness. This in turn enhances the legitimacy and effectiveness of the judicial system.

¶15Moreover, in this case, there is a distinct possibility that unconscious feelings influenced the judge’s conduct. This is another reason why recusal is necessary when the judge has contact with a case outside his courtroom. As Justice Frankfurter stated, explaining his voluntary recusal in a case before the United States Supreme Court:

“[Rjeason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.”

¶16*533Public Utilities Commission v. Pollak, 343 U.S. 451, 466-67, 72 S.Ct. 813, 822-23, 96 L.Ed. 1068 (1952).

¶17Finally, contrary to the majority’s assertion, the record here indicates that there is a significant chance that the judge’s personal feelings toward the victim influenced his conduct. Appellant was convicted of murder in the first degree, conspiracy, aggravated robbery and burglary. The jury imposed a sentence of life imprisonment on the murder conviction. The judge, at the sentencing hearing for the other crimes, imposed maximum sentences of ten to twenty years imprisonment for the robbery and burglary convictions. He directed that these sentences run consecutively to each other and to the life sentence. Thus, appellant is to serve twenty to forty years imprisonment after he serves his life sentence. These were the most severe penalties the judge could impose for these offenses. Because of the trial judge’s contact with this case outside of the courtroom, his impartiality at the sentencing hearing could reasonably be questioned.

¶18As we stated in Goodman:

“[W]e are . . . acutely aware that the appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of either of these elements.”

¶19454 Pa. at 361, 311 A.2d at 654. The continuing need to preserve and enhance the public’s confidence in the impartiality and fairness of the judicial system is not advanced by ignoring the realities presented by this record.

¶20I dissent.