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Legal Brief On Recusal

ALBERT M.  AFONSO, ESQ.
101, Route 130 South
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Cinnaminson, New Jersey 08077

The Supreme Court of Nova should reinstate the trial courts decision because Judge Misery was correct in not granting plaintiff's motion to recuse himself since there was no evidence of any bias or prejudice towards the plaintiff.  The standard of review to use is abuse of discretion.  Carey v. State, 405 A.2d 293 (Md.  Ct.  Spec. App. 1979), cert. denied, 445 U.S. 967 (1980).  A judge is required to recuse himself 'only if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.  United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983) (quoting Trotter v. International Longshoremen's & Warehousemen's Union, 704 F.2d 1141, 1144 (9th Cir. 1983)).  This standard is objective and is not based "on the subjective view of a party." Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988), cert. denied, 1095 S.Ct. 816 (1989).  Prejudice or bias must be personal, or extrajudicial, in order to justify recusal.  Id. at 279.  "Personal" bias is prejudice that emanates from some source other than participation in the proceedings or prior contact with related cases.  Demjanjuk v. Petrovsky, 776 F.2d 571, 577 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986).  Personal bias arises out of the judge's background and associations.  The critical test is whether the alleged bias "[stems] from an extrajudicial source and [results] in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563 (1966).

The record shows that Judge Misery was not personally biased against the plaintiff.  One can not speculate that the feelings of the Judge several years back shortly after a divorce proceeding, would now indicate that he was biased to plaintiffs in Paul Jones' position.  The plaintiff has failed to establish that Judge Misery was biased and the Supreme Court of Nova should therefore reinstate the trial courts decision that recusal was not necessary.

Evidence presented by the plaintiff does not establish that Judge Misery was in any way personally biased towards the plaintiff.  The general rule is that there is a presumption that a judge is qualified and unbiased and a person who alleges otherwise has the burden of proving that grounds for his allegation.  McMurphy v. State, 455 So. 2d 924 (Ala. Crim. App. 1984).  A reasonable man standard is used when evaluating whether a judge should recuse himself from a certain case.  United States v. Holland, 655 F.2d 44 (5th Cir. 1901).  "[A] judge should disqualify himself 'where he has a personal bias or prejudice concerning a party ....' The general rule is that bias sufficient to disqualify a judge must stem from an extrajudicial source." Id. at 47.  Review on appeal of a motion for recusal will not be reversed unless clear evidence of bias is shown.  Slinker v. State, 344 So. 2d 1264, 1268 (Ala. Crim. App. 1977).

The United States Supreme Court stated in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, (1986).  The law will not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.  Id. at 822.  Canon 3 n3 of the U.C.J.C. is based on the American Bar Association Model Code of Judicial Conduct promulgated in 1972.  The Model Code has been adopted in whole or in part by forty-seven states.  Section C of canon 3 begins with the broad proposition that judges must disqualify themselves when their "impartiality might reasonably be questioned." Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252,255. (Utah 1992).  It then provides a list of examples in which application of this proposition requires disqualification. Subpart (iii) of canon 3(C)(1)(d), for instance, requires disqualification when the judge knows that someone within the third degree of relationship to the judge or the judge's spouse "[has] an interest that could be substantially affected by the outcome of the proceeding." U.C.J.C. canon 3(C)(1)(d)(iii).

According to Canon 3C(1), Alabama Canons of Judicial Ethics which models the Model Code of Judicial Conduct CANON 3 states: "A judge should disqualify himself in a proceeding in which ...his impartiality might reasonably be questioned." However, Canon 3C(1) does not require disqualification upon mere allegations of bias that are not supported by substantial fact; and the party seeking recusal must come forward with evidence establishing the existence of bias or prejudice.  Blankenship v. Smith, 590 So. 2d 245 (Ala. 1991).

The record contains no indication that Judge Misery was prejudiced in any way to the plaintiff in presiding over the trial.  It would be unreasonable to hold that Judge Misery should have recused himself.  This would imply that every time a judge makes some statements in a previous case regarding a certain class of victim that he would have to recuse himself from any similar case in which a similar victim may find herself biased against.  To hold so here "would lead to judicial abandonment of responsibility for the purity of the judicial process and ultimately undermine the independence and integrity of the courts." United States v. Alabama 582 F.Supp.  1197, 1208 (N.D. Ala. 1984), aff'd, 762 F.2d 1021(11 Cir. 1985).  Judge Misery committed no error in failing to recuse himself from this case and the Court of Appeals decision should be reversed.

The Supreme Court of Nova should vacate the Court of Appeals decision that the trial court erred in upholding defense counsel's use of peremptory challenges towards female venire persons.  The standard of review in whether equal protection principles prohibit a party from peremptorily striking venirepersons on the basis of gender is a question of law that the Supreme Court will review de novo.  United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

This is a case of first impression in the State of Nova, therefore the court may look to other jurisdictions based on this matter.  The peremptory challenge is "one of the most important of the rights secured to [litigants]," Batson v. Kentucky, 476 U.S. 79 (1986), the peremptory is used to strike all but neutral jurors from the venire, providing a fair proceeding and outcome. Id. at 82.

In viewing the value of peremptory challenges, judges and scholars alike identify many reasons why they must remain an unencumbered vital part of our judicial system.  Items such as : (1) their historical role, (2) their supplemental role to challenges for cause, (3) their contribution to achieving impartial juries, (4) their confidence building role with criminal defendants, (5) their ability to decrease discussion and focus on racism, (6) their capricious nature means equal protection analysis does not apply or (7) it applies but is not violated because everyone is subject to peremptory challenges, and (8) their unencumbered use prevents criminals from obtaining a new way to challenge the judicial system and escape punishment for their misdeeds. Peremptory challenges enable "counsel to ascertain the possibility of bias through probing questions on the voir dire and ... [facilitate] the exercise of challenges for cause by removing the fear of incurring a juror's hostility through examination and challenge for cause." Swain v. Alabama, 380 U.S. at 219-20.  " Common human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases.... To allow this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals and in which each is held reasonable and open to compromise." Babcock, Voir Dire: Preserving "Its Wonderful Power," 27 Stan. L.;Rev. 545, 553-554 (1975)).  Thus, in the peremptory challenge we have "a system that allows the covert expression of what we dare not say but know is true more often than not." Id.  The Supreme Court of Nova should reverse the court of appeals decision because the issue of gender as applied to peremptory challenges was not a requirement of the landmark supreme court decision of Batson, 476 U.S. 79 (1986).  In 1983, an all white jury convicted Batson, a black man, of burglary and receipt of stolen goods.  During voir dire, the prosecutor exercised his peremptory challenges to remove all four black prospective jurors, but the trial judge denied the defendant a hearing on the issue of discrimination.  On appeal, the Supreme Court repudiated the stringent burden of proof it established in Swain, 380 U.S. 202.  The Court recognized that Swain's evidentiary requirements, which dictated that "several must suffer discrimination" before an objection could succeed, were inconsistent with the promise of equal protection.  Batson, 476 U.S. at 95-96.  The Court held that discrimination against "a member of a cognizable racial group," Id. at 106, in jury selection constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment even in situations in which no systematic pattern of discrimination can be found.  State v. Oliviera, 534 A.2d 867 (R.I.1987).  The Court therefore laid down a new, more lenient standard to establish a prima facie case of racially discriminatory peremptory challenge use.  No longer would a defendant be required to demonstrate discrimination over time; evidence from this trial alone could be sufficient to require an explanation from the prosecutor regarding the bases of his peremptory challenges.  Batson, 476 U.S. at 102-105.  No longer would a defendant have to prove that the prosecutor discriminated in every possible case.  Id.  No longer would a race have to be entirely excluded from jury service to permit a finding of discrimination.  Id. at 107.

Throughout the Batson decision, the Court refers solely to discrimination based upon race.  For example, to establish a prima facie case of discriminatory use of peremptory challenges, "the defendant first must show that he is a member of a cognizable racial group...and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id. at. 92.  It clearly preferred to limit the new standard only to racially based discrimination.

The Batson holding has been expanded to civil cases, Fludd v. Dykes, 863 F.2d 822 (11th Cir.), cert. denied, 493 U.S.  872 (1989), as well as to prohibiting defense counsels use of race based peremptory challenges.  United States v. Greer, 939 F.2d 1076, aff'd, 968 F.2d 433 (5th Cir. 1992). Though some jurisdictions have expanded Batson to gender based peremptory strikes, such cases are inevitably based, however on state constitutions. State v. Gonzales, No. 11, 782 (N.M. App., Jan.  10, 1991); State v. Irizarry, 536 N.Y.S.2d. 630 (N.Y. App.  Div. 1988); State v. Blunt, 561 N.Y.S.25 90 (Supreme Ct, App. Div 2nd Dept. 1990).  The majority of jurisdictions have kept true to the Supreme Court Batson decision in not expanding the case holding to gender.  State v. Pullen, 811 S.W.2d 463 (Mo. App. 1991); United States v. Hamilton, 850 F.2d 1038,1042 (1988).

In People v Kern, 75 N.Y.2d 638 (1988) the court held that the right to serve on juries is a privilege of citizenship under NY Constitution, article I, @ 1. Kern at 652.  It is also a civil right as set forth in Civil Rights Law @ 13, which states: "No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a...petit juror in any court of this state on account of...sex."

To paraphrase the language of Judge Alexander in writing for a unanimous Court of Appeals in People v Kern , a citizen's privilege to be free from gender based discrimination in the qualification for jury service is hardly a privilege if that individual may nevertheless be kept from service on the petit jury solely because of gender.  This privilege of citizenship may not be denied our citizens solely on the basis of their gender.  As can be seen, the court used it's State Constitution and Civil Rights laws to come to the conclusion that gender based peremptory challenges should not be allowed. The Court in Kern and other jurisdictions which have addressed the issue have ultimately relied on their state laws and have not taken the Supreme Court decision of Batson to areas such as gender discrimination, where it was not applied.

In People v. Irizarry, 142 Misc. 2d 793 (Sup. Ct, Bronx County 1988), the NY Supreme Court held that state statutory and constitutional provisions relating to jury trial and the right to be a juror as well as the State Equal Protection Clause preclude use of gender based peremptory challenges.  Id. at 797.  Kern and Irizarry are clearly distinguishable from the case at hand since there the State of Nova has no similar constitutional section which the court may use to follow the preceding cases rationale.

Batson offered no intimation that it was extending the Federal Equal Protection safeguards involving peremptory strikes to gender: 'By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate to equal protection and furthers the ends of justice.' Batson, 476 U.S. at 91.  While the restrictions of the Equal Protection Clause undoubtedly apply to prohibit discrimination due to gender in other contexts, there is no evidence to suggest that the Supreme Court would apply normal equal protection principles to the unique situation involving peremptory challenges." United States v. Hamilton, 850 F.2d 1038,1042 (1988). Taking the Supreme Court's homage to the value of the peremptory challenge at its word, the Fourth Circuit could not conclude that the Supreme Court intended, in effect, to destroy the peremptory challenge.  Hamilton, 850 F.2d 1038 (1988).  Clearly, if the Supreme Court in Batson had desired, it could have abolished the peremptory challenge or prohibited the exercise of the challenges on the basis of race, gender, age, or other group classification. A careful examination of the Batson opinion, however, leads to the firm conclusion that, in light of the important position of the peremptory challenge in our jury system, the Court intended Batson to apply to prohibit the exercise of peremptory challenges on the basis of race only.  Id. at 1042,43.

It is difficult to reconcile the potentially grand sweep of the Equal Protection Clause with the Supreme Court's repeated protestations that it was carving out a limited exception to the otherwise peremptory character of the peremptory challenge and the Supreme Court's continuing homage to the value of the peremptory challenge.  "[T]he peremptory challenge occupies an important position in our trial procedures." Batson v. Kentucky, 476 U.S. at 98.  "[W]e do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice." 476 U.S. at 98-99.  The Court of Special Appeals of Maryland in Eiland v. Maryland, 607 A.2d 42 (Md. App. 1992), recently stated that: One cannot help but wonder whether the Supreme Court, when it unlimbered the heavy artillery of the Equal Protection Clause against one particular and invidious social problem in Batson, fully realized the forces it was unleashing and the possible repercussions in fields far removed from race.  Did the Supreme Court intentionally venture out onto a slippery slope that has no principled stopping place short of the effective elimination of the peremptory challenge despite its continued lip service to the peremptory challenge or will the Court draw a line, even if it turns out to be an arbitrary line? The obvious answer is that no one knows.Id. at 45.  Some jurisdictions have, indeed, anticipated that the Supreme Court will extend the strictures of Batson v. Kentucky to gender based peremptory challenges.  The most recent is the decision of the United States Court of Appeals for the Ninth Circuit in United States v. De Gross, 960 F.2d 1433 (9th Cir. 1992).  It struck down as unconstitutional both the female defendant's peremptory challenge of a male juror and the prosecution's peremptory challenge of a female juror.  See also People v. Blunt, 162 A.D.2d 86, 561 N.Y.S.2d 90 (App. Div. 1990); Commonwealth v. Hyatt, 568 N.E.2d 1148 (Mass. 1991); State v. Gonzales, 808 P.2d 40 (N.M. App.1991); DiDonato v. Santini, 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (1991).  The majority of jurisdictions, however, have held that Batson applies only to peremptories based upon race. State v. Oliviera, 534 A.2d 867, 869-870 (R.I.1987); State v. Pullen, 811 S.W.2d 463 (Mo. App. 1991); Dysart v. State, 581 So. 2d 541 (Ala. Cr .App. 1990); State v. Culver, 444 N.W.2d 662 (Neb. 1989); Hannan v. Commonwealth, 774 S.W.2d 462 (Ky. App. 1989).  In Hamilton, 850 F.2d 1038 (1988).  The Court of Appeals for the Fourth Circuit declined to extend Batson to gender based peremptories.  In trying to fathom the intent of the Supreme Court, it distinguished equal protection law generally from the "unique situation" involved with peremptory challenges and racial discrimination.  Id. at.

It is apparent that what spurred Batson was the Court's belief 'that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread ....' 476 U.S. at 105.  It was this discriminatory practice which the Court addressed and sought to remedy.  The venerable concept of the peremptory challenge in other respects was left intact.  The majority expressed its recognition 'that the peremptory challenge occupies an important position in our trial procedures ....' Id. at 80. It did 'not agree that [its] decision today will undermine the contribution the challenge generally makes to the administration of justice.' Id. at. 80.

The Supreme Court of Nova should thus reverse the court of appeals and rule that Batson does not apply to gender based peremptory strikes, and that the Nova Const. art. III, § 2 is also not applicable since it makes no reference to discrimination based on gender as other state constitutions have, limiting peremptory challenges to not allow gender based discrimination by state constitutional means.

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