Judge McNally has presided over three cases involving Sawyer. One led to a bench trial on assault and battery, from which the judge recused. One led to a jury trial on lewd and lascivious behavior; the judge did not recuse in that case. The last of the three cases was the prosecution underlying this appeal.
"Well, of course, the difference — the main difference between this case and that case is that in that one the defendant had waived a jury trial and it was a situation where I would be sitting as the finder of fact. And given some of the past dealings between myself and Mr. Sawyer, I though t that would probably be a problem. I don't believe that that's the case here because a jury is going to determine his guilt or innocence."
1. The list of statutory factors that may be alleged in an affidavit of the type filed by Sawyer in this case. See K.S.A. 20-311d(c)(1)-(5).
2. The Kansas Code of Judicial Conduct. See Kansas Supreme Court Rule 601 B, Canon 2; Supreme Court Rule 2.11(A) ("A judge shall disqualify himself or her self in any proceeding in which the judge's impartiality might reasonably be questioned.")
3. The Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
He had already judged himself unable to rule impartially in the earlier prosecution of Sawyer for assault and battery. In Caperton, the Court recognized that a mere heightened risk of actual bias could lead to unacceptable peril to due process. Certainly that is true when bias has previously been admitted and inadequately explained away.
Reversal and remand are required here. Judge McNally had previously chosen to recuse in Sawyer's assault and battery bench trial; the judge's intemperate demeanor in Sawyer's intervening jury trial for lewd and lascivious behavior drew a stern admonition from the Court of Appeals; and Judge McNally's mere observation that this case involved a jury trial rather than a bench trial did nothing to ameliorate any earlier need for recusal. Trial of this case followed less than 18 months after the lewd and lascivious jury trial, which, in turn, came only 2 months after the assault and battery prosecution in which Judge McNally's own assessment of his impartiality led to recusal. Our experience teaches us that the probability of actual bias in this case was “too high to be tolerable” under the Due Process Clause. The proceeding sank beneath the “ ‘constitutional floor.’ “