Due process required trial judge to recuse

Reid Nelson won in State v. Sawyer, No. 101,624 (Kan. July 26, 2013), reversing a Wyandotte County conviction for criminal threat.  The KSC held that the trial judge was required to recuse himself from the case and that the judge's failure to do so violated Sawyer's due process rights under the U.S. Constitution.

The KSC explained the procedural facts as follows:

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.

In the district court, Sawyer filed a motion asking Judge McNally to recuse. Although he had recused in a previous case involving Sawyer, Judge McNally did not recuse from this case, giving the following rationale:

"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." 

 The chief judge also denied Sawyer's request. On appeal to the COA, Judge McNally's rationale, regarding the difference between a trial judge's role in a bench trial and a trial judge 's role in a jury trial, was upheld. After granting Sawyer's petition for review, the KSC disagreed, and it reversed his conviction for criminal threat.

 

The KSC explained that there are three bases for the recusal of a judge in Kansas. To paraphrase, those bases are:

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).

The KSC noted that the first step in seeking a recusal is to follow the statutory framework: "Under K.S.A. 20-311d, a party must first file a motion for change of judge; if that motion is denied, then the party must immediately file a legally sufficient affidavit alleging grounds set forth in the statute." But the court held that Sawyer's affidavit was legally insufficient to justify recusal, so it moved on to the due process analysis.  

 

The KSC cited the famous Caperton case and explained Judge McNally's duty to recuse:

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.

The KSC then explained why reversal of the conviction was necessary:

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.’ “

The KSC reversed Sawyer's conviction for criminal threat and remanded for a new trial with a different judge. The court also specifically rejected "Judge McNally's and the Court of Appeals' reliance here on the fact that this case was tried to a jury rather than to the bench. Although the judge in a criminal jury trial does not find facts, he or she still must make many rulings that affect the defendant's ability to obtain a fair trial."