Judicial Recusal Disclosure

MOTION FOR DISCLOSURE OF ANY POSSIBLE BASIS OF JUDICIAL RECUSAL

IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS. CAUSE NUMBER

DEFENDANT

COMES NOW, , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to provide disclosure to the defense of any possible basis for judicial disclosure. In support of his/her motion, states as follows:

1. "Courts, like Caesar's wife, must be not only virtuous but above suspicion." U'ren v. Bagley, 118 Ore. 77, 245 P. 2d 1074, 1075 (1926); See also Pearson v. Parsons, 541 So.2d 447, 456 (Miss. 1989) (Pittman, J., concurring) (A judge "must be, to quote from the bench opinion, 'Like Caesar's wife . . . his conduct must be beyond doubt above suspicion.'"). As the Supreme Court of has held:

[T]he public expects a judge to be a model of integrity and a paradigm of "proper" conduct. It is imperative to our system of justice that this model be untarnished by even the appearance of impropriety. A loss of confidence in the judiciary can only lead to diminished respect for the law. "If gold will rust, what shall iron do?"

In re Neeley, 364 S.E. 2d 250, 254 (W. Va. 1987) (quoting G. Chaucer, Prologue to the Canterbury Tales ("That if gold ruste, what shal iren do? For if a preest be foul, on whom we truste, no wonder is a lewed man to ruste")).

2. The question of disqualification is not whether a judge actually is biased, for a judge must be disqualified, "without finding fault . . . so that even the appearance of impropriety can be avoided." Collins v. Dixie Transport Inc., 543 So.2d 160, 166 (Miss. 1989) (emphasis in original) (quoting Haralson v. Haralson, 483 So.2d 378, 380 (Miss. 1986)). As the federal courts have held:

The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all the circumstances.

Rice v. McKenzie, 581 F.2d 1114, 1116-17 (4th Cir. 1978). See also Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983) (disqualification required "if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.").

3. This principle derives from the ethical proscription which governs the judiciary:

A judge should disqualify himself in a proceeding in which his impartiality might rea-sonably be questioned. . . .

Canon 3(C)(1), Mississippi Code of Judicial Conduct. "[T]he Canon enjoys the status of law such that we enforce it rigorously. . . ." Collins v. Dixie Transport Inc., 543 So.2d at 166. In addition to this provision, there is also the constitutional requirement regarding disqualification. See Miss. Const. Art. 6, § 165.

4. Therefore even when this Court may be sure that the Court will strive to be absolutely impartial, disqualification is rightly required so that "justice [will] satisfy the appearance of justice." In Re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 2d 942, 946 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1955) (emphasis supplied)); Smith v. State, 212 Miss. 497, 54 So.2d 739, 741 (Miss. 1951) ("Of course, his fairness and impartiality are unquestioned, but we are of the opinion that under the statute the . . . judge was disqualified from presiding"). "Next to the importance of the duty of rendering a righteous judgment is that of doing it in such manner as will beget no suspicion of the fairness or integrity of the judge." Yazoo M.V.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 712 (1912) (emphasis supplied).

5. Nothing ill is imputed to anyone by a suggestion of disqualification. However, "[t]he protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system." United States v. Columbia Broadcasting, Inc., 497 F.2d107, 109 (5th Cir. 1974). Against this backdrop, respectfully moves that this Court consider any possible basis for disqualification in this case.

6. It cannot be left up to the defendant to assure that the trial judge is impartial -- the duty rests upon the trial judge to act on any hint of impropriety sua sponte. As the Georgia Supreme Court has held, there rests with the trial judge a duty to make "a disclosure on the record [of any basis for recusal]." Pope v. State, 256 Ga. 196, 345 S.E.2d 831, 847 (1986). The federal courts agree that there is "place[d] on the judge a personal duty to disclose on the record any circumstances that may give rise to a reasonable question about his impartiality." United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985); accord SCA Services Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977); United States v. Amerine, 411 F.2d 1130, 1134 (6th Cir. 1969); Code of Judicial Conduct, Canon 3(C)(1) ("Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned" (emphasis supplied)).

7. Generally speaking, under Canon 3(C)(1)(b), Mississippi Code of Judicial Conduct:

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....

therefore respectfully suggests that this Court should consider whether any bases for recusal exist which have not been mentioned in this motion. If they do, requests that they be made known to counsel for both parties, in open court, so that the parties may properly evaluate whether a further motion to disqualify would be appropriate.

WHEREFORE respectfully moves that this Court reveal any possible basis for disqualification in this case.

Respectfully submitted,

By:

CERTIFICATE OF SERVICE

I, , attorney for , do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to

This the day of

Sign Now