For the Defense - Vol. 6, Issue 4 - 34

imposed were small enough to be considered de
minimis. The disqualification in Tumey resulted
from the mayor' direct pecuniary interest in the
outcome and his official role as the trier of fact.
Almost thirty years later, the U.S. Supreme
Court was faced with a Michigan statute that
permitted authorized judges to act as a " oneman
grand jury. " 3
When acting as a grand jury,
the judges had the authority to compel a witness
to appear before them in secret to testify about
alleged crimes. Two men, Murchison and White
came before a judge who was authorized to be a
one-man grand jury. After they were questioned
as witnesses, the same judge tried them in open
court and sentenced them for contempt. The two
men objected to the trial in open court before the
same grand-jury judge, because not only had the
judge brought the complaint against Murchison
and White, but he also indicted and prosecuted
the men, which denied them the right to a fair
and impartial trial as required by the Due Process
Clause. The Supreme Court emphasized that basic
due process required that a fair trial tribunal be
fair. Accordingly, the Court held that it would be
improper for a judge to act as a grand jury and
later try the very same person accused because of
the judge's investigations. To ensure fairness, there
must be an absence of both actual bias and the
probability of unfairness in a trial. Drawing from
precedent in Tumey, the Court reiterated that
no man is allowed to try cases in which he has a
personal or pecuniary interest in the outcome, and
it expanded the rules of disqualification to state
that no man can be a judge in his own case.
Another thirty years later, the U.S. Supreme
Court revisited the concept of judicial
recusal
after a state supreme court justice cast the
determining vote in upholding a jury verdict
against an insurance company.4
Justice Embry of
the Alabama Supreme Court wrote the court's
opinion in that case, while he simultaneously had
a similar bad-faith-refusal-to-pay lawsuit pending
against another insurer in another Alabama court.
Given that Alabama's Supreme Court decision was
binding on all Alabama courts, Justice Embry's
opinion strengthened the legal status and the
settlement value of his own case. On appeal, the
U.S. Supreme Court held that when Justice Embry
rendered his judgment, he acted as " a judge in his
own case. " The Court emphasized that its decision,
based on the Due Process Clause and constitutional
consideration, created the outer boundaries of
judicial disqualifications, leaving Congress and the
states free to create stricter standards for judicial
disqualification as they see fit.
34 For The Defense l Vol. 6, Issue 4
Until the early 2000s, the general test for
disqualification remained whether the adjudicator
in any given instance was acting as a judge in his
own case, or where a clear personal or pecuniary
interest could be identified. Pennsylvania caselaw
reflected the recognition of this test in its decisions
surrounding judicial disqualification, most of
which were decided by the Pennsylvania Superior
Court and Supreme Court in the 1980s.
In 1983, the Pennsylvania Supreme Court affirmed
a trial court's denial of a disqualification motion,
but it remanded the case for sentencing before
another judge.5
The defendant was convicted by
a jury of burglary, theft, receiving stolen property
and conspiracy. At trial, the defendant argued that
the judge should recuse himself for four (4) reasons:
(1) the judge was district attorney at the time
defendant committed the offenses; (2) while he was
district attorney, the judge took a statement from
the Commonwealth's primary witness in regard
to an unrelated event; (3) while he was district
attorney, the judge had prosecuted the defendant
on unrelated charges; and, (4) the judge had made
derogatory remarks about the defendant and
had overheard the defendant making derogatory
remarks about him during his election campaign.
The Pennsylvania Supreme Court stated that a
judge must recuse himself whenever " he believes
his impartiality can be reasonably questioned, " but
the Court nonetheless looked to the record for an
actual showing of the judge's lack of impartiality
that affected the jury. Even though the Court was
able to find none, it did vacate the defendant's
sentence and order re-sentencing before a different
trial judge ... " one without hint of animosity toward
[defendant]. " The Pennsylvania Supreme Court, like
the U.S. Supreme Court, used due process as the
vehicle to review recusal determinations, but it did
not stop its analysis at the appearance of partiality
or bias. Rather, it went further, as evidenced in the
case above, to make actual prejudice the benchmark
for reviewing recusal determinations.
Around this time, the Pennsylvania Superior
Court was also rendering opinions on issues of
judicial recusal that were appealed from the trial
courts. However, in 1985, the Pennsylvania Supreme
Court made clear that enforcement of the Code of
Judicial Conduct is the exclusive province of the
Supreme Court and that the Superior Court may
neither interpret Canon 3C nor create standards
for reviewing recusal decisions.6
The grounds for disqualification were broadened
in 2009, when the U.S. Supreme Court was faced
with the question of whether the Due Process

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
For the Defense - Vol. 6, Issue 4 - 4
For the Defense - Vol. 6, Issue 4 - 5
For the Defense - Vol. 6, Issue 4 - 6
For the Defense - Vol. 6, Issue 4 - 7
For the Defense - Vol. 6, Issue 4 - 8
For the Defense - Vol. 6, Issue 4 - 9
For the Defense - Vol. 6, Issue 4 - 10
For the Defense - Vol. 6, Issue 4 - 11
For the Defense - Vol. 6, Issue 4 - 12
For the Defense - Vol. 6, Issue 4 - 13
For the Defense - Vol. 6, Issue 4 - 14
For the Defense - Vol. 6, Issue 4 - 15
For the Defense - Vol. 6, Issue 4 - 16
For the Defense - Vol. 6, Issue 4 - 17
For the Defense - Vol. 6, Issue 4 - 18
For the Defense - Vol. 6, Issue 4 - 19
For the Defense - Vol. 6, Issue 4 - 20
For the Defense - Vol. 6, Issue 4 - 21
For the Defense - Vol. 6, Issue 4 - 22
For the Defense - Vol. 6, Issue 4 - 23
For the Defense - Vol. 6, Issue 4 - 24
For the Defense - Vol. 6, Issue 4 - 25
For the Defense - Vol. 6, Issue 4 - 26
For the Defense - Vol. 6, Issue 4 - 27
For the Defense - Vol. 6, Issue 4 - 28
For the Defense - Vol. 6, Issue 4 - 29
For the Defense - Vol. 6, Issue 4 - 30
For the Defense - Vol. 6, Issue 4 - 31
For the Defense - Vol. 6, Issue 4 - 32
For the Defense - Vol. 6, Issue 4 - 33
For the Defense - Vol. 6, Issue 4 - 34
For the Defense - Vol. 6, Issue 4 - 35
For the Defense - Vol. 6, Issue 4 - 36
For the Defense - Vol. 6, Issue 4 - 37
For the Defense - Vol. 6, Issue 4 - 38
For the Defense - Vol. 6, Issue 4 - 39
For the Defense - Vol. 6, Issue 4 - 40
For the Defense - Vol. 6, Issue 4 - 41
For the Defense - Vol. 6, Issue 4 - 42
For the Defense - Vol. 6, Issue 4 - 43
For the Defense - Vol. 6, Issue 4 - 44
For the Defense - Vol. 6, Issue 4 - 45
For the Defense - Vol. 6, Issue 4 - 46
For the Defense - Vol. 6, Issue 4 - 47
For the Defense - Vol. 6, Issue 4 - 48
For the Defense - Vol. 6, Issue 4 - 49
For the Defense - Vol. 6, Issue 4 - 50
For the Defense - Vol. 6, Issue 4 - 51
For the Defense - Vol. 6, Issue 4 - 52
For the Defense - Vol. 6, Issue 4 - 53
For the Defense - Vol. 6, Issue 4 - 54
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue1_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
https://www.nxtbookmedia.com