Paul McKernan v. Superintendent Smithfield SCI, 2017 U.S. App. LEXIS 3593

Background

Paul McKernan was convicted at a 1998 bench trial in Philadelphia for first‑degree murder; Judge Lisa Richette presided and sentenced him to life without parole.
Midtrial the judge privately met with the victim’s family and read from a website they had created that criticized her, calling it slanderous; the judge sought and received the family’s assurance she should continue presiding.
Defense counsel Fred Harrison attended parts of the robing‑room conference, failed to object or move for recusal, and advised McKernan to proceed despite McKernan expressing concerns about the judge’s impartiality.
The Pennsylvania courts rejected claims that (1) the judge should have recused herself and (2) counsel was ineffective for not seeking recusal; state postconviction and appellate review denied relief and the state supreme court declined review.
McKernan filed a federal habeas petition alleging ineffective assistance of counsel under Strickland for failing to seek recusal; the District Court denied relief but granted a COA on counsel‑effectiveness, and the Third Circuit heard the appeal.
The Third Circuit held counsel’s failure to move for recusal was objectively unreasonable and prejudicial under Strickland and remanded with instructions to grant habeas relief unless the Commonwealth retries within 60 days.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did counsel render ineffective assistance by failing to move for recusal after the robing‑room conference?	McKernan: counsel failed to protect his right to an impartial tribunal and advised him to proceed despite clear indications of judicial partiality.	Commonwealth/state courts: judge was not actually biased; counsel’s choice was strategic and reasonable.	Held for McKernan — counsel’s performance was deficient and not strategic; Strickland first prong satisfied.
Was McKernan prejudiced by counsel’s failure (Strickland prejudice prong)?	McKernan: reasonable probability of a different outcome (lesser culpability or retrial) because judge was defensive about criticism and predisposed against leniency.	Commonwealth: no showing that outcome would differ; evidence supported first‑degree murder verdict.	Held for McKernan — reasonable probability of a different result; prejudice established.
Does the right to an impartial tribunal extend to bench trials and is it waivable midtrial?	McKernan: an impartial judge is a constitutional minimum for bench trials and cannot be waived under these circumstances.	Commonwealth: implied that waiver/continuation vitiated claim and judge’s assurances cured any concern.	Held: right to impartial tribunal applies to bench trials and cannot be affirmatively waived where bias is shown; judge’s conduct created the appearance/probability of unfairness.
Did the state courts unreasonably apply clearly established federal law under §2254(d)?	McKernan: state courts unreasonably applied Strickland by treating counsel’s conduct as reasonable and by applying the wrong bias standard.	Commonwealth: state courts reasonably rejected claims based on the record.	Held: state courts’ application of Strickland was objectively unreasonable in these unique facts; federal habeas relief warranted.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑prong test for ineffective assistance of counsel)
In re Murchison, 349 U.S. 133 (due process requires a fair tribunal)
Mayberry v. Pennsylvania, 400 U.S. 455 (judicial involvement in personal controversy can undermine impartiality)
Singer v. United States, 380 U.S. 24 (minimum standard of impartial jury/trial)
United States v. Josefik, 753 F.2d 585 (illustrative comment on minimum civilized procedure for trials)
United States v. Parse, 789 F.3d 83 (reversal where juror bias emerged despite lack of objection)
McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92 (Third Circuit discussion of counsel competence standard)
Harrington v. Richter, 562 U.S. 86 (deference standard for reviewing counsel performance)
Brumfield v. Cain, 135 S. Ct. 2269 (deference to state court judgments does not foreclose federal review)