Jеremy Jason Mann, Appellee/Cross-Appellant, v. John A. Thalacker, Appellant/Cross-Appellee.
United States Court of Appeals FOR THE EIGHTH CIRCUIT
April 9, 2001
Submitted: December 13, 2000
RICHARD S. ARNOLD, Circuit Judge.
Jeremy Jason Mann was charged with abducting a seven-year-old girl, sexually abusing her, throwing her into a river, and leaving her to drown. He was convicted at a bench trial of first-degree kidnaping and attempted murder, and received consecutive sentences requiring him to be imprisoned for life plus 25 years. After conviction and sentencing, he learned that the judge who had tried his case had been a victim of childhood sexual abuse. The judge recused himself from the state post-conviction proceedings (in which his own alleged bias was to be an issue). In his federal habeas petition, Mr. Mann raises several arguments, the most substantial of which are directed to the fairness of his bench trial. He claims that the trial judge could not have been impartial, given the judge‘s personal history, and that the failure to disclose that history invalidates Mr. Mann‘s waiver of trial by jury. The District Court granted the writ on these two grounds, rejecting Mr. Mann‘s other arguments. Both sides appeal. We hold that the writ should be denied.
This case has been going on for a long time, and not all of the facts are relevant to the issues presently before the Court. A brief description of Mr. Mann‘s offense is necessary. We state the facts in the light most favorable to the state court‘s judgment. The victim was walking home from elementary school when Mr. Mann pulled up in his truck and made her get in. He drove with her to a secluded spot near the Winnebago River, where he made her undress, molested her, and forced her to perform oral sex on him. When she was dressed again, he threw her into the river, which was then running nearly at flood level. He then drove off to pick up his brother from school. The victim pulled herself to the riverbank by means of rocks and logs and ran to a nearby house for aid. On the basis of her statement to police, Mr. Mann was brought in that night for questioning. At the end of a partly recorded interrogation, Mr. Mann dictated and signed a confession in which he admitted that he had abducted the girl, had forced her to perform sex acts, and had thrown her into the river “to make her scared.” Many of the facts recited in the confession were corroborated by the testimony of the victim and of the people to whom she had cоntemporaneously told her story. In addition, the victim‘s red backpack, which Mr. Mann mentioned in his confession, was found near the place where she had climbed from the river.
Mr. Mann waived his jury right. According to his statement of waiver, he was informed by counsel that the
The judge was deposed, and the transcript of that deposition was sealed. Our purposes do not require us to reveal the contents of that sealed record beyond what has already appeared in other public records in this case. The judge, in his early teens, had been subjected to coercive but not forcible sexual abuse by his father. The abuse had not involved penetration of any kind. The judge said he had no lasting scars from the experience that would interfere with his ability to decide sex-offense cases fairly. With respect to Mr. Mann‘s case in particular, he said that his own personal experience with sex abuse had not crossed his mind during his early involvement with the case, i.e., prior to his sitting as trier of fact, and that he had felt no bias or prejudice against Mr. Mann. Although the judge did admit that he still had ill feelings about the abuse he had experienced, he said that those feelings were directed entirely towards his father.
In his direct appeal and state post-conviction proceedings, Mr. Mann raised the arguments he urges here: that he was deprived of an impartial fact-finder, that he waived jury trial unknowingly, that his triаl counsel was ineffective, and that the introduction of hearsay evidence against him violated the Confrontation Clause.
II.
The federal habeas petition in this сase was filed in 1995. This means that our decision is governed by the standards of review that existed prior to enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). We review de novo the District Court‘s legal conclusions; its factual findings are disturbed only if clearly erroneous. Brown v. Caspari, 186 F.3d 1011, 1014 (8th Cir. 1999). The state courts’ factual determinations receive a presumption of correctness. Id.
We first consider whether the trial judge‘s failure to recuse himself was an error of constitutional dimensions. Both the Iowa Supreme Court and the District Court appear to have adjudicated this issue under the Iowa recusal statute, which closely resembles the federal disqualification rule codified at
We take a different tack. It is clear that
That is not the end of the mаtter, however. Mr. Mann‘s claim arises not under a statute but under the
Our review of the record does not reveal any statements or actions on the part of the trial judge that reasonably indicate actual bias. The fact that Mr. Mann received consecutive sentences is not sufficient: the crimes of which he was convicted would shock and anger any normal person, and an unbiased judge might well find such a penalty justified. Nor are we persuadеd that the trial judge intentionally concealed his past from Mr. Mann. Mr. Mann points out that the judge claimed it did not occur to him to disclose his own abuse because it was a “dead issue” in his life, but later stated that he would be terminating his yearly holiday visits to his parents “this year.” The District Court agreed that these two statements
Mr. Mann argues, however, that the judge‘s personal circumstances here make bias so likely that it should be presumed. The first Dyas v. Lockhart panel described the applicable constitutional standard:
The test in determining if a judge‘s bias should be presumed in a particular case is whether, realistically considering psychological tendencies and human weaknesses, the judge would be unable to hold the proper balance between the state and the accused. [Citations omitted.] In making this inquiry, we of course presume the honesty and integrity of those serving as judges.2
705 F.2d at 996-97. We acknowledge that childhood sexual abuse often has lasting psychological effects. We have no reason to believe that a person would be immune from those effects simply because he or she grows up to be a judge, rather than an accountant or a taxi driver. After consideration, however, we think it is not generally true that a judge who was a victim of sexual abuse at some time in the remote past would therefore probably be unable to give a fair trial to anyone accused of a sex crime.
The argument for presuming bias in Mr. Mann‘s case would be stronger if the abuse the judgе suffered as a child bore a closer resemblance to the conduct with which Mr. Mann was charged. The two cases are quite different, however. Mr. Mann committed his offense against a stranger, a girl, seven years old. The abuse in the judge‘s case was perpetrated by a father against his eleven- to fourteen-year-old son. Mr. Mann‘s offense involved kidnaping, physical force, and sexual penetration; the judge‘s father‘s offense involved none of these. Mr. Mann also attempted to kill his victim, which the judge‘s father did not do. The similarities between the two events amount roughly to the fact of sexual contact inflicted by a man upon a child. That is not enough to support a presumption of bias, especially given that approximately two decades’ worth of other experiences stood as a buffer between the judge‘s childhood trauma and his involvement with Mr. Mann‘s trial. These considerations also further wеaken any inference of actual partiality that might be drawn from the judge‘s failure to disclose his personal history.
III.
Mr. Mann next argues that, even if recusal was not required, it was impossible for him to make a knowing waiver of his jury right without being informed of the judge‘s background. We disagree.
We are aware that information of the kind at issue here is the sort of thing a lawyer advising a client would like to know. But there might be many personal facts about a judge from which lawyers would try to derive some tactical advantage, and not all such facts are subject to disclosure. It would not be good for the administration of justice if they were: indeed, we doubt that many judges would take the bench if they knew that all their unpleasant memoriеs would be regularly dug up and examined in court. Disclosure would also multiply proceedings, as it did in this case, and the additional proceedings would occupy the energies of two judges: one to testify, and one to find facts and render a decision. These proceedings would be highly repetitive from case to case, and would detract from the speedy administration of justice. Moreover, it is not even clear that a broad disclosure rule would be gоod for the lawyers and clients who would invoke it. The tactical importance of facts about a judge‘s personal background is not always evident: for example, Justice Hugo Black, a former Klansman, played an important role in developing the civil rights jurisprudence of the Warren Court. In any event, whether or not such a rule would be good, we know of no constitutional authority for it. Judges are trained to lay aside personal opinions and exрeriences when they sit in judgment, and we are not persuaded that this judge failed in that duty.
Mr. Mann‘s reliance on the second panel‘s holding in Dyas v. Lockhart, 771 F.2d 1144, 1147-48 (8th Cir. 1985), is misplaced. The question there was whether the defendant had knowingly waived any objection to having his jury trial conducted by a judge who had a family relationship with a prosecuting attorney. We held that Dyas‘s failure to object before trial did not constitute a knowing waiver of the issue. He learned of the relationship for the first time during the concluding moments of his trial. We do not believe thаt Dyas controls in the present situation. A present family relationship with a lawyer actually appearing before the judge naturally creates an inference of bias, at least in the minds of some. Judges’ personal histories are in a different category, we think. If personal histories and experiences, even remote ones, are to be inquired into, it would be difficult to know where to draw the line. Wherever that line would be, we
IV.
The District Court rejected Mr. Mann‘s claim of ineffective assistance of counsel. We review that Court‘s findings of fact for clear error, and its conclusions of law de novo. Tokar v. Bowersox, 198 F.3d 1039, 1045-46 (8th Cir. 1999). Mr. Mann argues that his trial counsel performed deficiently in three ways: in failing to present exculpatory evidence, in failing to present either of two theories of innocence, and in failing to move for suppression of the victim‘s in-cоurt and out-of-court identifications of Mr. Mann as her kidnaper. We affirm the District Court‘s judgment as to these arguments.
The evidence that Mr. Mann claims is exculpatory relates to the timing of the offense. Mr. Mann first argues that his trial attorney should have called one of the State‘s witnesses to testify that, just before 3:00 p.m. on the date of the offense, she saw a truck matching the description of his near where the victim was picked up. Mr. Mann contends that this testimony would have tended to show that someone else, in a truck like his, committed the offense. We find this contention implausible. According to the statement of a co-worker, Mr. Mann was leaving work at “approximately 3:00 p.m.” when he was asked to do a chore that took him “less than five minutes.” The victim was abducted while on her way home from school. A police officer stopped Mr. Mann for a traffic offense at around 3:30 p.m. The witness‘s testimony, therefore, would likely havе been perceived as helping to widen the window of time in which Mr. Mann could have committed the kidnaping. The District Court found that defense counsel‘s decision not to call her was one of trial strategy. Considered as such, it was reasonable. Mr. Mann also also argues that competent trial counsel would have pursued the theory that it was impossible for him to have committed the offense. The District Court found that counsel‘s failure to pursue this theory was basеd on the professional judgment that it would fail. Given the inconclusive nature of the time evidence, we cannot say that this trial-strategy decision was incompetent.
Mr. Mann also argues that trial counsel performed ineffectively in failing to present either of two theories of innocence: that no crime occurred – i.e., that “the girl lied” – or that someone else committed the crime. We agree with the District Court that, in light of the evidence at trial, neither of these theories would have had much chance of success. We need not discuss this argument further.
The final respect in which Mr. Mann claims his trial lawyer performed ineffectively is in failing to move to suppress evidence of identification. The District Court correctly considered the factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), finding as follows:
The victim had plenty of time to view her assailant in broad daylight . . .. The victim‘s degree of attention was high, as she “was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” Biggers, 409 U.S. at 200. The victim gave a surprisingly accurate description of Mann to the police officers who questioned her almost immediately after the crime occurred. Further, the victim was given a “mug-book” four or five pages deep containing at least one hundred photographs. When she came to the photograph of Mann, she pointed to the photograph and said, “That‘s him.” Finally, the length of time between the kidnaping and the victim‘s identification of Mann was just one day.
We see little likelihood that the outcome of Mr. Mann‘s trial would have been different if his trial counsel had taken any or all of the actions he now suggests. Accordingly, we reject his cross-appeal as to ineffective assistance of counsel.
V.
Mr. Mann also challenges the voluntariness of his confession. He claims that, after having been read his Miranda rights and executed a written waiver, he asserted his right to silence when he told the interrоgating officer, “I just have to keep to myself.” This remark occurred in the context of a brief digression about Mann‘s unwillingness to make eye contact with the officer. Before the digression, they were discussing Mann‘s reclusive habits. The remark most likely refers to one of these subjects. At any rate, we see no reason to construe it as an invocation of Miranda rights. Being evasive and reluctant to talk is different from invoking one‘s right to remain silent. Moreover, we are not persuaded that Mr. Mann was coerced into dictating and signing a detailed confession simply because he was interrogated on little sleep by an officer who used some leading questions and sometimes prodded him to be more forthcoming. We have read the transcript of the interrogation and see no evidence of the kind of intimidation or manipulation that might make someone confess to a serious violent crime he did not commit. The District Court‘s rеjection of Mr. Mann‘s
The final argument Mr. Mann raises on cross-appeal is that his
VI.
The State prevails on its appeal. As far as we can see, Mr. Mann received a fair trial before an unbiased finder of fact. We refuse to presume bias on the basis of the judge‘s remote experience with sexual abuse. Nor do we accept that the judge‘s failure to disclose that experience deprived Mr. Mann of any information constitutionally required in order to waive his jury right. The arguments Mr. Mann raises on cross-appeal lack merit, for the reasons given above.
The judgment of the District Court, granting the writ of habeas corpus, is reversed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.