John N. Mitchell v. Honorable John J. Sirica, Judge, United States District Court for the District of Columbia

Weisberg Depart- up would reach so far as to swallow In conclusive. statutory presumption U.S.App.D.C. basic Justice, disclo- ment of considering request whether a sure. stated: 489 F.2d we “investigatory for disclosure involves Attorney General that Granted compiled pur- files for law enforcement investigatory designate may certain poses,” give the court con- will course having compiled for law files been as submission, sideration to the executive’s ipse purposes, dixit enforcement logic governed, but it will be matter, for there does finalize pushed extremes, good but sense judicial de- function of remains and the heft of ease.2 essential termining classification whether proper, 489 F.2d at 1202] [at Housing Depart- In Rural Alliance v. U.S.App.D.C. Agriculture,

ment

-, (1974), we remanded 498 F.2d 73 hearing evidentiary

for an as to investigation, purpose initial al., John Petitioners, N. MITCHELL et order ascertain whether files compiled for fact were law enforcement SIRICA, Judge, Honorable John J. United purposes.1 States District the District entirely Our Columbia, Respondent. congruent Housing Alliance, with Rural No. 74-1492. focusing purpose likewise the initial Appeals, Stаtes Court of investigation. no But we see District of Columbia Circuit. remand, need for for the instant case is June 1974. relatively clear. Dissenting Opinion July 9, 1974. ease, Housing In this Rural Al- unlike July 25, Certiorari Denied 1974. liance, there was no internal audit See 94 functioning S.Ct. 3232. employees of Federal but an investigation institutions, of state petitioner ques- in essence raised a tion as to end rather initial results than purpose. Appellees acknowledged at the investigative

outset the files were nature; contention sole was that prospect of law enforcement action exemption ap- too remote for ply. rejected We contention case, but we did not mean that the ex- MacKinnon, Judge, Circuit filed a emption is established the mere fact dissenting opinion. purposes opening that one of the also, F.Supp. See D.C. 377 investigative, file is or that sanctions possibility hover somewhere down road, or that some material some point file at some be used for some purpose. law enforcement With that kind extrapolation exemption clause distinguished

1. The court May 21, 1974, opinion between an internal In our in this case government employees, audit of specifically and investi we noted that the different ele- gations directly specifically problem focus ments of the “fuse and interact.” alleged illegal particular acts of Housing Alliance, officials In Rural it will be seen which, proved, if could result dealing civil or crim the court was with the elements government inal sanctions like those that of the ease as “fuse and interact.” against private parties. could launch by

then a mere order without writ- opinion, deny petitioners ten in effect rights. their fundamental most by petitioners The raised are issues They deprived of substantial. were C., right develop Cacheris, Washington, D. their in the trial court to Plato allegations support evidence to their John N. Mitchell. in an ac- the trial had acted Washington, Campbell, D. Edmund D. cusatory manner, appears and it admit- C., Parkinson. for Kenneth Wells ted on this record that Washington, C., for Bray, D. M. John ability prejudged to obtain has Gordon Strachan. fair trial in this district. The refusal Dickstein, Spring- Sidney vanR. James majority аl- even to answer these C., er, Washington, D. for Charles W. legations operates, effect, ignore Colson. evidence both of and Prosecutor, Philip Jaworski, Sp. Leon the trial and contacts between Prosecutor, Lacovara, Sp. A. Counsel prosecutors. petitioners en- Asst, Sp. Neal, Sp. Pros- James F. produced, titled to evidence cf. have this Sp. Sidney 'Glazer, ecutor, Asst. and M. Brady Maryland, Prosecutor, Washington, C., on re- D. 1194, 10 L.Ed.2d 215 and sponse United States. by a are entitled to have their case tried judge who not stated in effect BAZELON, Judge, Before Chief prejudged he has a material issue. WRIGHT, McGOWAN, LEYENTHAL, MacKINNON, ROBINSON -and Circuit I would remand afford Judges. hearing evidentiary an quired but if I were re- existing act record I ORDER grant would the writ. I will file a writ- opinion possible. ten as soon as PER CURIAM. petitioners’ peti- On consideration of MacKINNON, (dis- Circuit prohibi- tion for writ of mandamus or senting) : tion, pleadings and of the filed with re- This criminal case has called one been spect thereto, it is important of most cases American by Ordered the Court en banc that the judicial history. At time1 it in- this against petition aforesaid for writ of mandamus volves indictment a former prohibition is denied. Attorney General of the United Judges Attorney General, reserve former Assistant to file four opinions presidential at a later former Sate. advisers and one lawyer alleged conspiracy unlawful Judge: MacKINNON, Circuit arising Watergate out of the so-called charged against affair. Other offenses object foregoing deny- I to the order some but not all ing defendants include ob- petition en banc case justice, perjury, struction of false decla- allowing without petitioners and without agents and false rations statements to argue orally the matter Investigation. the Federal Bureau of judges join this court. The five who foregoing completely deny pe- order (hereinafter Four of the defendants hearing titioners a in this court petitioners) petition this court for a part See note infra. of the Government to dismiss the charges in the instant indictment Actually petitions, by there are three one him at the time of sentence. We thus do Mitchell, Colson, Ehrlichman one not consider the motion insofar as Colson Pаrkinson and one Strachan. Defendant concerned. Defendants Ilaldeman recently guilty plea Colson entered a to a parties petition. Mardian are not separate charge agreement under a stated prohibition ordinarily writ mandamus direct favored and will not be ing except (1) United States District John J. ordered when consideration proceed necessary and to dis the full no court is to secure qualify presiding uniformity himself as or maintain of its deci- (D.D.C., Mitchell, sions, (2) proceeding in United States v. when the in- 1, 1974), question exceptional impor- dictment March the al volves a filed leged “Watergate cover-up” case. The tance. brought petition the All Fed.R.App.P. 35(a) Statute, Writs U.S.C. § exceptional importance of the case Fed.R.App.P. 21 to the denial review presumably was the basis for en banc petitioners’ disqualifica Sirica of Notwithstanding consideration. the rec- motion, premised upon tion 28 U.S.C. §§ ognized importance ease, of this a ma- 455,4 1443 and fifth and sixth jority deprived petitioners, of this court rights amendment to a fair trial and the right argument, to oral never Code of Judicial Conduct.5 United provided required by notice lo- F.Supp. States v. Mitchell, 377 disposed cal Rule 11 and of the matter (D.C.D.C.1974). by a mere denying one-sentence order petition.7 disposition Such petition is im- This court handled the proper admittedly where the case en banc case. the Federal Under Rules “exceptional importance.” Appellate hearings These cir- Procedure en banc compel single my cumstances me to are raise 4. 28 3. 28 A good cause shall be sufficient affidavit in favor of shall limited to der it dice whom the matter ing therein. sit on the district court makes and files a file it within such only shall be been of witness, ten other reasonably with ceeding at which the counsel of record shall which he has a substantial al bias or proceeding. The affidavit shall state the facts and Whenever Any good U.S.C. U.S.C. Interests of Bias or reasons for days exists, any party one such affidavit proceed disqualify improper, justice faith. counsel, should or is so related to or before the § instances accompanied by § prejudicе prejudice trial, appeal, and shall be filed not less than shall be any proceeding questioned, party no further the belief provides: provides disqualify justice or his is or has been a adverse himself stating time. where: his that beginning pending either assigned shown of the United States judge. any proceeding attorney opinion, : impartiality might that bias or is to be party, in or other including A himself in therein, judge. that a certificate of party may any has a to hear such judge interest, of the term it such timely as to ren- failure to connected heard, case. material is made proceed- but but not person- him or him before preju- judge in a pro- file an- or 6. U. S. Court of 7. The American Bar forthcoming dissent Judicial stated duced this ions at a later date.” Columbia Circuit Rule 11 concerning siding fiduciary, terest or other Motions for fy affected pose calendar will by As amended June notice to be case is of such a character as not to ties (a) (c) Standards of Judicial (e) n *! opinion the court. in suggestion oral disputed evidentiary proceeding; he he has a of that per of the ease without such Whenever interest stating Conduct, in his knows, p. argument, party curiam order and or his “reserved the ^[*] as soon as and that the outcome of the given by Association determination, proceed household, subject party, restoration to the that of a the condensed that could be personal Canon Appeals to the spouse supra. 22, 1970; ordinarily ^[*] he; individually party, or this matter court, the Clerk to the 3(C) (1) (1972). (e) provides may, proceeding, personal knowledge possible has a for the District of or minor child re- Special bias or Conduct, opinion facts The five concludes that a ^[*] sua in be entertained Feb. my after substance substantially financial to file proceeding; controversy concerning Committee sponte argument. one would be argument prejudice : Code of ^[*] or as a causing or to dis- judges repro- justi- opin- page par- any in- activity. objection obviously ir- cial stated that all futile peremptory to the tran- responsible manner counsel would have access script meeting prosecu- with the petition I sim- denied. which this ply urged majority’s agree tors where the cannot grand jury inquiry persons, handling appro- petition of certain was an of this Although including justice priate one defendant here. method to administer parte having ex important cases. he admitted additional ‍​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌​‌‌‌‌​​​​‌‌​​​‌​‌​​‌​​​​​‌​‌‍most of criminal Special Prosecution Force contacts with substantively, also be- I dissent More petition- personnel, refused peti- I that under the law cause believe hearing evidentiary request ers’ for an to relief. Petition- tioners are entitled independently he concluded because nothing divisible into four ers’ contentions are relevant to ease occurred categories. They general maintain regard meetings. those his tele- disqualify himself must vised statement defendants these (a) this case in view of his involvement trial in the Dis- could receive as fair a investigation prosecutorial and anywhere trict of as else Columbia evidence, (b) exposure to his his prejudgment States, Judge denied the United issue, (c) his of a material any or that this statement reflected bias alleged personаl outcome, interest in the prejudgment of a issue. material (d) representation in other cas- and his by es counsel in this case. Peti- some requested tioners also the district court I. (1) grant evidentiary hear- to them an judge may ei be Recusal a federal ing concerning develop to information voluntary, judge ther where a himself private meetings the Sirica’s with jus fair administration of believes the prosecutors and his submission by tice would be furthered recusal prosecution of a list of to be witnesses motion, does on his own or mandato so (2) grand jury, the to called before ry, by required A classic where statute. disqualification question refer to voluntary on recusal was statement of the court Calendar Committee district made Frankfurter Public Justice appropriate panel. as an disinterested Pollak, 451, Utilities Comm. v. 466-467, 822-823, 813, 96 L.Ed. agreed Special The in his Prosecutor (1952) added): 1068 might “it brief that be reasonable refer mat- all circumstances” to But it is also true that reason cannot ter to Calendar Committee control the influence subconscious curiae, the district court. amiсus As feelings of which it is unaware. American Civil Liberties Union has also ground believing When there urged both and this feelings may that such unconscious grant evidentiary petitioners to operate judgment, in the ultimate hearing they request. may unfairly lead others believe they operating, judges recuse are 1974, Nevertheless, April 30, on They judg- do not sit in themselves. opinion and order Sirica entered They variety ment. do for a himself, disqualify he refused guiding reasons. The consideration hearing evidentiary conduct an justice the administration of refer matter to a disinterested reasonably appear should disin- be panel.8 strongly relied The as be so in terested well fact. cited claim that all instances motion, Mandatory disqualification support of a feder- including preside particular judge’s prior al over a involvement premised investigation prosecutors’ either of stat- be two utes, 144, (1970).9 judi- 28 case, 455 course of official U.S.C. arose §§ supra. F.Supp. Mitchell, 9. See notes 3-4 1312 States v. 377 United 1974). (D.D.O.,

379 144, party presented ultimately dence deter- Section whenever Under guilt proceeding mine own mind оr inno- files Tynan cence of the defendants. v. timely and sufficient affidavit States, heavily supra, United relied on personal . has a . . court, the district we remanded the prejudice him bias either augment record to the trial party, such or in favor of adverse speedy record on a trial claim. Defend- proceed there- shall no further sought judge’s disqualifi- ants then in ... personal premised cation for bias on ac- alleged in facts the affidavit must tions taken or-statements made earlier being true, only question be taken as during were con- the same trial. We legally whether sufficient es judges disqualifying cerned personal prejudice.10 tablish bias or developed during very trial in which States, v. 255 United U.S. sought cripple would 41 L.Ed. 481 courts, disqualify and refused to (1921); Tynan v. United U. judge. Plainly, if such bias suffi- were S.App.D.C. 206, 209, F.2d cient, virtually every judge every ease denied, cert. disqualified would and the courts 19 L.Ed.2d 111 facts al abruptly functioning. would cease But leged with must material and stated logical prac- even this rule has both particularity. Thomp tical limits. As this court stated son, 1973); (3d McLean, App.D.C. Whitaker supra. States, cf. v. United We reversing (1941), 118 F.2d 596 because pleaded hаve held that if well the facts developed during “[i]f, trial, bias the satisfy statutory standard, judge the the over, judge’s ap- a before case is a bias must recuse if himself even he knows pears overpowering, to have become we Tynan them to be false. v. United disqualifies think it him.” supra, 209, States, U.S.App.D.C. 126 at 376 F.2d at 764. However, as the district court correct ly noted, judge presided a who at the requires Section 144 that the bias or original trial of a defendant is not nec prejudice “per- party for or a essarily disqualified trying from the re sonal” nature. This does not mean (citing Hanger trial judge that the must a be shown to have (8th 1968)), 398 F.2d it 91 nor is Cir. antipathy against venal the individual necessarily “improper the same merely alleged prej- but that the bias judge co-conspira to sit at the trials of apply udice must be shown to in some separately. tors tried United States v. way to the case of the Here individual. (2d DiLorenzo, 429 220-221 mistakenly district the court assumed 1970), denied, Cir. cert. personal that bias cannot be established (1971).” 29 L.Ed.2d 120 during when such bias arises the course decisions, F.Supp. 1317. The judicial proceedings. The do cases course, unanimous, are not since each “judicial” differentiate between and' depends upon particular in the facts “personal” bias, analysis but sound dem- degree of volved and- the nature and rigid onstrates that adherence to such labels, example, regard particular For without bias established. cir- cumstances, may result in a Womack, failure States v. 454 F.2d justice in individual cases 1972), appellant (5th tried was separately by pre who the same true, course, during that a appellant’s co-con sided over the trial of inevitably trial a will assess credibility During spirators. witnesses, of the co- the trial react to the evi- alleged legal sufficiency 10. affidavit is a Since facts of the affidavit are established, “clearly pure question taken as erroneous” of law. inapplicable; standard is determination of Especially proc- conspirators a due Id. at 465. from characterized appellant “shady perspective,11 clear that the character” ess seems as “judicial proceeding” jury can extend no told that if one of the co-con- rule “ preserve spirators guilty ques- necessary than ‘there no try ability [appellant] tion functional courts to but that ” culpable.’ would be Id. cases. as Although appel- moreover, court, district funda- guilt pro- judicial lant’s arose from a mentally reach the’ misconceived the ceeding, court held it satisfied he relied on eases in this circuit which “personal bias” standard of Section development proposition for the 144 and reversed the conviction. absolutely judicial proceeding bias Knapp Kinsey, And in 232 F.2d him from un- immunizes denied, (6th Cir.), cert. 352 U. subsequent case. der Section S. 1 L.Ed.2d 86 proposition from the broad derives This reversing (1956), a lower because court statement Grinnell United States during trial, appearing of bias the Corp., 563, 583, recognized analogy” the “close be which in- 16 L.Ed.2d 778 developed during trial, tween bias which resulting volved claim of from requires reversal, and bias evident pretrial judge in learned facts trial, requires disqualification context, proceedings.12 In this the Court Section formu critical alleged pre- bias and stated “[t]he lation of bias sufficiеnt to reverse was judice disqualifying to be must stem forcefully expressed by the court: extrajudicial from source result unconsciously otherwise, Whether in an the merits some ba- judge] trial [the failed the start from sis other than what learned view this case with the participation case.” impartiality litigants between However, argue: defendants were entitled receive. Neither Grinnell nor decision participation His active the case principle this Court has stretched questioning and in the witnesses preconceptions developed to sanction reasonably exceeded what was neces- ju- pro particular party con a from sary understanding to a obtain clear participation prior, sepa- in a dicial testimony fully what their and party rate where was not justifies appellants’ complaint that at present opportu- and had no therefore “he, figuratively speaking, times nity explain to in- controvert or the stepped down to as- the bench judge formation to which the was ex- sume the role advocate posed. Here, . . . ... all of plaintiff.” Although appellees’ coun- allegations relate to occurrences sel did not ask or need such assist- preceding present and comments ance, apparently realized times proceedings not in- indictments and possible prejudice cause, to their cluding these defendants. prejudicial appellants’ effect to rights requires judg- a reversal of the added). (emphasis Petition at 13-14 ment. is, parte obtaining then, the ex of evi- previous proceedings, dence where the Id. at 467 Where present opportunity no defendants had advocatory such bias “exist before [s] challenge, rebut, explain qualify to the trial furnishes the basis dis- evidence, signifi- potentially such qualification judge is of the to conduct the trial. Title Section Code.” cant. Grinnell, judge 11. See text at In 382-383 the trial referred the infra. question disqualification of his to the Chief Appeals. of the Court of recently spoke Watergate Supreme in the vortex of Court the so-called being dangers gravitational Gregg just v. United affair center such irresistably States, Watergate muсh of which drawn, necessarily (1969). Gregg involved has been has received L.Ed.2d 442 large relating quantum a of evidence Rule of Criminal Procedure Federal any report presentence provides the defendants without that a this case present opportunity part to the court on their submitted “shall be plead story prior their trial court’s for- unless defendant has . guilty.” culpabili- guilty In been mation of an their ed or has found strong ty. Gregg, analogous terms, persuasively unmistakably the Court great context, nature and that because of their demonstrates stated parte blinding unyielding trial manner in which the weakness of a the ex “ju- reports, broadly such sub adherence to the court receives conceived proceeding” gener- to conviction dicial mission to the rationale. See ally Small, kind” : is “error clearest (3d (suggesting 1972) 820-822 report equally is clear [I]t nondisqualifi- the broad rule of circumstances, not, be must in a cation retrial the same re- court” before “submitted light quires reappraisal searching a pleads guilty or is convict- defendant Gregg). report ed. Submission of the point еr- court before that constitutes The district misconstrued court also ror of clearest kind. the decisional law on the of this Circuit applied standard to Moreover, in the determina- tak- must rule employed lightly. tion of bias. The a reports trial court Presentence en require test, “bias in fact” which would documents which rule does not actually showing that a biased make available the defendant as disqualification right. before mandated. matter of no formal There are contents, limitations on their constru- hearsay rest on in- L.Ed. and contain ing Code, bearing Section 21 the Judicial formation no relation what- Supreme term “be- on the focused ever the crime with which the de- charged. permit lief” statute. fendant the ex To parte if the facts al- introduction sort Court stated that ma- leged reasonably pronounce terial could will affidavit who guilt cause the affiant to entertain or innocence belief defendant’s preside impartial, disquali- jury who will that a was not over required: seriously would fication was the rule’s contravene purpose preventing possible preju- of party of the section The belief premature dice from submission opinion concern, if makes presentence report. persuasion to nearer or farther belief, influence, and than both are of 491-492, (empha- Id. at 89 S.Ct. at 1136 regarded influence, universally as added). Gregg recognized sis that thus men, in determina- the affairs of resulting “possible prejudice” even the tive of their .... conduct parte, from evidence received ex albeit therefore, opinion, judicial proceeding, the same could We are of upon judge, placed and be- mandate information reversal.13 A trial an affidavit excep- and, Subsequent decision, report time”), Gregg with the 13. the Su- types preme adopted information con- Rule certain Court an amendment tion of provides report, 32, available in the it which now for a waiver of the tained inspection requirement noninspection as a matter of for his strict defendant guilty right. entry effect on Au- will take This new rule to conviction or of a April (U.S. (“a judge gust 1, plea may, 4551 42 1974. U.S.L.W. with the written con- 1974). defendant, presentеnce 23, inspect a sent of the 382 that, compensation section, involved there was lief satisfies regarded objec- that it is not to be “so small upon filing, if it show its ju- likely improperly disposition to influence inclination tionable discharge duty of his dicial officer judge, . . it is . duty . the case . . .” [I]n “proceed the case. no further” principle a constitutional courts this is This 41 S.Ct.

Id. at Berger, relying has held court, Coatings Corp. v. Conti- Commonwealth 21, the underlying policy Section the precursor 148, 145, Casualty Co., nental 393 U.S. 144, statute Section 337, 339, (1968) L.Ed.2d 89 21 301 S.Ct. of the United States the courts is that original). (emphasis And later impartial only be not “shall referring Court, to the them but submitted controversies on social rela- of Judicial Ethics Canon im- give assurance shall judges, “any tribu- tions of stated that appear e., to be im- partial”; shall i. try permitted by nal law cases and partial. only unbiased controversies must be 259, App.D.C. appearance McLean, 73 but also must avoid even the v. Whitaker 150, (1941) bias.” Id. at 89 at 340. F.2d 596 118 attempt distin- The district court’s ap adopted the circuit also has This guish persuasive. Whit- is not Whitaker pearance test, sрecific ref bias with “suggest each need for aker did not of issues erence nor follow his own conscience” disqualification agency administrative [significantly] distin- does “rest Finish In Career and cases. Cinderella F.Supp. at guishing factors.” 377 ‍​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌​‌‌‌‌​​​​‌‌​​​‌​‌​​‌​​​​​‌​‌‍FTC, ing Schools, U.S.App. Inc. v. 138 we Rather, in Whitaker at 1325 n. 160, (1970), 152, 583, F.2d D.C. 425 591 appearance adopted plainly hear remarked that administrative we premising the due test,14 decision on our ings attended, only “must with impar- process to a fair trial every of fairness but element with judge. tial very appearance complete fairness.” To same effect is our decision right, process regard to due With Texaco, FTC, U.S.App.D.C. Inc. 118 “jus- Supreme has said 754, F.2d va 760 jus- satisfy appearance of tice must grounds, other cated and remanded on 348 U.S. tice.” Offutt United 1798, 14 L.Ed.2d 85 S.Ct. 11, 13, 99 L.Ed. (1965). ap placed the We also have moreover, Court, appears (1954).15 pearance of on a constitutional bias test appearance of bias to have raised the level, very appearance “the of com level, at least test to the constitutional pletе required]. Only fairness thus [is interest, involving pecuniary cases conducting can the tribunal judge: small, part of a however on the proceeding require meet the basic [the] Ohio, Tumey For [v. process.” ment of due Amos Treat & (1927)] 437, L.Ed. 749 SEC, U.S.App.D.C. 100, Co. v. should the Court held that a decision “the there is be set aside where cases, slightest the courts pecuniary on the interest” than part specifically demand less of themselves re can they no and agencies. jected do of administrative Cf. the . . . contention that Courts, argued persuasively in Harv.L. for Bias the Federal 14. have Commentators (1966). appearance test, though Rev. bias even for the of rely majority in on the bias of courts Supreme 15. The remanded the case See, g., Disqualification Note, e. fact test. contempt charge before a for retrial of Judge Bias —The a Federal District for of judge than before whom different alleged contempt Under Section 57 Minn.L.Rev. Standard occurred. Judges (1973) ; Note, Disqualification 11. of Coatings Corp. Therefore, v. Conti- his conduct of a trial. alle- Commonwealth Casualty Co., supra, gаtions (c) present (d) nental 393 U.S. and no need for may be true at 340. further discussion. S.Ct. allegations However, (b)— (a) and stringent Judge alleged some- rule involvement in the Sirica’s [s]uch by judges prosecutor’s investigation have no trial who of times bar this case prejudgment who would do and his of actual bias and material issues weigh jus- —present very very questions. scales of best serious With contending respect equally allegations, tice between the these the detailed high alleged parties. perform facts in But its the affidavits are far way “justice lightly in must function the best frivolous and cannot dis- appearance justice.” satisfy the missed. 133, 136, Murchison, Petitioners’ include the fol- In re affidavits (1955) (em- lowing allegations 623, 625, specific 99 L.Ed. 942 to demon- merger added).16 prosecutorial ju- phasis strate a and alleged

dicial facts must functions. purpose be assumed true for the of test- II. ing sufficiency the affidavits. general light in of these Viewed allegations principles, particular 65 L.Ed. 481 relief. this case entitle Judge repeatedly 1. and con- Sirica maintain that Petitioners sistently interrogated defendants (a) disqualify must himself because of Watergate and witnesses in the prosecutor’s in- his involvement break-in trial “with zeal of a vestigation in the indict- resulted prosecutor.” App. B at 2. This ment and his of these defendants interrogation was “an effort to in- (b) exposure evidence; to some vestigate guilt beyond the matters his of material issues n or innocence be- defendants case; (c) personal his interest him.” fore arising public pos- the outcome from his App. B at 7 open” the ture as the man who “broke Watergate case; (d) past Watergate and his and [During 2. break-in continuing representation counsel afterwards,] trial and Siri- represent parties who in this case. expressed that crimi- ca the belief responsibility beyond nal extended reject allegations At the outset I higher convicted defendants categories (e) (d) included in Re- the Committee officials being legally grounds insufficient for elect the President mandatory disqualification. Siri- * * * He White House. experienced ca is an of ex- expressed higher belief ceptional competence. From our review officials were involved the Wat- years, cases over the I am confi- ergate matter. case, dent that neither his in this role inevitably App. publicized, representa- B at nor the legal positions by Special tion of his [Judge de- commented] any way suggesting Liddy Prosecutor would influence in that he fendant pure legal theory, certainly impractical many 16. In addition to there ble in- pragmatic advantages appear- actuality bias, several stances to determine First, defendant, objective ance of bias test. external and always manifestations are not public generally, only subjective legitimately guide a true to a state of expects judicial process Finally, disqualification but deserves a un- mind. appearance bias; premised appearance tainted even the con- on the does not judiciary large stigmatize tinued confidence him as would upon measure rests the fulfillment of that actual bias. expectation. Second, virtually impossi- it is pole appear on the totem to be defendants in this low was years thirty transcript while list. sentenced [The organized planned, chambers those who conference since has operation directed walked been made available to counsel. suggested streets free. Nine names were grand jury inquiry. One App. at 4. D appears defendant’s on the name effort coerce 4. In an admitted list, as well of three as names testimony in the defendants charged persons other who were Jury and before the Grand convicted related cases.] investigating committee Senate higher App. implicate offi- B at 10. which would cials, imposed condi- Sirica According newspaper reports 6. sentences.17 tional maximum July 18, dated June 1973 and 1973, Judge App. privately B at met on at least two occasions with Sirica took Watergate drawing Spe- up members of the extraordinary step of de- cial Prosecution Force. The offi- a Administration list six any tails of other unre- these prosecutors he felt the cials whom meetings ported private have ought put under oath public; been made affiants Jury lack Affiants Grand room. par- therefore unable to state with knowledge specific the names ticularity the number of such list since included that meetings place, seal, which have taken ordered it held participants, pur- dates, to assume that but it is reasonable poses, or substance thereof. or more the names of one might (30 mitigate extremely the sentence months and harsh sentences 17. This use of $2,000) speak a years, fine of if he elects more running “to and the threat as much as 35 fully” finally imposed a amend might violation of his fifth that such sentences right against everything ment self-incrimination. And disclose if the defendants did not they Vermeulen, F.2d 72 United States and those about related offenses knew (2d improper 1970), by therein, it was held not Cir. a been criticized involved prohibited where of sen England stated at the time the du- few. at one time years tencing jailing five prisoners by on two counts to consecu sentence to ress of cooperation imprisonment tive “that future others: accuse impact prevent prisoner.- could have a favorable before abuses Duress of —To (em parole power hоard.” 436 F.2d by the law the extensive federal phasis added). gaolers, obliged repose in it is enacted any ran Ill, The sentences here from 35 to 40 by if c. 14 Edw. statute years. 4208(b), Moreover, imprison- great § 18 U.S.C. gaoler duress of too upon imposing such which the court relied sentences, any prisoner, hath in that he makes ment ward, appellor was intended to aid the court approver an become determining proper aid is, a sentence and not to will; against see as we shall through prison- prosecutor duress of hereafter, evidence and turn to accuse obtaining er, felony other offenses. person; evidence of it some other language nothing in either For, There is gaoler. Coke ob- Edward Sir the serves, history legislative in- (a) the statute or its induce or lawful is not compel just intended to be used dicates it was a accusation man even to excite testimony. another; duress to do it much less Sweig were and Vermeulen decisions imixrisonment; least of all lighter sentence than the instances where prisoner gaoler, is committed whom the justified inducement hеld out as offense custody. for safe prisoner There is if he testified. Blackstone, to the nothing improper Commentaries II W. Cooley this does not in this. But (4th England & T. ed. Laws imposition justify harsher sentence original). of a 1899) Andrews J. for, or the threat the offense calls imposing than cas two instant sentences sentence, prisoner refus- Sweig, because such es were cited. United thinks information the (2d 1972), es to disclose held that F.2d 181 sentencing he should. he a defendant who tells investiga- ly conspiring to obstruct the App. B at 12-13. tion into the break-in. any of that not contend do Petitioners Judge times At Sirica assumed improper the in were these occurrences prosecutors’ even more role in the active they The occurred. in which context investigation of At a cham- this case. disqualifica- Judge question of Sirica’s January 24, 1973, at bers conference on depend present in the case does tion prosecutors which the and three attor- finding legal in con- error his of on a neys representing in the defendants Watergate trial. break-in the duct of Judge present, break-in trial were Sirica allegations the here is whether The issue suggested prosecutors they that respect his con- with the affidavit of call nine the named individuals before of a frame that demonstrate duct in grand jury. Although any he disclaimed accusatory sufficiently mind that accusatory intent, one of individu- those they petitioners to indicate that these grand jury als was indicted the and the fair in could receive case, now a defendant in and this present man accuse case. No subsequently charged three others were though judgment. Thus, in even also sit Judge Judge in related convicted cases. may have been actions Sirica’s alleged repeatedly actions in in- Sirica’s justifiable perfectly in the context terrogating concerning in- witnesses the Watergate case, conduct his break-in others, using volvement of the sen- deter- here to there must be considered tencing process testimony im- to coerce possible mine whether it demonstrates plicating higher officials, sug- prejudice the defendants gesting grand jury inquiry further in the instant indictment. including named individuals a defendant allege during and The that affidavits here, publicly demonstrated an accusato- Watergate trial and after break-in ry frame mind connected sentencing Judge proceedings, Sirica present defendants to crime with “expressed re- that criminal the belief charged which are now —obstruct- beyond sponsibility the convict- extended ing prosecution Watergate higher ed defendants to officials break-in.18 to Re-elect the President Committee Also troublesome is existence “planned, who had the White House” parte further ex contacts between organized [Watergate] and directed prosecutors, and the details 3; operation.” App. App. B at D at unavailable Through the evi- rely court. Petitioners news- ap- dence adduced at trial paper private of at least accounts two parently an at- to believe came meetings between Sirica and tempted cover-up Consequently, existed. prosecutors. opinion denying allege, trial and affidavits both at motions meetings admits during sentencing pressed continually he Special Force with Prosecution to reveal defendants and witnesses personnel asserts, proceed- but “These higher officials who directed ings included no discussion evidence organization. clandestine The defend- any bearing guilt innocence present among ants case are case nor discussion defendant and identifiable narrow class such remotely F. the kind.” even higher who were in effect ac- officials suggests Supp. at allegations quoted cused the above meetings “were necessitated these grand charged relating and who are unlawful- now with the Court’s duties Although Judge preside suggest- inappropriate him Sirica’s action dered investiga- ing grand jury investigation en- trial which resulted proper tirely Murchison, and commendable con- tion. See re trial, text of the earlier 99 L.Ed. 942 involvement prosecutors’ investigation may ren- have just you, they neither went back and juries,” but discloses as id. at meetings flyer, purpose he—in con- nor Sirica when of such subpoena subjects nection with the discussed. issue— which were part tapes hears of the and hears is allegations, petition In view of their says Chotiner’s name He [sic]. develоp the facts sur áre entitled ers Silbert At- [Assistant meetings rounding parte with the the ex torney conducting Watergate in- having judge, prosecutors. assisted A people vestigation], these I want sub- may indictment, bringing of an poenaed Murray and that’s Chotiner process due of law with not consistent preside says, and others. And well Silbert indictment, trial of that at the Jury he’s been to the and this Grand Murchison, 75 S. In re see nothing name has to do with He it. (1955), and such L.Ed. 942 Ct. calling has been about ever [Sirica] prosecutorial judicial involvement subpoena. since— disquali require process is sufficient * * -x- The facts under Section 144. fication No sir. And he—we have no evidence regard may alleged by petitioners in this against him. requisite already “fair constitute the *x- * * * -x- apprehension support” for a reasonable principle It’s become matter of with prejudice. disqualifying See bias subpoena will We us. not him. We. subpoena him. no reason to have 65 L.Ed. 481 The denial of evidentiary petitioners’ request for an (cid:127)* ^[*] # ^{[*] [*]} -X- hearing deprived petitioners subpoena him And just us Sirica wants fully opportunity of the to demonstrate I think the hell of it. judicial 'degree the prosecutorial to which These Id. 913-14 at may coa functions have parte allegations suggest repeated ex An in this case into accusation. lesced evidentiary investigative contacts and affirmative hearing concerning num by Judge The facts de- Sirica. conduct ber and nature of contacts between prosecutors hearing may evidentiary veloped at con and the could be allegations support these delay without undue and would ducted provide in favor their natural inference against reversal some assurance fair, only prosecution, of the but it is grounds after trial on the of bias satisfy only the fact but order prejudice. appearance justice, explore opportunity al- these have an hearing evidentiary The need for an hearing. evidentiary legations at an highlighted by further appearing a conversation Tape in the Presidential

Transcripts which were released subse- III. filing quent petitioners’ affida- allege Petitioners’ affidavits vits. Submission of Recorded Presiden- by public commеnts that televised tial to the Committee Conversations Sirica indicate Judiciary Represent- of the House can re- defendants issue whether these atives President Richard Nixon of Co- trial District ceive fair (April 30, 1974). transcripts reveal incident, as described lumbia. Judge following Henry statements Mr. Sirica, as follows: occurred Attorney Petersen, the Assistant Gener- questions Transcripts and an- charge al of the Criminal Division televised, swers, in re- show later Department Justice, in a conver- any sponse question there “Is April ‍​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌​‌‌‌‌​​​​‌‌​​​‌​‌​​‌​​​​​‌​‌‍sation with the President your these men’s mind about doubt (1:39-3:25 P.M.): get abilities [defendants bar] stated, “I they, they the Court fair trials?” So after concluded all just get questions can think have names what fair expressed any judgment in the District Columbia as and also would be court in the I free to rule United States. the defendants with- federal charges prejudice. that. Thank out have no doubt about the inevitable you.” subject Therefore, least, Judge When the was raised again, responded, “Well, ruling should recuse himself on the my opinion, any defendant, person change defendants’ motions for of venue. happens who defendant in this be a get jurisdiction, my opinion he can IV. just any juris- as fair a trial here as Finally, Judge I have no doubt country.” diction the disqualify Sirica’s refusal to is himself F.Supp. (emphasis by

377 at 1324 reviewable All mandamus. The Statute, 1651(a) Writs 28 U.S.C. § that, “fairly Sirica maintains provides: merely interpreted,” his statements were Supreme The all Court and courts quality addressed to “the of federal Congress may established Act of judiciary in of District Columbia” necessary appropri- all or issue writs changes and did not concern of venue. respective jurisdic- ate in aid of their However, interpretation this seems too usages agreeable tions Certainly reporter narrow. principles of law. asking Judge quality about the Judges power the trial of Co- District Under this statute we have the Considering phrasing cases, lumbia. issue a writ of such mandamus question respond- present one, subject to which as the which are ed, equally interpretation jurisdiction. appellate an fair is that ou'r eventual La Buy Co., 249, his comments v. reflected a Howes Leather 352 U.S. ability 254-255, 309, on the material issue 77 S.Ct. L.Ed.2d 290 1 (1957); Evaporated receive a fair trial this Roche v. Milk 938, Ass’n, 21, 25, minimum, district. At a the statement 319 U.S. 63 S.Ct. 87 certainly appearance pre- (1943). created an L.Ed. 1185 Issuance of however, judgment, discretionary, and in writ and the circuit it is the is this appearance justice only exer- discretion should which is crucial. be court’s supra exceptional See text interest at cised cases 381-383. States, justice. g., v. United Will E. Prejudgment of a con material issue 95, 269, 90, L.Ed.2d 19 389 U.S. 88 S.Ct. disqualifying prejudice stitutes (1967); Evaporated Milk Roche v. 305 See, g., Records, Section 144. e. Peacock Ass’n, supra, 319 63 S.Ct. U.S. Records, Inc., Inc. v. Checker F.2d 430 938; parte States, Ex 287 U.S. 85, (7th 1970), denied, 89 cert 401 241, 248-249, 129, 53 77 L.Ed. 283 S.Ct. 975, 1193, U.S. L.Ed.2d 324 28 (1932). question here is whether (1971); Knapp 458, Kinsey, v. F.2d 232 among petition “really is those ex- 461, (6th Cir.), denied, 462 cert. 352 U. traordinary causes” which warrant 892, S. 77 1 L.Ed.2d S.Ct. 86 parte Fahey, of mandamus. Ex use 332 (1956). may The venue issue be the 258, 260, 67 L.Ed. S.Ct. 91 important question most in the case. (1947). publicly announcing After his views issue, only traditionally been be difficult for The writ change opinion regardless to a Sirica to an inferior court used “to confine his prescribed juris- may develop parties what exercise of its when the lawful argue compel brief and its au- questiоn. or to it to exercise diction Cf. Cin duty Finishing Schools, thority derella it is its to do so.” Career when & Inc. FTC, Ass’n, supra, Evaporated U.S.App.D.C. 152, 159, Milk 425 Roche (1943) at 941 A different (cid:127) judge (emphasis added). would 144 and 455 Sections unencumbered pressure above, prior, publicly confer a to sustain of Title discussed against ing affidavit, judge upon requiring duty the trial proceed no disqualify it is directed “shall whom he “shall himself” further”, therein, proceed but another no “shall designated in the manner shall interest which he has substantial * * * prescribed in section 23 personal prejudice. If affida- alleges And reason hear such matter.” facts suffi- vit under Section 144 easy disqualification, then is judge to divine. To commit to require cient upon truth but a decision has no alternative the trial disqualify gives evil for the has “no the facts chance He himself. lawful power preside on- which the directed. section remedy by appeal inadequate. upon indict- the trial of defendants trial, preju- “duty ‘proceed no It comes ment” and has after if evil, exist, its and a dice it has worked case.” further’ reviewing judgment 36, 35, it in tribunal precarious. (1927) goes there 233, L.Ed. fortified added). by presumptions, and^nothing can be appropriate Mandamus is though duty remedy more or decision elusive estimate to enforce even of disposition may question than a a mind which also reviewable personal ingredient. appeal. long ago there deci- is a As recog- sion, supra, Supreme Court Id. at 41 at 234 S.Ct. post- nized the difficulties inherent poning disqualification of a deci- review recog- majority A clear circuits sion until after the trial has occurred: disqualify judge’s nize refusal solicitude [The statute’s] himself mandamus.19 is reviewable country only tribunals shall many either In courts have decisions impartial sub- the controversies (or prohi- granted a writ mandamus them, give mitted to assur- but shall or, considering bition) un- a formal writ impartial, free, to ance that — necessary, judge to the trial instructed section, use the words of the from disqualify In a number himself.20 prejudice” might “bias or disturb recog- other the courts have decisions impartial judg- the normal course of special nized that circumstances accomplish ment. And this end justify the use of review mandamus presiding withdraws from section disqualify, refusal to but concluded upon a decision truth of petitioner’s insufficient alleged. affidavit was explicit declara- matters Its upon that, making require Only disqualification.21 tion and fil- three App.D.C. Moore, 193, (1971), 19. 9 J. Federal 110.13 454 F.2d 1036 cert. Practice U [10], (1973) ; denied, Note, Disquali- 906, 1609, L. see at 187-88 406 U.S. 92 S.Ct. 31 Judges (1972) (mandamus granted fication Ed.2d Justices in the Feder- 816 736, compel Courts, attorney). al 86 Harv.L.Rev. & n. 13 738 (1973) ; Comment, Disqualification In- Pfizer, Lord, (8th Inc. v. 456 F.2d 532 Judges, terest Lower 71 Federal Court Cir.), denied, 976, cert. 406 92 U.S. S.Ct. 538, (1973). Mich.L.Rev. 547-50 2411, (1972); 32 L.Ed.2d v. 676 Wolfson (2d (2d 1968); Bryan, Palmieri, v. United 393 F.2d 90 396 F.2d 121 Cir. Ro States 1968) ; Corp. Sugarman, (2d v. sen v. Cir. Occidental Petrol. 357 F.2d 794 Cir. (10th 1962), 1966) Chandler, ; Corp., In re Leader F.2d 303 F.2d 55 Cir. Union 292 718, (1st Cir.), 927, denied, 915, denied, 9 cert. 372 83 381 cert. 368 82 U.S. S.Ct. U.S. ; (1963) ; Ritter, 361, (1961) L.Ed.2d v. L.Ed.2d 722 United States v. S.Ct. 7 190 Foster (10th denied, Medina, (2d 1959), 1948), 170 F.2d 632 Cir. cert. 273 F.2d 30 Cir. cert. 950, 863, denied, 909, 412, 4 362 80 869 L.Ed. U.S. S.Ct. L.Ed.2d 335 U.S. 69 S.Ct. 93 (1960) ; ; McLaughlin, ‍​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌​‌‌‌‌​​​​‌‌​​​‌​‌​​‌​​​​​‌​‌‍(1949) Letts, U.S.App.D.C. v. 230 F.2d 442 Hurd v. 80 Gladstein (9th 1955) ; 233, (1945) Connelly ; Dilling 762 152 F.2d 121 v. Cir. (9th Court, States, U.S.App.D.C. District 191 F.2d 692 142 F.2d 473 79 Co., 1951) ; (1944) ; Paper v. In re Oil Cir. Honolulu Consol. Minnesota & Ontario Co. 1917). (8th 1934) ; (9th Molyneaux, Ya 243 F. Cir. also See 70 545 Cir. 1913). Workers, Henry Speer, (5th blonski v. United Mine U.S. F. 869 appear deny concept circuits mandamus all is within traditional alleged disqualification22 instances of mandamus. In Will v. United right The fundamental to be tried be (1967), 19 L.Ed.2d 305 important impartial judge fore an is as Supreme Court cautioned over- rights prior to as other enforceable trial use of the writ of mandamus and reem- Queen Wood, Dairy In mandamus. phasized that mandamus is not a substi- 894, 897, n appeal tute for in criminal cases. Supreme L.Ed.2d 44 emphasized Court sought that case the Government manda- responsibility of the “the prevent mus to grant Appeals Federal Courts man compelling the Government to disclose necessary protect damus where which of the defendant’s oral statements right by jury constitutional to trial rely upon. it intended to court Theatres, .” See also Beacon granted appeals but writ the Su- Westover, Inc. v. preme reasoning reversed, that al- 3 L.Ed. 988 Our own lowing challenge the Government to ad- utilized mandamus to secure other rulings by verse mandamus would inter- rights fundamental of criminal defend fere speedy with the accused’s to a example, ants. For have we held that strong trial and would circumvent the mandamus to trial is the best policy disfavoring appeals federal preliminary method to correct defects Government in criminal eases. Id. at proceedings, though they even are re 98, 88 S.Ct. 269. appeal viewable on after If trial.23 The Will decision does not mean that mandamus is available secure the mandamus is to unavailable review right by jury right to trial to preliminary ruling in a criminal case. (which pretrial proceedings errorless 97, 107, See id. at 88 269. S.Ct. As Jus- does guilt concern the accused’s ultimate pointed concurring tice Black out in his innocence), right then to be right opinion in Will: impartial judge, tried before an a words, would a [I] like add few grounded process, in fundamental due which I do not understand to be certainly protection by warrants the writ says, conflict with what the Court of mandamus. See In Leader re Union concerning the writ of mandamus. I Corp., 381, (1st Cir.), 292 F.2d 384 cert. agree that an mandamus is extraordi- denied, 927, 361, 368 U.S. 82 S.Ct. 7 L. nary remedy which should not be used (1961). Judge Friendly Ed.2d 190 As except extraordinary circumstances. explained Legal Society Aid v. Her And I also realize that sometimes the lands, 343, (2d 1968), 399 F.2d 346 Cir. granting may bring of mandamus denied, 649, 1033, cert. 393 U.S. about the review of a case as would an (1969): 21 L.Ed.2d 577 appeal. deprive Yet this does not a goes Refusal of recusation to the con- power its to issue the writ. stitution of the tribunal is to extraordinary which Where are there cir- trial, conduct the cumstances, an if issue which mandamus used jurisdictional “arbitrary in an interlocutory an review order which is sense, technical” . . . ex- comes appeala- no means “final” and thus ceedingly jurisdiction closeto and thus ble under federal statutes. is- [T]he Realty Will, See Action U.S.App.D.C. v. Co. 427 F.2d Blue v. United 119 (7th 1970) ; 315, 321, 843 894, Cir. Albert v. United States 342 F.2d 900 cert. de Court, (6th 1960), nied, 944, District 1029, 283 F.2d 61 Cir. 85 380 U.S. S.Ct. 13 L.Ed.2d denied, (1965) ; King, cert. 81 5 964 see United States v. 157 (1961) ; Murphy, U.S.App.D.C. (1973) ; L.Ed.2d 706 Green v. 259 F.2d 482 768 (3d 1958) ; Sirica, F.2d 591 U.S.App.D.C. 10, Cir. Korer v. Hoffman. Ross v. 127 380 F. (7th 1954). 212 (1967). F.2d 211 Cir. But see 2d 557 Rapp Dusen, (3d v. Van 350 F.2d 806 Cir. 1965) (instructed special presented). circumstances 390 profound interest national tant case of mandamus the writ suance will trial exceptional it is estimated that since proper finds a court where months, believe we or- take several support an such circumstances justice appro- make the interests der. its priate for this to exercise (Black, at 280. Id. power issue the recusal decide also, v. concurring). J., Thornton See this time. the merits at F. Corcoran, U.S.App.D.C. 407 132 Response at 9. Moore, for the United States (1969); Federal 695 9 2d J. (1973). 110.28, at 309-14 Practice circumstances, postponing these Undеr ff subsequent to be noted that should also vital, issue trial on this fair a decision re Circuit Will decision Second gross to a maladministra- amount would is available mandamus affirmed justice. stated As Hastie tion disqualify judge’s refusal review concurring v. opinion in Green in his Herlands, Society Legal Aid (3d himself. Cir. Murphy, F.2d 1968), (2d cert. 399 F.2d 1958): denied, 1033, 89 S.Ct. challenging special, very L.Ed.2d 577 charge partiality often sensational present case The circumstances justice in the administration extraordinary sufficiently to war- by a formal affidavit is initiated Mandamus the use of mandamus. rant re prejudice should sought here the defendants’ to enforce oppor adjudication first ceive final right process tried before due impartial only public tunity, in the interest if fundamental Moreover, a —a confidence courts. Moreover, the trial. very fair essential likely proceed in a is not trial satisfactory profound ignore nation- court cannot way claim if an unsettled involving a form- trial al interest present judicial an ever bias is Attorney several former General and er Only irritation. tension and source of Sirica,

presidential aides. Cf. Nixon ruling dis a final the matter 58, 65, U.S.App.D.C. higher court before interested (1973); dispel aura. this unwholesome can Court, 444 F.2d District refuses, appellate Thus, if court an aff’d, 1971), (6th prevent properly petitioned, when disqualified L.Ed.2d n. case, trying judge from ordering By banc considera- en say challenged or to that the necessarily tion, determined this court postponement of disqualified, this question petition that the “involves hurts the administration decision Fed.R.App.P. exceptional importance.” justice, though the even court reserves Spe- 35(a) Even pass upon the aft matter acknowledges man- cial Prosecutor out er trial. weigh considerations far Such procedure appropriate damus ap objections piecemeal this case: ordinarily peals which militate deciding on mandamus an issue which We that the instant case believe n can reviewed after trial. Another one of the in which [review rare cases objection mandamús, its normal extraordinary is warranted. writ] challenge character as a addressed posi- below, In we took himsеlf, has no force here appropriate tion that would prejudice because the affidavit the Dis- Committee of Calendar challenged already question trict Court to decide imaginable. way personal most judgment of “since considered given panel

that three would be V. weight appeal the heaviest any protracted conclusion, I ma- convictions dissent from the important reasons, jority’s summary disposition im- case.” For like argu- ‍​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌​‌‌‌‌​​​​‌‌​​​‌​‌​​‌​​​​​‌​‌‍exceptionally impor- portant en banc oral since this is an case without opinion. Moreover, I and without* ment have made a suf- believe showing require an eviden- ficient concerning

tiary hearing number parte ex and nature of Sirica’s prosecutors. At the

contacts with the very

least, Judge recuse Sirica should ruling on

himself from the defendants’ change of venue—an issue

motions for conveyed appear-

on which he has prejudgment. Finally, I would

ance of strongly suggest refer panel question

to a disinterested allegations of affidavits

whether the

charging judicial involvement process

prosecutorial issues, allegations

of material contested, compel disquali-

cannot be Special

fication. Prosecutor con- American Civil Liberties Union suggestion. in this cur latter foregoing opinion not be should

construed as a conclusion that prejudiced. is in fact biased justice appearance is the con- me. cerns In a case as momentous judicial

this, system maintain must unquestionable fair, appearance allega- justice.

even-handed Petitioners’ sufficiently appearance

tions cloud the justice require affirmative action

by this court.

UNITED STATES America PRYBA, Appellant.

Dennis E.

No. 24788. Appeals,

United States Court of

District of Columbia Circuit. 2,1971.

Argued Nov. July 29,

Decided

Case Details

Case Name: John N. Mitchell v. Honorable John J. Sirica, Judge, United States District Court for the District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 25, 1974

Citation: 502 F.2d 375

Docket Number: 74-1492

Court Abbreviation: D.C. Cir.