Scott v. United States

745 and remand Accordingly, we reverse injury, that preceding Mrs. Sandoe’s sion new trial. to a directed not entitle the Sandoes did reasonably find that juryA could verdict. part. reversed in part; Affirmed defective condition nature of the as to be such subtle character grate was of only by extraordinary in

discoverable beyond requirements of

vestigation particular cir care under

reasonable See, Racquet Brown v. e.g.,

cumstances. Bricktown, A.2d at 30 supra, 471

Club of (character of defect determine and duration SCOTT, Jr., Appellant, Monroe W. opportunity existed reasonable whether v. it). resolution of this issue discover STATES, Appellee. UNITED weigh the factors jury to requires the negligence 85-206, actions: ordinarily govern which 86-423. Nos. con likelihood that “the landowner’s] [the Appeals. District of Columbia Court others, taken the seri injure

duct will happens, 1988. injury Argued Oct. ousness against the interest which balanced May [the Decided must sacrifice to avoid landowner] U.S.App.D. Arbaugh’s, supra,

risk.” 94-95, (quoting F.2d at 95-96

C. at (2d O’Brien,

Conway 111 F.2d v. (L. Hand, J.));

Cir.1940) see Peterson 7, 199

Balach, at 648 n. supra note N.W.2d (relevant consider jury factors for the under

include “the circumstances (licensee invitee); enters the land or

entrant harm; duty

foreseeability possibility or warn; inspect, repair, or reasonableness opportunity inspection repair; correction”). repair

and ease of refusing incorporate portions

By requested instruction on

of the Sandoes’ charge factors in the

the relevant provide the

jury, the trial failed to guidance in its

jury with sufficient determi- consti-

nation of what land owner behavior care under the circum-

tuted reasonable Therefore, in- case.

stances of this Wingfield deficient. v. Peo-

struction was Stores, Inc., 379 A.2d 688-

ple’s Drug Wells, (D.C.1977); 73 A.2d Reese v. (D.C.1950). That the Sandoes were argue jury

permitted to required Lefta of reasonable care

exercise inspect grates does

periodically judge has the the error since the trial

cure jury of the rele-

obligation to inform applied in its legal principles to

vant

deliberations. Klein, Service, Defender

James Public with whom Maureen T. Cannon Jenni- Service, Lyman, fer P. Public Defender D.C., brief, Washington, were appellant. Pilchen, Atty.,

Saul M. Asst. U.S. diGenova, Atty., Joseph whom E. at filed, and the time the brief was Michael Mitchell, W. Farrell and Zinora M. Asst. D.C., Attys., Washington, were on the brief, appellee. EN BANC

ON REHEARING ROGERS,* Judge, Before Chief NEWMAN, FERREN, TERRY, MACK, SCHWELB, STEADMAN, and Associate PRYOR, Judge.** Judges, and Senior ROGERS, Judge: Chief appropriate remedy We must decide the 3(C)(1) for a violation of Canon American Bar Association’s Code Judi- requires cial Conduct which that “[a] ^[*] Judith W. Judge on November time of argument. Rogers was an Associate Her status changed Judge at the Chief ^[**] on November argument. William C. Pryor His status 1988. Chief changed Judge to Senior at the time of At for United States Executive Office in a proceeding himself began in October might reasonably torneys. discussions impartiality op Murphy mentioned when questioned.” Code Judicial Conduct In 3(C)(1).1 Management judge presided trial Office Director Services, (OMISS) formation, Support prosecuted by the United States and a trial Columbia, a Attorney of for United States for the District Office of the Executive contemplating Department Attorneys, of the States he was division United Justice, negotiating the change was and learned that while the in 1985 career employment the Executive Office Director the Debt for with of Assistant for position Attorneys Depart for United States Staff vacant.3 On October was Collection defendant, 10, 1984, appellant 1984, Judge 31, of Justice. The ment and on December Scott, Jr., judge’s learned the Director who Murphy Monroe W. had lunch with he had Di negotiations position after been sentenced in detail. The described appeal he had an from his convic and noted advised that the Debt Collection rector special oversight guid harmless error Applying provided policy tion. and Staff Acquisi test of v. Health Servs. Liljeberg collection units ance debt 2194, U.S.-, Corp., Attorneys 108 S.Ct. tion States Offices across United OMISS, (1988), operated part 100 L.Ed.2d 855 we hold that Scott country and to record-keeping is entitled a new trial. essentially systems management function. computer

I. position was The of Assistant Director did di against managerial The case of nature and not have the United States Scott, Jr., The of litigation as- Director appellant Monroe W. was rect control. position Judge Murphy Tim “sub signed Judge Murphy for trial to on fered the to C. 15, prosecutor higher approval.”4 On December ject November 1984. was 24, 1984, Judge Attorney Murphy told the Director an Assistant United States Following District interested of Columbia.2 that he was Judge motions to discuss the matter Murphy’s denial Scott’s asked Director for suppress superiors. Judge Murphy and to was identification evidence with his bond, February mally job release Scott trial commenced offered the on or about on be- jury 6, days later he fore a November 1984. 1985. Two advised jury guilty Judge Superior found in- Court and Scott assault with Chief kill 22- on Judi tent to while armed. D.C.Code District of Columbia Commission §§ (1981 Supp.1988). -3202 & Janu- cial Disabilities and Tenure that On 15,1985, 28, 1985, accept ary Judge by April Murphy sentenced leave bench imprisonment thirty- position of “senior liti Collection Scott twelve Debt counsel,” given him filed a a title of distinction years gation six fined Scott $500. Judge Murphy’s judicial timely appeal. recognition notice position. During sentencing, Scott’s trial fact Judge did not disclose the engaged Murphy was discussions counsel negotiations to Scott Department the United States of Jus of his attorney first learned of employment

tice as an at time. Scott about bearing Appendix originally recusal issue I. This case de- The facts on the 1. See 3. Judge Mur- affidavit filed are set forth three-judge panel, v. United cided States, Scott phy to vacate after Scott had filed his motion (D.C.1987). June 536 A.2d On dis- judgment and are not in of conviction granted rehearing the court en banc pute. panel opinion. vacated Murphy’s affidavit 4. It is unclear from Columbia, States In the District of the United was ex- which luncheon the conditional offer Columbia, Attorney for the District of which is appeal purposes of it is to him. For this tended Justice, part Department States United prospect employment of his sufficient prosecutes seriously violations of the Columbia District of discussed at both meet- at OMISS (1981). 23-101(c) ings. D.C.Code § criminal code. judge’s negotiations employment Criminal is concerned with the Department pathology approximately body politic. of Justice In admin- law, istering the two criminal weeks after he had been wield sentenced. surgical the most awesome instruments February On an article in the society. trial, A criminal it has well Washington Post announced Mur said, been atmosphere should have the phy’s pending Superior retirement from the the operating presiding judge room. The August 20, Court. On with leave of atmosphere. determines the He is not an court, Scott filed a motion vacate his umpire who enforces the rules of the sentence, conviction and D.C.Code 23-110 game, merely a moderator between (1981), grounds adequate contestants. If he is to his failure to employment negotia disclose the function, authority moral which he tions violated the American Bar Associa inspire indispensable radiates will tion Code of Judicial Conduct and denied dignity austerity upon standards of and process due Scott of law. The motion was participate those who in a criminal trial. Walton, denied Judge Reggie citing States, v. 1, Sacher United 37-38, 343 U.S. States, Womack v. United 129 U.S.App. 451, 468-469, (1952) 72 S.Ct. 96 L.Ed. 717 407, (1968), D.C. 395 F.2d 630 on the (Frankfurter, J., dissenting). See also ground inappropriate it would be Byrd States, v. United 400, 377 A.2d 404 unnecessary to resolve Scott’s claim since a (D.C.1977) (“The judicial essence of the role appeal direct pending and Scott could neutrality.”).5 is judicial raise the issue disqualification public To judiciary obtain trust in the appeal from the denial of his motion. judges required high to adhere to stan- timely appeal. Scott filed a Since the issue generally conduct. See dards of Code of judicial recusal is before us on an ade According to the chair- Judicial Conduct. quate record, we turn to that issue. man of the ABA committee which drafted Conduct, the Code of Judicial the Code was II. designed protect public confidence in the judges independent since “[a]n Our justice system criminal is founded on judiciary indispensible honorable is an public’s faith in impartial execution justice condition of Judi- society.” our important duties actors in that Disqualification: cial Hearings on S. system. Young v. United States ex rel. Improve- the Subcomm. on 1064 Before S.A., Vuitton et Fils 787, 810-811, 481 U.S. ments in Machinery Judicial the Sen- 813-815, 2124, 2139, 2141, 107 S.Ct. 95 Comm, ate Judiciary, Cong., 93d (1987). L.Ed.2d 740 It beyond dispute is (1973). 1st Sess. 80 judges perform that the trial unique pervasive role in system: “confidence 3(C)(1) Canon of the Code of Judicial judiciary is essential to the success provides part: Conduct in relevant “A functioning ful of our democratic form of pro himself in a Quat government.” United States v. ceeding in impartiality which his trone, 240, (D.D.C. 149 F.Supp. 242-43 questioned....” Code of 1957) J.). (Youngdahl, eloquently As 3(C)(1) stat (emphasis Conduct Judicial ed Mr. added).6 Justice Frankfurter: necessity for recusal in a 5. The Framers of our perfectly Constitution were aware completely should be rendered necessity independent, nothing impartial judiciary of an to influence or within con- []_’’). trol governmental him but God and his conscience O’Donoghue our structure. See v. States, 740, United 289 U.S. 53 S.Ct. 6. The American Bar Association’s Code of Judi- 743, (1933) (" complete 77 L.Ed. 1356 'The inde- applies cial Conduct of the District of pendence peculiarly of the courts of is Superior Columbia Court and the District of Constitution.”') essential in (quoting a limited Appeals. Columbia Court of 1973 D.C. Courts (A. Hamilton)); The Federalist No. 78 Chief Jus- Rep. 8; see, Evans, 984, e.g., In re 411 A.2d Ann tice John Marshall’s Remarks at the Debates of (D.C.1980) (reversing 996 conviction for crimi- Virginia (“It State Convention of 1829-30 is contempt grounds judi- nal on degree important, judge] to the last that he [the 3(C)(1) (1972)); cial bias in violation of Canon

749 making.’ judicial impersonality of decision premised objective on standard.7 case Nobel, 231, F.2d 235 States 696 incorporated into the United 3(C) Because Canon denied, 462 U.S. 1118, Cir.1982), cert. (3d statute, qualification 28 federal (1983). See 3086, 1348 77 L.Ed.2d 103 S.Ct. II, 455, Appendix federal deci see U.S.C. § Note, Disqualification generally, instruct interpreting the statute are sions the Federal Judges and Justices Thus, deci even the recent ive.8 Courts, 736, (1973). 746 86 HaRV.L.Rev. Liljeberg, Supreme sion impropriety nor bias in fact actual Neither 2194, -, supra, 108 S.Ct. Hall v. the Canon. required to violate 855, from the federal L.Ed.2d it was clear Admin., 695 F.2d 175, Business Small opinions must circuit court Cir.1983) (federal disqualifica (5th 178-79 any is “an recuse case in which there is revealed statute “focuses what tion prejudice of bias sufficient public, opposed to average reasonably to permit citizen preju existence in fact bias judge’s impartiality.” Unit question [the] ... extend to ... dice cannot [and] Heldt, U.S.App.D.C. ed States v. virtue”). judge’s actual de (1981), cert. F.2d nied, 102 S.Ct. Superior as a served (1982) (footnote L.Ed.2d 440 and citations eigh for over in active service omitted). re objective The standard is he senior sta years before assumed teen ensuring justice quired tus, reputation in the interests of good his is not at issue and maintaining pub case in the individual of the Canons based here. Violations judicial 'unquestionably a difficult appearances lic confidence is people can harbor process “depends on a belief in the area which reasonable which Berliner, 1225, (D.D. (look 1981) opinions construing F.Supp. federal feder- Hatteck v. 427 1240 C.1977) Bell, (Code rule); specifies interpreting of Judicial Conduct rule in identical local al disciplinary (cases "conduct which warrants action” construing supra, at 233 28 373 A.2d accordingly supplements D.C.Code guide Super.Ct. § U.S.Code 144 construction 1526(a)(2)(C)(1981) provides for judges for § which 63-1). 11— Civ.R. the removal of District of Columbia (Supp.1988) provides per- 28 U.S.C.A. 455 § "any prejudicial conduct is to the ... which part: tinent justice brings or which administration (a) Any judge, magistrate justice, or Bell, disrepute"); into In 373 office re cf. United States shall himself in 63-1, 232, (D.C.1977) (Super.Ct.Civ.R. A.2d 235 impartiality might proceeding in which his prejudice or bias violation [Emphasis reasonably questioned. be added]. 3(C)(1) (1972)). Appendix Canon See I. uses The federal statute the word "shall” rath- explicit 7. The Canon makes that its statement of is er than but the semantic difference "should" required legal Although in which recusal is is not significance. instances without "shall" Appendix directive, all inclusive. See I. In Justice’s clearly mandatory one use most defines view, merely expressing is of the word "should” not since, ground believing goals auxiliary aspirational there is that such "used in func- [w]hen feelings may operate obligation, expresses duty, unconscious in the ulti- ‘should’ necessi- tion judgment, may unfairly expediency.” mate lead oth- ty, propriety, Webster’s Third they operating, judges ers believe re- Dictionary English Lan- New International They judgment. cuse do not sit in (1969). commentary themselves. 2104 The guage Unabridged They variety for a do this reasons. 3(C) accompanying it is Canon indicates that guiding is that the consideration administra- contemplated appropriate circum- "[u]nder appear tion stances, judge’s] impartiality that ‘[a fact so in well as be fact. disinterested might reasonably questioned’ under Canon 451, Pollak, Public Utilities Comm'n v. 343 U.S. 3C(1) disqualification." may require ... his 466-67, 822-823, 813, 1068 72 S.Ct. L.Ed. 3(C)(1) commen- Canon Code Conduct of Judicial (1952) J., (Frankfurter, concurring). added). tary (emphasis promulgating, 1973, April Conduct for the Code Judicial 3(C)(1) substantially language 8. The Canon Judges, upon which was based United States statute, similar U.S.Code federal Code of Judicial American Bar Association’s 455(a) (Supp.1988), governs con- which Conduct, of the United the Judicial Conference duct to con- of federal and is intended 3(C). "shall” for “should” in Canon States substituted Liljeberg,supra, form Canon 3(C)(1). 7, 7, at-n. 108 S.Ct. at 2201 n. L.Ed.2d Code Conduct for United Judicial 3(C)(1), reprinted in 69 F.R. Appendix at 871 See v. Canon n. 7. States, II. See Warren States Judges 821, 273, (D.C. (1973). United 436 A.2d 841 & D. n. 45 Nevertheless, differing presented States has conceded that views. United presid- us, Judge Murphy violated with the facts before the court con ing imposing trial and in sentence Scott’s that there is a violation of Canon cludes during employment negotiations. From 3(C)(1) presid when the trial violation, follows, the United prosecution ing at the the United States concedes, that learned States also had Scott Department through of Justice the United negotiations prior during of these to or Attorney’s actively negoti States Office trial, he would have been entitled to the ating employment Depart with the issuance of a writ of if the trial mandamus ment’s Executive Office for States United judge had declined to recuse himself from Attorneys. presents This circumstance See, Accordingly, the case. e.g., id. specter partiality that the Canon and the post-trial must relief to determine the Supreme judges scrupu Court entreat all which Scott is entitled. lously employment sought to avoid. The ap- The traditional harmless error rule “oversight the trial involved re cases, plied in criminal Kotteakos v. United sponsibility policy guidance to the Debt States, 1239, 328 U.S. 66 S.Ct. Collection Units in the United States Attor (1946)(nonconstitution- 90 L.Ed. 1557 offices,” ney’s consequently from the error); Chapman al harmless perspective average person,” of “the a ful Califor- nia, 386 U.S. 87 S.Ct. ly person might reasonably ques informed (1967)(constitutional harmless L.Ed.2d 705 tion whether the “could decide the error), focuses on the harm that an requisite case with the aloofness disin error the trial has on the outcome seeking] employment terest when [was case, has inherent limitations. As prosecutor’s office in executive [in Young, supra, described in 107 S.Ct. at department prosecuting] Pepsi the case.” analysis harmless error “is best suit- McMillen, (7th Inc. v. 764 F.2d co, ed for the review of discrete exercises of Cir.1985). change The situation does not courts, judgment by informa- lower where general judge’s reputa because of the trial possible tion is available that makes it to among colleagues tion legal and the gauge the decision on the trial effect of a community. change simply Nor does it as a whole.” traditional harmless er- The prospective employer because the is a com rule, moreover, presumes ror the existence ponent Justice; Department of the the Clark, impartial judge. of an Rose v. negotiations employment at issue for with 570, 578,106 92 L.Ed. S.Ct. directly prosecutor’s a unit linked to the (1986). 2d 460 ethically analogous negotia office are employment large private tions for with a addition, In a review of the record Posner, by Judge law firm. As stated prejudice for actual under the traditional dignity independence judi “[t]he harmless error standard would be incon ciary are diminished when the comes 3(C)(1) goal sistent the with Canon lawyers before the in the case in the role of prevent improprie even the suppliant employment. public Indeed, ty. goal if the of recusal were cannot confident that a case tried under simply protect litigants from actual such conditions decided in accord will be prejudice, logically it would follow that the highest judi ance tradition of litigants provide Canon that could would ciary.” Accordingly, Id. we hold that they waive conflict believed 3(C)(1) Murphy violated Canon impartial. when judge nonetheless be But presided only Scott’s trial while he was permits the Canon waiver limited actively seeking employment applicable with the Ex here. circumstances not See 3(D).9 Attorneys. ecutive Office for United States Conduct Canon Code of Judicial 9. See Appendix Litigants Although Appendix expressly I. § federal see II. al- disquali- courts can never waive conflict set forth in lows the to waive a trial 455(b) any proceeding impar- which includes the § conflicts of Canon fication "in in which his id., 3(C)(1)(c) (d). 455(e) (1982); tiality might questioned,” 28 U.S.C. ifor pro- year contract within one negative implication of the construction waiver partiality rezoning Loyola’s adjacent land appearances is that the vision 3(C)(1)(a) (b) accomplished. can At the proscribed hospital Canon was litigants regardless time, judge, waived a trustee of never be the district court immateriality litigation the Canon violation. over Loyola, presiding was Thus, implicitly recognize party, Canons Services brought by a third Health appearances impropriety Lilje- are so (HSA), some Corp. with whom Acquisition that, purposes of the compelling given the negotiated for construction berg had Canons, they can be waived or be never HSA hospital on a different site. deemed harmless. own- Liljeberg had transferred claimed of need ership of a state-issued certificate Furthermore, a defendant is not re if the hospital Consequently, it.12 for a quired prejudice to show from a violation Liljeberg’s resolved in litigation was not 3(C)(1) set of the standard favor, Loyola trigger buy-back could would affect the outcome trial bene- provision thus lose financial extraordinary order to be entitled to the hospital’s construc- fits associated with Pepsico of mandamus. v. McMil writ See judge, sitting with- tion. The district court len, 764 F.2d at 461.10 supra, Liljeberg’s testimony jury, out a credited -— -, supra, Liljeberg, pursuant to oral conversations be- Supreme 100 L.Ed.2d S.Ct. ownership parties transfer of tween the appear- had to Court decide whether the condi- subject need was the certificate of judicial impropriety gives rise to a ance of had not satisfied. tions which HSA remedy fully retroactive without an actual Ten months after the United States attempt prejudice to measure whether Appeals had Fifth Circuit only provides the harmless error rule judgment Liljeberg, HSA affirmed remedy litigant could prospective unless learned that the district Loyola prejudice.11 University actual show Loyola University Lilje- trustee of while sell a tract land to had contracted to of its berg negotiating Loyola and that Liljeberg hospital, for the construction aof regularly trustee subject buy-back Loyola to a clause attended hos- trigger Liljeberg meetings progress did secure a in which the of the could not provisions represent waiver de- Court federal a clear 11. The observed: provisions parture from ABA the waiver of the Although 455 defines circumstances § govern Code of Judicial Conduct in Dis- disqualification that federal mandate case, course, Scott's trict of Columbia courts. prescribes prohibits it nor judges, neither waiver, and does not involve the definition duty. remedy particular for a violation of that may be the circumstances under which waiver Congress wisely delegated judiciary has 3(C)(1) is consistent with Canon not before us. fashioning that will the task of the remedies McMillen, purpose legislation. serve Pepsico, best v. a 10.In Inc. "head hunter” — 2203, at-, acting at on of the district S.Ct. at 100 L.Ed.2d behalf court U.S. 108 appear- contacted law firms of counsel ing litigants behalf em- about future Liljeberg, circuit were not Prior to courts Although judge. ployment for was agreement error rule whether harmless character,” sterling "of unblemished honor and remedy required a the absence retroactive Appeals the Seventh Circuit Court of concluded showing Compare prejudice. Servs. Health a it was enter- inevitable "would (5th Liljeberg, Acquisition Corp. v. 796 F.2d 796 significant justice be tain a doubt would 180, Cir.1986) Hall, supra, 695 F.2d at case,” done in the and "wonder whether 1518, Murphy, 1540 States 768 F.2d United v. might not at some level McMillen unconscious Cir.1985). (7th definitively not the firm that had favor ... 460, rejected him.” at 764 F.2d 461. The essential the success- 12. The certificate was for acknowledged that it reached its conclusion re- hospital; hospital operation it a ful of a without luctantly, necessary but it notwith- considered qualify health reimburse- would not care standing the law declined fact that the firms had payments ment under federal medicare employment consider the for future programs. medicaid indication was and there disappointed, no that the set condi- since he had several employment. tions for future 752 discussed, busy judges inadvertently in- ted negotiations was

pital project negotiations cluding disqualifying the success of the a circumstance. overlook of the certifi- depended upon the issuance remedy draconian There need be a Supreme Liljeberg. need to cate of 455(a). It every violation of § judge had violated held that Court adopt equally wrong, 455(a) gave because his conduct rise § against any prohibition relief absolute impropriety, and that appearance involving forgetful judges. cases entitled to relief under HSA was Fed.R. — -, 2203, at 100 Id. U.S. 108 S.Ct. 60(b)(6)13 though judgment even Civ.P. omitted). (footnote L.Ed.2d at 873-74 is not an had become final.14 “[SJcienter However, the traditional the Court viewed 455(a),” element of a violation of Justice § inappropriate prejudice harmless error test majority of the Stevens wrote for the impropriety taints where Court, and while lack “[t]he proceeding inadequate the entire knowledge disqualifying circumstance of a repeatedly accomplish the Court has what question remedy, bear on the ... to that criminal affirmed vital impar- "that ‘his does not eliminate the risk — -, system. Id. U.S. 108 S.Ct. questioned’ by tiality reasonably be Vuitton, 2203, 874-75; — 100 L.Ed.2d at see at-, 108 persons.” other Id. U.S. (“narrow at 2138-40 focus supra, S.Ct. 2202, Relying 100 L.Ed.2d at 872. S.Ct. at analysis is not sensi of harmless error ... requirement of a of actual absence underlying to this concern “an tive [that 455(a), knowledge compared to .its § faith impropriety diminishes 455(b)(4),15 requirement in and on ad- justice sys of the criminal the fairness purposes promoting vancement of the Ins. v. general”]); tem in Aetna Co. public confidence Life 813, 823, Lavoie, 106 S.Ct. 475 U.S. at-, judicial process, id. (1986)(concern 872-73, 89 L.Ed.2d 823 about S.Ct. at 100 L.Ed.2d at appearances constitutional dimensions rejected statutory has the view that involving process); In re Mur applied prospectively violation should due see also 133, 136, 623, 625, only, holding proper chison, “in cases” the 349 U.S. 75 S.Ct. applied retroactively provision (1955); can be L.Ed. 942 v. United Offutt establishing special 11, 13, harmless error test States, 11, 14, 75 S.Ct. ; determining remedy Ohio, when retroactive (1954) Tumey 273 U.S. L.Ed. appropriate. 71 L.Ed. 749 47 S.Ct. (1927). It therefore concluded that acknowledged every The Court that not required violation an automatic reversal of determining judgment whether judgment: a violation of should be vacated for 455, law, appropriate it is to consider the in of the there is As other areas § injustice parties the surely room for harmless error commit- risk of 60(b)(6) Loyola provides in relevant the transactions between the 13. Fed.R.Civ.P. part: with the board commit- and had no connection responsible negotiating the sale of land. tee just, upon On motion and such terms as are thought They that considerable also the fact party a final the court relieve a ... from * * * entry judgment passed of time had since the following judgment the reasons: ... for Also, weighed against granting relief. the dis- (6) justifying the other reason relief from judge pointed made no senters out that the trial judgment. operation The motion shall rulings acquired knowledge. See after he actual within a reasonable made time.... — 2207, U.S.-, Liljeberg, supra, 108 S.Ct. at 60(b)(6). Super.Ct.Civ.R. is identical to This rule C.J., (Rehnquist, dissenting, 100 L.Ed.2d at 878 J., Scalia, White, J.). joined by Justice dissenting justices 14. The took issue with the O’Connor, dissenting, have remand- also knowledge majority view that constructive the case to the lower courts for the determi- ed be the a violation of 455 and § could basis for extraordinary nation of whether circumstances judgment that the should be set aside under — justified setting judgment. aside the Id. U.S. 60(b)(6). They thought that the “extraordi- Rule 2209, at-, S.Ct. at 100 L.Ed.2d at 881. 108 60(b)(6) nary limitation in Rule circumstances” applied retroactively not be since the Appendix judge personal trial had no financial interest in 15.See II.

753 (citations omitted). case, These tiality.” Id. particular risk that the denial of guidance for determina- provide facts our produce injustice other relief will undermining post-trial tion relief to which Scott cases, of risk public’s judicial pro- confidence in the entitled. continuously bear in cess. We must First, it remarkable the Court considered perform high its mind that “to function judge, regu- had that district court satisfy way ‘justice must the best 1977, larly meetings since attended trustee ” justice.’ University’s “completely forgot about the — at-, 108 supra, U.S. S.Ct. Liljeberg, hospital having interest in constructed — 2204, (quoting 100 at 875 In re at-, at L.Ed.2d 108 Id. property_” its U.S. 136,

Murchison, 75 supra, 349 U.S. at S.Ct. 2205, 100 L.Ed.2d at 875-76. S.Ct. at 625). at “an coin- Court also viewed as unfortunate had the fact that the missed cidence” applying special harmless error meeting place the trustee that took after analyzed risk test the first that Court two-day and while he still had the trial public judiciary faith would be under- ease The Court fur- under advisement.17 mined a result of the violation. The as “remarkable —and ther characterized is, course, dependent extent the risk quite inexcusable” that the failed surrounding upon the circumstances when, only days recuse himself a few after Accepting finding on re- violation. opinion, again filed he once had mand, at the time of trial the did that knowledge Loyola’s in- actual obtained knowledge Loyola’s actual in- suit; if terest in the law then dispute ownership of terest in the over interests, could havé disclosed HSA need, certificate of the Court noted that filed a motion for a new trial within personal forgotten by are often concerns period following entry 10-day authorized busy judges. problem, federal Id. “The -, judgment. at 108 however,” wrote, Id. U.S. “is Justice Stevens that 2205, 876.18 The S.Ct. at 100 L.Ed.2d at people who have not served on the bench willing impropriety final fact which created the indulge suspi- are often all too failure to acknowl- concerning cions and doubts was the very edge, denying HSA’s motion to vacate judges.” pur- M16 Since “[t]he 455(a) pose promote judgment, is to confidence in the that he had known about § judiciary by avoiding appear- Loyola’s shortly even the interest imme- impropriety possible,” ance trial. These “facts diately whenever after the Id. “critically important precisely deemed it kind of create 455(a) identify impropriety a case of this kind to the facts intended to at-, objective prevent.” cause an at ob- Id.-U.S. S.Ct. question judge’s] impar- Consequently, server trial 100 L.Ed.2d at 877. [the at-, n. S.Ct. n. 16.The Court recalled its recent decision in Aet 813, Lavoie, supra, na Ins. Co. v. at 875 n. 12. L.Ed.2d Life holding S.Ct. 89 L.Ed.2d there where, process of due without a a violation meeting indicated "that 17. The minutes of influence, finding of actual was sufficient that University representatives monitored the possible sitting on the case ‘“would offer a trial, progress but did not see fit call to average temptation judge to the ... to ... lead judge's conflict of in- attention the obvious nice, clear him to hold the balance not university having terest that resulted 825, (quoting true.’” Id. at 106 S.Ct. at 1587 preside that trial.” Id. trustee over Monroeville, 57, 60, Village Ward v. 409 U.S. (1972), in 93 S.Ct. 34 L.Ed.2d 267 turn 18. In the Court’s view: 532, quoting Tumey, supra, 273 U.S. at S.Ct. at that would have full disclosure time A 444). finding at The Court noted that even “[a] any questioning completely removed basis by another with the difficult task —faced Judge's impartiality have made and would upon passing of a fellow mem possible to decide for a different colleague his ber of the bench—that or her knowledge, the interests —and whether merely possessed constructive —of by justice a retrial. knowledge, unlikely significant would have been served not actual — ly quell skeptic.” Id. Id. the concerns of view, 532, the Court’s statutory 444, violation at U.S. 47 S.Ct. at or actual was “neither insubstantial knowledge nor excusable” of his or her interest the case since the should have known his judge presides. at the time the Liljeberg, — fiduciary litigation, interest in the and since at-, supra, U.S. 108 S.Ct. at itself, stay may, failure to informed Further, 100 L.Ed.2d at 872. a retroactive 455(c). have constituted a violation of remedy available, § showing without a Id. prejudice, upon actual balancing of three injustice particular to the litigants, Addressing risks— whether denial of relief will injustice litigants to other as a result of produce cases, injustice in other the Court affording relief to particular litigants, that, opined resulting rather than in injus- undermining public confidence in the cases, tice in other vacating judgment judicial system. Although this is not the prophylactic have value since it occasion to variety define the of circum- might prevent a injustice substantive in a stances in which a new trial would be re- by future case encouraging greater sensi- quired for 3(C)(1), violation of Canon tivity to the underlying concerns § whether mandamus relief would or would among litigants prompt dis- warranted, not otherwise be the Liljeberg upon discovery. closure Finally, Id. test identifies the relevant factors to be respect particular to fairness to the liti- taken into account the trial gants, as Lilje- Court noted that neither determining well this court in berg Loyola nor showing had made a appropriate remedy for a “special Canon violation. hardship by reason of their re- — Accordingly, adopt Liljeberg liance original judgment.” harm- Id. at-, less error test for violations of 108 S.Ct. at Canon L.Ed.2d 3(C)(1), (footnote omitted). at 877-78 and conclude that Scott’s HSA’s conviction mo- tion for timely, relief was must be vacated and Scott the ten-month afforded a new delay after affirmance of trial. judgment Liljeberg being solely occasioned by the Viewing the nature of the violation judge’s district court failure to and its public’s effect on the faith himself; delay further was occasioned judiciary, persuaded we are objec that an failure to disclose his involve- difficulty tive observer under

ment at the time HSA filed its motion to standing not, did at vacate. Accordingly, using as its hallmark throughout time Scott’s trial and proposition sentenc guiding consid- “[t]he ing, problem” realize “the eration others is that the administration of might question impartiality. Unit reasonably appear to be disinterest- Attorney ed States fact,”19 ed as well for the District of as be so in Co the Court lumbia had filed the viewed the indictment and an judgment vacatur of the As as “an sistant U.S. eminently Attorney presenting sound disposition and wise government’s at-, this case.” against Id. case Scott. While S.Ct. presiding at Murphy L.Ed.2d at 878. Scott’s trial seeking employment directly relating Liljeberg thus makes clear that operations of United States Attor 3(C)(1), incorporated see neys’ offices. note sufra, envisions a continuum of may conduct which or- require only We can Murphy conclude that judgment. vacation of a experienced must what have been an inad- partiality, only and not partiality, actual appreciation vertent lack signifi- violation, statutory constitutes a and no respect cance of his conduct to Canon showing required 3(C). has His continued discussions with the either a direct financial interest in the liti Director of OMISS demonstrated that ob- gation, see, e.g., Lavoie, supra, 475 taining U.S. at job important new was to the 1590; 106 S.Ct. at Tumey, supra, judge. The discussions involved a series of Pollak, supra 19. Public Utilities Comm'n 466-67, note 343 U.S. at 72 S.Ct. at 823. motion. The United continuing throughout granting Scott’s events discrete assigned States, society to representing time that case was the interests of Scott’s provided Judge Murphy has, course, each occasion important obvious and opportunity court, for the to become interest, avoiding, in as does this problem” “the that Scott and oth- alert to circumstances, usual the vacation under suspicions might “indulge and doubts” ers a defendant has not suf- a conviction when — at-, partiality. Id. his about harmless prejudice under traditional fered By at L.Ed.2d at 875. 108 S.Ct. analysis. societal involved costs error 23,1984, he to when had decided December necessarily pro- trial cause us to in a new in accept the Executive Office granting in retroactive ceed with caution Attorneys, had States for United that significant it is Consequently, relief. himself from case. duty to recuse Scott’s suggested not there the United States has present kind of “precisely facts These hardship in special retrying Scott. would be impropriety” that Canon Further, government’s reliance interest 3(C)(1) prevent. to Id. designed clearly great as as it would cases injustice in other As to risk appeal had been Scott’s from his conviction relief, agree granted we should Scott be Scott filed his motion to vacate affirmed. Supreme Court’s observation from his appeal briefs in his direct prophylac- that Liljeberg relief would have filed, to and his failure conviction been reported That there are tic value. few Judge Mur- act earlier was attributable to involving a of Canon decisions violation employment failure disclose his phy’s to 3(C)(1)suggests judges that sensitive are discussions. systemic Can- by needs served not claim his trial That Scott does that requirements on’s for recusal disclosure Judge Murphy actu- unfair that was that a with waiver. The fact conscientious against ally dispositive. him is not biased Judge Murphy’s find caliber would Supreme The factors deemed himself confronted with concession determining significant Liljeberg that Attorney the United States that he violated apply appropriate case which to was an 3(C) indicates, however, is a Canon there present in remedy retroactive Scott’s encourage need to careful examination Furthermore, our case. review litigants and judges circumstances that trial demonstrates like record 3(C). giving rise to under concerns in- Judge Murphy intimately judge, Liljeberg, Supreme In con- Court was case, conduct.of problem busy federal volved with the Scott’s cerned with the complex though not sit trier of court who handle cases he did as the even easily forget personal can Id. matters. made factual determi- fact. at-, L.Ed.2d 108 S.Ct. at credibility denying involving nations A in- comparable at 873-74. circumstance ev- suppress motion identification to Scott's voking concern exists urban request for a self denied idence also engulfed with cases to de- judges who are objec- and overruled instruction defense con- We no on to cide.20 basis which during misconduct prosecutorial tions pro- granting relief Scott will clude special Liljeberg closing argument. Hence, injustice cases. there duce in other moreover, clear, error test makes harmless its this court slacken is no warrant for place hardly appropriate to sensitivity responsibility to assure to at- a criminal defendant burden heightened. purposes of the Canon is Rather, duty judge’s integrity. tack a judicial conduct in accordance ensure Finally, perceive little or no risk resides, part, least particular litigants the Canons unfairness understanding throughout eighteen and retiring, Judge Murphy the need for noted almost years He had served for as an active sabbaticals. half of service one years presiding judge three of the Crimi- principally the Criminal Division. served Court, Superior Division and it is our nal this court.21 public assure the continued confidence in integrity the of the judiciary.23 fully appear- Insubstantial and excusable of partiality unlikely ances justify will be Accordingly, judgment the denying the new trial in in a a criminal order case to motion to vacate is reversed case and the 3(C)(1) purposes assure that Canon of for a remanded new trial.24 here, are fulfilled.22 What occurred how- Reversed remanded. ever, who, involved a trial at all while he presiding times Scott’s trial APPENDIX I was, sentencing, Scott, unknown BE IT judges RESOLVED: All on active seeking employment either accepted Appeals Superior the Court of and the prose- the executive office federal for all Court shall conform to the Code of Judicial prosecutors cutors while one of those adopted by Conduct of House Del- prosecuting Scott. A for remand resen- egates of the tencing American Bar Association inadequate would be to cure the Provided, Indeed, August 1972: That harm. the commendable conces- (1) by prohibition against sions United States remove arbitration point applica- doubt mediation Canon E along case falls at shall not be the continuum of by proceedings conduct reached ble to authorized law the requires new trial order to Small Claims and Branch of Conciliation 21. recently Hence, This court has its reaffirmed view of divisions the court. need not recusals centrality appearance im- unduly Superior inconvenience the In- Court. partiality bell, justice system. Camp- to our In In re deed, Congress 455(e), adopted when § (D.C.1987), involving 522 A.2d 892 the dis- litigants limits the circumstances in which can barment of a former trial for conviction narrowly waive a conflict more than ABA turpitude (receipt a crime of moral of an Conduct, Congress recognized Code of Judicial illegal gratuity act, on or because of official that its stricter treatment of waiver would not 201(g)), in violation of 18 U.S.C. § burden the administration of the federal courts’ embraced, "correctly captur[ing] society’s ex- assigned caseload because the case could be to a pectations judiciary," for members of the judges: number other statement the District of Columbia Board on disqualification while ABA Canon on Responsibility part: Professional which reads in permit waiver than [in more instances [Wjhen contemplates judi- one the essence of ], 455(e) committee believes that confi- office, society power cial commits enormous impartiality judges dence of federal judges, particularly into the hands of trial by a enhanced more strict treatment waiv- judges, abiding because of an faith that those approximately er. are There 667 federal judges impartially will act without fear or * * * judges, active and retired. The statutes con- Society grants judges favor. such enor- ample authority judges assign tain power exactly chief mous because itsof confidence judges judges replace other either a circuit or fairly impartially. will act * * * words, jus- appearance other district court who becomes dis- [sic] important qualified. is as tice as the fact of H.R.Rep. 93-1453, Sess., judgment those who Cong., where sit in are con- No. 93d 2d re- precisely strongly cerned. It is of our because printed U.S.Code Cong. & Admin.News beliefs held about the and the fact 6357. impartiality judges subject are ethical standards that we 23. Had the connection between the excruciatingly high prosecutor * * * put impose way, on them. employment another sought by and the the trial society protect judi- remote, must been more our conclusion of need system people cial so that will submit their for vacation of a conviction well dif- disputes ments, system judg- to that and abide its underlying ferent. The ethical considerations part, at least in own free their will. applicable are no less Canons to the U.S. at 896. Id. Department firm, private of Justice law than to a but need not decide whether Under the Canons the can trial either negotiations employment any attorney or, recuse himself or herself in limited circum- Department United States Jus- stances, giving inform the matter necessarily objective tice would ob- cause an impropriety to an rise in order to question judge’s impartiality. server to they willing whether determine or not 3(D), any objection. supra. waive See Canon 24. In view of our Superior disposition, fifty we do address has over trial who, rotating assign- ap- from time to time of error receive claims raised in Scott’s direct peal ments the Chief to one five from his convictions. dignified,

(3) patient, judge should be A jurors, litigants, witness- and to courteous (2) Court, purposes of and Superior es, he deals and with whom lawyers, others resolution, 3 D be amend- Canon shall require and should capacity, in his official writing” by striking “in from ed the words staff, his lawyers, and of conduct of similar subdivision sentence such second officials, subject to his and others court deleting final sentence thereof: and and control. of the re- direction further, That lieu Provided 6 C and requirements in Canon porting duty pro- hear all Commentary: The to C(4)(c) file judges such Canon 5 such shall patience is not fairly ceedings and with financial statements with the Commission dispose duty to with the inconsistent as are and Tenure on Judicial Disabilities the court. promptly of the business 11-1530 required by D.C.Code and business-like Courts can efficient V, 1972), regulations of such (Supp. and being patient while and deliberate. Commission. testimony judge of a as a character The to re- applicable resolution shall be This his office injects prestige witness serving on a tired both courts into he testifies proceeding periodic continuing or basis to extent an official may and be misunderstood to be respect section of the Code to however, Canon, does testimonial. This compliance provisions of makes the such against testify- privilege not him a afford or applicable part-time judges Code re- ing response to an official summons. judges. tired (4) every Committee will as an advis- per- The Joint act A should accord to ory body any judge requesting an in- proceed- in a legally son interested who terpretative ruling respect particu- right ing, lawyer, his full to be heard or lar factual situations that arise. and, according law, except as authorized law, consider ex neither initiate nor

This resolution shall become effective on concerning parte or other communications February A pending impending proceeding. BY THE ORDER OF JOINT COMMIT- judge, may obtain the advice of a TEE ON JUDICIAL ADMINISTRATION. expert applicable disinterested law gives if he proceeding to a him before BAR ASSOCIATION CODE AMERICAN parties the person notice to the consult- OF JUDICIAL CONDUCT advice, ed the substance opportunity affords reasonable CANON respond. A Judge Should the Duties Perform against Commentary: proscription Impartially Diligently His Office concerning proceeding communications prece- of a take duties lawyers, includes communications law all other His dence over activities. teachers, persons are not and other judicial duties include all the duties of his except participants proceeding, prescribed by perform- law. In the office does permitted. extent It limited duties, following ance these stan- consulting preclude judge from with oth- apply: dards personnel whose judges, er or with carrying judge in out function is to aid the A. ADJUDICATIVE RESPONSIBILI- adjudicative responsibilities. TIES. proce- often desirable appropriate An (1) A should be faithful law advice of a dure for a court to obtain the professional competence in it. maintain legal expert on issues is to disinterested unswayed by partisan He should be inter- him to file a brief curiae. invite amicus ests, clamor, public of criticism. fear (5) dispose promptly (2) A A should maintain order and proceedings him. of the court. decorum business

(iv)the reproduction will be exhibited only purposes for instructional edu- Prompt Commentary: disposition of the cational institutions. requires court’s judge business a to devote Commentary: Temperate judi- conduct of adequate duties, punctual to time his to be proceedings cial to is essential the fair ad- in attending expeditious court and in deter- justice. ministration of The recording and submission, mining matters under and to reproduction proceeding of a should not officials, litigants insist that court and their proceeding. distort or dramatize the lawyers cooperate with him that end. (6) A judge public should abstain from B. ADMINISTRATIVE RESPONSIBILI- comment a pending impending about or TIES. any court, proceeding require and should (1) judge diligently discharge A should part per- similar on the abstention of court responsibilities, his administrative maintain subject sonnel to his direction and control. professional competence judicial adminis- This prohibit judges subsection does not tration, performance and facilitate the making public from statements responsibilities administrative of other course of their official duties or from ex- judges and court officials. plaining public proce- information the (2) judge A require should his staff and dures of the court. subject court officials his direction and personnel” “Court Commentary: does not control observe the of fidelity standards lawyers proceeding include the in a diligence apply him. judge. gov- The conduct of lawyers (3) judge appro- A should or initiate take erned DR7-107 of the Code of Profes- priate disciplinary against measures Responsibility. sional judge lawyer unprofessional or conduct (7) prohibit A broadcasting, should judge may of which the become aware. televising, recording, taking photo- or Commentary: Disciplinary measures graphs in the courtroom and areas immedi- reporting lawyer’s include miscon- ately adjacent during thereto sessions an appropriate disciplinary duct to body. sessions, court or except recesses between judge may that a authorize: (4) A should not make unneces- sary appointments. He should exercise his (a) the photographic use of electronic or power appointment only basis of presentation evidence, means for the merit, avoiding nepotism and favoritism. perpetuation record, of a for other or compensation He approve should not purposes administration; appointees beyond value of the fair servic- (b) the broadcasting, televising, record- es rendered. ing, investitive, or photographing of cere- Commentary: Appointees in- monial, proceedings; or naturalization referees, clude officials such as commis- (c) photographic or electronic record- sioners, special receivers, masters, guardi- ing reproduction of appropriate court personnel clerks, ans and such secre- proceedings under the following conditions: taries, parties and bailiffs. Consent (i) recording the means of will dis- appointment to an compen- or an award of participants impair tract dignity sation does not relieve the proceedings; prescribed obligation by this subsection. (ii) consented, and the DISQUALIFICATION. C. being consent depicted or recorded has been appearing obtained each (1) witness A himself in recording reproduction; proceeding in impartiality questioned, including but not (iii) reproduction will not be exhibited limited instances where: proceeding until after the has conclud- been appeals ed and all direct (a) ex- personal have been has a or prejudice bias hausted; concerning party, personal knowledge personal financial

form himself about spouse minor children interests of concerning evidentiary facts disputed residing in his household. proceeding; (3)For purposes of this section: (b) lawyer in the matter he served as lawyer whom he controversy, or a (a) relationship is calculat- degree during practiced served previously law system; according to civil ed law lawyer concerning the such association as a According to the civil law Commentary: has matter, lawyer or judge or the such degree relationship system, third of the it; concerning a material witness been would, example, disqualify the test lawyer governmental Commentary: A in a father, grandfa- spouse’s if his judge his or necessarily an associ- not have agency does ther, brother, uncle, or husband niece’s that lawyers employed by ation other proceeding, a in the party lawyer were or meaning the of subsec- agency within if a disqualify him cousin but would tion; by gov- formerly employed a a proceeding. in party lawyer a or the were disqual- agency, should ernmental (b) “fiduciary” includes such relation- impartiali- in a if his ify proceeding himself executor, trustee, administrator, as questioned ships ty might be because guardian; of such association. he, (c) individually a knows or as that (c) ownership “financial interest” means re- fiduciary, spouse or or minor child his interest, legal equitable of a or however household, in- siding in his a financial has director, advisor, small, relationship or a controversy in subject terest in the matter in participant the affairs of or other active proceeding, party the or or a party, except a that: substantially other interest that could be (i) common in- ownership a mutual or by proceeding; the of the affected outcome that is not a fund holds securities vestment (d) person his spouse, he or or a within in such un- “financial interest” securities of degree relationship the either third manage- judge participates the in the less them, spouse person: a or the such fund; ment of the (1) proceeding, party a to the or an is educational, (ii) religious, an an office officer, director, party; or trustee of a fraternal, charitable, organization or civic (ii) proceed- acting lawyer a in the is not a “financial interest” in securities is ing; by organization; held Commentary: lawyer The fact in a (iii) policy proprietary interest of firm proceeding is affiliated a law company, in mutual insurance holder lawyer-relative with which association, depositor savings ain mutual affiliated does not itself interest, is a “fi- proprietary a similar or circumstances, appropriate

judge. Under organization only nancial interest” impartiality might rea- the fact that “his proceeding could sub- the outcome 3C(1), questioned” sonably be under Canon interest; stantially the value of the affect lawyer-relative by the or that the is known firm judge to have an interest in the law (iv) ownership government securities by the “substantially be affected could only if in the issuer is a “financial interest” proceeding” under outcome proceeding could sub- the outcome 3C(l)(d)(iii)may disqualification. require his stantially securities. affect the value (iii) by judge to is known substantially DISQUALIFICA- that could be affected

interest REMITTAL OF D. proceeding; by outcome of the TION. (iv) knowledge judge’s likely to the judge disqualified A the terms Can- proceeding. a material witness 3C(l)(d) may, 3C(l)(c) instead or Canon proceeding, dis- withdrawing (2) inform himself about A disquali- his on the record the basis of close personal fiduciary

his financial inter- disclosure, ests, If, in- on such make a reasonable effort to fication. based substantially affected the outcome of proceeding; parties lawyers, independently (5)He spouse, person or or a with- participation, agree writing all degree relationship the third judge’s relationship that the is immaterial them, either of or spouse of such a or financial interest is insubstan- tial, person: longer disqualified, is no may participate in proceeding. (i) party proceeding, Is a or an agreement, signed by all and law- director, officer, of a party; trustee yers, incorporated shall be in the record of (ii) acting lawyer pro- Is as a proceeding. ceeding; Commentary: procedure designed This (iii) Is known to have an party to minimize the that a chance substantially interest could af- agreement. lawyer will feel coerced into an proceeding; fected the outcome of the available, party immediately When a is not (iv) judge’s knowledge Is likely violating without this section proceed- to be a material witness in the may proceed on the written assurance of ing. lawyer party’s his consent will be (c) A should inform himself about subsequently filed. personal fiduciary financial inter- ests, and make a effort to in- reasonable II

APPENDIX form personal himself about the financial (Supp.1988) 28 U.S.C. § spouse interests of his and minor children Disqualification justice, judge, residing in his household. magistrate or (d) purposes For the of this section the (a) Any justice, judge, magistrate or following phrases or words shall have the disqualify the United States shall himself meaning indicated: any proceeding in in impartiality which his (1) pretrial, includes tri- “proceeding” might reasonably questioned. al, review, appellate stages or other (b) He shall also in himself litigation; following circumstances: (2) degree relationship is calcu- (1) personal Where he has a bias or according system; lated to the civil law prejudice concerning party, personal or (3) “fiduciary” includes such relation- knowledge disputed evidentiary facts executor, administrator, trustee, ships as concerning proceeding; guardian; (2) private in practice Where he served (4) means “financial interest” owner- lawyer in in controversy, the matter interest, ship legal equitable or of a how- lawyer or a he previously whom small, director, or relationship ever practiced during law served such associa- adviser, participant in or other active lawyer concerning matter, tion aas party, except affairs of that: lawyer or the or such has been a (i) Ownership in or a mutual com- it; concerning material witness mon fund that holds securi- investment (3) governmen- Where he has in served ties is not a “financial interest” such employment tal capacity par- and in such judge participates securities unless the counsel, ticipated as adviser or material fund; management in the concerning proceeding witness or ex- (ii) educational, An office in an reli- pressed opinion an concerning the merits charitable, gious, fraternal, or civic or- particular controversy; case in ganization is not a “financial interest” (4) he, individually He knows that or organization; in securities held fiduciary, spouse as a or or minor (iii) proprietary pol- of a residing household, interest child in his has a icyholder compa- in a mutual subject

financial interest in insurance matter in controversy ny, depositor savings party proceed- to the of a a mutual association, ing, other proprietary interest could be or a similar in- Conduct. of the Code Judicial violation in this unpleasant duty particularly This terest, “financial interest” is a ex- Operation Greylord and similar era of only if the outcome organization corruption, for we are amples substantially affect proceeding could here, dealing by any stretch interest; the value of the dishonest, or corrupt, imagination, with a (iv) government secu- Ownership of contrary, incompetent judge. On interest” rities is a “financial in this long known Judge Murphy has been pro- only if the outcome of issuer just jurist an but community to be not able substantially affect the ceeding could hope that if the outstanding one.2 I the securities. value of daily reported in the this case is decision in (e) magistrate shall justice, judge, or No specialize press publications or in proceeding accept from the legal com- recounting developments disqualification any ground waiver find it worthwhile munity, someone will (b). in subsection Where enumerated unchallenged Judge Murphy’s mention only arises un- ground disqualification extraordinary accomplishments probity and (a), accepted der subsection waiver as well. preceded by a full disclosure provided it is disqualifica- record of the basis for must, the issue we Deal with tion. conces- given government’s belated argument the case 908; during oral when 25, 1948, 646, sions (June ch. 62 Stat. Dec. 1609; banc, in the reversal 93-512, heard I concur 88 Stat. en Pub.L. § II, result, 95-598, title I reach that Pub.L. conviction. Nov. Scott’s 2661.) 214(a), (b), 92 Stat. do more hesitation than with far § majority, and an my colleagues SCHWELB, Judge, Associate today, route. Even appreciably different concurring in the result: changed government dramatically after the think, is, melancholy for the I case This acknowledged Judge Mur- course and participate must judges of this who 3(C),I this to be a phy find violated Canon criminal in it. It comes before us as a only very troubling case which close and conviction, felony appeal from a but prosecutor’s critical concessions have must decide has issue which we en banc put top. Scott over only incidental connection with Scott. Rather, eight judges, or all of most whom I well, required to Judge Murphy are know remarking that I have no begin by I allegations grit pass teeth1 and on their perhaps most—of quarrel with transgressed proscriptions ethical that he much— 2. After 1. That is Health fellow member of That is (1988), term on the D.C.Code by stated dicial pointment, as 108 S.Ct. preeminent ally work straint, and individual Based Disabilities and Tenure. The Commission reserves in its well District of Columbia Commission Services Judge Murphy task surely ^[******] product, true, efficiency upon the tabulated results of report, qualified” bench, Supreme on the bench. required by App. no overstatement. Acquisition Corp., passing comments of scores least, dedication, demeanor, 433(c) (1981 he was evaluated for bench pertinent part, n. Court of me. legal scholarship the Home Rule those the term completed his first as a “difficult" one. 100 L.Ed.2d 855 characterized a & 1988 In judges — U.S.-, Commission Liljeberg "exception- as follows: of attor- Supp.), on Ju- whose reap- polls Act, re- judicial system. peatedly Judge Murphy exceptionally well has share finds that "fair”; merits entious"; "always viduals in bench. neys, Judge Murphy persons they reappointment. nity For Daily highest category. respect and the confidence performed in his will receive a fair require daily example his automatic The Wash.L.Rptr. described "courteous”; work"; foregoing sentencing”. Judge Murphy’s judicial service courtroom and outstanding come into his courtroom placement his duties The comments and asks for more reasons, instills confidence is the We "diligent”; "competent"; "pays attention to indi- 1756-57 reappointment "attentive”; manner in which hearing. therefore determine as a type the Commission judge, of the commu- (1976). indicate that qualified for He is re- than his Superior winning "consci- in our who feel Judge Rogers’ Chief legal analysis. As makes affirmance of very the conviction emphasized one who has nobility difficult. The case differs in respect calling high law as a and the standards to many and, think, precedents I practitioners held,3 which its I progeny from the spawn, which it well that, agree wife, like that of Caesar’s for such concessions every are not made judges conduct of beyond must be re day. fact, proach. In obligation I think that this My disagreement my colleagues, applies greater with even force to those of then, application relates to the to the facts us who have been privilege accorded the legal principles us of they to which serving our fellow-citizens from the bench Here, and I subscribe. our differences are than it does legislative to members of the view, profound. my any connection be- taught executive branches. Aristotle tween felony OMISS and a trial ago two millennia should be the Superior significant Court is far less than very personification justice. Nicoma my colleagues suggest. proposition Ethics, V, (D.Ross.tran. chean Bk. ch. 4 objective “an disinterested observer 1975). precision eloquence His come fully informed of the facts”5 would reason-

through translation; even he called it ably apprehend Judge Murphy might like it is. disposition be influenced in his of Scott’s I also majority’s share the view that tra- negotiations case ap- with OMISS ditional harmless analysis, error with its pears me very to be dubious indeed. emphasis showing on a prejudice, cannot Accordingly, if there was violation of apply when the issue is whether there is an all, the Canon at I view it more as an partiality. Although there unfortunate but slip-up understandable may be a narrow class of cases in which Judge Murphy’s part than as a consistent impropriety exists but is so culpable appreciate carry failure to attenuated that reversal is unnecessary, responsibilities out that should have been — see Liljeberg, supra, at-, 108 obvious to him. This case is not Liljeberg, 2203,4 S.Ct. at any requirement that a de- which the was a trustee of a fendant prejudice demonstrate actual in university which had a financial stake in this kind of case would so blur the differ- him, the proceedings I and cannot appearance ence between partiality and agree my colleagues with that “these facts partiality in fact concepts the two present precisely appearance the kind of merge. would all but only jus- Not must 3(C)(1) impropriety that designed Canon done, tice be but it must also seem to be prevent.” Majority op. (emphasis at 755 done. added). Finally, agree I proposition, with the im- plicit majority’s in the prose- allusion to the II concessions, cutor’s government’s that the change An put partiality improprie- a different face on Indeed, appeal. government’s ty pretty thing. beauty, is not a Like ef- how- ever, acknowledgment fective during argu- it is in eye of the beholder. Per- Judge ment en banc that Murphy spective violated everything. It is therefore im- Canon, and that Scott portant, would have been speak when we of an entitled to a requiring writ of mandamus impropriety, identify the observer to Judge Murphy’s negotiations recusal if the whom the conduct must be shown pretrial, OMISS had been disclosed appear improper. Shillaire, (D.C. 3. See In re 549 A.2d 337-38 cumstance. There need not be a draconian 1988); violation_” (D.C.1988) Dory, In re 552 A.2d 522 remedy every U.S.- (concurring opinion). at-, 108 S.Ct. at 2203. 4. As the Supreme Liljeberg, Court said in "there McMillen, Pepsico, 5.See Inc. v. 764 F.2d surely room for harmless error committed (7th Cir.1985). busy judges disqualifying who overlook a cir- responsibilities with 3(C)(1) provides simply supervisory certain regard Attorneys’ non-litigative himself when judge should might ques- impartiality functions. It does not further elaborate tioned. ... Na- Department Justice The The questioning. doing the who (1987) (emphasis 43-44 Litigator tion’s Judge added flesh to the bare Posner some added). Murphy confirmed language of the Canon when bones of the litigative function was not that “a affidavit being test he framed the as my position at contemplated part objective, disinterested ob- whether an hired, anticipated at I nor is it time was under- fully server facts informed of any time in the future.” lying grounds recusal was on which of OMISS are described activities sought significant entertain would Department’s Report Annual be done doubt that would 82, as at follows: case. Management The Office of Informa- McMillen, supra, F.2d Pepsico, Inc. v. Systems gathers Support and infor- tion Moreover, added). (emphasis litigation workload and mation about super- perspective critical is not that of a Attorneys performance of U.S. and their highly suspicious individual sensitive or staffs, reports to im- prepares statistical every perceive conspiracy in offices, prove management of those cranny, nook and but that of provides prod- the office automation person. In re reasonable Searches Con- litigation which make ucts services F.Supp. ducted on March cost-effective. activities more (E.D.Wis.1980). Judge Murphy’s also describes affidavit Applying principles present these having “essentially a record- OMISS case, identify must first facts manage- keeping computer systems “fully would be available to the informed” Staff, ment Collection function.” Debt observer. We must then determine wheth- Murphy became Assistant of which er, requisite armed with those facts and the Director, provides oversight policy sig- impartiality, observer would have a Debt Units in guidance Collection doubt, Judge Murphy's in light nificant offices, Attorney’s the United dealings OMISS, States that he treat discern, litigation no Debt col- my has direct control. fairly. Scott So far as I can is, course, colleagues purely that lection a civil function. do contest this is the disagree majori- issue us. the before I must therefore with ty’s Judge Murphy was intimation Judge Murphy negotiated for and ulti- seeking prosecutor’s employment “in the OMISS, mately accepted employment department prose- in the executive office which is within the Executive Office Majority op. at cuting the case.” ] [Scott (EOUSA). Attorneys United States added). (Emphasis negotiat- He was 750. in 28 functions EOUSA are outlined OMISS, De- ing not with the Justice (1988). They entirely 0.22 C.F.R. are job His partment’s Division. new Criminal nonlitigative Depart- in As character. the prosecuting nothing have do with in explains publication ment of Justice a wrongdoers. Department’s the ac- legal which describes tivities, Judge Rogers compares Judge Chief Murphy’s to that of a situation

[wjhile legal responsible are divisions seeking large a law employment with litigation supervision for the conduct- case presiding firm a which by Attorneys, ed the Executive Of- while litigating. I do not find this to be Attorneys6 fice has firm is for United States offices, however, important being prosecuted by "s" It is that Scott italicized true dissipates any supposed Attorney close link between Colum- United States District of bia, prosecutor and the part of and that OMISS is a the Executive Attorneys. prospective employer was there with whom Office for United States Since Attorney’s negotiating. are a almost hundred United States apt analogy.7 today’s legal Colossal III be, conglomerates may Department majority concludes that “this case a Justice is horse of a different color. In point along falls at a the continuum of Department comprised conduct requires reached the Canon that offices, bureaus, twenty-seven different a new trial order to assure continued ninety-four and divisions. There were public confidence offices, United Attorney’s States employ- judiciary.” Majority op. I agree at 756. 2,350 ing Assistant United States Attor- continuum, such there is but I would neys. 30,000 These offices filed over crimi- place negotiations with roughly OMISS nal Monroe cases. Scott’s was one of them it, and, perhaps middle of innocent things, the entire scheme of hardly potential deciding litmus test side of If Judge Murphy whether center. had been employ Murphy. OMISS should negotiating for a in the United Attorney’s States office in the District of foregoing, Given the far it is from obvi- Columbia, inor Division Criminal ous to me that a well-informed person Department Justice, fair-minded would believe that then the Judge Murphy’s prospects of obtaining the of partiality would substantially have been job OMISS would in have fact been en- greater. If, hand, on the other he had been any way hanced in if sided with the seeking employment Department at the prosecution against Moreover, Mr. Scott. Agriculture or with the United States In- appears it questionable, me to say the Agency, formation the appearance par- least, person possessing whether these tiality case, would have been less. This apprehend attributes could reasonably my view, roughly place falls at the same Judge Murphy would think that job his job negotiations continuum as would prospects improved if would be he tilted to with the CivilDivision or Lands Division of government, or that OMISSwould eval- Justice, the Department also, qualifications uate tilting with such sense, part broadest the same lack thereof in Murphy mind. Superior “team” as prosecutor. regular was a service for 18V2 Divisions, EOUSA, These cooperate like years senior for some time after His with and supervise that. record well sometimes known. United He image could not recast overnight. Attorney’s offices, States deal but with en- In the context of purely non-litiga- OMISS’ tirely subject different matter responsibilities tive tens of thou- only stake, any, the remotest in the local sands of criminal cases handled the De- prosecutor’s criminal success. partment Justice, the incentive for illusory The somewhat character of Judge Murphy to take out on Monroe Judge Murphy’s perceived incentive to tilt appears very Scott remote indeed. Dis- against can Scott be assessed comparing qualification should not based on tenu- judge his situation to that of a who is speculation; ous the partiality fear of must promotion under for consideration a within enough enough be strong real to war- judiciary, the or for important position an States, rant such a result. In re United 690, (1st Cir.1981).8 666 F.2d 694-95 in the executive branch Director (e.g., 494, EOUSA, Zagari, F.Supp. 7. United States v. 419 seeking the sheer unlikelihood that Cf. (N.D.Cal.1976), rejected 505 as in the court Staff, which for the administrator Debt Collection that, implausible or worse the contention of, about, would be aware much less care Attorney’s since the United States office is a handling appellant’s Murphy's indi- firm,” judge a “law must recuse himself in a dispels any ques- vidual case basis rational criminal case because an United Assistant States tioning judge’s impartiality. the Attorney represented him in connection with a banc, Although pressed to en not the court this quash subpoena. motion to a argument has considerable force. government 8. The in contended its brief to the panel, taking position a it has which since aban- doned, that

765 past to her for a federal Investigation, in the recommend the Bureau of Solici- Federal Prosecutor, General, (over appointment tor had judgeship War Crimes Attorney). judge That might United States do so authority) considerable though considering criminal even be cases again. The court stated that President, must who is to decide holding dependent is not on whether this post judge aspires, fill for which Magistrate plans again apply Atkins to (as Presidents has made it clear several future, a in the does not judgeship have) order,” op- that he is for “law and apply again, or doesn’t know plan ever to criminals,” and posed “coddling might seek her mind she in own whether against releasing “legal defendants judicial opening. a future against A technicalities.” decision in stake Id. at 218. Senator Laxalt’s e.g., publicized government in a case — private litigation in in Magistrate’s decision suppression alleged of an terrorist’s confes- obviously plaintiff which he was judge’s hopes.9 sion —could well derail any far more direct than interest OMISS government’s The incentive to tilt handling might Judge Murphy’s have surely greater favor is far in such a case suppression motions or other issues raised than the situation which confronted Scott, offi- by Monroe of whom the OMISS precedents here. probability in all heard. cials had never strongly suggest, that recusal tilt Magistrate The incentive for the to to required in a would not case of greater than necessarily the Senator was judge ap- under consideration for new any corresponding incentive See, e.g., McClatchy, Laxalt v. pointment. Murphy here. 214, F.Supp. (D.Nev.1985), 602 217-18 there authorities cited. present distinguishable case is proclaim- Laxalt, Laxalt and from other decisions In held that United impro- ing Magistrate that there is no required re- States to presides priety over a case brought by cuse herself in a case Senator when although political involving supporters.10 Laxalt she had asked the Senator his former Any Judge Murphy might possessed by stake that like elected to believe security thought pleasing government to as well as who have the those during "good present surely pales comparison tenure behavior." Nor case prepared presume so far presiding that of an who is elected over betray its re- enamored of his community feelings high trial in which run sponsibilities, matter he thinks would no what very campaigning time that he is for reelec- please most the electorate. tion. This was the situation that confronted the (Emphasis "Judges original.) remain human Sheppard in the famous Dr. Sam murder duties,” assuming judicial even after their Green 707, Maxwell, Sheppard case. v. 346 F.2d States, 632, v. 651, 78 S.Ct. United 356 (6th Cir.1965), grounds, rev’d 729-30 on other J., (1958) (Black, dissenting), 672 L.Ed.2d S.Ct. 16 L.Ed.2d whether, and one ask (1966), rejected, contemptuous- the court almost foregoing passage, mere mortals are not viewed ly, the contention that the circumstances exercising sprouting angels’ wings and as prejudiced Sheppard's rights: Dr. superhuman ability compelling consid- allow been fact Much has made by. pass them Com- erations of self-interest began Sheppard judicial trial on the eve of a Supreme opinion pare the excellent election at which trial one Himes, rel. of Florida in State ex La Russa prosecution were We staff candidates. (1940), holding 197 So. Fla. imply emphasized must assume for elective office is candidate may victory that desire for have led the relating sitting any disqualified case to from prejudicial Sheppard's to Dr. to conduct during espoused policies issues or rights. to low We would have entertain a disagrees campaign. if with the But even one integrity judicial fellow estimate of the of our analysis, holding judge may Sheppard that a join such officers to inference.... places perspec- properly sit even in that case re- As we know that those who seek realists considerably more remote incentive tive the judicial hope election office that their con- play here. approval, public not duct will find but do Newsweek, Inc., See, judicial e.g., think would be more 668 F.2d misconduct Schultz Cir.1982) (6th (trial judge nominat- attractive to the electorate than conduct 918-20 required judgeship to recuse appellate not marked which we as ed for Judge Murphy’s negotiations requires with OMISS docket overloaded the deferral of proceeding ones, were while Scott’s case presumptive- newer some of which him, pending contempora- and this ly may pretrial innocent defendants inbe might reasonably neousness prosecutor put be viewed as detention. If the cannot heightening appearance partiality. pieces together again, wrongdoer may go Nevertheless, I any appre- merits, find the lack of free for reasons unrelated to the practical ciable connection and more may between OMISS innocent victims harmed. Moreover, prosecution Superi- appearance this criminal justice is critical, or Court to be a factor which tends to we should also consider how the dissipate any appearance justice appears fact of impropriety. to the victims of the released,

crime when perpetrator not IV because he is innocent or did not receive a trial, fair concededly but because a fair In the affidavit which he filed in relation deceptive appear- failed to avoid a negotiations EOUSA, to his prejudice. ance of certified, oath, Murphy under that his dis- cussions about the at OMISS did consequences The indirect of reversal performance not affect the judicial of his may here even more severe. When this responsibilities. Scott’s counsel stated banc, lawyers decides a case en look “requisite his brief that evidentiary opportunities to use the decision as facts are contained in Murphy’s affi- precedent may in situations which not seem davit” “Appellant and that dispute does not to us to resemble this one. Our defense that, these facts.” It undisputed is thus ingenious bar includes attorneys who will purposes of the issue before us en my concurring opinion need to conclude banc,11 Judge Murphy an impartial that, if appearance improprie- there is an judge. ty present case, appear- then such an may ance exist a in some of the reversing cost of fortiori solely a conviction kinds of situations discussed in Part III. for the sake of the justice convictions, too, Other will be attacked on high. The direct consequences are formid- grounds which have no relation to the mer- See, able in e.g., themselves. Helm v. its or to actual bias. There is a States, (D.C.1989). United 555 A.2d 465 It potential waiting Pandora’s box to be easy is not many reassemble witnesses opened.12 years they found, after the fact. If are their may memories they have faded. If suggest I do not that this case is about required to come to court provide several more capital’s ironic solution to our times as a case repeatedly postponed problem prison overcrowding. For one congested because of calendars—an thing, event I anticipate do not dramatic conces- quite that occurs often in our crime-ridden prosecutor sions in every case. I capital (as enthusiasm testifying appreciate also profound societal value —their well system) as their faith in wane justice. things Good as well. The addition of an free, old case to an seldom come ready and we must be although publisher calendar, himself of defendant primarily pro- Detroit nal cases on his or her strongly supported nomination); revocations, News had her assigned bation even while to a PLC, Warner v. Global Natural Resources every judge Division other than Criminal. If cf. F.Supp. (S.D.Ohio 1982); 1300-02 promotion Baker v. who is under consideration for to a Detroit, City (E.D. F.Supp. higher judicial posi- 375-77 office or for to a selection Mich.1978). disqualified tion in the executive branch is cases, large criminal numbers of such cases will here, is, 11. I do not majority think, address as the reassigned. does have to be There I broad not, appeal those of Scott's agreement among contentions on judges that it is in the interest Judge Murphy’s negotia- which are unrelated placed for the a defendant tions with EOUSA. probation proceedings, to handle revocation so that the offender must face the Virtually every Superior gave who has promise comply. whom he to Unneces- would, been a member of year sary reassignment the court for more than a my of such cases view, or two a has substantial number of crimi- be counter-rehabilitative. Cases, F.2d Skywalk of re Federal price applying the standard pay a for Cir.1982), (8th court said: the I summarize some of wife. Caesar’s however, costs, 455(a) I find requires because a obvious 28 U.S.C. § where, person reasonable very high indeed a to be himself them grounds to doubt here, partiality seems factual appearance of would have Fre of the court. Blizard impartiality some attenuated. Cir.1979). (1st chette, F.2d for the district The determination V impartiality “his is make whether as well. procedural concerns I some questioned.” reasonably be might only parties appeal. The This a criminal 455(a). Once that determination U.S.C. § is a United States. There are Scott and the made, our role on review been has however, interests are person, third whose deciding the district whether limited to hear formidably affected issue we partiali of of the claim evaluation court’s Judge Murphy. He is en banc. of abuse amounted to an ty prejudice Frechette, 601 Blizard v. discretion. Judge government’s concession F.2d at 1221. Murphy is described violated term “abuse of discre- Although I think the That, too, majority “commendable.” question readily apply to the tion” does depends eye of the beholder. Canon, Judge Murphy violated whether change surely prosecutor’s position has procedure under merit there devastating Mur- Judge effect on findings initial the trial makes which ruling prospects for a that he did not phy’s appear- or non-existence on the existence case, violate the Canon. Earlier in appellate court prejudice and the ance of government vigorously defending appropri- under an addresses the issue then As actions. of the date the en ate standard review. prosecution argument, banc telling case, Judge and the defense were both us that filed Murphy present In the Nobody has there was an ethical violation. which detailed affidavit arguing contrary. light In the information which provided much of government’s position, This through evolution a remand.13 could be secured compliance ethi- Murphy’s appeal, since of which is criminal the resolution challenged, being long delayed. cal standards was Scott has served been has our could have collateral con- years since decision four sentence more than him, sequences for thirty-six years. well have been If he been twelve has court, convicted, appropriate despite for this tradition- should correct improperly standing, step agree to take the rare injustice dispatch. al notions of I therefore here, inviting to file a memorandum ex- not remand but that we should addressing procedure issue will press hope whether violated such a proce- comparable I the Canon. concede such a cases in be considered in unusual, dure would have been but this is future.14 ordinary

not an case. VI Alternatively, this court could remand presented to the further find- this case the case to When Indeed, vigorously contend- panel, government ings. authority suggesting there is impro- no ought In ed that there was that this is what to be done. note, however, recognize that there was Murphy's and a failure affida- sion 13. I ap- anything the issue of vit does not disclose whether to decide. partiality pearance of never occurred to him or and, whether he considered it for reasons Judge Murphy accepted the 14. Since remand, presumably articulate on con- he could OMISS, been available he would not have had been cluded that the stage at an earlier proceedings on remand difference, purposes preserved. is a There case. review, appellate between a considered deci- During argument opinion, oral I priety. before the reasons described in this have however, banc, sitting govern- court an im- en serious reservations as whether partial fully ment counsel conceded observer informed of the facts perceive any impro- would appearance of 1. person knowing that a reasonable priety, it is difficult vote to a pertinent sustain facts could have reason- says prosecutor conviction where the now impartiali- trial judge’s able doubt of the that the of was flawed. ty; and adversary system, judges may Under the that, 2. if the trial dis- kind, ignore reject concessions this trial, closed the facts at the time he they pause carefully but should and reflect himself, duty would have had a to recuse they before do so. so, that if to do he had declined writ mandamus from court would tempts My own assessment facts properly have issued. “extreme,” adopt position me to more prosecutor argued though The that even relatively speaking,15 that taken than mandamus appropriate would have been litigants. timing either of the trial, changed before the the situation once ques- negotiations, does raise a convicted, Scott had been Moreover, tion. Attor- United States despite should affirm the now conviction ney’s are office and both within the OMISS government acknowledges what to Department prosecutor Justice. have been reasonable concerns about boss, case, could Scott or his conceiva- impartiality. bly Judge Mur- be asked to comment majority, position phy’s Like the I find this candidacy. I find connection be- If job untenable. Scott was entitled be tried criminal tween the and the case tenu- Murphy ous, before a other than Judge if it say but I cannot does not exist. pretrial, he had asked such for relief retrospect advantages At least —and surely cannot right now be denied that hindsight agree are that it inordinate—I simply because Murphy wrongful- been better government ly, the effectively concedes— to err on side of and to make caution pertinent failed disclose the facts to him disclosure. timely fashion thus denied him the close, a case that is even necessary information exercise ordinarily litigant’s con- will honor right to seek recusal. Just no man balance, I do cession. I so On think advantage take wrong, own Accordingly, very here. little enthusi- v. Brooklyn Glus Eastern District Termi- asm, respect for views but with sincere nal, 232-33, 359 U.S. S.Ct. my colleagues majority,161 concur

761-62, (1959), govern- L.Ed.2d 770 so judgment court. permitted profit ment should not be an says Judge from error which now

Murphy expense. made at Scott’s With its

concession that mandamus would have appropriate trial, govern-

been in my effectively

ment view conceded the

case. appeal

We thus faced with a criminal government has admitted trial error,

court and in which all members of agree required

the that reversal is error in Although,

such fact occurred. theirs, principle, my analysis Murphy Although 15. In differs not, view, very my colleagues appear- discern my did not violate fact the Canon is partiality supports the ance conclusion that extreme all. people might so. reasonable do

Case Details

Case Name: Scott v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 10, 1989

Citation: 559 A.2d 745

Docket Number: 85-206, 86-423

Court Abbreviation: D.C.