*1 Here, encouraging record, state’s comments of the a review on Based accountable were jury to hold Morton evidence was sufficient that there conclude hand, to the case specific minimal and reasonably could state from which in the single statement consisting of a that Morton was inferences have drawn that focused on closing argument state’s May 28. night looking for sex on charged with the crime he was Morton and and upset that he was testimony Morton’s minimal, specific ap- committing. Such girlfriend, difficulties with having jury to hold the defendant peal indicating that he was as the evidence well charged is with for a crime he accountable night in town out the bars checking improper. We having committed is not that he called “only guys,” and finding circumstances a.m., under the conclude at 3:00 was acquaintance a female case, in mis- engage did not the state may that Morton to establish sufficient accountability to its respect conduct with a sexual encounter. looking for have been no hold there was argument and thus we the state’s asser- conclude Accordingly, we error. looking for sex did tion that Morton argument, improper
not constitute not concluded that the state did haveWe there was no error. thus we hold passions preju- inflame the improperly make an jury and did not
dices Accountability Argument accountability argument. C. improper however, did, misconduct commit state Finally, argues Morton they lying” respect to two “were with jury encouraged the improperly state that misconduct was questions; but conduct. for his accountable hold Morton Accordingly, we hold that plain error. at issue here reads as language The state’s trial. not entitled to a new Morton is follows: Affirmed. you find requesting is the state of both counts of guilty Roger Morton tell you For degree murder.
first out, run that his luck has
Roger Morton and mur- rape premeditated
that he murdered her Mary Klatt and he
der of criminal sexual con- committing
while duct. Minnesota, Respondent, STATE for a proper is “[i]t We have stated v. the victim to talk about what
prosecutor DORSEY, Appellant. Lorenzo accountability, to talk about suffers and No. C6-03-197. jury not to persuade help order to for the sympathy return a verdict based Minnesota. Supreme Court of Montjoy, defendant.” State Aug. (Minn.1985). have cau- But we accountability not to use tioned the state jury’s to divert the
arguments as a tactic deciding true role of
attention from its the state has met its burden
whether beyond a guilty
proof that the defendant Id.
reasonable doubt.
OPINION ANDERSON, H„ PAUL Justice. Appellant Lorenzo was arrested charged possession with felony marijuana, a fifth-degree controlled sub- crime. Dorsey posses- stance admitted to marijuana, sion pre- and faced a *4 sumptive probationary on sentence that The charge. alleged state that Dorsey possessed conjunction a firearm in with marijuana the and sought impose a mandatory three-year prison minimum Dorsey disputed sentence. the claim that marijuana the firearm found near the be- him longed to and a trial bench was held Hennepin County District Court to de- gun termine whether the was Dorsey’s. Dorsey The district court found possession was in constructive of a firearm marijuana seized, when the was convicted him, years and sentenced him to three prison. Dorsey appealed his conviction to the Appeals, arguing Minnesota Court of district presided court who bench personal over his trial had knowl- edge disputed evidentiary fact and therefore should have disqualified herself. Dorsey also asserted that the inde- pendent investigation of a defense wit- ness’s factual assertion him a fair denied impartial judge trial before finder appeals of fact. The court of affirmed. We reverse. Office of the Minnesota State Public De- fender, Gaitas, Theodora Assistant State 1999, Minneapolis police November Defender, MN, Public Minneapolis, Ap- for appellant obtained search for warrant
pellant. Dorsey’s Minneapolis Lorenzo north home. Hatch, General, search,
Mike Attorney State St. During police their found both Paul, MN, Klobuchar, J. Amy Hennepin marijuana and a handgun. Approximately County search, Attorney, Treyer, Linda M. Ass’t police ten months after the County Attorney, Burdorf, Jean E. Dorsey charged Ass’t arrested him with MN, County marijuana Attorney, Minneapolis, felony for possession of under 2(1) (2004). 152.025, § Respondent. MinmStat. subd. sought impose handgun although a three- ter there also were The state mandatory prison magazine, magazine minimum sentence in the year bullets was 5(a) 609.11, § subd. police under Minn.Stat. “locked in.” searched for The (2004), Dorsey’s possession of a firearm for gun approximately one-half hour drugs. possession with his connection pressed success. then Ungurian without marijuana Dorsey stipulated location, gun’s point- to reveal the his, by police disputed but seized was gun safety ing posed out that threat in his gun claim that the found the state’s there were in the because children home. belonged to him. After home According Ungurian, Dorsey told him trial, a bench right jury waived gun that the was between the cush- hidden whether the was held determine trial a black in the living ions of leather couch Dorsey’s. gun police room. The the couch and searched handgun found a with a de- 9-millimeter Dorsey’s began approximately trial tached, by. loaded close magazine April and the state’s p.m. 2:05 away located five Ungurian, Daniel couch was four or feet only witness was Officer marijua- surrounding police who testified facts from where found Ungurian testimony, and seizure. testified Following Ungurian’s search na. police obtained a knock and an- state rested its case. *5 for narcotics at nounce search warrant p.m., Dorsey At about 3:30 called Pearl a con- Dorsey’s confirming home after Worthy as his first defense witness. Wor- cocaine at the purchase trolled crack old, thy years stated that she was 19 that to According Ungurian, home. when friends, Dorsey and his wife her were door, Dorsey’s front police approached “mama.” “papa” that she called them peo- that they through observed a window Worthy testified that November “running away” home ple inside the were shortly Dorsey’s before home was police from door. The then used searched, Dorsey’s she sold wife two black door, open ram to secured resi- Worthy, According leather couches. dence, and conducted a search. At the she took the from the home of her couches search, time there were “at least” boyfriend, Paige.1 deceased LaTerrance in the “a number” eight adults home and that Paige drug She stated was a dealer police children. While the small shooting had died in a drug-related who home, Dorsey’s Dorsey told one searched Worthy May 1999. also testified she everything in the police officers that Paige in the guns had seen “stuff’ couch belonged home him. As a result of the thought gun found police search, police approximately found Dorsey’s couch Paige’s. “could have been” marijuana grams of in a safe in the kitch- en. cross-examination, Worthy On admitted police Paige testified after
Ungurian very briefly, she had dated that she marijuana, birth, Dor- found the he interviewed did not know date of and that sey tape only by and asked him whether there he died she him before had known any weapons following in the home. were the name of “Duck.” The ex- Ungurian change place: told he owned a 9-millime- then took briefs, Fields, (Minn.2004) spell 1. In their and the state State N.W.2d 341 "LaTerrance,” Paige's first name as (affirming did Victor Fields' conviction for the however, note, appeals. court of We first-degree Paige). murder of spelled Paige's first name "LeTerrance” in you [Worthy] anybody Do know Minneapolis years. State: over the last three family? I Paige’s guess in Mr. would there weren’t two. Following exchange, Worthy: No. allowed the state to its continue cross-examination object I’m going Defense: to this Worthy, explaining: cross-examination continuing line of Miss Worthy acknowledged that she irrelevant, Your Honor. didn’t Paige very know Mr. I well. State: If I can Offer of Proof? make guess if any other there’s information Judge: Sure. Worthy provide Miss could that would I it goes State: think issue of her clarify make it—would which LaTer- story credibility, her as to where the about, rance Paige talking we are I’ll couch came from. As to whether or permit you explore that a longer. bit somebody not there was in fact named Worthy then testified that she had dated Paige LaTerranee that died at that Paige for about two months and that he particular period time. It is some- regularly slept “drug at a house” in north thing that can be searched out. Minneapolis where she went to see him. Something that investigated can be She stated that Paige’s she learned of through papers and elsewhere and news, death on the television did not know if—if he died the couch—his before Paige’s family, members of and did not couch was sold to supposedly these Paige’s attend According funeral. to Wor- people, it certainly corroborates what thy, Paige May after died she and says. case, she If in fact that isn’t friend, Garrett, Ava went Paige’s goes credibility. then it to her Minneapolis north Paige house where reg- truth, you To tell judge, really I *6 ularly slept two and took black leather questions don’t along have other couches, put storage Garrett into these lines. until she sell them arranged Dorsey’s to to Well, Judge: actually I am aware of a in Worthy wife November 1999. testified LaTerranee who was a Paige Defen- that gave Garrett as a result of $120 dant with frequent appearances in this sale.
drug court. I believe he died. Worthy’s testimony ended around 4 p.m. State: Yes? stand, Worthy Before the left witness the judge asked the spelling her to confirm Judge: However, I don’t believe it Paige’s Worthy last then stepped name. was—I think it more recent than was down and the and counsel judge discussed So, obviously, I don’t if know logistical various matters regarding the that Paige. is the same LaTerranee discussion, trial. During judge this But it is a unusual somewhat name. made the following statement: And, know, you I’m not sure where actually that play junior leaves us. I I’m not trying it’s detective. —if Paige, LaTerranee then the I in timing my didn’t want to have mind some- [my would not fit. I know many thing, don’t how so I clerk] asked check. Paiges Paige’s LaTerranee were shot on This is LaTerranee read-out. drug-related in city incidents He died 2000.2 I’m Again, December judge apparently misspoke, 2 The as records December as the date of death of a Paige actually indicate that died in December Paige. man named LaTerranee judge judicial 2001. The took later notice of in “thump” before he reached thing went inject myself here as trying not handle. gun out a with black But, obviously, spent pulled I investigator. —I handgun stated that the .380 well then Paige pretty knew LaTerrance had a silver han- purchased Illinois court, he not—as one would drug from dle. my It was recollection drug court. fairly recently. died
he his presenting finished After well, listening thought, I I was So when take ease, judge the state asked a lot of this out because I check better reflecting that “judicial notice of its files” So, anyway, drug court. people die on December Paige died LaTerrance you thought I it’s worth for whatever 31 months approximately which was Iwhat know. should know by testified to after the date of death 24 months after Worthy and over that. I replied, “I know then The state judge Dorsey’s home. The search of the noon hour.” that out over found Paige’s judicial notice of agreed to take days. adjourned for three then trial was stated, Dorsey’s counsel date of death and clear, appears it the record is While objection.” have no “[w]e judge had her exchange from this while of fact and con- Paige’s findings date of death In her written up clerk look law, found that Dor- as there was no testifying, clusions Worthy was facts, particularly It Worthy’s testimony. sey’s also version during recess (“over credibility for sever- testimony, lacked began the trial own appears that before First, did not be- hour”), al reasons. had interviewed the noon the state testimony police offi- Dorsey’s of this inter- lieve Worthy and result and asked about a cers came into his home view, investigated Paige’s the state had undisput- because it was weapon” “murder and learned he died De- date of death searching officers were ed that cember 2001. Second, found Dor- narcotics. April trial reconvened on When testimony the circum- sey’s regarding own Dorsey testified on his behalf discovery surrounding the stances handgun the 9-millimeter he asserted that “particularly incredible.” On gun be actually a he police had told the owned it “unbelieva- point, found .380, basically like a 9 to a 380 is “because *7 practice that contrary police to ble” the .380 purchased stated he had me.” He Dorsey, then asked the officers handcuffed Illinois, time he had and that the last a him into the sofa to retrieve to reach in a safe in his home. He seen it was that Additionally, judge the noted gun. the police after the found testified that in a although Dorsey police had told the to marijuana, they they told him needed a that he owned “9”—like taped interview weapon,” helped and he locate a “murder in the couch—he claimed gun the found thought he police the locate the safe where only gun he owned was actu- trial that the But the safe was gun was stored. .380, only and that he referred ally a According Dorsey, he then empty. gun as “9.” living police room with the went to the Worthy’s tes- officers, found that you judge The also ‘Why don’t said to one of credibility specific two timony lacked Dorsey stated the in the couch?” search First, judge stated that Wor- it if “I to touch reasons. replied officer don’t want she could thy was not credible because allowing Dorsey gun,” it’s a before —whose on the information provide specific together handcuffed front— hands were friend, Garrett, Ava whereabouts of Dorsey said that some- to search the sofa. had investigation whom she testified facilitated the sale code because the caused the the two black leather to Dor- judge interject couches herself into the evidence- Second, sey’s judge wife. gathering found process and created appear Worthy credibility lacked because court ance impropriety. Nevertheless, Id. that a man records indicated named La- appeals the court of held judge’s that the Paige Terrance was shot and killed in De- investigation was harmless error. Id. We given cember far later than the date granted Dorsey’s petition for review. by Worthy. making finding, I.
judge noted that no present- evidence was showing ed the existence of another La- appeal, On Dorsey asserts that he is Paige May Terrance died in who 1999. entitled to a new trial judge because the was barred from presiding over trial findings, Based on these the judge found 26.03, 13(3), under Minn. R.Crim. P. subd. Dorsey was in possession constructive provides pre “[n]o shall handgun of the 9-millimeter by found side over trial or other if proceeding police. convicted of fel- judge is disqualified under the Code of ony possession marijuana in pos- while Judicial Dorsey argues Conduct.” that the session of a firearm and him sentenced judge was disqualified under Canon 609.11, 5(a), § under Minn.Stat. subd. 3D(1)(a) of Minnesota’s Code of Judicial years prison three mandatory min- —the “personal Conduct because she had knowl possession imum sentence for of a firearm edge of disputed evidentiary facts concern conjunction drugs. with ing the proceeding.” Dorsey argues also conviction, appealed his arguing that he is entitled to a trial new because court appeals that he was denied during conduct his trial de a fair trial impartial judge before an prived him of his right constitutional to a finder of fact. The court of appeals af fair trial before an impartial finder of fact. Dorsey’s firmed unpub conviction in an presents This case ques- number of opinion. lished Dorsey, State v. No. C6- tions of first for our court. impression 03-197, 2003 22777501 (Minn.App. WL First, we consider whether a district court 2003). Nov.25, The court appeals ana has acquired knowledge who that is lyzed Dorsey’s claims under the Code of relevant proceeding at hand is Judicial Conduct and concluded that under presiding barred from over a case under code the had “acted appropriate 13(3). 26.03, Minn. R.Crim. P. subd. We ly in telling parties that she was aware then must decide whether a defendant’s of certain impaired facts that Worthy’s right process to due is violated when a credibility” because, so, had she not done judge in a openly questions bench trial judge probably “the unfairly would have veracity of a by factual assertion made *8 Worthy discredited and perhaps errone defense, witness for the independently in- ously Dorsey.” convicted at Id. *3. The vestigates fact, and reveals the results appeals that, court of also concluded once investigation of her Finally, to counsel. in judge disclosure, the made her the burden occurred, the event that error we must upon was defense counsel to the judge ask determine whether the defendant is enti- disqualify to herself. Id. As for the tled to a new trial. judge’s investigation into the date of death, Paige’s appeals whether, the court of con question We first turn to the of call,” cluded although “a close 26.03, 13(3), the under Minn. P. R.Crim. subd. judge’s investigation was error judge precluded under the the presiding was from §D(l)(a) she dis- Canon Dorsey’s trial because was
over of Minnesota’s Code Judi- qualified under pre It unclear from the record is knowledge on her of cial Conduct based cisely judge ap the learned of the how Paige’s of death.3 approximate date the may proximate Paige’s date of death. She focus answering question, our acquired knowledge through the have judge realized point in time when the but also proceedings, court-related she knowledge relevant that she had may Paige’s of death from have learned According to Dor- source, at hand. proceedings public newspaper such as a another sey, judge story. once the realized that mem- a There is article or television news however, Paige’s judge’s approximate suggestion, of the date of no ory date of knowledge Paige’s approximate of given by conflicted with the date death any from individual connection death arose Worthy, judge obligated to dis- was circumstances Paige specific to or the sur 3D(l)(a) herself under Canon be- qualify rounding death. knowledge of dis- “personal she had cause evidentiary facts.” puted Dorsey argues phrase “personal that the 3D(l)(a) knowledge” in Canon includes all judge a has violated the Whether knowledge acquired by judge a outside of question is a Code Judicial Conduct judicial proceedings. Accordingly, formal law, review de novo. See Powell which we definition, if Dorsey’s judge under Anderson, 107, 114, 119 approximate Paige’s learned of the date of 3D(l)(a) (Minn.2003). code Canon judicial proceeding, death in a formal she states: obligated disqualify would not be herself hand, under the canon. On the other un- himself or disqualify A shall definition, Dorsey’s if the der a proceeding herself in judi- general came about in her
judge’s impartiality might reasonably be
capacity
by reading
newspaper
cial
or
questioned, including but not limited
news,
watching
or
the local
she would have
instances where:
obligation
disqualify
herself.
(a)
personal
has a
bias or
adopt Dorsey’s expansive
decline to
We
par-
or a
prejudice concerning party
a
“personal knowledge.”
definition of
As
ty’s lawyer,
personal knowledge of
matter,
lives as
practical
judges,
their
disputed evidentiary
concerning
facts
citizens,
judiciary
members of the
and as
proceeding.
range
routinely exposed
to wide
previously
We have not
construed
to fac-
may
information that
be relevant
phrase
knowledge” as it is used
“personal
dispute
proceeding
tual
over which
3D(l)(a).
man-
they eventually preside.
The code
Canon
unnecessary
deprived Dorsey
impar-
tion in this case
of an
The dissent asserts that it is
Dorsey’s argument
judge,
important that we do not let
us to
tial
it is
address
suggestion
obligated
disqualify
possible
that the
was
herself un-
stand
required
disqualify
concluded
herself under
der the canon because
have
point
when she first
to a new trial under the
canon
in time
is entitled
ap-
approximate date
disagree.
court
realized that she knew the
Constitution. We
Paige's
Dorsey’s
death.
If we were to remain silent
peals’ decision addressed
claim ex-
code,
regarding
recom-
clusively
code. Because our
as the dissent
in terms of the
*9
mends,
likely
analysis
analysis
it would
result in confusion in
of the code differs from the
the district courts and risk unwarranted chal-
appeals,
of the court of
we conclude this issue
judges' ability
ultimately
lenges
requires
While we
under the code
clarification.
investiga-
preside
proceedings.
judge's independent
over court
hold that the
judge
disqualify
(1987).
that a
dates
must
herself New Collegiate Dictionary 877
“personal knowledge”
disput-
if she has
of
“Private,”
turn,
in
is defined as “restricted
evidentiary
ed
facts.
If we were to inter-
arising
individual or
independently
“personal” to
pret
the word
include all
of others.” Id. at 936. For
purposes
knowledge
judge acquires
outside of for-
3D(l)(a),
of
“personal
Canon
knowledge”
judicial
mal
proceedings,
judiciary
our
pertains to knowledge that arises out of a
day-to-day
would founder under
judge’s private,
individual connection to
weight of motions
at disqualifying
aimed
particular facts. We conclude that it does
judges
acquired general, passing
who have
include the vast
realm of general
knowledge
disputed evidentiary
of
in
facts
knowledge
judge
that a
acquires in her
the course of their lives as judges and
day-to-day life
a judge
as
and citizen.4
citizens.
case,
has not demonstrat-
judicial
system presumes
Our
that
ed that the judge’s
of
knowledge
Paige’s
judges
capable
setting
of
aside collat-
approximate date of
death arose from
knowledge they possess
eral
and are able
private, individual connection to Paige or
to “approach every aspect of each case
specific
circumstances surrounding his
objective
with a neutral
disposition.”
Rather,
death.
knowledge
her
apparently
States,
Liteky v. United
561-
in
arose
of
general judicial
course
ing in which 1147. sonably questioned.” be Liteky, the United States Su Although the at hand does not con- case prohibition
preme stated Court judge “personal has bias” cern whether over a case in judge presiding a against concerning party, a we believe the Su- bias” con judge “personal has Liteky is rele- preme reasoning Court’s sensibly inter cerning party a cannot be analysis phrase “person- to our vant judge “judicial that a with to mean preted is, knowledge.”5 although al That a over a case: preside can bias” knowledge disputed of a evidentia- judge’s not divid- prejudice seem us ry may Bias not fall under the narrow fact kind, “personal” which is ed into the “personal” previously artic- definition offensive, kind, which is and the official ulated, that a possible it is nonetheless * * * [Ijnter- *. right. all perfectly judge’s “nonpersonal” —de- a preting “personal” the term to create pending on its source and nature —could complete dichotomy between court-ac- question regarding a create reasonable quired extrinsically acquired bias judge’s impartiality. results so intolerable as to be
produces example, for a forth Imagine, absurd. The code does set 3D(1) presiding trial in which the lengthy exceptions to the rule Canon of an judge for the first time learns if im disqualify a must herself sect, a religious acquires obscure partiality may reasonably questioned, be passionate hatred for all its adherents. a formula that “provide precise nor does it “official” rather than This would be automatically making a applied” can be bias, no “personal” provide Powell, and would determination. disqualification judge’s recusing basis for the himself. Further, “grounds 660 at 115. N.W.2d 3D(1) disqualification for Canon 549-50, (apply- 1147 510 U.S. at S.Ct. broadly, room leaving stated considerable 455(b)(1)). § ing Accordingly, 28 U.S.C. interpretation application in their that, although concluded Court any given set of circumstances.” Id. judge’s personal is a condi- bias sufficient reviewing judge’s decision not to When require disqualification, tion to it is not a herself, objec disqualify we must make an “a necessary preju- condition for ‘bias or judge’s tive examination of whether the dice’ recusal.” Id. at 1147. such, impartiality reasonably ques could be As that a with possible it is 116; tioned. Id. at see also United States prejudice bias or con- judicially-acquired (1st Cowden, 545 F.2d Cir. cerning party required could be to re- 1976). earlier, presumed it is prejudice cuse herself if the or is such As noted bias subject judges will set aside collateral knowl judge’s impartiality a) preju- prohibition against judges presiding personal has a bias or they posses "personal concerning party’s over cases in which party dice or a bias” subsection as is enumerated in same lawyer, personal knowledge disput- prohibition against "personal knowl- evidentiary concerning pro- ed facts edge”: ceeding. disqualify himself or her- A shall Conduct, 3D(l)(a) Canon Minn.Code Judicial proceeding in a in which the self added); (emphasis see also 28 U.S.C. impartiality might reasonably ques- be 455(b)(1) (2000). § tioned, including but not limited to in- stances where:
249
“a
edge
approach
deprived Dorsey
and
cases with
neutral
right
to a fair trial
objective disposition.” Liteky,
impartial
and
510 and an
finder of fact.
This is
562,
J.,
question,
at
114
1147
constitutional
(Kennedy,
U.S.
and we
review
such,
ruling
lower court’s
on
concurring).
judges
pre
questions
As
are
such
de
Wicklund,
novo. See State v.
ability
sumed to have the
to set
589
aside
N.W.2d
(Minn.1999).
793, 797
“nonpersonal” knowledge and make deci
solely on
sions based
the merits of cases
Dorsey asserts he
right
was denied his
Lee,
before them.
either of the
Co.,
360,
judge beyond
requirement
at
43
impartial
231 Minn.
City Ry.
Paul
Railway,
City
In
Paul
not have actual bias. See
at 264.
St.
N.W.2d
Mims,
a parti
assume
“[t]o
noted that
v.
306 Minn.
235
we farther
State
high position
(1975).
have,
desert the
position is to
howev
san
387
We
N.W.2d
elevated,
judge is
and assume
er,
judicial
to which the
every
error
“[n]ot
stated that
(quoting
the advocate.” Id.
reversal,”
the role of
automatically
requires
State,
P.
10 Okla.Crim.
Koontz v.
Supreme
Court that “most
agreed with
(1914)).
Accordingly,
conclude
can be harmless.”
constitutional errors
judge possesses
extra-record
when
(Minn.
Shoen,
State
prejudicial to a defen
knowledge that is
1999)
Fulminante,
(quoting
trial,
may not
criminal
dant in a
1246).
Fulminante,
Rather,
knowledge.
disclose
violating
that errors
constitu
Court stated
disqualify herself or set
judge must either
into
cate
rights
tional
can be divided
two
only the
aside and consider
gories: “trial errors” and “structural de
the case.
deciding
evidence adduced
309, 111
499 U.S. at
fects.”
*14
during
presentation
question
turn to the
of whether Trial errors occur
We now
Dorsey
jury,
“may
to a
to the
therefore
judge’s
conduct entitles
of the case
Dorsey argues
trial.
because
in the context of
quantitatively
new
be
assessed
deprived him of an
judge’s
presented
conduct
in order to deter
other evidence
fact,
impartial
judge and finder of
mine whether its admission was harmless
alleged impartiality was a “struc
judge’s
Id. at
beyond a reasonable doubt.”
307-
Fulmi
tural defect” under Arizona v.
OS,
involving
In
trial
253
668, 107
(cita-
577-78,
481
478
at
106
3101
Gray Mississippi,
U.S.
U.S.
S.Ct.
(1987) (“We
omitted).
render a trial unfair. (dissenting). a trial provide The State of course must I respectfully an I dissent. do not view impartial judge, before with counsel help against the what the district court did here as the accused defend Rather, I charge. independent investigation. these basic State’s Without a protections, inquiry a criminal trial cannot reli- would characterize the as confir- ably matory follow-up serve its function as a vehicle for to candid disclosure innocence, knowledge regarding a fre- guilt determination of and extra-record punishment may regard- quent drug-court no criminal be defendant. While inquiry might fundamentally ed as fair. Harmless-er- manner of the have trial, giving rise to analysis a at been better handled to avoid presupposes ror thus defendant, I that it represented by appeal, the claim on do believe which the such as to may present argu- proceeding counsel evidence and tainted the whole jury. a trial. I would affirm. impartial judge ment before an warrant new 4, 2000, information over the “noon- Lorenzo was the same On October with a controlled hour.” charged by complaint mandatory that carried crime substance have a constitution Criminal defendants while when committed minimum sentence impar tried a fair and right al be before a firearm. On December possession in Bracy Gramley, v. 520 U.S. judge. tial 6, 2001, Paige was shot LaTerrance 899, 904-05, 117 1793, 138L.Ed.2d 97 S.Ct. Brooklyn in city bus on a crowded killed (1997). requires clause process The due Fields, 341, 679 N.W.2d Park. State a “fair trial in a that a defendant receive (Minn.2004). appre- gunman with no actual fair tribunal before January Chicago, Illinois on hended in in against the defendant or interest bias by grand subsequently indicted 2002 and case.” Id. particular the outcome February murder on
jury
first-degree
omitted);
citation
see also
(quotation and
Approximately
Id. at 345.
two
Murchison,
133, 136, 75
In re
349 U.S.
later, Dorsey’s controlled-sub-
months
(1955) (“A
623,
255
9;
Drieman,
703, provided
State v.
457 N.W.2d
the information to
prosecutor
cf.
(Minn.1990) (“The
708
test
is whether
permitted
and
use for impeachment);
its
prospective juror can set aside his or her State v. Vanmanivong,
202,
261 Wis.2d
661
impression
opinion
or
and render an im
76,
N.W.2d
89-90
(concluding the
verdict.”)
partial
circuit court erred when it independently
requested additional information from law
Here,
judge sitting
as
of fact
finder
enforcement and relied upon that informa
candor,
obligation
fulfilled her
for
disclos
tion in ruling on disclosure of identities of
ing
might
information that she believed
informants;
confidential
holding
but
error
bearing
have a
on
ability
to remain
case).
harmless
the context of the
Conduct,
impartial. Minn.Code Judicial
3D(1)
(“A judge
Canon
cmt.
should dis
I am also not
majority’s
so sure of the
close
the record information that
assumption
extrajudicial-source
doc
parties
lawyers
believes the
their
or
3D(1)
trine. Under Minnesota’s Canon
might consider relevant
question
3D(l)(a),
which is
statutory
similar to
disqualification,
even if the
believes grounds
judicial
recusal found at 28
really
disqualifi
there
is no real basis for
455(a)
(b)(1) (2000),1
§
U.S.C.
cation.”). That the judge verified the date
disqualified
judge’s impar
whenever the
of death of a recent homicide victim whose
tiality might reasonably
questioned,
be
in
trial,
view,
name
up
my
came
cluding but not limited to where “the judge
confirmatory
more akin to a
follow-up of
personal
has a
prejudice
bias or
concern
an immutable fact
an independent
and not
ing a party
party’s lawyer,
or a
personal
Anderson,
investigation.
Harrison v.
Cf.
disputed
evidentiary facts
(S.D.Ind.
706-10,
300 F.Supp.2d
714
concerning
proceeding[.]”
Under 28
2004) (trial judge committed “forensic mis
455(b)(1),judicial
§
U.S.C.
recusal is limit
in personal
conduct”
participation
devel
ed to bias or prejudice arising from extra
opment
pretrial proceedings,
including
judicial
pejorative
sources because “the
acquisition
presentation
of his own
connotation of the terms
‘preju
‘bias’ and
change-of-judge
evidence at a
hearing);
they
judi
dice’
applied
demands
be
State,
Md.App.
Smith v.
498 A.2d
predispositions
beyond
cial
that go
what is
(1985) (denial
process
of due
acceptable.” Liteky
normal and
v. United
clerk,
judge, through
where
his law
inves
States,
tigated allegations relating to defendant’s
(1994).2
extrajudicial
L.Ed.2d 474
probation violation and relied on informa
455(a)
source doctrine applies to section
gained by
tion
investigation
to revoke
552-53, 114
well. Id. at
Oden,
probation);
State v.
*17
422 (Minn.App.1986) (holding that defen
As
Liteky
author Justice Scalia not-
ed, however,
dant was denied a fair trial where trial
there is not much “doctrine to
record,
554,
court obtained defendant’s traffic
the doctrine.”
at
114
Id.
S.Ct. 1147.
455(a)
(b)(1)
§
provide:
1. 28 U.S.C.
disputed evidentiary
and
facts
(a)
concerning
proceeding!)]
Any justice,
judge,
magistrate
or
disqualify
of the United States shall
origin
"extrajudicial
2. The
of the
doc-
source”
any proceeding
himself in
in which his im-
"pejorative
trine is in the
connotation of the
partiality might reasonably
questioned.
be
"
(b)
prejudice’
words 'bias
and
or
not in the
disqualify
He
also
shall
himself in the
following
"personal”
judi-
term
contained in the federal
circumstances:
disqualification
Liteky,
personal
prej-
Where he has a
cial
statute.
510 U.S.
bias or
550-51,
concerning
party,
personal
udice
or
at
The fact that
York,
1050,
n. 6
judicial
888 F.2d
a source outside
States
derives from
(5th Cir.1989).
necessary
is not a
condition
proceedings
recusal, since
prejudice”
or
for “bias
process
the due
issue is
Inasmuch as
developed during the
predispositions
case,
I
it
dispositive
doubt that
(albeit
a trial will sometimes
course of
judicial
altogether necessary to reach the
rarely)
Nor is it a
suffice.
sufficient
disqualification
principles
issue. Under
recusal,
prejudice”
for
condition
“bias
restraint,
judicial
generally
refrain
opinions acquired outside the
since some
“deciding
from
issue
essential
(for
judicial
ex-
proceedings
context of
disposition
particular
of the
controver-
judge’s view of the law ac-
ample, the
sy
Lipka
before us.”
v. Minn. Sch. Em-
scholarly reading) will not suf-
quired in
Ass’n.,
ployees
Local
presence
of an
fice. Since neither
(Minn.1996).
618, 622
extrajudicial
necessarily
source
estab-
summary,
I do not believe
bias, nor the
of an extra-
absence
lishes
has demonstrated structural error. He
judicial
necessarily precludes
source
has not demonstrated
bias,
speak
it
be better to
would
biased,
actually
Bracy,
as was the case
(and
often de-
significant
existence of
U.S.C. im- requirements,
timeliness some circuits
pose requirement upon a timeliness section require un- generally, some timeliness 455(a) (b), and
der section others draw