◆ SpookStack

ieee ee oe | 32 Sheppard v. Maxwell No. 16077 States v. Mroz, 1386 F(2) 221, 224 n.4 (CA 7, 1943), cert. dismissed, 320 U.S. 805, 88 L. Ed. 487 (1943). The only authorities cited by the District Judge for his finding of constitutional error in the failure of the trial judge to recuse himself, State, ex rel. Pratt v. Wey- gandt, Chief Justice, 164 Ohio St. 468, 182 NE(2) 191 (1956); Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927); In re Murchison, 349 U.S. 133, 99 L. Ed. 942 (1955), are completely inapposite. In the case at bar it was the jury and not the judge who determined the guilt or innocence of petitioner. Pratt v. Weygandt was a di- voree case to be decided entirely by the trial judge, and — mandamus to compel his replacement was refused. McFad- den v. United States, 68 F(2) 111 (CA 7, 1933), not cited by the court below, is also distinguishable as involv- ing a trial to the judge without a jury. Similarly, in Tumey v. Ohio, thé United States Supreme Court held improper state provisions for trial of liquor law violations before a village mayor who was to retain the amount of his costs in each case of conviction, in addition to his sal- ary. The Court said, “But no fees or costs in such cases are paid him except by the defendant if convicted. There is, therefore, no way by which the mayor may be paid for his service as judge, if he does not convict those who are brought before him. ...” 278 U.S. 520, 71 L. Ed. 753. (Emphasis supplied.) The Court also noted that “all ques- tions of judicial qualification may not involve constitutional validity. Thus matters of . . . personal bias . . . seem gen- erally to be matters merely of legislative discretion.” 273 U.S. 528, 71 L. Ed. 754. In re Murchison involved the Michigan “one-man grand jury” statute and the Supreme Court held that due process was denied where the judge presiding at a contempt hearing had also served as the “one-man grand jury” out of whose proceedings the con- tempt charges arose. The distinction between these cases and the case at bar is obvious. t would come as no surprise to the legal profession and to an informed judiciary that there must be many times when a presiding judge exhibits impeccable fairness and discretion in his conduct of a criminal jury trial notwith- standing his own belief in the guilt of a defendant. What, for instance, of the position of the judge where a defendant withdraws a guilty plea? See United States v. Kravitz, 303 F(2) 700 (CA 3, 1962), cert. denied, 371 U.S. 922 (1962). No. 16077 Sheppard v. Maxwell 33 Such fairness, indeed, is the mark of the kind of men we dare to think occupy judicial office. If no judge could pre- side at a criminal trial except one devoid of discernment, we would be hard put to find judges to handle our crim- inal dockets. We pridefully believe that by and large our judges are so conscious of their solemn duties as to protect meticulously the rights of an accused notwithstanding per- sonal impressions of his guilt or innocence. Good judicial manners should of course suggest nondisclosure of such thoughts, but on the record before us we are unable to join in finding impropriety of constitutional magnitude. Cer- tainly we cannot accept the District Judge’s determination that such statements raise a presumption of constitutional unfairness and that having made such statements “the judge then has a personal interest in seeing that the defend- ant is convicted or the judge may well be embarrassed for having made such an emphatic statement of guilt. 231 F. Supp. 65-66. Upon what weak foundations would rest the judgments of our courts if long after the event they could be set aside by attributing to a judge misconduct not discoverable in the trial record, in circumstances where death forecloses any answer by the accused judge. _ Much has been made of the fact that the Sheppard trial began on the eve of a judicial election at which the trial judge and one of the prosecution staff were candidates. We must assume that this is emphasized to imply that desire for victory may have led the judge to conduct preju- dicial to Dr. Sheppard’s rights. We would have to enter- tain a low estimate of the integrity of our fellow judicial officers to join in any such inference. In most of the states of the Union it is traditional that those who occupy judicial office be required from time to time to account for their stewardship by submitting to election. If it is suggested that we presume that an elective judiciary can preserve constitutional rights only at some undefined distance in time from election day, we reject such suggestion out of hand. As realists we know that those who seek reelection to judicial office hope that their conduct will find public approval, but we do not think that judicial misconduct would be more attractive to the electorate than conduct marked by the integrity which we as judges like to believe is possessed by elected judges as well as those who have the security of tenure during “good behavior.” Nor are we prepared to presume that any Judge is so far enamored of é . hay” fey vt "4 a . ' H H ' |