Also known as: actual biases
Written by attorneys — see sources below.
An acknowledged inability of a juror or judge to remain impartial toward a party or issue in a proceeding.
Anthony Arnold attends a social gathering hosted by a recently convicted racketeer and mingles with guests tied to organized crime. No evidence shows that Anthony Arnold harbors any personal animosity or favoritism toward any party in pending matters. The associations nevertheless prompt disciplinary review of judicial conduct.
Alexis Archer faces trial amid intense television coverage that fills the courtroom with cameras and reporters. The constant publicity creates an atmosphere in which jurors may struggle to set aside preconceptions formed outside the evidence. The court examines whether any seated juror admits an inability to decide the case solely on the record.
In 1962 Billy Sol Estes was indicted in Reeves County, Texas, for swindling by inducing farmers to sign chattel mortgages on nonexistent fertilizer tanks and equipment. The case produced massive pretrial publicity totaling 11 volumes of press clippings which had given it national notoriety, prompting a change of venue to Smith County at Tyler, approximately five hundred miles away. The trial was originally set for September 24, 1962. On September 24 and 25, 1962, the trial court conducted hearings on defense motions to bar television, radio, and still photography from the courtroom and to continue the case. At least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. These initial hearings were carried live by both radio and television. The court denied the motion to exclude cameras but granted the continuance until October 22, 1962, after which the original jury panel was released. Before the October trial the judge issued an order allowing a booth to be built at the rear of the courtroom for cameras. Live telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury's verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. Four of the jurors ultimately seated had seen and heard all or part of the broadcasts of the earlier proceedings. The trial itself lasted only three days and ended in Estes's conviction for swindling. The Texas Court of Criminal Appeals affirmed the conviction. The United States Supreme Court granted certiorari.
View caseAngela Acosta's opponent in litigation contributed millions to Judge Aaron Adams's election campaign. The judge must determine whether the extraordinary financial support has produced an acknowledged inability to remain neutral. Due process analysis focuses on whether actual bias has been admitted or demonstrated.
In August 2002 a West Virginia jury found A. T. Massey Coal Co. and its affiliates liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded Hugh Caperton, Harman Development Corp., Harman Mining Corp., and Sovereign Coal Sales $50 million in compensatory and punitive damages. In June 2004 the trial court denied Massey's post-trial motions, and in March 2005 it denied Massey's motion for judgment as a matter of law. During the 2004 judicial election cycle Don Blankenship, Massey's chairman, chief executive officer, and president, contributed the statutory maximum of $1,000 to Brent Benjamin's campaign committee, almost $2.5 million to the §527 organization And For The Sake Of The Kids that opposed incumbent Justice McGraw and supported Benjamin, and just over $500,000 in independent expenditures for mailings, letters, television, and newspaper advertisements supporting Benjamin. Blankenship's $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee. Benjamin won the election with 382,036 votes (53.3 percent) to McGraw's 334,301 votes (46.7 percent). In October 2005, before Massey filed its petition for appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the West Virginia Code of Judicial Conduct. Justice Benjamin denied the motion in April 2006. In December 2006 Massey filed its petition for appeal, which the West Virginia Supreme Court of Appeals granted. In November 2007 that court reversed the $50 million verdict in a 3-to-2 decision in which Justice Benjamin joined the majority. Caperton sought rehearing, and the parties moved for disqualification of three justices; Justice Maynard recused after photographs surfaced of him vacationing with Blankenship, and Justice Starcher recused, but Justice Benjamin again declined to recuse. Justice Benjamin, now acting chief justice, selected two replacement judges. Caperton moved a third time for disqualification, supported by a public opinion poll showing that over 67 percent of West Virginians doubted Justice Benjamin's impartiality, but he again refused. In April 2008 the court again reversed the verdict in a 3-to-2 decision. Four months later Justice Benjamin filed a concurring opinion defending both the merits and his participation. The Supreme Court of the United States granted certiorari.
View caseAmelia Amari, now a judge, previously participated as a prosecutor in a key charging decision against the defendant now appearing before her. The court assesses whether that earlier involvement has created an acknowledged inability to preside impartially. Recusal turns on whether actual bias is present.
The State of Wisconsin maintains an Examining Board of practicing physicians that issues medical licenses and enforces standards against professional misconduct, fee splitting, and unauthorized practice under names other than the licensed name. Appellee Duane R. Larkin, a Michigan resident, obtained a Wisconsin medical license in August 1971 under a reciprocity agreement and maintained a Milwaukee practice performing abortions. On June 20, 1973, the Board notified Larkin that it would hold a closed investigative hearing on July 12, 1973, under Wis. Stat. Ann. § 448.17 to determine whether he had engaged in proscribed acts, with the possibility of warning, reprimand, or referral for criminal or revocation proceedings. Larkin filed suit in the United States District Court for the Eastern District of Wisconsin under 42 U.S.C. § 1983 seeking preliminary and permanent injunctive relief against enforcement of the statutes and the investigative hearing. The district court denied a temporary restraining order. The Board conducted the investigative hearing on July 12 and 13, 1973, at which numerous witnesses testified and Larkin's counsel was present throughout; counsel was later informed Larkin could appear to explain the evidence. On September 18, 1973, the Board noticed a contested hearing for October 4, 1973, to determine whether Larkin's license should be temporarily suspended under Wis. Stat. Ann. § 448.18(7). The district court granted a restraining order against the contested hearing, concluded a substantial federal question existed, and requested a three-judge court. The Board instead held a final investigative session on October 4, 1973, and issued findings of fact, conclusions of law, and a decision determining probable cause to believe Larkin had violated criminal provisions and engaged in unprofessional conduct, directing referral to the Milwaukee County District Attorney for revocation and criminal proceedings. On November 19, 1973, the three-judge court held § 448.18(7) unconstitutional as a due process violation and enjoined its enforcement; judgment was entered January 31, 1974. Appellants appealed and the Supreme Court noted probable jurisdiction on June 10, 1974. The district court later modified its judgment on July 25, 1974, to withdraw the declaration of unconstitutionality and enjoin enforcement of the statute only against Larkin.
View caseAnita Ali stands trial after months of saturation coverage that vilifies her personally. During voir dire several prospective jurors state they cannot set aside their formed opinions. The court excuses those who acknowledge an inability to decide the case on the evidence alone, thereby screening for actual bias.
Enron Corporation, founded in 1985 and headquartered in Houston, grew into one of the nation’s largest energy companies. Jeffrey Skilling joined in 1990 and rose to become president and chief operating officer before serving as chief executive officer from February 2001 until his resignation in August 2001. Less than four months later, Enron declared bankruptcy, and its stock price, which had reached $90 per share in 2000, fell below $1. A Department of Justice task force investigated the collapse and uncovered evidence of a scheme to overstate the company’s financial performance. On July 7, 2004, a grand jury indicted Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer. These three defendants, the indictment charged, engaged in a scheme to deceive investors about Enron’s true financial performance by manipulating its publicly reported financial results and making false and misleading statements. Count 1 of the indictment charged Skilling with, inter alia, conspiracy to commit “honest-services” wire fraud, 18 U. S. C. §§371, 1343, 1346, by depriving Enron and its shareholders of the intangible right of his honest services. The indictment also charged securities fraud, wire fraud, false statements to auditors, and insider trading. Skilling moved in November 2004 to transfer the trial from Houston due to extensive negative pretrial publicity, submitting hundreds of news reports and expert affidavits on community attitudes. The district court denied the motion after finding the coverage largely objective. The court mailed a 77-question questionnaire to 400 prospective jurors and conducted individual voir dire in January 2006 after Causey pleaded guilty in December 2005. Following a four-month trial, the jury convicted Skilling on 19 of 28 counts, including the honest-services conspiracy count, and the court imposed a sentence of 292 months’ imprisonment. Skilling appealed to the Fifth Circuit, which affirmed the convictions in 554 F. 3d 529. The Supreme Court granted certiorari to review challenges to the honest-services conviction, the venue ruling, and the voir dire process.
View caseActual bias exists when a juror acknowledges an inability to be impartial. Implied bias is presumed from circumstances that make a juror's claim of impartiality unbelievable even without an admission.
Due process requires recusal when a judge has actual bias and also when an objective appraisal shows a serious risk of actual bias, such as from extraordinary campaign support by a party.
Yes. Significant personal involvement as a prosecutor in a critical decision in the defendant's case creates an impermissible risk of actual bias when the same judge later presides over that case.
No. A court must transfer when community prejudice is so great that a fair and impartial trial cannot be obtained, without requiring proof that specific seated jurors hold actual bias.
…but this Court has also identified additional instances which, as an objective matter, require recusal where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” Withrow v. Larkin , 421 U. S. 35, 47. Two such instances place the present case in proper context.…