Thursday, March 09, 2017

due process - impartial tribunal - actual bias v. unacceptable risk of bias - US SCt

Rippo v. Baker – US SCt – March 6, 2017

Criminal conviction reversed where defendant moved to disqualify judge, who was subject of federal investigation in with the state DA’s office had participated.

State supreme court’s use of actual bias standard was improper.  Under U.S. Supreme Court precedents “the Due Process Clause may sometimes demand recusal even when a judge “ ‘ha[s] no actual bias.’ ” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986). Recusal is required when, objectively speaking, “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 (1975); see Williams v. Pennsylvania, 579 U. S. ___, ___ (2016) (slip op., at 6) (“The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias” (internal quotation marks omitted)).

The decision in Bracy v. Gramley, 520 U. S. 899 (1997) is not to the contrary:   Although the Court explained that the petitioner there had pointed to facts suggesting actual, subjective bias, it did not hold that a litigant must show as a matter of course that a judge was “actually biased in [the litigant’s] case,” . . . . much less that he must do so when, as here, he does not allege a theory of “camouflaging bias.” The Nevada Supreme Court did not ask the question that the  SCt precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.