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.
