The Appearance of Justice Revisited

Article excerpt

I. Introduction

In 1919, the Journal of Criminal Law and Criminology published an article by George Everson, titled "The Human Element in Justice."(1) In that article, Everson described an empirical research project examining variations in over 150,000 cases by forty-one New York City magistrates in their determinations of guilt and sentencing.(2) Among other conclusions, Everson identified what he called the "remarkable degree" to which the disposal of cases reflected the temperament and personality of judges.(3) Everson described the richness and complexity of the "appearance of justice" for the judges studied:

The warm human attributes of our ministers of justice,... their peculiarities of temperament, their chance of prejudice, their warm openheartedness or their petty tyrannies, their leniencies or their severities are all supposed to be charmed away by the donning of judicial robes and the justice they dispense is supposed to be an abstract thing as immutable as the law of gravitation.(4)

Everson believed his findings "startling" because the "appearance of justice" seemed to revolve more around the personality of the judges examined than any legally principled approach they may employ in implementing the law.(5) Everson concluded that, regardless of the actual law, much of its enforcement depended solely upon the judges' particular attitudes toward the allegedly guilty party.(6)

Much has changed, of course, in the appearance and the reality of the administration of justice in the more than seventy-five years since the publication of Everson's article. Yet, much remains the same - indeed, as it has remained since the beginnings of our system of justice. This is particularly true with regard to current conceptions of "the appearance of justice,"(7) as illustrated during the discussions at the Annenberg Washington Program/Woodrow Wilson School Conference.

Judge Cordell's opening remarks at "The Appearance of Justice" Conference(8) express current conceptions and concerns:

My view from the bench is that the public has a right to know, and must always have access to proceedings in the courtroom.... It is the check on judicial malfeasance ... to make sure that the system behaves as best it can by having public accountability.(9) ... [But] when we talk about the [current] social norms and the appearance of justice, we have got young [black] men - and Latino males - coming into a system that doesn't appear fair to them.... There's got to be different approaches taken.(10)

This Article explores the need for future empirical research on "the appearance of justice." In Part II, this Article gives future research a start by examining what the courts, judges, trial lawyers, and social scientists consider to be "the appearance of justice"; that is, what these diverse groups imply from history, legal precedent, and empirical research about the concept of the appearance of justice, particularly as it applies in criminal jury trials. The appearance of justice is then revisited in light of recent Supreme Court decisions that may impact, in yet unforeseen and far-reaching ways, this core concept in American society and jurisprudence.(11)

In Part III of this Article, the need for future research is reexamined in light of emerging Supreme Court jurisprudence on judicial disqualification and recusal. Particular emphasis is placed on Liteky v. United States. Although explanation into the cases illuminates the relationship between conceptions of the appearance of justice and standards for judicial disqualification and recusal, the relationship cannot be fully understood without the help of future studies. Finally, the Article summarizes the questions posed throughout the text and suggests directions for future research.

II. "The Appearance of Justice" Revisited

A. HISTORICAL AND LEGAL ROOTS

Historically, the concept of the appearance of justice has been closely linked with the workings of our judicial system. …