Avoiding the Appearance of Judicial Bias: Allowing a Federal Criminal Defendant to Appeal the Denial of a Recusal Motion Even after Entering an Unconditional Guilty Plea
Pridgen, Nancy B., Vanderbilt Law Review
One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness.l
A suspect is charged with a federal crime, obtains legal counsel, and finds out who his judge will be. Because of a prominent rumor circulating in the community that the defendant once had an affair with the judge's wife,2 the defendant questions the judge's ability to be fair with him. He and his counsel file a timely3 motion for recusal under 28 U.S.C. sec455(a).4 The judge promptly denies the motion with little to no comment. Discouraged, and now worried, the defendant considers plea bargaining. The prosecutor, who knows about the rumor, proposes a bargain that includes a recommendation to the judge of a lightened sentence in exchange for the defendant's unconditional guilty plea. The defendant and his counsel repeatedly try bargaining to condition the plea on being able to appeal the denied motion to recuse, but the prosecutor steadfastly refuses: "It's all or nothin'. Take this deal, or take your chances with the judge at trial." The defendant reluctantly signs the plea. The prosecutor and defense counsel inform the judge of the plea agreement5 and the judge sets a date for sentencing. At sentencing, the judge acknowledges the prosecutor's lightened sentence suggestion, but decides that this defendant deserves a harsher sentence. Irate and feeling that the judge has been biased against him, the defendant tries to appeal the denial of the recusal motion.6
A split currently exists in the United States Courts of Appeals as to whether this criminal defendant will be able to appeal the judge's denial of his motion to recuse. In 1988, the Tenth Circuit first decided the issue in United States v. Gipson.7 In Gipson, the court held that only a charge of actual bias8 would survive a guilty plea.9 Two years later, the First Circuit came out the other way in United States v. Chantal, holding that Chantal's 455(a) challenge to the trial judge's qualification was not waived by his guilty plea.' Circuits addressing the issue since these two decisions have aligned themselves with one of the two sides.11 The First and Second Circuits allow a criminal defendant to appeal the denied recusal motion following an unconditional guilty plea-the Fifth, Seventh and Tenth Circuits do not.
This Note argues that criminal defendants who have entered unconditional guilty pleas following a denial of a motion to recuse under sec455(a) should be able to appeal the recusal decision even without reserving the right to appeal it in their guilty pleas.12 Part II of this Note discusses the history and purpose behind 28 U.S.C. sec455(a), and how the appearance of judicial impartiality is a necessary element for the effective functioning of the judicial system. Part III explores plea bargaining in our criminal justice system, and the judge's crucial role in guaranteeing the voluntariness of guilty pleas. Part IV describes how the five circuit courts addressing the issue so far have resolved the question of whether a criminal defendant may appeal a denied recusal motion after entering an unconditional guilty plea. Part V argues that because of the importance of public confidence in the impartiality of the criminal justice system, the importance of ensuring that criminal defendants' guilty pleas are truly voluntary, and the improbability of prosecutorial and judicial consent to a guilty plea conditioned on reserving the right to appeal the denial of the recusal motion, federal courts should recognize that an unconditional guilty plea is not a per se waiver of the defendant's right to disqualify the judge when his13 impartiality is reasonably in question.
II. A LoOK AT JuDiciAL RECUSAL
A. Construing Recusal with Reference to the Values it Protects
An impartial judiciary is essential to the proper functioning of our judicial system. …