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Judicial Bias: How Court Observers Can Help

Even if the judge feels that she has acted impartially, what matters most is the perception or the appearance of bias and partiality.

Judicial Bias: How Court Observers Can Help

Judicial Bias: How Court Observers Can Help

by Loren Edward Pearce

Many people who have attended court for a trial, any trial, are often shocked and dismayed by what they observe.  Not only does there seem to be a lot of unnecessary pomp and ceremony, but the behavior of the judge can be arrogant, incompetent and worst of all, biased and partial.

Because of the importance of public perception of the judicial process and the degree to which the public can trust it, courts and bar associations have worked hard to improve that perception through something called, “Judicial disqualification for bias or its appearance of bias”.

Later in this article, how all this applies to the Las Vegas trials, involving Navarro and the Bundy et al defendants, will be explained. But, first some background.

The Importance Of Public Opinion

Judges, who wield so much power and authority, are viewed with suspicion by the general public.  So important is public opinion to the higher courts and to those who write the Rules of Conduct for Judges, that they have made some of the following statements:

In re Antar, 71 F.3d 97, 101 (3d Cir. 1995) (” [because we seek to protect [public] confidence in the judiciary, our inquiry focuses not on whether the judge actually harbored subjective bias, but rather on whether the record, viewed objectively, reasonably supports the appearance of…bias”)

People v. Julien, 47 P.3d 1194, 1202 (Colo. 2002), Bender, J., dissenting (the primary rationale for requiring disqualification on the basis of appearances “stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence”)

In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1321 (2d Cir. 1988)

(when a reasonable basis for doubting a judge’s impartiality exists, the public trust demands that the court act decisively), Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001) (“judges must conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

In an effort to increase the level of trust and respect that the public has for the judiciary, the American Bar Association, higher courts and even congress, have weighed in on the subject.

The conclusion?  Even if the judge feels that she has acted impartially or is able to act impartially, what matters most is the perception or the appearance of bias and partiality.

Courts have held that, even when it is not proven that judges are being biased, the mere fact that a reasonable person thinks they are acting with partiality and bias, is enough to get them disqualified.

Keeney v. Buccino, 92 Conn. App. 496, 885 A.2d 1239, 2005 Conn. App. LEXIS 506, *34-35 (2005) (“Any conduct that would lead a reasonable [person to conclude that a] judge’s impartiality might reasonably be questioned is a basis for” disqualification)

McElhanon v. Hing, 151 Ariz. 403, 728 P.2d 273 (1986) (even where there is no actual bias, justice must appear fair)

U.S. v. Gigax, 605 F.2d 507 (10th Cir. 1979) (if a judge’s conduct or appearance in the trial of the case does not comport with the appearance of justice, the conviction must be reversed).

Durhan v. Neopolitan, 875 F.2d 91, 97 (7th Cir. 1989) (“once a judge whose impartiality toward a particular case may reasonably be questioned presides over that case, the damage to the integrity of the system is done”)

Pro Se Litigants

People who represent themselves in court, are to get special treatment and if they perceive that there is judicial bias, then it is accorded greater weight:

Holt v. KMI Coral, Inc., 821 F. Supp. 846, 848 (D. Conn. 1993) (“perceptions to a pro se plaintiff are often as significant, or even more so, than the reality”).

Also, when the stakes are very high where it may involve loss of children or loss of livelihood or loss of many years of freedom, the courts are to give the Pro Se litigant special deference:

Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983) (the question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality, rather than the judge’s perception of his ability to act fairly and impartially [and] appellant’s fear that he could not receive a fair trial was especially reasonable given he was being tried for first-degree murder).

The Reasonable Person Doctrine

Courts often refer to what a reasonable person would perceive under similar circumstances.  However, the courts have never really defined what a reasonable person is or how they would know what a reasonable person perceives:

Roberts v. Ace Hardware, Inc., 515 F. Supp. 29, 31 (N.D. Ohio 1981) (“[t]he question of reasonableness ought to be approached from the viewpoint of the party to the action, not of that famous fictitious character, the reasonable man”)

In re Disqual. of Squire, 105 Ohio St.3d 1221, 1223, 826 N.E.2d 285 (2004) (“Undoubtedly, ‘it is of vital importance that the litigant should believe that he will have a fair trial’…and in this case, it seems fair to say that affiant no longer holds that belief’).

Nevertheless, many courts have said that the litigants and the parties who have a stake in the court’s decision, cannot perceive judicial bias because they have their own bias.  In scholarly articles on the subject, it is stated that in order to disqualify a judge for the appearance of bias and partiality, it must be based on the perception by a neutral, objective, disinterested observer:

Cunningham v. Gates, 45 F. Supp.2d 783, 785 (C.D. Cal. 1999) (if a defendant believes that he can receive a fair trial only if another judge is assigned, “to have the case reassigned might seem a simple…solution. Neither the problem nor the solution, however, is that simple. Because it is…easy for parties to believe unfounded charges of ..bias, it cannot be the rule that [if] a party believes that a judge is biased, the case should be reassigned”).

U.S. v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (the relevant inquiry is whether a reasonable person would have a reasonable basis for questioning the judge’s impartiality, not whether the judge is impartial)

How You Can Be A Reasonable Person Who Has Reasonable Basis For Challenging The Judge’s Impartiality

Many people have come to the Las Vegas federal court to witness the proceedings of the matter of the United States vs. Bundy et al.

While support of the defendants by one’s mere presence is important, the greatest value comes from being a courtroom observer and taking notes.   To really add value, a person who attends court should not just occupy a seat, but should be taking detailed notes of their observations.

In all sincerity, one should put on their impartial, unbiased hat and try to watch as if you had never heard anything about the trial.  One should really put themselves in the place of the jury.  One should note everything that is going on, both from the perspective of the prosecution as well as the defense and with the goal of finding facts and arriving at the truth.

What You Should Make Detailed Notes About

  1. Any time you note something, note the hour and minute of the incident.
  2. Body language of the judge.  Does the judge show frustration, laugh at inappropriate times, or show disgust, throw something down on her desk?  In effect, does the judge violate her own rules imposed on those in the court room regarding displays of emotion?
  3. Keep a tally of objections sustained and overruled by the judge.  In three columns, note every objection made by the prosecution and whether sustained or overruled and in three other columns, the same for the defense.
  4. Reprimands, warnings, punishments, and the scolding of the defense versus the same to the prosecution.
  5. Cutting off, interrupting and denying equal speaking time to the defense versus the prosecution.
  6. Comments made by the judge that would indicate partiality or improper behavior regarding the admissibility of evidence or the testimony of witnesses.
  7. Anything else that you perceive to be improper, biased or slanted against or for one side.


The Affidavit

Even if you only attend a few hours of court, your notes are important.

If you do observe bias by the judge and/or misconduct by the prosecution and/or defense, then it can be used to make an affidavit.

The affidavit is your sworn testimony before a notary of what you observed that supports the allegation of bias and impartiality of the judge.  The affidavit is used to support a motion for disqualification of the judge.

People will be available at court and/or online to help you take your notes and make them into an affidavit.  The affidavits, if any, from you and other courtroom observers, will be compiled in support of a motion to disqualify the judge.

This process is extremely important in getting justice and to assure that the defendants are treated fairly and that the jury hears the truth, the whole truth, and nothing but the truth.


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