Criminal Procedure – Judicial bias

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U.S. Court of Appeals  For the Seventh Circuit

Criminal

Criminal Procedure – Judicial bias

Where the judge who sentenced the defendant after revocation of his supervised release had previously prosecuted the same case, the sentence must be vacated.

“So we have a situation in which a prosecutor who advocates against a particular defendant later sentences him to prison, albeit for subsequent though related violations—sufficiently related that she referred to the prior violations as influencing the sentence she imposed. One might say that the judge was finishing the work of the prosecutor she had been. Judge Darrow has said nothing about her participation as a prosecutor in that earlier proceeding against the defendant, however, and we do not suggest that she remembered it. But the possibility that a conscious or (more likely, we think) an unconscious recollection influenced the sentence she imposed cannot be excluded. The defendant had been accused of a more serious violation of supervised release in the earlier hearing, had been treated leniently by the judge, yet had continued violating supervised release, and the possibility that this history exerted an influence on the current sentence cannot be rejected on the basis of the government’s casual assertions. A ‘risk of undermining the public’s confidence in the judicial process’—a proper consideration when deciding on the appropriate remedy for a violation of the Judicial Code, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)—is present. In order, therefore, to dispel any possibility of an injustice stemming from the judge’s violation of the Code, we have decided to vacate the judgment and remand for a do-over of the sentencing proceeding before a different district judge.

So Ordered.

14-2223 U.S. v. Smith

Appeal from the United States District Court for the Central District of Illinois, Darrow, J., Posner, J.

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