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10/06/92 THADDEUS FOSTER v. UNITED STATES

October 6, 1992

THADDEUS FOSTER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)

Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Thaddeus Foster contends that he is entitled to be resentenced by a new Judge because of the trial Judge's ex parte communication, in violation of Canon 3 (A)(4) and Canon 3 (C)(1) of the Code of Judicial Conduct, with the D.C. Parole Board regarding its recommendation that appellant be sentenced under the D.C. Youth Rehabilitation Act, D.C. Code § 24-803 (1991 Supp.). The trial Judge acknowledged, prior to sentencing appellant as an adult, *fn1 that he had initiated an ex parte communication with the Parole Board and declined to hold a hearing when the Board thereafter changed its recommendation to favor adult sentencing of appellant. We hold that the Judge violated the canons, but conclude in view of the Judge's broad sentencing discretion that the errors do not entitle appellant to resentencing before another Judge.

I

Appellant was charged in a six count indictment regarding two separate incidents: a February 27, 1989, armed attack on Terry Brown, *fn2 and the June 29, 1989, murder of Carlton Allen. *fn3 Appellant entered into a plea agreement with the government whereby he agreed to plead guilty to assaulting Mr. Brown with intent to kill and carrying a pistol without a licence during the same incident, and the government agreed to dismiss the remaining charges, including all counts relating to the murder of Mr. Allen.

On May 1, 1990, prior to sentencing, the trial Judge granted appellant's request for a continuance, to July 9, 1990, so that he could be evaluated for sentencing under the Youth Rehabilitation Act. D.C. Code § 24-803 (e); 28 DCMR § 230 (1987). After conducting its study of appellant in accordance with 28 DCMR § 230.1 (1987), the Classification Committee reported its findings and Conclusions to the D.C. Parole Board, including that the Youth Center did not appear to be an appropriate placement for appellant. *fn4 Thereafter, the Parole Board submitted its written recommendation on July 5, 1990, to the trial Judge that appellant be sentenced under the Youth Rehabilitation Act. *fn5 Four days later, on July 9, 1990, the Parole Board submitted a new report to the trial Judge recommending that appellant be sentenced as an adult. *fn6 Although the reasons for the Parole Board's decision to change its recommendation are unclear, the apparent impetus for the change was an ex parte communication initiated by the trial Judge.

On July 9, 1990, the trial Judge stated in open court that he had contacted Mr. Croft, the member of the Parole Board who had signed the Parole Board's July 5th report, because its recommendation was inconsistent with the Classification Committee's recommendation. *fn7 Defense counsel took issue with the Judge's view that the July 9th Parole Board report stated that appellant should not be placed at the Youth Center, and said, "I think this letter in light of the original letter that Mr. Croft sent is somewhat distressing." The Judge, maintaining that the July 9th Report recommended sentencing appellant as an adult, advised that "I am not going to sentence him under the Youth Act." However, the Judge agreed to continue sentencing so that defense counsel could inquire of the Parole Board about its recommendation; the Judge rejected defense counsel's request to subpoena witnesses for a hearing to determine how the Parole Board reached its July 9th decision.

At the sentencing hearing on August 1, 1990, the trial Judge again referred to the two Parole Board recommendations and his intervening Discussion with Mr. Croft. *fn8 Defense counsel informed the Judge that the Parole Board members had, consistent with Board policy, refused to speak with her, but that a supervisor at the Parole Board, who was not involved in making the recommendation, had expressed the view that the recommendation was ambiguous and that "it was not completely clear to her that they meant adult incarceration versus community supervision." The trial Judge interjected, "The decision was not ambiguous," and thereafter denied defense counsel's request to subpoena witnesses, explaining that "they have no obligation whatsoever to give you the reason that they came to the Conclusion that they did." Over defense counsel's objection, the trial Judge proceeded to sentence appellant to four to twelve years imprisonment for assault with intent to kill and one year of consecutive imprisonment for carrying the pistol without a license, finding that appellant would not benefit from being sentenced under "the Youth Correction Act."

II

Canon 3 (A)(4) of the Code of Judicial Conduct provides that:

A Judge should accord to every person who is legally interested in a proceeding, or his [or her] lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

Canon 3 (C)(1) of the Code of Judicial Conduct provides in pertinent part that:

A Judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned . . . .

The underlying reason for the prohibitions of both Canon 3 (A)(4) and Canon 3 (C)(1) is to prevent the "actual or apparent partiality [which) undermines the 'confidence in the judiciary . . . essential to the successful functioning of our democratic form of government.'" Belton v. United States, 581 A.2d 1205, 1214 (D.C. ...


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