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12/30/92 PAUL C. FOSTER v. UNITED STATES

December 30, 1992

PAUL C. FOSTER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Evelyn E.C. Queen, Trial Judge)

Before Steadman and Wagner, Associate Judges, and Reilly, Senior Judge. Dissenting statement by Senior Judge Reilly.

The opinion of the court was delivered by: Per Curiam

ORDER

Appellant, claiming error in a trial court refusal to recuse, seeks resentencing, or at least consideration of his motion to reduce sentence, *fn1 before a different Judge. In refusing to recuse, the trial court relied on two erroneous principles of law. First, it stated that the Code of Judicial conduct had no binding effect, a proposition refuted by the en banc decision in Scott v. United States, 559 A.2d 745 (D.C. 1989). *fn2 Second, it stated that movant had not complied with Super. Ct. Civ. R. 63-I, but that Rule, at least in that regard, relates to out-of-court conduct or utterances disclosing a personal prejudice against the moving party, not what the Judge might have gleaned from proceedings before him or her, as here. In re Bell, 373 A.2d 232 (D.C. 1977). Accordingly, the case is remanded for further consideration of the issue of recusal. *fn3

PER CURIAM.

REILLY, Senior Judge, Dissenting: The sole issue raised by this appeal is whether the conduct of a trial Judge in two pretrial hearings in this case was such that the Judge's final refusal to recuse herself from ruling on a motion to reduce sentence was a violation of Canon 3 (C)(1) of the Code of Judicial Conduct, which provides in relevant part: "A Judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." While the reasons given by the trial Judge for denying appellant's first motion for recusal were based on erroneous assumptions, I discern nothing in the transcripts of the designated hearings which disclose "an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question the Judge's impartiality." *fn1 In my opinion, the refusal of the Judge to abstain from participation in any stage of these proceedings was not a breach of the code of judicial conduct. Hence, I disagree that an order remanding the case to the trial Judge for further consideration of the recusal issue is necessary.

The first contact between appellant and judge Queen, whose impartiality he now challenges, occurred on January 11, 1989, when he appeared before her on a motion to quash a bench warrant. He had been arrested several months before, charged with and later indicted for distribution of cocaine -- a felony offense, D.C. Code § 33-541 (a)(1). Appearing before Judge Taylor, he was released on his own recognizance and signed a notice requiring his presence at a status hearing on August 3, 1988. When he failed to appear, Judge Taylor issued a bench warrant for his arrest, revoked his release, and set bond. He was not taken into custody until January 10, 1989 -- five months after the warrant had been issued.

Brought before Judge Queen the next day, Mrs. Pullings, his newly appointed counsel, *fn2 moved to quash the warrant. The following colloquy transpired:

MS. PULLINGS: We ask the court to quash the bench warrant. Mr. Foster failed to appear for arraignment.

He tells me that he no longer lives at that address but he forgot to notify Pretrial Services of the address which he moved to. It was 2131 Rosedale Street, Southeast, Apartment No. 1. He said it just slipped his mind. And he does not want to keep coming back and forth, he says.

THE DEFENDANT: I know.

THE COURT: It slipped his mind?

THE DEFENDANT: Slipped my mind, but just that I was going through family problems. You know what I'm saying? Now my daughter is homeless now, I guess be going into a shelter while I'm in jail.

MS. PULLINGS: He also needs to be arraigned, I believe.

THE COURT: I have an arraignment date of July 12, 1988.

THE DEFENDANT: I got arraigned.

THE COURT: Plea of not guilty entered. Jury demand made. Judge Taylor continued the matter.

THE DEFENDANT: That's right.

THE COURT: Did you sign a notice to appear August 3, 1988, when the ...


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