Appeal from the Superior Court of the District of Columbia; (Hon. Tim Murphy, Trial Judge), (Hon. Stephen G. Milliken, Post-Trial Hearing Judge)
Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant was convicted of assault with intent to kill while armed and assault with intent to rape while armed, both offenses in violation of D.C. Code §§ 22-501 and 22-3202 (1989). He appealed from his conviction, raising three claims of error, but the judgment of conviction was affirmed by this court in an unpublished memorandum opinion and judgment. Stratmon v. United States, No. 85-561 (D.C. June 16, 1988). After a petition for rehearing and rehearing en banc was denied, this court issued its mandate on September 27, 1988.
On March 25, 1992, after the filing of several pleadings, this court entered an order granting appellant's motion to recall the mandate in order "to consider more fully and then decide" whether appellant had been denied his Sixth Amendment right to the effective assistance of appellate counsel. We further permitted the parties to submit supplemental briefs discussing the impact of this court's decision in Scott v. United States, 559 A.2d 745 (D.C. 1989) (en banc) (" Scott II "), on the instant case. Now, after additional argument, we conclude that appellant's counsel on appeal was not ineffective; hence we direct the clerk of the court to reissue the mandate.
Appellant Stratmon was convicted after a jury trial in the Superior Court before Judge Murphy. While the trial was going on, Judge Murphy was engaged in employment Discussions with the United States Department of Justice (DOJ). Judge Murphy and representatives of DOJ had conferred in October and December 1984 about his possible appointment as Assistant Director for Debt Collection in the Executive Office for United States Attorneys. Following these two meetings, but before a formal expression of his interest in being considered for the job, Judge Murphy heard argument and decided pre-trial motions in appellant's case. On December 24, 1984, Judge Murphy formally asked DOJ to consider him for the position. Appellant's trial began on January 16 and ended on January 18, 1985. Judge Murphy was offered the DOJ job on February 6, 1985, and two days later he informed both the Chief Judge of the Superior Court and the District of Columbia Commission on Judicial Disabilities and Tenure that he had decided to accept the offer and retire from the bench by the middle of April. The Judge never disclosed the existence of these job negotiations to appellant, appellant's trial counsel, or the Assistant United States Attorney prosecuting the case.
Appellant was sentenced by Judge Murphy on April 8, 1985, to fifteen years to life on each count. The sentences were ordered to run concurrently with each other, but consecutively to any other sentence then being served. An additional term of eighteen to fifty-four months was added to appellant's sentence in accordance with D.C. Code § 23-1328 (a)(1) (1989), which authorizes such enhancement when a crime is committed while the defendant is on pre-trial release.
After appellant was convicted, his trial counsel filed a notice of appeal, but soon thereafter he withdrew from the case. This court then appointed James Frick, Esquire, to represent appellant on appeal, but Mr. Frick withdrew as well before filing a brief. We then appointed Calvin Steinmetz, Esquire, to represent appellant on appeal. Mr. Steinmetz, who was unaware that Judge Murphy had been engaged in employment negotiations with DOJ during his client's trial, filed a brief raising three claims of error. We heard oral argument on April 26, 1988, and on June 16, 1988, we issued our unpublished opinion rejecting all three arguments *fn1 and affirming the judgment of conviction. Mr. Steinmetz filed a petition for rehearing and rehearing en banc on August 3. That petition was denied on September 19, and the mandate was issued on September 27, 1988. *fn2
Meanwhile, on December 4, 1987, a panel of this court issued its decision in Scott v. United States, 536 A.2d 1040 (D.C. 1987) (" Scott I "). The Scott case involved a challenge to the conviction of Monroe Scott based on the same underlying facts, viz., Judge Murphy's negotiations for employment with DOJ while presiding over Mr. Scott's trial. *fn3 In Scott I the court considered whether Judge Murphy had violated the Code of Judicial Conduct ("the Code") by simultaneously negotiating for employment with DOJ while presiding over a criminal trial being prosecuted by an office which was part of DOJ. *fn4 A majority of the court assumed, without expressly holding, that Judge Murphy's conduct violated Canon 3 (C)(1) of the Code, *fn5 id. at 1045, but held that the violation was harmless. Id. at 1049. *fn6 One Judge Dissented, concluding that the violation was not harmless and that Scott was entitled to a new trial. Id. at 1051-1056 (Rogers, J., Dissenting).
The panel opinion in Scott I [was vacated on June 20, 1988, when the court agreed to rehear the case en banc. Scott v. United States, 543 A.2d 346 (D.C. 1988). Oral argument before the full court took place on October 3, 1988, and our en banc decision in Scott II was issued on May 10, 1989.
On rehearing en banc the court unanimously reversed Scott's conviction and remanded the case for a new trial. *fn7 We first ruled that Judge Murphy's conduct did in fact violate Canon 3 (C)(1). Scott II, supra, 559 A.2d at 750. Next, we rejected use of the traditional harmless error test to assess the impact of the Judge's conduct, concluding that the traditional test could not accurately determine whether Mr. Scott had been fairly convicted and sentenced because that test presumes the existence of an impartial Judge. See Rose v. Clark, 478 U.S. 570, 578, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986). In addition, we held that application of such a test under the circumstances was inconsistent with the goal of Canon 3 (C)(1), which is to prevent even the appearance of judicial impropriety. We adopted instead the "special harmless error" test formulated by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988). *fn8 This test requires a reviewing court to consider three "risks" which might result from denying relief: "the risk of inJustice to the parties in the particular case, the risk that the denial of relief will produce inJustice in other cases, and the risk of undermining the public's confidence in the judicial process." Id. at 864. Applying this test, see Scott II, supra, 559 A.2d at 753-755, we held that Mr. Scott was entitled to a new trial, not merely a resentencing, "in order to assure the continued public confidence in the integrity of the judiciary." Id. at 756 (footnote omitted). We have followed Scott II and Liljeberg in subsequent cases. See Foster v. United States, 615 A.2d 213, 220-222 (D.C. 1992) (applying Liljeberg to ex parte communication between Judge and parole commission); In re J.A., 601 A.2d 69, 78 (D.C. 1991) (applying Liljeberg to courtroom conduct reflecting bias); Belton v. United States, 581 A.2d 1205, 1212-1215 (D.C. 1990) (applying Liljeberg to ex parte communication between Judge and third parties, after trial but before sentencing, about defendant's criminal activities); see also In re Continental Airlines Corp., 901 F.2d 1259, 1261-1262 (5th Cir. 1990) (applying Liljeberg to case in which Judge solicited employment with firm appearing before him); Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th Cir. 1988) (applying Liljeberg to case in which Judge's law clerk was related to partner in firm appearing before that Judge), cert. denied, 490 U.S. 1066, 104 L. Ed. 2d 631, 109 S. Ct. 2066 (1989).
II. THE PRESENT STATUS OF THE CASE
Under this court's Rule 41 (c), a motion to recall the mandate will be granted when a claim of ineffective assistance of appellate counsel is "found by court to have sufficient merit" to justify the recall. Watson v. United States, 536 A.2d 1056, 1061 (D.C. 1987) (en banc) (emphasis deleted), cert denied, 486 U.S. 1010, 100 L. Ed. 2d 203, 108 S. Ct. 1740 (1988); see Griffin v. United States, 598 A.2d 1174, 1175-1176 (D.C. 1991). If this requirement is met, we will recall the mandate and reopen the appeal "in order to fully explore and then decide whether there was ineffective assistance . . . ." Watson, supra, 536 A.2d at 1061; see Head v. United States, 626 A.2d 1382, 1383-1384 (D.C. 1993).
On March 24, 1989, represented by new counsel, appellant filed a motion in this court to recall the mandate. *fn9 The motion argued that the failure of his prior appellate counsel to raise the issue which had been raised in the Scott case constituted ineffective assistance and required that his convictions be reversed. After several additional pleadings and memoranda were filed by both parties, we ordered an evidentiary hearing by the trial court and directed it to make factual findings on three issues: (1) whether and when appellant's trial counsel was made aware of Judge Murphy's employment negotiations with DOJ; (2) how appellate counsel determined which issues to raise on appeal, and why he failed to raise the issue of Judge Murphy's apparent conflict of interest; and (3) whether the government would be prejudiced in its ability to reconstruct its case for retrial. After an evidentiary hearing, Judge Milliken of the Superior Court wrote detailed findings of fact and returned the case to us. We then entered an order concluding that "appellant's claim of ineffective assistance has sufficient ...