Appeal from the Superior Court of the District of Columbia (DEL-2230-07) (Hon. Patricia A. Broderick, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge:
(Amended December 16, 2010)
Before RUIZ, Associate Judge, and NEBEKER and KING, Senior Judges.
In this appeal, we consider the application of well-established ethical rules requiring recusal where there is an appearance of lack of impartiality to current conditions brought about by technological developments where judges can receive instantaneous (and often unsolicited) electronic communications related to a pending judicial proceeding. Appellant, M.C., challenges the denial of his motion for recusal on the grounds that the trial judge was required to recuse herself under the 1995 Code of Judicial Conduct for the District of Columbia Courts because during trial she received two ex parte emails from another Superior Court judge that contained information about an important government witness. We hold that Canon 3(E)(1)(a) of the Code of Judicial Conduct required the trial judge to recuse from further participation in the proceeding, and that the trial court's denial of appellant's motion to recuse was not harmless. We, therefore, reverse and remand for retrial before a different judge.
On September 15, 2007, the District of Columbia charged M.C., who was then fifteen years old, with twenty crimes related to a shooting in which M.C. allegedly fired a gun at a group of four people, injuring one of them.*fn1 A bench trial was held on November 26-29 and December 3-4, 2007. After all but two of the government's six witnesses had testified, the judge informed counsel that she had received an email from another Superior Court judge with information about one of two complaining witnesses who had testified on behalf of the government. The next day, M.C. filed a written motion for recusal. The trial judge's denial of the motion to recuse is the sole issue on appeal. We set out the evidence presented against appellant and the discussions relevant to the recusal motion in the sequence in which they came up at trial.
The complaining witnesses are three brothers: D.W., I.W., and N.W, who were twenty-eight, seventeen, and sixteen years old, respectively, at the time of the trial. On September 7, 2007, D.W. learned from his mother that his younger brothers, I.W. and N.W., had been in an altercation earlier in the day and were staying at their friend's house. D.W. agreed to escort his siblings home and, at around 9:00 p.m., D.W. picked up his brothers and they started walking to their mother's house.*fn2
In light of the earlier altercation, D.W. carried a baseball bat for protection. It was a clear night and I.W. testified that the street lights allowed "[y]ou [to] see what was around you." Asthe brothers were walking, they noticed someone approach from a side street. D.W. testified that the person was about fifty yards away when he pulled out a gun. N.W. and I.W. testified that just before the shooter began to fire, he called out, "you jumped my man."*fn3 The shooter chased the brothers and fired five or six shots, one of which hit D.W. in the elbow.
D.W. testified that immediately after the shooting, I.W. and N.W. both identified the shooter as "B." ("M.C.") -- a nickname for M.C. The brother's mother called 911 and two police officers came to the mother's home. Detective Andre Williams and Officer Daniel Egbert, testified that N.W. and I.W. identified the shooter as "Buddha." According to the police officers, the three brothers provided physical descriptions of the shooter that were consistent with each other.*fn4
There was no physical evidence linking M.C. to the shooting. The police did not find shell casings at the scene of the shooting, or a weapon in their search of M.C.'s home. While the police did recover a box of ammunition from M.C.'s bedroom, it was never linked to the bullet recovered from D.W.'s arm. Thus, the basis for the District's twenty counts against M.C. was the identification of M.C. by I.W. and N.W. on the night of the shooting. M.C. was arrested a week later, on September 14, 2007. According to Detective Williams, upon advising M.C. that he was under arrest for assault with a deadly weapon -- "ADW gun" -- M.C. responded by saying something to the effect of "you don't have the gun."
Detective Williams testified that, in contrast to all three brothers' in-court testimony about a lone shooter, D.W., I.W., and N.W. had independently reported to the police that they had been chased by a group of "fifteen to twenty" boys just prior to the shooting, and that the gunman was at the head of this group. Officer Egbert testified that all three brothers reported being chased by a "group of 10 to 15 males" just prior to the shooting. According to Detective Williams, N.W. and I.W. also gave detailed descriptions -- including the clothing, hair, schools, and addresses -- of four of the boys who allegedly chased them. Upon investigation, however, the police were able to locate only one of the four suspects the brothers had identified. The police determined that he was not involved in the shooting or the alleged chase.
N.W. testified that he had known M.C. for years, saw him frequently, and was familiar with his appearance and voice. N.W. identified M.C. as the shooter on four different occasions: when he was with his brothers at their mother's house; after the shooting but before the police arrived; when he spoke with the police the night of the shooting; again when he was shown a photo array about a week later, at which point he said that he was "positive" the shooter was M.C.; and then at trial when he reaffirmed that he was "positive" M.C. was the shooter. When asked what he thought the shooter meant by the statement "you jumped my man," N.W. testified that he thought M.C. "was talking about the fight between him and my bro. But a friend of mine bro."
On the third day of trial, before I.W. took the stand, the trial judge announced that I.W. had pled guilty before her to two counts in an unrelated juvenile matter that morning and that his case had been certified to a different judge.*fn5 The government called I.W. as a witness. I.W. testified that he had known M.C. for years and that M.C. had "tried to jump [him] when [he] was younger." To the apparent surprise of government counsel, however, I.W. did not testify that M.C. was the person who shot at him and his brothers the night of September 7. Instead, he said that he did not know who shot at them, and that although he looked at the shooter, he "didn't see his face clearly." This contradicted the testimony of D.W., Detective Williams, and Officer Egbert who testified that I.W. had told them M.C. was the shooter. I.W. also described the shooter in a way that was significantly different from the description that Detective Williams and Officer Egbert said that he had given during the investigation.*fn6
Government counsel impeached I.W.'s testimony by asking him whether he remembered telling D.W. and the police that the shooter was "Buddha." I.W. responded that he did not recall identifying the shooter himself, explaining "I believe I remember saying that my brother seen who shot at me." I.W. also denied telling the police that he recognized the shooter's voice as Buddha's. Government counsel unsuccessfully attempted to elicit an explanation for I.W.'s unexpected testimony. Asked whether he "want[ed]" to testify against M.C., I.W. replied: "I told several times that I do not like testifying." Counsel then tried to impeach I.W.'s recantation by suggesting that he had been intimidated by M.C.:
GOVERNMENT COUNSEL: Have you had any conversations with M.C. concerning testifying against him?
GOVERNMENT COUNSEL: Do you recall seeing M.C. since you were informed that you would be a witness against him?
GOVERNMENT COUNSEL: And where did you see him? . . .
I.W.: Where did I see? In the holding cell in this, in this place. Where I seen him before, this was.
GOVERNMENT COUNSEL: When you say, "in this place" sir, do you mean ...