THE COURT OF APPEALS OF VIRGINIA
Before: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Agee,* Felton and Kelsey
Argued at Richmond, Virginia
KENNETH L. JACKSON, S/K/A
KENNETH LAMONT JACKSON
OPINION BY
v. Record No. 2930-01-1 JUDGE ROBERT J. HUMPHREYS
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
UPON A HEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
Daniel Miller (Dan Miller & Associates, P.C.,
on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
This matter comes before the Court on a hearing en banc,
pursuant to the Court's own motion under Code § 17.1-402(D), and
corresponding order of January 8, 2003, ordering that this case
proceed directly to an en banc hearing. Upon hearing this matter
en banc, we unanimously reverse the judgment of the trial court
and remand.
_____________________________
* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
I. Background
Following proceedings in the juvenile court, a grand jury
indicted Kenneth Jackson, a juvenile, for possession of cocaine
with intent to distribute on school property and possession of
cocaine with intent to distribute. On October 10, 1997 Jackson
tendered a guilty plea in the circuit court to those charges. A
judge accepted the plea and entered a conviction order. In
December of 1997, the circuit court judge who convicted Jackson
issued a capias at the Commonwealth's request, ordering Jackson to
appear and show cause why his bail should not be terminated. The
record does not indicate the disposition of that matter. In
February 1998, the circuit court judge sentenced Jackson on his
guilty plea to twenty years in prison, suspended eighteen years of
the sentence, and ordered probation upon Jackson's release. Both
the conviction order and the sentencing order indicate that the
"Commonwealth was represented in the case by Charles D. Griffith,
Jr. [the Commonwealth's Attorney for the City of Norfolk], or his
designee." Several documents in the record suggest that Elizabeth
S. Dopp, an Assistant Commonwealth's Attorney, actually
represented the Commonwealth at various stages of the case.
In April and June 2001, the circuit judge who convicted and
sentenced Jackson issued orders directing Jackson to show cause
why his probation should not be revoked. Charles D. Griffith,
Jr., who had been appointed as a circuit court judge after
Jackson's original sentencing, was assigned to Jackson's probation
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revocation hearing. Jackson objected to Judge Griffith presiding
over the case. He argued that, because Judge Griffith was the
Commonwealth's Attorney under whom the original convictions were
obtained, the Judicial Canons required Griffith to recuse himself.
Judge Griffith indicated he had obtained an advisory opinion from
the Judicial Inquiry and Review Commission and needed to consider
only whether he was the Commonwealth's Attorney when the probation
violation occurred, not whether he was the Commonwealth's Attorney
at the time of the underlying conviction. On that basis, Judge
Griffith denied Jackson's motion for recusal.
At the conclusion of the evidence, Judge Griffith found that
Jackson had violated conditions of his probation and ordered that
the entire previously suspended sentence be executed. Jackson
appeals, arguing that Judge Griffith erred in refusing to grant
Jackson's motion for recusal.
II. Analysis
We begin by recognizing, as Lord Hewart succinctly noted,
that "Justice should not only be done, but should manifestly and
undoubtedly be seen to be done." Rex v. Sussex Justices, King's
Bench Reports, 1924, vol. 1. Accordingly, when a motion for
recusal is raised, we have held that
"[a] trial judge must exercise reasonable
discretion to determine whether he possesses
such a bias or prejudice as would deny a
party a fair trial . . . ." Stamper v.
Commonwealth, 228 Va. 707, 714, 324 S.E.2d
682, 686 (1985) (citing Deahl v. Winchester
Dep't. Social Services, 224 Va. 664, 672-73,
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299 S.E.2d 863, 867 (1983)). In exercising
such discretion, a judge must not only
consider his or her true state of
impartiality, but also the public's
perception of his or her fairness, so that
public confidence in the integrity of the
judicial system is maintained. Id.
However, "[m]erely because a trial judge is
familiar with a party and his legal
difficulties through prior judicial
hearings . . . does not automatically or
inferentially raise the issue of bias."
Deahl, 224 Va. at 672-73, 299 S.E.2d at 867
(citing Barry v. Sigler, 373 F.2d 835, 836
(8th Cir. 1967)). Furthermore, "[t]he
courts are practically unanimous in the view
that neither the forming or expressing of
[an opinion upon a matter or issue which may
come before him in a latter proceeding]
disqualifies a judge in a subsequent
matter." Slayton v. Commonwealth, 185 Va.
371, 376, 38 S.E.2d 485, 488 (1946); see
also Justus v. Commonwealth, 222 Va. 667,
674, 283 S.E.2d 905, 908 (1981), cert.
denied, 455 U.S. 983 (1982).
Buchanan v. Buchanan, 14 Va. App. 53, 55-56, 415 S.E.2d 237, 238
(1992). Thus, we have declined to adopt a per se rule declaring
that trial judges who, as Commonwealth's Attorneys, previously
have prosecuted an accused may not preside over the accused's
trial on unrelated criminal charges at a later time. Davis v.
Commonwealth, 21 Va. App. 587, 592, 466 S.E.2d 741, 743 (1996).
However, our jurisprudence has not adequately addressed the
important consideration of maintaining the integrity of the
judicial system, as it relates to the specific matter at issue
here – a trial judge presiding over the trial of a matter in
which he or she has previously acted as, or on behalf of, a
party.
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However, the Supreme Court of Virginia has addressed similar
issues with respect to other elements of the judicial system. Its
holdings in this regard guide our decision here.
Specifically, in City of Va. Beach v. Giant Sq. Shopping, 255
Va. 467, 498 S.E.2d 917 (1998), the Supreme Court of Virginia
determined that a trial court abused its discretion in refusing to
strike for cause a commissioner in an eminent domain action, where
it was established that at the time of trial, the commissioner was
a client of the landowner's counsel and that the commissioner had
used the landowner as an appraiser in a prior condemnation
proceeding to which the commissioner was a party. 1 255 Va. at
471, 498 S.E.2d at 919. The court noted that the commissioner at
issue "ha[d] moved from counsel table in the prior case to the
commissioners' box in the present case to sit in judgment [over]
his former hired appraiser," and held it was "extremely unlikely
the public would have confidence in the integrity of the process
when a commissioner [had] the identity of interests demonstrated
by this prospective commissioner." Id. Our Supreme Court has
expressed similar concerns with respect to the seating of an
otherwise disinterested juror who was too closely related to a
witness. Barrett v. Commonwealth, 262 Va. 823, 826-27, 553 S.E.2d
1
A commissioner is an individual who is impaneled as one of
a group of five or nine "disinterested freeholders" to determine
the issue of "just compensation" as it relates to condemnation
proceedings, instituted pursuant to the power of eminent domain.
See Code §§ 25-46.19 and -46.20.
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731, 733 (2000). We hold that the same rationale and attendant
analyses with respect to "identit[ies] of interest[]" relating to
prospective jurors or commissioners and parties, must, by their
very nature, apply with equal force to those relating to judges
and parties.
Here, the record establishes that Judge Griffith was the
Commonwealth's Attorney for the City of Norfolk at the time of the
underlying offense committed by Jackson, as well as at the time of
Jackson's trial, resulting conviction, and sentencing for the
offense. Although it is possible that Judge Griffith had no
knowledge of Jackson's case while he was Commonwealth's Attorney,
and played no part in the charging decision or in framing the
trial strategy, the record does not establish this to be the case.
Indeed, to assume that a Commonwealth's Attorney, who has the
responsibility and duty to prosecute violations of the criminal
law, is ignorant of the manner in which his subordinates manage
and dispose of cases, which are by law, in his or her ultimate
charge, is counterintuitive to the expectation the public has of
the role of its elected chief prosecutor.
Further, the record establishes that the proceeding at issue,
Jackson's probation revocation hearing, was "a continuation of the
proceedings of [Jackson's] underlying criminal conviction,"
Grimsley v. Dodson, 696 F.2d 303, 305 (4th Cir. 1982); see also
Merritt v. Commonwealth, 32 Va. App. 506, 509, 528 S.E.2d 743, 744
(2000) ("A probation violation is not itself a criminal
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conviction. It is, however, a continuation and part of the
sentencing process imposed for a criminal conviction . . . .").
Thus, in this particular case, Judge Griffith served as both the
accuser at the original trial, and the trier-of-fact in the
continuation of the same proceeding. See State of New Jersey v.
Tucker, 625 A.2d 34 (1993); Jenkins v. State of Mississippi, 570
So.2d 1191 (1990). The very functions involved in the performance
of these two roles are, by definition, contradictory. See Ward v.
Village of Monroeville, 409 U.S. 57, 60 (1972); see also Tumey v.
Ohio, 273 U.S. 510, 523 (1927). They are contradictory, because
of the "identity of interests" involved. Accordingly, this case
falls squarely within our repeatedly expressed concerns with
regard to matters affecting the integrity of the judicial
process, 2 and thus, raises the issue of whether bias exists as a
matter of law.
2
Although a failure to adhere to the Canons of Judicial
Conduct would not, in and of itself, constitute grounds for
reversal of a judgment, we note that Canon 3(E)(1)(b) of the
Canons of Judicial Conduct for the Commonwealth of Virginia
(2000) provides that:
(1) A judge shall disqualify himself or
herself in a proceeding in which the judge's
impartiality might reasonably be questioned,
including but not limited to instances
where:
* * * * * * *
(b) The judge served as a lawyer in the
matter in controversy, or a lawyer with whom
the judge previously practiced law served
So viewed, and because Jackson specifically requested that
Judge Griffith recuse himself, we find that Judge Griffith's
failure to recuse himself under these circumstances "necessarily"
resulted in a situation seriously undermining the integrity of our
judicial system. Therefore, we hold that Judge Griffith abused
his judicial discretion as a matter of law, in refusing to recuse
himself in this matter, where he acted initially on behalf of a
party, and subsequently as the trial judge, in the same
proceeding. 3 Thus, we reverse the decision of the trial court and
remand for a new hearing with direction that such hearing be held
before another judge of the circuit.
Reversed and remanded.
during such association as a lawyer
concerning the matter, or the judge has been
a material witness concerning it; . . . .
3
Because we find that, under the peculiar facts of this
case, there was an abuse of discretion as a matter of law, we do
not address Jackson's additional argument that Judge Griffith's
failure demonstrated a reasonable appearance of impropriety
sufficient to establish a violation of Jackson's constitutional
right to due process of law. Nor do we find it necessary to
reach the appropriate application of our decision in Welsh v.
Commonwealth, 14 Va. App. 300, 317, 416 S.E.2d 451, 461 (1992),
as it relates to this issue.
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