dissenting:
I write only on the question of whether Nakell was entitled to a contempt hearing before a judge other than Judge Lake.
Supreme Court precedent teaches that another judge should conduct contempt proceedings when (1) the trial judge is personally attacked by the contemnor; or 2) the trial judge becomes embroiled in a controversy *326with the contemnor. Taylor v. Hayes, 418 U.S. 488, 501-03, 94 S.Ct. 2697, 2704-06, 41 L.Ed.2d 897 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 463-466, 91 S.Ct. 499, 504-05, 27 L.Ed.2d 532 (1971). Since I believe that following either Taylor or Mayberry Judge Lake should have recused himself from the contempt hearing, I dissent.
The majority relies on the fact that the personal attack upon Judge Lake was launched not by the contemnor (appellant Nakell) but by his client (Hatcher), and thereby suggests that the “personal attack” doctrine does not apply. The majority’s reb-anee on this apparent distinction is misplaced, however, because Judge Lake held Nakell responsible for the attack and repeatedly and explicitly charged Nakell with directly causing and encouraging his client’s conduct — and it is Judge Lake’s interpretation of the events and his possible personal bias which are at issue here.
In his specification of the contempt charges, on November 14th, the judge stated: “It appeared clear to the Court that you were pandering to the audience and to the defendant and that you were encouraging the defendant, Eddie Hatcher, to be disruptive.” J.A. 89 (emphasis added). The judge reiterated the point in his interview with a Raleigh News and Observer reporter, see J.A. 99-100, and again when rendering his findings of fact on November 16th. See J.A. 192 (finding by Judge Lake that Nakell’s behavior “was the direct cause of Mr. Hatcher’s behavior in exceeding his previous attacks on the Court by his language and launching into a violent attack upon the Court” (emphasis added)); id. at 196 (concluding “from the Court’s direct observation that Mr. Nakell’s conduct incited that eruption [and] exacerbated that highly volatile situation” (emphasis added)).
Whether NakeU’s allegedly contemptuous conduct in fact caused Hatcher to launch a personal attack on Judge Lake is irrelevant here. The Supreme Court addressed its personal attack doctrine to the bias, or appearance of bias, of the judge; even if it could be somehow proved with certainty that Nakell did encourage and directly cause Hatcher’s tantrum, that fact would have no bearing on the issue of Judge Lake’s possible bias against Nakell. His bias against Nakell could be quite strong even if it were based upon a faulty understanding of what inspired Hatcher’s misconduct. This court properly should impute Hatcher’s personal attack on Judge Lake to Nakell precisely because Judge Lake himself so imputed it. Thus, the personal attack on Judge Lake that occurred at the November 14th hearing required a recusal. By adjudicating the contempt himself, Judge Lake violated Nakell’s due process rights under the Fourteenth Amendment. Therefore, the Fourth Circuit should grant Nakell’s petition for a writ of habeas corpus. That by no means, relieves Nakell of a need to litigate the question of contempt. It would only assure his constitutional right of an impartial judge.
Furthermore, as the Supreme Court has explained, even if the “contemptuous conduct [falls] short of personal attack, [it] may still provoke a trial judge and so embroil him in controversy that he cannot ‘hold the balance nice, clear and true between the State and the accused.’ ” Taylor, 418 U.S. at 501, 94 S.Ct. at 2704 (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927)) (emphasis added); see also 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 713, at 863-64 (2d ed. 1982) (“If this is so, another judge must try the contempt charge.”) (citing inter alia Taylor, 418 U.S. at 501-02, 94 S.Ct. at 1921-22).
“In making this ultimate judgment, the inquiry must be not only whether there was actual bias on [the judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ” Taylor, 418 U.S. at 501, 94 S.Ct. at 2704 (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). “ ‘Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ but due process of law requires no less.” Id. (quoting In re *327Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)).**
Unlike the “personal attack” doctrine applied above, the line of due process cases dealing with judges’ “embroilment” requires an appellate court to review both the contem-nor’s conduct and the judge’s response to that conduct. See Taylor, 418 U.S. at 503 n. 10, 94 S.Ct. at 2705-06 n. 10.
An examination of the record before us leaves little doubt that Judge Lake became personally embroiled in a running controversy with Nakell and Nakell’s client. The evidence regarding Nakell’s conduct (and Hatcher’s conduct, to the extent that the judge held Nakell responsible for it) has been reviewed above. Judge Lake’s response to Nakell’s conduct also suggests that the judge had become embroiled in a running controversy with Nakell and Hatcher. Between the hearings of November 14th and 16th, Judge Lake granted an interview to the Raleigh News and Observer, in which he flatly stated that “ ‘Mr. Nakell had been disruptive of the proceedings, pandering to the audience and the defendant and encouraging Mr. Hatcher to be disruptive.’” J.A. 99-100 (quoting the newspaper article). At the November 16th hearing, the judge acknowledged the interview and the accuracy of the quotation. See J.A. 100.
The words of the article, fairly read, appear to be preliminary conclusions of fact, not mere recitations of the charges. Judge Lake conveyed these statements to the press before he sat in judgment on the contempt charge. Neither the public nor any defendant can remain confident in the impartiality of a tribunal when the tribunal itself has already convicted the defendant in the press. See McClendon v. Clinard, 38 N.C.App. 353, 247 S.E.2d 783, 784-85 (1978) (reversing a trial judge’s dismissal of a motion to recuse, in part because the judge had given an interview to a reporter about an incident involving the plaintiffs’ attorney); Suter v. State, 588 P.2d 578, 580-81 (Okla.Crim.App.1978) (holding that a contempt proceeding should have been conducted before a different judge in part because the magistrate gave an interview to a newspaper before the final contempt proceeding); cf. Ungar, 376 U.S. at 587-88, 84 S.Ct. at 848-49. Judge Lake’s press statement created at least the appearance that he was so personally embroiled in the controversy as to compromise his impartiality, and therefore the Due Process Clause mandated a recusal. See Taylor, 418 U.S. at 501, 94 S.Ct. at 2704-05. Because Judge Lake was both personally attacked and embroiled in controversy with Nakell, his bias— or at least appearance of bias — warrants the granting of Nakell’s petition for the writ of habeas corpus.
Therefore, I respectfully dissent.
Given the Supreme Court's teaching of the appropriateness of a judge’s recusal in circumstances such as those presented by the instant case, In Re Union Leader Corp., 292 F.2d 381 (1st Cir.1961), decided by the First Circuit a decade before Mayberry and Taylor and relied on by the majority, seems a slim reed indeed.