Holding that “the remedy for allegations of jury partiality is a hearing in which the defendant has the opportunity to prove actual bias. In these cases, however, the Court regarded “actual bias” as including “not only prejudice in the subjective sense but also such as might be thought implicitly to arise `in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise.'” Frazier v. United States, supra, at 510-511, n. 19 (quoting United States v. Wood, supra, at 133-134).Smith v. Phillips 455 U.S. 209 (1982)
The Respondent argues strongly in favor of applying an actual bias standard. In doing so, the Respondent relies almost exclusively on Kaplan’s footnote 30 where the Third Circuit borrows Sixth Circuit language to indicate that evident partiality is only present “when a reasonable person would have to conclude that an arbitrator was partial” to one of the parties. Kaplan, 19 F.3d at 1523, n. 30 (3d Cir. 1994). In Kaplan, the Third Circuit’s cursory mention of the evident partiality standard consists largely of a single sentence taken from the Sixth Circuit’s Apperson v. Fleet Carrier Corp. The Sixth Circuit’s approach in Apperson is directly taken from the Second Circuit’s Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79 (2d. Cir. 1984). Thus, the origins of the actual bias standard can be traced directly to the Second Circuit’s break from the Commonwealth Coatings holding in Morelite. Crow Construction v. Jeffrey M. Brown Assoc. Inc. 264 F. Supp. 2d 217 (E.D. Pa. 2003)
Holding that the defendant demonstrated actual bias where the murder victim had made allegations concerning the trial court prior to her death, the trial court had a personal interest in protecting his name and the county’s judiciary, and the trial court made rulings calculated to remove any mention of himself or implication of his alleged wrongdoing from the defendant’s defense Criminal defendants have a constitutional right to be tried before a fair and impartial judge. Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). The due process clause “requires that a defendant receive a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Id. (citations omitted); see also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.”). Harrison v. Anderson 300 F. Supp. 2d 690 (S.D. Ind. 2004)
The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U.S., at 532, 47 S.Ct. 437;Mayberry, 400 U.S., at 465–466, 91 S.Ct. 499;Lavoie, 475 U. S., at 825, 106 S.Ct. 1580. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U.S., at 47, 95 S.Ct. 1456. Caperton v. A.T. Massey Coal Co. 556 U.S. 868 (2009)
Asserting that “the trial court must be zealous to protect the rights of an accused,” including by exercising “a serious duty to determine the question of actual bias” We did not depart from the “average man” test in United States v. Wood, 299 U.S. 123, or Frazier v. United States, 335 U.S. 497. Those cases involved convictions for theft and dope-peddling. They did hold that proof of mere governmental employment was not enough, standing alone, automatically to impute disqualifying bias in every criminal proceeding brought by the Federal Government. But both opinions clearly indicated that “particular issues or circumstances” might require exclusion of government employees in order to assure an impartial jury. In complete harmony with the principle declared in the Burr and Tumey cases, our Wood opinion cautioned that a government employee could be disqualified if “in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias . . . .” 299 U.S. at 134. And the Frazier opinion emphasized that these factors would support disqualification of government employees for “actual bias” without proof of “prejudice in the subjective sense.” 335 U.S. at 510-11, n. 19. Dennis v. United States 339 U.S. 162 (1950)
In Williams, the Supreme Court held that “[w]here a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level” violating the defendant’s due process rights. Williams v. Pennsylvania 136 S. Ct. 1899 (2016) Prior to this Court’s decision in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), we had declined to require judicial recusal under the Due Process Clause beyond those defined situations. In Caperton, however, the Court adopted a new standard that requires recusal “when the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id., at 872, 129 S.Ct. 2252(internal quotation marks omitted). The Court framed the inquiry as “whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Id., at 883–884, 129 S.Ct. 2252(internal quotation marks omitted).
Before addressing whether petitioner is entitled to discovery under this Rule to support his judicial-bias claim, we must first identify the “essential elements” of that claim. See United States v. Armstrong, 517 U.S. 456, 468 (1996). Of course, most questions concerning a judge’s qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986). Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. See, e.g., id., at 820-821; Tumey v. Ohio, 273 U.S. 510, 523 (1927); 28 U.S.C. § 144, 455; ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980). But the floor established by the Due Process Clause clearly requires a “fair trial in a fair tribunal,” Withrow v. Larkin, 421 U.S. 35, 46 (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case. See, e.g., Aetna, supra, at 821-822; Tumey, supra, at 523. Bracy v. Gramley 520 U.S. 899 (1997)
Moreover, even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias. This rule, too, was well established long before the right to jury trial was made applicable in state trials, and does not depend on it. Thus it has been invoked in trials to a judge, e. g., Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); and in pre- Duncan state jury trials, e. g., Turner v. Louisiana, 379 U.S. 466 (1965); Estes v. Texas, 381 U.S. 532, 550 (1965). In Tumey v. Ohio, supra, this Court held that a judge could not, consistent with due process, try a case when he had a financial stake in the outcome, notwithstanding the possibility that he might resist the temptation to be influenced by that interest. And in Turner v. Louisiana, supra, the Court held that a jury could not, consistent with due process, try a case after it had been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association. As this Court said in In re Murchison, supra, “[f]airness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” 349 U.S., at 136. Peters v. Kiff 407 U.S. 493 (1972)
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