October 1, 1984: Judge Dupree's Ruling on Motion for His Recusal
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, plaintiff
CASE No. 75-26-CR-3
JEFFREY R. MACDONALD, defendant
JUDGE DUPREE'S RULING ON MOTION FOR HIS RECUSAL
Following a seven-week trial over which I presided Jeffrey R. MacDonald was convicted by a jury on August 29, 1979 of murdering his wife and two children. Sentenced to three consecutive life sentences, MacDonald, after exhausting several appeals, filed four motions on April 5, 1984 challenging his conviction on various grounds. In one of these motions, the subject of the present order, MacDonald requests that I recuse myself from further action in the case. The case came on for hearing on August 21, 1984 and was denied following arguments by counsels. The reasons for this ruling will now be recorded.
A full understanding of the alleged basis of the motion to recuse requires a recitation of the chronology event in the case. During the early morning of February 17, 1970, MacDonald's wife and two children were brutally murdered in their apartment at Fort Bragg, North Carolina. MacDonald's account of what transpired that night was that the murders had been committed in a bizarre attack by four drug-crazed intruders, who were members of a cult. This allegation initially led the Army's Criminal Investigation Division (CID) and the Federal Bureau of Investigation (FBI) to investigate Helena Stoeckley and three men, all of whom lived in the Fayetteville area. When this investigation proved fruitless and physical evidence inconsistent with this theory was discovered, attention turned to MacDonald as a possible suspect.
On April 6, 1970, the CID advised MacDonald that he was a suspect in the case and confined him to quarters. The Army formally charged him with the murder of his family on May 1, 1970. Pursuant to Article 32 of the Uniform Code of Military Justice, a formal pre-court martial investigation was conducted and hearing were held at which both sides presented evidence and questioned witnesses. One of the witnesses at the Article 32 hearing, FBI Special Agent Robert M. Caverly, was represented by my former son-in-law, Jimmie C. Proctor, an Assistant United States Attorney.
At the close of the Article 32 proceedings, the investigating officer, Colonel Warren V. Rock, commended dismissal of all charges against MacDonald. This recommendation was adopted by MacDonald's commanding officer and all charges against MacDonald were dropped on October 23, 1970. MacDonald was subsequently discharge from the Army in December of 1970.
Following MacDonald's discharge from the Army, the Justice Department requested that the CID continue its investigation of the murders. The accounts of Jimmie Proctor's involvement in this second investigation vary. MacDonald claims Proctor played a "forceful role" in the investigation and "vigorously and aggressively" advocated his prosecution for the murders. The government responds that Proctor merely acted in a liaison capacity in coordinating meetings between CID and FBI agents and obtaining office space for use by CID agents during their investigation. Proctor's role in the case, however characterized, was short-lived. He resigned from the United States Attorney's Office on February 28, 1971, slightly over four months after the Army dismissed charges against MacDonald. He thereafter had no connection with the case.
I was appointed to the bench on December 12, 1970 and was sworn in January 4, 1971. Proctor's involvement in the case was unknown to me and there were no communication between us about the case. In fact, since I held hardly any criminal court during the first five years I was on the bench, I had no familiarity with the criminal docket in the Eastern District of North Carolina. During the two months he remained an Assistant United States Attorney after I came on the bench Proctor did not appear before me in any case.
Investigation of the MacDonald case continued in the early 1970's. Almost 700 witnesses were interviewed and thirteen-volume report, twice supplemented, was prepared by the CID. This report ultimately led to MacDonald's indictment for the murders by a grand jury on January 24, 1975. Shortly thereafter the case was assigned to me. Following a series of pre-trial motions and interlocutory appeals, trial of the case finally commenced in July of 1979. MacDonald was convicted by the jury the following month and sentenced by the court to three consecutive life imprisonments. His conviction was affirmed by the Fourth Circuit Court of Appeals. United States v. MacDonald, 688 F.2d 224 (4th Cir. 1982, cert. denied, ____ U.S. ____, 103 S.Ct. 726 (1983).
From these facts, MacDonald presents four grounds for recusal: (1) my former relationship to Jimmie Proctor creates a situation in which my impartiality might reasonably be questioned; (2) I am disqualified because Proctor acted as a lawyer in the proceeding; (3) Proctor had an interest which could have been substantially affected by the outcome of the MacDonald case; (4) because of my ruling at trial on the admissibility of certain out-of-court statements of Helena Stoeckley I am now biased against granting a new trial. The motion was brought pursuant to the provisions of 28 U.S.C. S 455.
Prior to its amendment in 1974, Section 455 provided a subjective standard for judges to apply when deciding motions to recuse and the judge was encouraged to continue sitting in a case if the motion was only of questionable validity. See SCA Services, Inc. Morgan, 557 F.2d 110, 114-15 & n.12 (7th Cir. 1977); In Re Union Leader Corporation, 292 F.2d 381, 388-89 (1st Cir.1961). The 1974 amendments to 28 U.S.C. S 455 were adopted for essentially four reasons. First, the amendments harmonized the statutory provision with the more specific requirements of Canon 3 of the Code of Judicial Conduct. Second, the amendments more fully defined the situations in which a judge should recuse himself. The third reason for adoption of the amendments was to eliminate the subjective "in the judge's opinion" test in favor of a reasonable man standard. Finally, the amendments discarded the "duty to sit" rule. See Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir. 1979); H.R.Rep. No. 93-1453, 93rd Cong., 2d Sess., reprinted in (1974) U.S. Code Cong. & Ad. News 6351, 6351-55.
Turning to the merits of MacDonald's motion, his most substantial challenge is that my former relationship to Jimmie Proctor creates a situation in which my impartiality reasonably be questioned. A judge must disqualify himself under 28 U.S.C. S 455 (a) "in any proceedings in which his impartiality might reasonably be questioned." The Fourth Circuit has paraphrased this section to require recusal if a reasonable man knowing all of the circumstances would have a reasonable basis for doubting the judge's impartiality. . Rice v. McKenzie, 581 F.2d 1114, 116 (4th Cir. 1978).
MacDonald argues that Jimmie Proctor played a "forceful role" in the case because he rejected Helena Stoeckley as a suspect and pressed the United Sates Attorney to investigate the possibility that MacDonald might have committed the murder. MacDonald further states that it is "particularly noteworthy that after Mr. Proctor had 'eliminated' Helena Stoeckley as a suspect, (the court) excluded all of the testimony regarding Stoeckley's admissions…" From this set of circumstances, he concludes that a reasonable man might believe that even before I was assigned the case, Proctor had told me of the government's theories and evidence. This is especially likely, MacDonald argues, given my relationship to Proctor.
The government counters MacDonald's arguments by characterizing Proctor's involvement in the case as that of "liaison" between the FBI and the CID. In his affidavit, Proctor agrees that his role that his role was that of liaison in the case. He stated that although he encouraged the efforts of the CID, he had no operational control over the investigators. Proctor does not remember ever discussing the case with me before I came on the bench and is positive that he did not do so once I was appointed. He also notes that during the period he was with the United States Attorney's Office, there was no investigation of the MacDonald murders being conducted by grand jury, the FBI or the United States Attorney's Office. The characterization of Proctor's role as that of liaison is further supported by the affidavit of Peter Kearns, Director of the CID's investigation into murders.
As one might expect, there are no cases directly on point to use as a guide in deciding this issue. MacDonald heavily relies upon SCA Service, Inc v. Morgan, supra, and Potashnick v. Port. City Construction Company, 609 F.2d 1101 (5th Cir.), cert. denied, 449U.S. 820 (1980), in his "appearance of partiality" argument. In SCA Service, petitioner sought recusal of Judge Robert D. Morgan on the ground that, inter alia, his brother was the senior partner in a firm which entered a general appearance for one of the parties in the case. The brother performed no professional duties relating to the case, but petitioner argued that the relationship alone was sufficient to raise question of partiality. The Seventh Circuit concluded that the combination of the relationship and confidential inquiry by the judge to his brother to determine the brother's capacity in the proceedings were sufficient to require recusal. SCA Services, 557 F.2d at116.
MacDonald argues that SCA Services is analogous to his case since the relationship between a father-in-law is similar to the relationship between brothers. He apparently reads SCA Services to hold that the very existence of such a relationship is sufficient to justify recusal on the grounds that there is an appearance of partiality. Neither nor the government point out, however, that the Seventh Circuit's holding in SCA Services was modified less than a year later by its decision in S.J. Groves & Sons Company v. International Brotherhood of Teamsters, 581 F.2d 1241 (7th Cir. 1978).
In S.J. Groves & Sons, Judge Morgan's brother again represented a group of plaintiffs during the initial stages of a lawsuit. Three days after one of the defendants suggested that the judge's relationship to his brother was grounds for recusal, Judge Morgan's brother and his law firm withdrew from the case. Judge Morgan thereafter declined to recuse himself and later entered summary judgment in favor of the plaintiffs.
Defendants vigorously argued on appeal that SCA Services required recusal of Judge Morgan and that the failure of the judge to recuse himself was error. The Seventh Circuit disagreed, reasoning that the withdrawal of the brother and his law firm in S.J. Groves & sons distinguished this case from the situation presented in SCA Services. S.J. Groves & Sons, 581 F.2d at 1247. The court notes that:
By the time the district judge was in a Position to make a ruling which could give the appearance of partial treatment to the client of his brother's firm, the brother and his firm had withdrawn and severed all connection with the case. Prior to withdrawal, no discretionary rulings were required of the judge. Subsequent actions of the court could give the appearance of partiality only if the withdrawal and replacement of counsel were formal rather than substantive. This was not the case.
Id. At 1248. This reasoning led the Seventh Circuit to conclude that although Judge Morgan was required to recuse himself in the SCA Services case, he was not required to do so under the facts of S.J. Groves & Sons.
The S.J. Groves & Sons case is more analogous to the facts of the present case than is SCA Services. Jimmie Proctor's actions in the case, regardless of how they are characterized, occurred at a very early stage in the case. In fact, the only proceedings pending while Proctor was with the United States Attorney's Office were those of the CID. Furthermore, the S.J. Groves & Sons court placed emphasis on the fact that the district court judge in that case had not made any discretionary rulings prior to withdrawal of his brother's firm. Similarly, there were no rulings by me of any kind in the MacDonald case simply because the indictment was not returned until almost four years after Jimmie Proctor left the United States Attorney's Office and over two and one-half years after he had ceased to be my son-in-law. Finally, there is no suggestion, and there could not be, that Proctor's resignation from the United States Attorney's Office was formal, rather than substantive. This review of the facts suggests that the arguments against recusal in the present case are even more persuasive than they were in S.J. Groves & Sons.
Presented with the S.J. Groves & Sons case at oral argument on the motion to recuse, Counsel for MacDonald conceded that the case is factually similar to the present case. He attempted to distinguish S.J. Groves & Sons on the grounds that there was no indication in the Seventh Circuit's decision as to the degree of the involvement of the judge's brother in the case whereas Jimmie Proctor played a substantial role in the initial stages of the MacDonald case. The Seventh Circuit did address this point, although not in great detail, when it noted that "had there been personal and active participation the question of the effect of the firm's subsequent withdrawal would have constituted a more difficult question." The court went on to state, however, that "in any event considering the timing and all the other circumstances of this particular case we believe the withdrawal was sufficiently curative."
Although the parties sharply disagree on how to characterize Proctor's involvement in this case, a review of the arguments by each side and supporting documents lead me to conclude that regardless of the characterization of Proctor's role his involvement would not be grounds for recusal. Despite his apparent suspicion that Jeffrey MacDonald was responsible for the murders, his attempts to have the case investigated by the United States Attorney's Office were unsuccessful. Moreover, the reinvestigation of the case had nothing to do with Proctor's activities; it was in response to Colonel Rock's recommendation that Helena Stoeckley be investigated and assertions by Colette MacDonald's parents and MacDonald's Article 32 counsel, Michael Malley, that the CID had mishandled the first investigation. I find that Proctor's role in the case was limited to representing Agent Caverly at the Article 32 hearing and assisting FBI and CID investigators in the case. The documentary evidence supports the conclusion that Proctor personally believed that MacDonald had committed the crimes, but any statement he may have made expressing this personal conviction appears to have fallen upon deaf ears. Consistent with the Seventh Circuit's approach in S. J. Groves & Sons, I conclude that considering the timing and all the circumstances of this particular case, a reasonable man would not have a reasonable basis for doubting my impartiality in the case.
MacDonald also relies upon Potashnick v. Port City Construction Company, 609 F.2d 1101 (5th Cir.), cert. denied, 449U.S. 820 (1980), in support of his Section 455 (a) argument. In this case, the trial judge heard a case tried by a former law partner with whom the judge jointly owned real estate. The judge's father was also a member of the law firm. The Fifth Circuit held that the investment relationship between the judge and his former law partner was sufficient to require recusal under Section 455 (a). Id. At 1110-12. The relationship between the judge and his father in Potashnick was discussed only in the context of whether the father was acting as a lawyer in the proceedings and had an interest that could substantially be affected by the outcome of the case warranting recusal under 28 U.S.C. S 455 (b) (5) (ii) and (iii). The applicability of Section455 (a) to this relationship was not discussed. Thus, although Potashnick has some dicta on the purpose of 28 U.S.C. S 455 (a) which is favorable to MacDonald's interpretation of the status, the case is not otherwise analogous, especially when considered along the Seventh Circuit's decision in S.J. Groves & Sons.
Finally, there are two common sense reasons why my relationship to Jimmie Proctor would not lead a reasonable man to question my impartiality. First, as noted earlier, neither Proctor nor I have any recollection of ever having had any conversations about the MacDonald. Second, although I agree that the focus of attention in a motion brought under Section 455 (a) is on the "appearance" of partiality and not its actual existence, the defendant has never made the claim on the record that he did not receive a fair trial. On the contrary one of his trial attorneys has on more than one occasion expressed the view that the trial was fairly conducted.
In summary, the only facts upon which MacDonald relies in support of his argument that recusal is necessary because of the appearance of partiality is that I was once related by marriage to Jimmie Proctor and that in his capacity as Assistant United States Attorney he had a role in the preliminary stages of the MacDonald case. Without more, I am satisfied that this evidence would be insufficient to lead a reasonable man to question my impartiality.
MacDonald's second argument in support of his motion to recuse is that recusal is required because Jimmie Proctor acted as a lawyer in the proceedings in violation of 28 U.S.C. S 455 (b) (5) (ii). Parsed, this section reads:
(b) A judge shall disqualify himself in the following circumstances:
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a
(ii) Is acting as a lawyer in the proceedings . . ..
MacDonald claims that this subsection applies to his case because Jimmie Proctor met the relationship of (b) (5) and he acted as a lawyer in the proceeding within the meaning of (b) (5) (ii).
There are two reasons why MacDonald's arguments fail. First, his complaints center upon events which occurred almost fifteen years ago but the statute appears to only cover situations in which a relative is presently acting as a lawyer in a proceeding. The unambiguous wording of this section is in the present tense although some of the other sections are phrased in the past tense. See 28 U.S.C. S 455 (b) (2) 7 (3). This reading is consistent with this Seventh Circuit's decision in S.J. Groves & Sons where the court allowed Judge Morgan to continue hearing a case despite the fact that his brother had been involved in the initial stages of the proceeding. If the brother had continued his representation the judge would surely have been required to recuse himself. Proctor's only participation in the case occurred several years before the indictment was returned, and it cannot fairly be said that he ever acted as a lawyer in any proceeding before my court.
A second reason for finding that this subsection does not apply to the present case is that my relationship to Jimmie Proctor ceased over twelve years ago. MacDonald apparently reads the statute to require recusal of a judge if he has ever been related to a lawyer acting in a proceeding. Were this true, the statute would require a judge to recuse himself when a lawyer to whom he was once related by marriage over forty years ago presently brings a case in his court. It is unlikely that Congress would have intended such a result when it primarily concerned with guarding against the chance that a present family relationship would impair a judge's ability to decide a case impartially or create the appearance of partiality. This is not the case here.
The likely reason that Section 455 (b) (5) (ii) is worded in the present tense is that present relationships were intended by Congress to be automatic grounds for recusal whereas past relationships were left to be viewed in light of whether the relationship would create an appearance of impartiality under Section 455 (a). Thus, assuming I was presently related to Jimmie Proctor and he was acting as a lawyer in these proceedings, recusal would unquestionably follow. Conversely, where, as here, my former relationship to Proctor and his activity in the case ended over twelve years ago, recusal would not be necessary unless these past events created an appearance of partiality. Having already determined that on these facts no such appearance is present, recusal is not required.
The third and perhaps weakest of MacDonald's arguments is that recusal is necessary because I knew that Jimmie Proctor had an interest that could have been substantially affected by the outcome of the MacDonald case. He relies upon 28 U.S.C. S 455 (b) (5) (iii) which states:
b) A judge shall also disqualify himself in the following circumstances:
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(iii) Is known by the judge to Have an interest that could be Substantially affected by the Outcome of the proceedings . . ..
MacDonald asserts that Jimmie Proctor had an interest in his reputation and that this interest could have been substantially affected by the outcome of the case. He further claims that my relationship to Proctor was enough to show my knowledge of this interest.
This section, like the "acting as a lawyer in the proceeding" section, is phrased in the present tense. Again, Proctor is no longer involved in the case and thus does not have any interest which could be substantially affected by its outcome.
Even assuming that the section is not limited to cases presently before the judge, there were no communications between Proctor and myself which would have alerted me to the fact that he was actively working on the case. Furthermore, although one court has endorsed the notion that a lawyers' interest in the reputation of his law firm is an "interest" within the meaning of the statute , no court has ever held that a lawyer's personal reputation is covered by the statutory provision. 6 See Potashnick, 609 F.2d at 1113-14.
MacDonald attempts to analogize Proctor's association to his law firm in Potashnick, but this is an unsound analogy. As fully explained by Code of Judicial Conduct Advisory Opinion N0. 38, there are differences between a lawyer's role as an Assistant United States Attorney and the role he would have as a member of a private law firm. Code of Judicial Conduct for the United States Judges, Advisory Opinion No 38; see Berger v. United States, 295 U.S. 78, 88 (1935).
MacDonald's final argument is that my evidentiary rulings during his trial concerning certain hearsay statement allegedly made by Helena Stoeckley make it impossible for me to impartially decide the present motions. The Fourth Circuit Court of Appeals has recently held that bias warranting recusal must be personal, "as distinguished from judicial, in nature." United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984). Denial of recusal is not an abuse of discretion if the argument for recusal is based simply upon the trial judge's rulings in the case. The Fourth Circuit's decision in Carmichael thus forecloses the present attempt by MacDonald to require recusal on the grounds of evidentiary rulings made during his trial.
I would be remiss if I did not make one final observation pertaining to the motion to recuse and oral arguments on the motion.
Motions to recuse are sensitive matters since they directly call into question the impartiality of a judge. The court was impressed by the manner in which defense counsel handled the present motion. In fact, counsel for both sides were well prepared and ably assisted the court in examining every facet of what by its nature poses a difficult decision. The Hallmark of our system of justice is that all defendants are assured, insofar as humanly possible, that the judge who presides over their trial will be fair and impartial. Counsel's actions in the case were in keeping with the highest traditions of our profession and were directed towards preserving the integrity of the judicial system.
In conclusion, it appears that MacDonald's position is based upon tenuous inferences drawn from my relationship to Jimmie Proctor and the fact that at one time he was tangentially involved in the MacDonald case. After thoroughly reviewing all affidavits in the case, the contentions of both parties and listening (sympathetically, I might add) to MacDonald's arguments I have been obliged to conclude that the grounds asserted do not, taken individually or in combination, warrant recusal. For this reason, the motion to recuse is denied.
F.T. Dupree, Jr.
United States District Judge
October 1, 1984