Charlie Buttrey

November 28, 2019

It’s not merely a common-held principle, it’s a fundamental bedrock of our justice system: a presiding judge should recuse him/herself if his or her impartiality may reasonably be questioned. That seems simple enough, but the U.S. Supreme Court recently ruled against a death-row inmate in a case where it strikes this blogger that recusal was a no-brainer.

In 2001, an Arkansas jury convicted Kenneth Isom of capital murder (as well as attempted capital murder, aggravated robbery, residential burglary, and two counts of rape). He was sentenced to death.

But here’s the problem: Isom’s trial judge, Sam Pope, had been, several years earlier, the prosecutor in three trials in which Isom had been charged with burglary and theft.  Isom had been acquitted in two of those trials, but was convicted on the third. After Isom was granted parole three years into his sentence, then-Prosecutor Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but his request was rejected.

After his capital murder conviction, Isom appealed to the Arkansas Supreme Court. Two justices of that court agreed with Isom that Pope should have recused himself, but a majority of that court rejected his appeal. And this past Monday, the U.S. Supreme Court denied his petition for certiorari.

In her opinion joining the Court’s decision not to grant certiorari, Justice Sotomayor wrote: “I write… to encourage vigilance about the risk that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.”

No kidding?

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