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Criminal – Resentencing – Recusal – Death Penalty

A Fairfax Circuit Court judge declines to recuse himself from a proceeding to resentence a capital defendant whose death sentence was reversed by the Supreme Court of Virginia.

Defendant moved to recuse this judge, arguing that he had presided over all stages of defendant’s second trial, which resulted in a capital murder conviction and death sentence, and that the judge’s involvement in – and statements made during – that trial and sentencing create a reasonable appearance of bias against the defendant. The commonwealth opposed recusal and argued that the case law of Virginia is clear that there is no per se rule requiring a judge to recuse himself from the retrial of a capital murder case.

Defendant’s recusal motion is based on certain comments which the court made at sentencing. However, a recusal decision must be based on the entire record, and not just isolated excerpts from it.

Defendant’s recusal motion quotes from 12 lines of the sentencing transcript. The specific statements defense counsel relies on are: 1) “On the night you executed them, you turned the final moments of their lives on this earth into what can only be described as a living hell”; 2) “You stole their children from them and you did so in a matter so unspeakable and horrific that even today, two decades later, it remains an open and shattering wound.” 3) They will never, never recover from what you did”; and 4) “I heard nothing in this trial, not your limited cognitive abilities, not the poverty of your youth, not your exposure to a war zone, not the violent death of your grandfather and not any of the other circumstances which your counsel has put before me that mitigates in any respect the crimes that you committed.”

Defendant asserts that the words the court used during sentencing are evidence of bias and prejudice. The court finds this argument to be without merit. There is no doubt the court used strong and descriptive language but the law is clear that this is not a basis for recusal. Moreover, it is not at
all unusual for courts to characterize crimes of this nature in explicit terms. Even defense counsel found it necessary to use sharp and categorical language to describe their client’s crimes.

Defendant makes the following arguments in support of recusal: The court used strong words in describing defendant’s crimes and the consequences; the court explained its sentencing decision, even though not required by statute to do so; the court was not persuaded by defendant’s mitigation evidence; the court spoke with emotion; and the court read from a prepared statement
The court finds no basis for recusal in the instant case. None of the cases cited by defendant, and none of the cases which this court has reviewed in preparing this opinion, support the relief defendant now requests. Indeed, they support the opposite conclusion. Moreover, the record of these proceedings demonstrates that throughout this court’s service as the presiding judge of this matter, the court has strived to be fair and impartial to all sides. The sentencing statements made by the court were made in the performance of this court’s official duties, involved matters that lay at the core of the court’s sentencing responsibilities and were based solely and exclusively on evidence and other material properly before the court.

This court finds there is nothing in the record from which a “public perception” could form that the court has been or will be unfair to defendant. To the contrary, a member of the public fully aware of all the steps this court has taken to protect defendant’s rights throughout these proceedings would judge that this court has been scrupulously fair.

At oral argument, defense counsel invited the court to recuse itself as a way of insuring that this issue would not ultimately result in a reversal and the need for a further resentencing hearing. But that has never been the standard for a trial judge in making any decision, let alone a decision to recuse. If there is no basis for recusal, this court has a duty to hear the cases to which it has been assigned.

After considering the merits of defendant’s motion and the applicable case law, this court concludes there is no basis for recusal.

Commonwealth v. Prieto (Bellows, J.) Cr. No FE-2005-1764, March 8, 2010; Fairfax Cir.Ct.; Raymond F. Morrogh, Casey D. Lingan, Robert D. McClain, Office of Comm. Att’y; Peter D. Greenspun , Jonathan Shapiro for defendant. VLW 010-8-058, 36 pp.

VLW 010-8-058

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