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September 26, 2002


The opinion of the court was delivered by: Denny Chin, United States District Judge


In 1995, petitioner William K. McMahon and Ronald Hall were arrested and indicted in Rockland County for kidnapping, unlawful imprisonment, attempted rape, and assault. Their cases were severed. Hall was tried first and he was convicted by a jury on three of four counts.

The state court judge who presided over Hall's trial was scheduled to try McMahon's case as well. On the eve of trial, at a conference with the parties, the judge tried to negotiate a plea. The judge made several statements that led McMahon and his lawyer to conclude that the judge could not be fair; among other things, the judge alluded to the "powerful" evidence he had seen at Hall's trial that would be admissible against McMahon at his trial, and suggested that McMahon plead guilty to avoid consecutive sentences for multiple crimes.

McMahon moved for the judge's recusal. The judge initially denied the motion, but later offered to transfer the case to another judge if McMahon would waive his right to a trial by jury. McMahon accepted the offer. The case was transferred to a different judge, who tried the case without a jury. McMahon was convicted of kidnapping, attempted rape, and assault.

McMahon petitions this Court for a writ of habeas corpus, raising two issues. First, he contends that his right to due process was violated because the first state court judge was biased and prejudiced. Second, he contends that he was deprived of due process and his right to a jury trial because the judge conditioned his recusal on McMahon's waiver of his right to a jury. Because I conclude that McMahon's waiver of his right to a jury was involuntary, the petition for a writ of habeas corpus is granted.


A. The Facts

1. The Assault

On September 24, 1995, McMahon and his brother-in-law, Hall, were drinking alcohol in the McMahon family home, where they were both temporarily residing at the time. At approximately 5 p.m., a woman who was renting a room in the house arrived home. McMahon offered the woman a beer, and Hall asked her to expose her breasts to him. She refused, and began to walk down the hallway toward her room. The men then accosted her, grabbing her by her hands and feet, and carried her to another bedroom in the back of the house. (Trial Transcript ("T. Tr.") at 657:6-8, 665:6-7, 660:8-9, 662:24-679:22).

The woman struggled to free herself. The men took turns striking and kicking her, cursing and threatening her with further harm. At Hall's suggestion, McMahon located some duct tape, and the men bound her wrists and ankles and wrapped the tape around her head, covering her mouth. Hall told her that she was going to die and that no one would hear her scream. (Id. at 680:4-695:9).

Hall also threatened the woman with rape. She testified that McMahon tried to discourage Hall, saying, "Don't do that. Don't do it, man. Come on, what are you doing?" (Id. at 691:4-18). Hall pulled down the woman's pants and underwear, and unzipped his own pants. Hall did not, however, attempt to rape her. Instead, he urinated on her. McMahon and Hall then laughed and told her that she needed to wash. She also testified that, later, Hall lifted an object over her head, stating, "I ought to crush your skull," but McMahon screamed at him to stop. Hall shouted that he was going to take her down to the river and dump her body. (Id. at 692:12-699:8).

At some point, the men began to argue over cigarettes and beer. The woman seized the opportunity to escape, running out of the apartment into the street and flagging a passing motorist. (Id. at 714:17-726:4).

B. The State Court Proceedings

1. McMahon and Hall Are Indicted

On October 6, 1995, McMahon and Hall were charged in the County Court of the State of New York, Rockland County, with kidnapping in the second degree, N.Y. Penal Law § 135.20 (McKinney 1997), unlawful imprisonment in the first degree (id. § 135.10), attempted rape in the first degree (id. §§ 110.00, 135.35[1]), and assault in the second degree (id. § 120.05[2]). The defendants' cases were severed. (Pet. at 4).

2. Hall's Case

Hall was tried by a jury in May of 1996, before Orange County Court Judge Jeffrey G. Berry. Hall was found guilty of kidnapping in the second degree, unlawful imprisonment in the first degree, and assault in the second degree; he was acquitted of attempted rape in the first degree. (Id.) Hall was sentenced to an indeterminate term of six-to-twelve years imprisonment for the conviction of kidnapping in the second degree, to run consecutively with concurrent terms of three and one-half-to-seven years imprisonment for the conviction of assault in the second degree, and two-to-four years imprisonment for the conviction of unlawful imprisonment in the first degree. On appeal, the kidnapping and unlawful imprisonment convictions were vacated, as were the sentences imposed thereon, as they were merged into the assault conviction; those counts of the indictment were dismissed. People v. Hall, 700 N.Y.S.2d 486, 486-87 (2d Dep't 1999), lv. denied, 94 N.Y.2d 920 (2000).

3. McMahon's Case

a. Pre-Trial Proceedings

(i) The Ex Parte Conference

McMahon's trial was scheduled to commence on June 11, 1996, also before Judge Berry. On that day, before jury selection, Judge Berry held an ex parte conference with the defense, at the defense's request, with the People's consent. (Pet. at 4). During this conference, which was not transcribed, counsel discussed certain evidence he intended to offer at trial to discredit the victim, including time records from McMahon's sister's employer, to support her testimony as to the time she arrived home on the night in question.*fn1 (Pet'r Obj. at 5). Counsel asserts that in response to each piece of evidence he proposed, Judge Berry replied the evidence was inadmissible. Counsel claims he then provided the judge with authority for each evidentiary offer, but that the judge declined to read the materials, advising counsel to "take it up on appeal." (Id.).

(ii) The Preliminary Conference

Judge Berry also held a preliminary conference with the parties in his chambers, on the record. The judge inquired as to whether McMahon was willing to accept a plea, and stated, for the record, that he had had "extensive conversations" with both the People and the defense, separately and together. (T. Tr. at 2:19-25, 6:4-8). He explained that he held an ex parte conference with the defense "so [counsel] could explain to the [c]ourt some of his quote `defenses' that he thought he would be entitled to in this case." (Id. at 6:8-14). The judge stated that "many of the items that [defense counsel] felt were applicable, [he] felt, for certain evidentiary reasons, might not be applicable and might not be as viable a defense" as counsel perceived. (Id. at 6:16-21).

Judge Berry also advised the defense that he had read McMahon's grand jury testimony and took it as an admission of guilt to the charge of unlawful imprisonment. Counsel stated that he believed any admission was to a charge of unlawful imprisonment as a misdemeanor only. (Id. at 7:10-17). The judge advised, however, that in light of the jury's verdict in Hall's case and the grand jury testimony in McMahon's case, McMahon was facing a "lot of exposure." He suggested that if McMahon accepted a plea, he could be out of prison in a relatively short period of time. (Id. at 8:2-9:4). Judge Berry also warned counsel that if McMahon were convicted, "the People are within their rights to come in and argue that they want consecutive time" because, as he viewed the evidence in the first trial, it was "very clear to the [c]ourt" that the kidnapping and the unlawful imprisonment were separate and distinct from the assault and "in no manner whatsoever, in any constrained view of the evidence, could someone determine or claim that there should be a merger of those acts." (Id. at 9:17-10:8).*fn2

(iii) The Recusal Motion

At some point during the conference, defense counsel remarked that "[he] would certainly appreciate it if the [c]ourt would not reach the conclusion that my client's guilty before the trial starts." He asked the court to keep an open mind "as [he and his client] stand here before Your Honor, not guilty." (Id. at 11:11-22). A discussion ensued, in part, as follows:

THE COURT: . . . I sat through the trial of this case already. I've heard the evidence in this case already. It was powerful evidence against Mr. Hall and against your client. I've read your client's Grand Jury testimony. That is extremely inculpating to the degree that he inculpates himself for the unlawful imprisonment first degree, as an E Felony. As I see that. All right? I'm not saying he's guilty of kidnapping; I'm not saying he's guilty of assault second degree; but I am saying this: He's already inculpated himself to the extent of unlawful imprisonment first degree. He's already done that. I see that from the record —


THE COURT: — and I've heard the testimony. I don't know —
DEFENSE COUNSEL: I'm flabbergasted that a judge would make these statements on the record.


DEFENSE COUNSEL: Because I'm about to commence a trial and you're the trial judge, and you've expressed the opinion, unwavering opinion —
THE COURT: From what I can see from the facts of this case, that your client — having sat through the trial of the codefendant — that the People have the ability to prove him guilty beyond a reasonable doubt. They have that ability. . . .
As a judge, I'm totally fair and impartial, and I make my rulings fairly and impartially. I'm just saying I heard the evidence in this case already.
DEFENSE COUNSEL: All right, Judge. But you're scaring me a little bit in the area of fairness and impartiality. If I — if there are, you know, legitimate rulings to be made and issues to be argued, I feel — for the record, I must state that I feel at this point somewhat of a — somewhat at a disadvantage having a trial judge already express his conviction that the client is guilty.
DEFENSE COUNSEL: I'm disturbed, that's all, Judge. And I just want to make a record — and, for the record, not that I mean, you know, any personal disrespect, Judge, but based upon the comments that I've heard, I would ask for the record at least that Your Honor recuse himself from this case.

(Id. at 11:23-13:7, 13:20-14:9, 16:16-22).

The court denied the recusal motion. (Id. ...

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