Applying these principles to the case at hand, I conclude that, under
both federal constitutional and New York law, McMahon's due process
rights were not violated, and the trial judge's recusal for bias or
prejudice was not warranted.
a. Constitutional Standards
I conclude that federal constitutional standards were not violated, for
the following reasons.
First, although the trial judge was exceedingly blunt, his comments
were not inappropriate in the context in which they were made, i.e., the
plea bargaining process. In the federal system, trial judges are
prohibited from participating in plea negotiations, see Fed.R.Crim.P. 11(e),
and this case well illustrates why. The federal rule reflects the
recognition that a trial judge's participation in plea bargaining is
inherently coercive; the rule is designed, therefore, to eliminate the
pressures deriving from judicial participation in the plea bargaining
process. See, e.g., United States v. Barrett, 982 F.2d 193, 194 (6th Cir.
1992) ("The primary reason for Rule 11 is that a judge's participation in
plea negotiation is inherently coercive."); United States v. Bruce,
976 F.2d 552, 556 (9th Cir. 1992) ("judicial involvement in plea
negotiations inevitably carries with it the high and unacceptable risk of
coercing a defendant to accept the proposed agreement").
Rule 11 does not apply, however, to the state courts. See, e.g., Miles
v. Dorsey, 61 F.3d 1459, 1466-67 (10th Cir. 1995) (noting Rule 11 does
not apply to state courts and does not establish a constitutional
prohibition against plea bargaining in state courts); Frank v. Blackburn,
646 F.2d 873, 882 (5th Cir. 1980) ("Rule 11 is not binding on the
states"). In New York, state court judges do participate in plea
discussions. Thus, by participating in plea discussions with the
parties, the trial judge here violated no state court rule.
Here, the trial judge's comments undoubtedly were designed to induce
McMahon to take a plea, but the state court system permits a judge to
participate in such negotiations. Indeed, here, defense counsel invited ex
parte, off-the-record discussions with the court. The trial judge was
familiar with the evidence; he gave McMahon and his lawyer an appraisal
of their case, a prediction on the likely outcome of a trial, and an
explanation of the risks attendant to going to trial as opposed to
pleading guilty. McMahon did not like what he heard, but the trial judge,
as an experienced, impartial arbiter, was merely giving his assessment to
help the parties evaluate their options, as the state court system
contemplates. While the trial judge's statements placed significant
pressure on McMahon to plead guilty, as a matter of constitutional law, I
conclude that McMahon's due process rights were not violated.
Second, although the trial judge apparently had formed views about the
evidence and McMahon's exposure, the judge acquired the information in
the course of the proceedings in the case and he was not recusable on
this basis. Unless a judge displays a "deep-seated favoritism or
antagonism that would make fair judgment impossible," "opinions formed by
the judge on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion." Liteky, 510 U.S. at
555. In fact, a judge may become "exceedingly ill disposed towards the
defendant who has been shown to be a thoroughly reprehensible person"
during prior proceedings; the judge is not,
however, recusable for bias
or prejudice on this basis. Id. at 550-51.*fn8
Third, the trial judge concluded that he could be fair and impartial if
he were to preside over McMahon's trial, and McMahon has not shown any
basis to disbelieve the judge's conclusion. I am not persuaded that the
trial judge would have let his rulings on evidentiary matters be
improperly influenced by whatever views he might have had with respect to
the strength of the evidence; I am not persuaded that the judge would
have retaliated against McMahon for refusing to plead guilty.
Consequently, McMahon cannot establish that any alleged bias or prejudice
on the trial judge's part actually deprived him of due process of law.
Hence, the trial court's initial decision to deny recusal was neither
contrary to, nor involved an unreasonable application of, clearly
established federal law. The recusal decision, by itself, provides no
basis for habeas relief.
b. State Law
State law compels the same result. In Moreno, the New York Court of
Appeals held that a judge, unlike a jury, "`by reasons of . . . learning,
experience and judicial discipline, is uniquely capable of . . . making
an objective determination' based upon appropriate legal criteria,
despite awareness of facts" not properly relied upon in making the
decision. Moreno, 70 N.Y.2d at 406 (quoting People v. Brown, 24 N.Y.2d 168,
172 (1969)). There, the court affirmed the trial judge's decision
refusing to recuse itself, although the judge had conducted a Sandoval
hearing and then presided over a non-jury trial. Following Moreno, courts
have held that recusal was not warranted where the judge: witnessed an
assault between the parties in his robing room, about which he was
subpoenaed to testify at a separate trial, and later presided over a
separate post-judgment non-jury proceeding, Conti v. Citrin,
657 N.Y.S.2d 678 (1st Dep't 1997); had previously prosecuted the
defendant, People v. Jones, 532 N.Y.S.2d 586 (3d Dep't 1988); or had
previously authorized the search warrant he was later called upon to
invalidate, People v. Tambe, 71 N.Y.2d 492 (1988).*fn9
Absent statutory grounds, therefore, the judge is the "sole arbiter of
recusal" under New York law. Moreno, 70 N.Y.2d at 405-06. This is so even
where, as here, recusal may have been advisable "to maintain the
appearance of impartiality." Id. at 406. Given the judge's certainty that
he could be fair and impartial, and because the decision was
discretionary, I conclude that the trial judge here was not required to
recuse himself under New York law.
C. Waiver of Right to Jury Trial
The second issue raised by this habeas petition is whether McMahon's
due process rights and his right to a jury trial were violated when the
trial court linked its granting of the recusal motion to McMahon's waiver
of his right to a jury. For the reasons set forth below, I conclude that
by conditioning its recusal on McMahon'5 waiver of his right to a jury,
the trial court committed constitutional error.
1. Applicable Law
a. Right to Trial By Jury
The Constitution has established trial by jury as the "`normal and . .
. preferable mode'" of resolving issues of fact in criminal cases. Singer
v. United States, 380 U.S. 24, 35 (1965) (citation omitted). The right to
trial by jury for serious offenses is a fundamental right, "essential for
preventing miscarriages of justice and for assuring that fair trials are
provided for all defendants." Duncan v. Louisiana, 391 U.S. 145, 157-58
(1968). This right was "`designed to guard against a spirit of oppression
and tyranny on the part of rulers, and was from very early times insisted
on by our ancestors in the parent country, as the great bulwark of their
civil and political liberties.'" Neder v. United States, 527 U.S. 1, 19
(1999) (quoting United States v. Gaudin, 515 U.S. 506, 510-11 (1995)
(internal citation and quotation marks omitted)); Apprendi v. New
Jersey, 530 U.S. 466, 477 (2000). The Supreme Court has explained:
Providing an accused with the right to be tried by a
jury of his peers gave him an inestimable safeguard
against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge . .
. . [T]he jury trial provisions in the Federal and
State Constitutions reflect a fundamental decision
about the exercise of official power — a
reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge . . .
Duncan, 391 U.S. at 156.
So vital is the right to a trial by jury that its deprivation
constitutes a "structural defect in the constitution of the trial
mechanism" necessarily rendering a trial fundamentally unfair. Sullivan
v. Louisiana, 508 U.S. 275, 281 (1993). Errors of this type are "so
intrinsically harmful as to require automatic reversal . . . without
regard to their effect on the outcome." Neder, 527 U.S. at 7; Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993) (noting that some basic trial rights
can never be treated as harmless error). Indeed, errors of this type
"`infect the entire trial process,'" Neder, 527 U.S. at 8 (quoting
Brecht, 507 U.S. at 630), and "deprive defendants of `basic protections'
without which "a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair.'" Id. at 8-9 (quoting
Rose v. Clark, 478 U.S. 570, 577-78 (1986)).*fn10 See also Greer v.
Miller, 483 U.S. 756, 768 (1987) (Stevens, J., concurring in judgment)
(describing category of constitutional errors "so fundamental that they
infect the validity of the underlying judgment itself, or the integrity
of the process by which that judgment was obtained") (internal citation
and quotation marks omitted).
In Sullivan, the Court addressed the deprivation of a companion right:
the denial of the right to a jury verdict of guilt beyond a reasonable
doubt. The Court held that error to be structural, as "the jury guarantee
[is] a `basic protectio[n] whose precise effects are unmeasurable, but
without which a criminal trial cannot reliably serve its function." 508
U.S. at 281 (citing Rose, 478 U.S. at 577). The Court then observed that
the right to trial by jury reflects "`a profound judgment about the way
in which law should be enforced and justice administered.'" Id. (quoting
Duncan, 391 U.S. at 155). Finally, it concluded that "[t]he deprivation
of that right, with consequences that are necessarily unquantifiable and
indeterminate, unquestionably qualifies as "structural error.'" Id. at
281-82 (emphasis added). See also United States v. Harbin, 250 F.3d 532,
543 (7th Cir. 2001) (noting structural errors are reversible per se, such
as denial of right to jury trial) (citation omitted); McGurk v.
Stenberg, 163 F.3d 470, 474 (8th Cir. 1998) (concluding that denial of
jury trial is structural error subject to automatic reversal).
In view of these principles, the "`right of the accused to a trial by a
constitutional jury [must] be jealously preserved.'" Singer v. United
States, 380 U.S. 24, 34 (1965) (quoting Patton v. United States,
281 U.S. 276, 312 (1930)).
Courts will not "presume acquiescence in the loss of fundamental
rights"; in fact, courts "indulge every reasonable presumption against
waiver of fundamental constitutional rights." Johnson v. Zerbst,
304 U.S. 458, 464 (1938) (citations and internal quotation marks
omitted); Brookhart v. Janis, 384 U.S. 1, 4 (1966). Waiver has been
described as the "intentional relinquishment or abandonment of a known
right or privilege." Zerbst, 304 U.S. at 464. Whether there has been an
"intelligent, competent, self-protecting waiver of jury trial" depends on
the totality of the circumstances of each particular case. Adams v. U.S.
ex rel. McCann, 317 U.S. 269, 278 (1942).
At bottom, the surrender of any fundamental constitutional right must
reflect the unfettered choice of the defendant. Parker v. North
Carolina, 397 U.S. 790,
801 (1970) (Brennan, J., dissenting) (citations
omitted). Courts focus on whether waiver was voluntarily and
intelligently made, with full understanding of the consequences. Adams,
317 U.S. at 278. This inquiry necessarily includes exploration of whether
"any illicit pressures have been brought to bear on a defendant."
Parker, 397 U.S. at 801. Indeed, a waiver of the right to a jury trial is
not valid if it is the product of duress or coercion, Adams, 317 U.S. at
275, or if induced by misrepresentation or improper promises. United
States v. Nelson, 277 F.3d 164, 206-07 (2d Cir. 2002) ("as Brady says,
[for waiver to be valid,] the quid pro quo must be both ful[fillable] and
proper") (citing Brady v. United States, 397 U.S. 742, 755 (1970)).
In analogous contexts, addressing the waiver of constitutional rights,
the Court has held that a guilty plea (and the attendant waiver of the
right to a jury) may be rendered involuntary where the defendant, "while
perfectly capable of rational choice, has been confronted with factors
that the government may not constitutionally inject into the
decisionmaking process." Parker, 397 U.S. at 802; see Brady, 397 U.S. 742,
755 (1970) ("[A]gents of the State may not produce a plea by actual or
threatened physical harm or by mental coercion overbearing the will of
the defendant."). A confession may also be held involuntary if, although
the "`product of a sentient choice,' it does not reflect a free exercise
of the defendant's will." Parker, 397 U.S. at 803 (quoting Haley v.
Ohio, 332 U.S. 596, 603 (1948)). The Court has thus recognized that
"certain promises of leniency or threats of harsh treatment by the trial
judge or the prosecutor unfairly burden or intrude upon the defendant's
decision-making process." Parker, 397 U.S. at 802.
Here, I conclude that McMahon'5 waiver of his right to a jury trial was
not voluntary, for he labored under undue pressure in making his
decision. The trial court erred when it linked its recusal to McMahon's
waiver of his right to a jury trial, rendering the waiver void. I base my
conclusion on the following.
Although the trial judge's recusal was not legally required, McMahon's
fear that the judge had prejudged his case was not unreasonable. The
trial judge told McMahon, for example, that he had "sat through the trial
of this case already" and that there was "powerful evidence" against
McMahon. He further stated that he had read McMahon's grand jury
testimony and that in that testimony McMahon had established his own
guilt as to the unlawful imprisonment charge. As a result of these and
other comments, McMahon feared that a different judge was essential if he
was to receive a fair trial.
Defense counsel voiced his concerns to the judge a number of times,
stating that the trial judge was "scaring [him] a little bit in the area
of fairness and impartiality" and that he felt "at a disadvantage having
a trial judge already express his conviction that the client is guilty."
(T. Tr. at 13:24-14:9). Even though the trial judge believed these
concerns to be unfounded, he knew that they existed: counsel stated to
the judge "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
16:16-22). The trial judge denied the recusal motion, but later, when the
parties reconvened, the judge reconsidered. Knowing that his recusal was
ardently sought, the trial judge offered to give McMahon what he wanted
— but only if he waived his right to a jury trial. (See id. at
32:25-36:6) ("I would — could arrange to have a judge here to try
the case nonjury if you felt that that right
was being impeded at this
time. Do you feel that that's being impeded? Is there a desire for a
non-jury trial?"). In thus fashioning McMahon'5 options, however, the
trial judge unduly constrained McMahon'5 ability to make a voluntary
In fact, McMahon had no meaningful "choice": he could "choose" a jury
trial with a judge whom he perceived to be biased against him, or he
could "choose" a different judge and give up his fundamental right to be
tried by a jury. The trial judge thus leveraged McMahon's fear that he
had prejudged his case to induce McMahon to waive his right to a jury.
See Garrity v. New Jersey, 385 U.S. 493, 498-99 (1967) (finding the
"choice" given employees under investigation of either forfeiting their
jobs or incriminating themselves to be "the antithesis of free choice,
coercive, and involuntary; "[w]here the choice is "between the rock and
the whirlpool,' duress is inherent in deciding to `waive' one or the
other") (citation omitted).
Defendants often waive their fundamental rights in criminal cases;
every time a defendant pleads guilty, of course, he waives numerous
rights, including the right to defend against the charges. In doing so,
however, the defendant receives in return a tangible benefit that he
otherwise might not have — for example, a lighter sentence, an
opportunity to show that he has accepted responsibility, or perhaps the
dismissal of other charges. In this case, McMahon gave up an important
right, his right to trial by jury, but he received no benefit in return
— he was already entitled to have both a fair and impartial judge
preside over his case and a trial by jury. See Lefkowitz v. Cunningham,
431 U.S. 801, 807-08 (1977) (finding violation of constitution where
statute required "forfeit[ure of] one constitutionally protected right as
the price for exercising another"); United States v. Jiminez,
921 F. Supp. 1054, 1057 (S.D.N.Y. 1995) (Sotomayor, J.) (holding, in case
where immigration judge suggested that alien would be incarcerated rather
than released on parole if he contested deportation, "the linking by a
judge of indefinite imprisonment to failure to waive a fundamental right
infects the entire proceeding with a coercive stench . . . [and any]
waiver extracted thereafter can only be considered void").
At the trial court's suggestion, McMahon bargained away an important
right in return for the granting of his recusal motion — and while
the trial judge arranged for a different judge to try McMahon's case,
this consideration was not so "utterly free from taint" as to overcome
the "`presumption against the waiver of constitutional rights.'" Nelson,
277 F.3d at 206 (quoting Brookhart, 384 U.S. at 4); see People v. White,
547 N.Y.S.2d 768, 770 (4th Dep't 1989), appeal denied, (Green, J.,
dissenting) ("The court's recusal, conditioned on defendant's waiver of a
jury trial before another judge, deprived defendant of his constitutional
right to a jury trial. There is no authority for such a condition. A
defendant's right to a jury trial is fundamental and may not be waived
absent a demonstration that the waiver was knowingly and voluntarily
made.") (citation omitted).*fn11
By linking its granting of the recusal
motion to McMahon's waiver of his fundamental right to a jury, the trial
court committed constitutional error, for constitutional rights cannot be
used as bargaining chips in this manner.
Respondent argues that McMahon elected to waive his right to a jury for
tactical reasons, after consulting with his attorney. (Resp't Opp'n Pet.
at 13, 17). McMahon insists, however, that the "tactical explanations"
were merely excuses offered after he decided to waive his right to a
jury, to have his case transferred to a different judge. Thus, these
explanations were offered by counsel to appease the judge in case counsel
was to appear before the judge again. In other words, McMahon's counsel
contends that he sought to placate the judge after he had moved for his
recusal by stating that he was sure the judge could be impartial —
but that he really believed otherwise. (See T. Tr. at 36:16-25) ("That's
why I would sort of prefer to submit the thing to a different judge . .
. . I don't hold any of that against you. If this were to proceed as a
nonjury [before you], I'm sure that — you know, that it wouldn't
affect the process. But, for a variety of reasons, at this juncture, it
may be .prudent."). Although counsel did his client a disservice by
trying to appease the judge, I accept his representation that the
motivating factor in the decision to waive a jury was the desire to be
before a different judge. In fact, the record confirms that McMahon
sought both a different judge and a trial by jury. (See Pet'r Obj. ¶
40). Believing this was not an option, however, McMahon reluctantly
waived his right to a jury.*fn12
McMahon has suffered prejudice as a result of the involuntary waiver of
his right to a jury. Although the evidence in the case — including
the testimony of the victim — demonstrates that McMahon was not the
main actor and was less culpable than Hall, McMahon was convicted of
attempted rape by a judge while a jury acquitted Hall on that very
charge. In hindsight, McMahon might very well have fared better by
exercising his constitutional right to a jury. More significantly,
prejudice is presumed, for the jury guarantee is considered a "basic
protection" of our Constitution, "without which a criminal trial cannot
reliably serve its function." Sullivan, 508 U.S. at 281 (citation
omitted). The constitutional error in this case was structural, and thus
automatic reversal is required. Id. at 275.
For the reasons set forth above, the petition for a writ of habeas
corpus is granted. McMahon's assault and attempted rape convictions are
vacated, as is his waiver of his right to a jury trial.