How many times must someone be told something?
A recent decision of the Pennsylvania Commonwealth Court perhaps has a few asking themselves that question. In Commonwealth of Pennsylvania v. McCauley, No. 613 WDA 2017 (November 28, 2018), a criminal defendant appealed his sentence. This was the second time the Superior Court (appellate) had reviewed this case. The Court was direct in its decision and its criticism of the trial judge. It is not necessarily uncommon for a case to be reviewed more than once by an appellate court. But in this instance, it is interesting reading.
It reminded me, frankly, of a movie scene. A classic line was uttered by the Captain (Strother Martin) in Cool Hand Luke (1967): "What we've got here is... failure to communicate." That seems applicable. Clearly, there is a distinction between hearing and listening. There is a similar distinction between reading and comprehending. And, sometimes, there is a trial judge who just cannot seem to grasp the guidance an appellate court is giving.
The defendant in this Pennsylvania case was convicted of raping a child, among other things. Thus, we start from the perspective of a very serious case. After judgment was entered, the defendant appealed to the Superior Court in 2016. He challenged "the sufficiency of the evidence to support his convictions and the legality of his sentence." The court on that first appeal affirmed the convictions, "but vacated . . . and remanded for further proceedings. A specific discrepancy was identified as to whether the trial court had actually imposed a mandatory minimum sentence."
That reversal is a lesson. I talk to judges from time to time and they often express their emotions at an appellate court reversal. I often remind them, particularly newer judges, that an appellate court disagreeing with them is precisely that, a disagreement. That there is disagreement does not make either judge "right" or "wrong" in a holistic sense.
Understand that trial judges often must make difficult decisions "in the moment," while on the bench. There may be little time for research, reflection, or introspection. Often, lawyers in the trial do a woefully inadequate job of stating either their objections or responses. The level of preparedness, the preciseness of argument, and the thoroughness of explanation are each a challenge from time to time. But, an appellate court is not "in the moment" It is blessed with months to contemplate, research, and review. It is staffed with multiple law clerks, and the appellate judges usually get to work in a team setting, collaborating, to make their decision.
And despite those advantages, appellate courts periodically are reversed by some other appellate courts. One of the most intriguing cases over which I ever presided was Flamily v. City of Orlando, 924 So. 2d 78 (Fla. 1st DCA 2006). The Florida First District Court disagreed with my interpretation of the law and reversed part of my trial order (which was well over 100 pages in length). In Sanders v. City of Orlando, 997 So. 2d 1089 (2008) (the name of the case was changed due to the passing of the claimant), the Florida Supreme Court disagreed with the District Court and agreed with my analysis. There was a dissent (the Supreme Court justices did not all agree) that said the Supreme Court should not have heard the case. It explained the Court lacked jurisdiction. I agreed with that dissent. Thus, an illustration of interpretations, differences, and the analysis of judges and courts. In short, it is imperfect.
Back to Pennsylvania. The Court in 2016 instructed the trial court to "clarify whether it had imposed a mandatory minimum sentence." Specifically, the instruction was:
"(1) if the trial court imposed a mandatory minimum sentence pursuant to Section 9718, the trial court must “resentence Appellant without imposition of a mandatory minimum term[;]” or
(2) if the trial court did not apply Section 9718, the trial court “shall reimpose Appellant’s original sentence.”
This is a reasonably simple "either/or" mandate.
On remand, the trial judge elected to ignore the Superior Court and instead held a hearing, a "brief and inadequate re-sentencing hearing." The trial judge clarified that "it did not apply the mandatory minimum sentence," (that is, not (1)). But, instead of proceeding to (2), the trial court "instead imposed a new sentence."
The Superior Court explained last December:
“it is well-settled that following remand, the trial court below must comply strictly with this Court’s mandate and has no power to modify, alter, amend, set aside, or in any measure disturb or depart from this Court’s decision as to any matter decided on appeal.”
This is perhaps the judicial equivalent of your mother's admonition to "do as I say."
The trial court did not, so the matter was appealed again. While it is not uncommon for a particular case to be reviewed by an appellate court more than once, it is somewhat rare that it happens in this setting. Where it is less surprising is the type of case that proceeds serially, such as a workers' compensation case or a family law matter involving children, etc., and those serial appeals regard different issues or analyses. It is admittedly somewhat rare in the circumstances presented here.
In addition, the defendant moved to disqualify the trial judge. That motion was "summarily denied" by the trial judge. The appellate court explained the concerns of "due process,” and how that is intertwined with an impartial judge. It explained that both "actual bias” and "the appearance of bias or prejudice" are problematic. It reminded, however, that “simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant.” Ruling for or against various parties is what a judge must do. A ruling for you or against you, alone, does not mean the judge is biased for or against you.
In this instance, however, the Court considered the "cumulative effect of a judge’s remarks and conduct in multiple cases." It concluded, "that there is substantial evidence that the trial court judge demonstrated bias and personal animus against Appellant’s counsel and the Public Defender’s Office." The cumulative effect was seen to “raise a substantial doubt as to the jurist’s ability to preside impartially.”
The Court noted that the trial judge failed to follow the law and procedure in various cases, and "repeatedly relied on . . . unreliable facts and misinformation.” The Court noted other instances in which reviewing courts had been "troubled with the trial court judge’s biased decision-making." In one instance, the "Superior Court suggested that the Public Defender’s Office file a Motion for Recusal on remand because Superior Court could not sua sponte order recusal." That may be a powerful message, nestled in an appellate decision, that "by the way, party "x" should move to disqualify this judge."
The appellate Court noted its pressing concern was "the animus against Appellant’s counsel and the Public Defender’s Office that the trial court revealed in its Opinion." The trial court order was found to be "filled with gratuitous comments denigrating Appellant’s counsel and the Public Defender’s Office." The trial court departed from ruling upon the facts (findings) and the law (holdings). Instead, it "disparaged defense counsel." The appellate Court included specific examples which "imputed unprofessional (and unfounded) motives to Appellant’s counsel."
In one instance, the trial court essentially accused counsel of pursuing an "agenda over the best interests of her client.” In another, the trial court "made a veiled threat that challenges" voiced by the attorney might lead the court to doubt "the credibility of Appellant’s counsel and the Public Defender’s Office." That included an admonition of potentially harming "other criminal defendants" appearing before the court.
The appellate Court noted that the prosecutor referred to the relationship between trial court and Public Defender as "a feud." In appellate filings, the prosecutor referred to "acrimony," "gyrations," and "obvious inconsistencies and missteps" leading to the potential for "an appearance of bias.” (Thus, both sides recognized the potential for perception of bias regarding this judge). The Court was similarly concerned with its perception of "the trial court's sarcasm" in the sentence it imposed when it elected to ignore the Court's remand instruction, (2) above. That sarcasm, the Court concluded, "is disrespectful to Appellant, counsel, and the seriousness of the sentencing process."
Another consideration of the court was setting and timing. The Court seemed understanding of the pressure upon a trial judge in the course of a hearing or other proceeding. But, in this instance, it found:
"the trial court did not make these gratuitous statements during an emotional and stressful courtroom hearing where the trial judge is attempting to control the courtroom and momentarily loses her temper."
The complained of "derogatory comments" were written in an opinion of the trial court. The order drafting process is certainly less stressful. The drafting of a decision is a contemplative time, a reflective time, to weigh and consider legal arguments, facts, and circumstances. That the trial court was intemperate in that process was seen as important by the appellate Court.
The appellate Court memorialized remands to this particular trial court in multiple other instances. It described failure to follow legal requirements and procedures. It characterized the result of various instances cumulatively as "an extensive deployment of judicial resources to review, analyze, and rectify the court’s deficient sentencing hearings." Essentially, the Court is describing a trial judge who either cannot understand or chooses not to.
In light of this cumulative effect, the Court reversed the second sentencing and disqualified the trial judge. It concluded that the trial judge's cumulative actions constituted "an abuse of discretion" in the face of "substantial doubt as to her ability to preside impartially and provide a fair tribunal for Appellant." Thus, in the absence of "fair" and "impartial" lies an absence of due process. It is imperative for all judges to remember that the real value each delivers to the parties is due process. It is the fundamental service we offer, and it is what every party wants: to be listened to, to be heard, and to be understood.
That does not mean the judge is obligated to agree with you. In fact, the fundamental of judicial independence is you have the absolute right for the judge to disagree with you. But, that disagreement should be without bias or prejudice and should be based upon the law. And, when an appellate court issues a clear instruction, it is the trial judge's job to follow it. That instruction is the law and is to be respected until some higher court intervenes. That does not mean any judge involved is necessarily "right" or "wrong," it means that there may be disagreement, but the law is what the higher, appellate, court concludes it is.
An interesting Pennsylvania analysis, which holds reminders and lessons for us all.
