Paths Recross

The United States Court of Appeals for the Fourth Circuit declined to grant mandamus relief to a criminal defendant whose motion to recuse the trial judge was denied

Judge Robert J. Conrad was to preside over the criminal trial of John Henry Moore when the parties learned that Judge Conrad had prosecuted Moore successfully for bank robbery in 1989. If Moore’s current trial ends in conviction, then the facts surrounding his 1989 bank robbery conviction could become relevant at sentencing. Moore therefore sought Judge Conrad’s immediate, pre-trial recusal under the judicial disqualification statute, see 28 U.S.C. § 455, arguing that Judge Conrad had personal knowledge of facts that might be disputed at sentencing and that his impartiality reasonably could be questioned. Judge Conrad denied the motion.

Moore then filed the petition for a writ of mandamus we consider today, asking that this court direct Judge Conrad to recuse from presiding over his criminal trial. We share Moore’s concern that there could come a point at which recusal might be required, and certainly would be appropriate. But we conclude that the extraordinary relief of mandamus is not warranted now, primarily because Moore has failed to show a clear and indisputable right to immediate recusal based on grounds that involve a future sentencing and may never materialize. We thus deny Moore’s petition.

Judge Conrad stated that he had no memory of the prior case

In an oral ruling from the bench, Judge Conrad denied the motion for recusal. Based on the docket sheet, Judge Conrad explained, he had no memory of the 1989 bank robbery, which he had prosecuted “[s]ome 30 years ago.” J.A. 31. And in any event, Judge Conrad reasoned, Moore’s motion did not “affect in any way the trial aspects of this case. It comes into play if there is a conviction and that prior conviction becomes relevant, if at all, with respect to sentencing.”

The defendant argued that the facts underlying the bank robbery conviction would be highly relevant to sentencing; the court here did not disagree but held that the extraordinary relief sought was premature.

Circuit Judge Pamela Harris authored the opinion. (Mike Frisch)