Isom v. Arkansas

140 S.Ct. 342 (Mem)

205 L.Ed.2d 373

Kenneth R. ISOM

v.ARKANSAS

No. 18-9517

Supreme Court of the United States.

Decided November 25, 2019

The petition for a writ of certiorari is denied.

Statement of Justice SOTOMAYOR respecting the denial of certiorari.

Petitioner Kenneth Isom was thrice charged with burglary and theft offenses by Drew County, Arkansas, prosecutor Sam Pope. Isom was acquitted on two of those occasions, but was convicted on the third. After Isom was granted parole three years into his sentence, Prosecutor Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but to no avail.

Seven years later, a jury convicted Isom of capital murder in a case presided over by Pope himself—now a Drew County judge. Isom sought postconviction relief, which was denied, also by Judge Pope. The Arkansas Supreme Court later granted Isom leave to file a writ of coram nobis to challenge the State's suppression of critical evidence under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That suppressed evidence pertained to, among other things, a suggestive photo identification and the inconsistent testimony of a state witness.

Again, Judge Pope presided. Isom filed a recusal motion, alleging that Pope's prior efforts to prosecute Isom (and to rescind his parole) created, at the very least, an appearance of bias requiring recusal under the Due Process Clause. Judge Pope denied the motion. After crediting testimony that supported his original photo-identification ruling, and after limiting discovery relevant to the inconsistent-testimony issue, Judge Pope also denied coram nobis relief.

The Arkansas Supreme Court affirmed. 2018 Ark. 368, 563 S.W.3d 533. Justices Hart and Wood dissented, concluding that there was at least an appearance of bias that required recusal. Justice Hart reasoned that the unusual coram nobis posture presented an especially compelling case for recusal, because Judge Pope was in the "untenable position" of evaluating his own prior findings about whether the photo identification should have been suppressed. Id. , at 550. Justice Hart also considered it significant that, after a state witness appeared to become confused during cross-examination, Judge Pope rehabilitated the witness and ordered a recess, after which the witness testified that his prior statements were mistaken. Id., at 551. Justice Wood, in turn, found it difficult to afford Judge Pope the usual deference extended to the close, discretionary decisions of circuit court judges, given his "extensive history" with Isom. Id. , at 552.

Our precedents require recusal where the "probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Rippo v . Baker , 580 U. S. ––––, ––––, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017) (per curiam ) (quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). The operative inquiry is objective: whether, "considering all the circumstances alleged," Rippo , 580 U. S., at ––––, 137 S.Ct., at 907, "the average judge in [the same] position is likely to be neutral, or whether there is an unconstitutional potential for bias," Williams v . Pennsylvania , 579 U. S. ––––, ––––, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) (internal quotation marks omitted). This Court has "not set forth a specific test" or required recusal as a matter of course when a judge has had prior involvement with a defendant in his role as a prosecutor. Cf. id. , at ––––, 136 S.Ct., at 1905. Nor has it found that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of ... prior proceedings" constitute a basis for recusal in the ordinary case. Liteky v. United States , 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Indeed, "it may be necessary and...