Isom v. Arkansas

Cite as: 589 U. S. ____ (2019) 1
SOTOMAYOR
Statement of, S
J., dissenting
OTOMAYOR , J.
SUPREME COURT OF THE UNITED STATES
KENNETH R. ISOM v. ARKANSAS
ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF ARKANSAS
No. 18–9517. 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 bur-
glary and theft offenses by Drew County, Arkansas, prose-
cutor Sam Pope. Isom was acquitted on two of those occa-
sions, 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 con-
cern and to inquire whether Isom could somehow be re-
turned 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 chal-
lenge the State’s suppression of critical evidence under
Brady v. Maryland, 373 U.S. 83 (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-
2 ISOM v. ARKANSAS
Statement of SOTOMAYOR, J.
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, con-
cluding 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 sup-
pressed. Id., at 550. Justice Hart also considered it signif-
icant that, after a state witness appeared to become con-
fused 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, discretion-
ary 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. ___, ___ (2017) (per curiam) (slip op., at 2) (quoting
Withrow v. Larkin, 421 U.S. 35, 47 (1975)). The operative
inquiry is objective: whether, “considering all the circum-
stances alleged,” Rippo, 580 U. S., at ___ (slip op., at 3), “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. ___, ___ (2016) (slip op.,
at 6) (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 ___ (slip
op., at 5). 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
Cite as: 589 U. S. ____ (2019) 3
Statement of SOTOMAYOR, J.
U. S. 540, 555 (1994). Indeed, “it may be necessary and pru-
dent to permit judges to preside over successive causes in-
volving the same parties or issues.” Id., at 562 (Kennedy,
J., concurring).
At the same time, the Court has acknowledged that
“[a]llowing a decisionmaker to review and evaluate his own
prior decisions raises problems,” Withrow, 421 U.S., at 58,
n. 25, perhaps because of the risk that a judge might “ ‘be so
psychologically wedded to his or her previous position’ ” that
he or she will “ ‘consciously or unconsciously avoid the ap-
pearance of having erred or changed position.’ ” Williams,
579 U. S., at ___ (slip op., at 7) (quoting Withrow, 421 U.S.,
at 57). And it has warned that a judge’s “personal
knowledge and impression” of a case may sometimes out-
weigh the parties’ arguments. In re Murchison, 349 U.S.
133, 138 (1955).
The allegations of bias presented to the Arkansas Su-
preme Court are concerning. But they are complicated by
the fact that Isom did not raise the issue of Judge Pope’s
prior involvement in his prosecutions, either at his capital
trial or for nearly 15 years thereafter during his postconvic-
tion proceedings. Although the Arkansas Supreme Court
did not base its recusal decision on this point, it is a consid-
eration in evaluating whether there was an “unconstitu-
tional potential for bias” in this case sufficient to warrant
the grant of certiorari. Williams, 579 U. S., at ___ (slip op.,
at 6) (internal quotation marks omitted). I therefore do not
dissent from the denial of certiorari. I write, however, to
encourage vigilance about the risk of bias that may arise
when trial judges peculiarly familiar with a party sit in
judgment of themselves. The Due Process Clause’s guaran-
tee of a neutral decisionmaker will mean little if this form
of partiality is overlooked or underestimated.