"The truth is that I have noticed in recent years that the Democrat party places far too much emphasis on representing minorities such as homosexuals, people who don't want to work, and people with a skin that's any color but white. Their reverse-discrimination quotas and affirmative action, in the work place as well as in schools and colleges, are repugnant to me," Blackwell said. "I believe that a person should be advanced and promoted, in this life, on the basis of initiative, qualification, and willingness to work, not simply on the color of his or her skin, or sexual preference."

"While minorities need to be represented or [sic] course, I believe the time has come for us to place much more emphasis and concern on hard-working taxpayers in this country", Blackwell said. "That majority group of our citizens seems to have been virtually forgotten by the Democrat party." The majority's view is that Judge Blackwell's press release on the eve of the trial "merely express[es] "his" dissatisfaction with affirmative action and government entitlement programs."(1) Judge Blackwell does express that idea, but that part of the statement is irrelevant to the issue of bias.(2) What the majority admits it cannot defend, but nevertheless condones, is the pernicious racial stereotype which is also expressed in the press release. The slur is not ambiguous or complex (nor, unfortunately, original): "While minorities need to be represented..., I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers in the country...." No honest reading of this sentence can show that it says anything other than what it says: that minorities are not hard-working taxpayers. The majority does not even try to explain how this statement is consistent with its conclusion that "the press release would [not]cause a reasonable person to question the impartiality of the court."(3) Instead, the majority chooses to focus on Judge Blackwell's self-serving comments at the disqualification hearing. The mere fact that a judge who issues a racially derogatory press release a week later claims to treat equally people who are "white, black, red, yellow, or whatever," hardly "set[s] to rest any concern" about his impartiality. I would feel much more comfortable with the judge's decision not to recuse if he had used his press release to trumpet his "prejudice toward upholding each individual's constitutuional rights[,]" rather than filling it with race-baiting nonsense.

What is more troubling than the majority's inability to confront the offensive content of this press release is its willingness to ignore the important principles and substantial precedents that compel recusal. The majority describes the requirement that judges recuse themselves from cases where a reasonable person would have an objective basis to doubt their impartiality as emanating from the code of judicial conduct. The rule has a far more important source--the Constitution. "A fair trial in a fair tribunal is basic requirements of due process."(4) The majority's reliance on the post-conviction court's finding that Judge Blackwell made no obviously unfair rulings during the trial is misplaced. To satisfy the Constitution, actual fairness is necessary, but not sufficient:

While the majority's refusal to address Mr. Kinder's constitutional argument is disconcerting, its distortion of the controlling precedent on this issue defies belief. The majority , without quoting from the case, tells us what State v. Smulls(6) really meant to say. "Smulls should be read no more broadly than for the proposition that a judicial statement--on the record or off-- which raises a genuine doubt as to the judge's willingness to follow the law, provides a basis for recusal."(7) What Smulls actually said was: "fundamental fairness requires that the trial judge be free of the appearance of prejudice against the defendant as an individual and against the racial group of which the defendant is a member."(8) This is more than a "techincal legal point," as is Smulls' requirement that "judicial behavior must be beyond reproach[,]" and its warning that conduct suggesting racial bias "undermines the credibility of the judicial system and opens the integrity of the judicial system to question."(9)

That the majority is now pretending Smulls doesn't say what it says is at least understandable, since it directly contradicts their decision here. The dissenters in Smulls made exactly the same argument that the majority adopts today: that a judge is presumptively unbiased, despite racially provacative remarks.(10) The Court conclusively rejected that approach: "It is not the judge to whom we should afford the benefit of the doubt. The rights and due-process based expectations of the parties are the Court's proper focus.... Where there is ambiguity, the Court's obligation is to construe language in favor of assuring the appearance of fairness to the litigants...."(11)

In some regards, the judge's conduct here is more egregious than the alleged in Smulls, which makes the Court's about-face that much more disturbing. This is no impormptu remark, conducive to misunderstnading due to haste or inadvertent misphrasing. A lifelong Democrat and a former state senator , Judge Blackwell issued a formal press release explaining why he was switching parties months before an election. I do not doubt that the content and wording of such an important announcement were carefully considered by the judge befoe he disseminated it. Far from being as spontaneous outburst, this press release was a calculated attempt to influence voters by appealing to their racial prejudice. The majority tacitly admits that this is the case, but inexplicably finds that this exuses the offensive conduct, rather than aggravating it. "To the extent that the comments can be read to disparage minorities, there is little point in defending them, even as the political act they were intended to be. But they are a political act, not a judicial one, and as such, they do not necessarily have any bearing on the judge's in-court treatment of minorities."(12) This distinction between "political" racism and "judicial" racism has no basis in logic or in reality. I doubt that any reasonable person would think that a judge who makes provacative comments in a campaign press release, comments which the majority admits are indefensible racist, would be able to scrupulously set aside those views just because the judge dons a robe. The majority doesn't even try to make the argument--made in the Smulls dissent-- that facially neutral comments are being distorted.(13) Judge Blackwells's press release would have to be grossly distorted to be read to do anything but disparage the work ethic of minorities.

Even the dissenters in Smulls agreed that "[r]acial prejudice is the scourge of our society..."(14) But I am at a loss to see how the majority thinks the appearance of racism can be eradicated from the judiciary if this Court turns a blind eye to racially offensive conduct by judges. Perhaps the majority sees all allegations of bias against judges as part of a "witch hunt," and fears that "even the most saintly of us may be the target of overzealous scrutiny and quite often, false claims."(15) But judges' fear of being falsely accused of bigotry can not blind us to its presence in our midst. If the majority is going to submit to this fear and abandon the high standard of judicial conduct the Court outlined in Smulls, it should at least be forthright enough to admit that that is what it is doing.

We must not lose sight of what is at stake in this case: The high standard of impartiality we require from judges must be further raised when the punishment imposed is death. "[D]eath is different in kind from any other punishment[,]"(16) and the burden of the death penalty has long appeared to be borne disproportionately by "people with a skin that's any color but white."(17)

Judge Blackwell's press release created a reasonable suspicion that he could not preside over this case impartially. The Code of Judicial Conduct, the Constitution, and our case law all require that in such a situation, the judge must recuse. Since the judge here failed to sustain the motion that he recuse himself, Mr. Kinder must receive a new trial before a judge whose impartiality is beyond reproach. For this reason I respectfully dissent.

1 slip op. at 3
2 It is, however improper. A judge who "announce[s] views on disputed legal issues" violates the Code of Judicial Conduct, Rule 2, Canon 7(b)(1)(c). Obviously, there are few more hotly disputed legal issues than the status of affirmative action.
3 Slip op. at 3.
4 In re Murchison, 349 U.S. 133, 136(1955)
5 Id. (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
6 __S.W.2d__(Mo. banc 1996)(No. 75511, decided November 19, 1996).
7 Slip on. at 4.
8 Smulls, slip op. at 28. 9 Id. at 30. 10 Smulls, slip op. of Limbaugh, J. at 4 (concurring in part and dissenting in part)("majority's pronouncement that'[i]t is not the judge to whom we should affirm [sic] the benefit of the doubt' is a misstatement of the law. Instead, the analysis should begin with a recognition of the well-established tenet that the honesty and integrity of judicial officers is presumed. Withrow v. Larkin, 421 U.S. 35, 47(1975).")
11 Smulls, slip on. at 30-31.
12 Slip op. at 3.
13 Smulls, Slip op. of Limbaugh, J. at 3-4 (concurring in part and dissenting in part).
14 Id. at 1.
15 Id. at 4,6.
16 Gregg v. Georgia, 428 U.S. 153, 188 (1976)(plurality opinion).
17 See, e.g., McCleskey v. Kemp, 481 U.S. 277 (1987)(study showing black defendants received death penalty at substantially greater rate than white defendants not sufficient basis for equal protection claim); Furman v. Georgia, 408 U.S. 238, 250-51 (1972)(Douglas, J., concurring)(providing evidence that death sentences are imposed disproportionately on black defendants).

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