Vanderbilt Law Review

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One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. A suspect is charged with a federal crime, obtains legal counsel, and finds out who his judge will be. Because of a prominent rumor circulating in the community that the defendant once had an affair with the judge's wife, the defendant questions the judge's ability to be fair with him. He and his counsel file a timely motion for recusal under 28 U.S.C. § 455(a).' The judge promptly denies the motion with little to no comment. Discouraged, and now worried, the defendant considers plea bargaining. The prosecutor, who knows about the rumor, proposes a bargain that includes a recommendation to the judge of a lightened sentence in exchange for the defendant's unconditional guilty plea. The defendant and his counsel repeatedly try bargaining to condition the plea on being able to appeal the denied motion to recuse, but the prosecutor steadfastly refuses: "It's all or nothin'. Take this deal, or take your chances with the judge at trial." The defendant reluctantly signs the plea. The prosecutor and defense counsel inform the judge of the plea agreement, and the judge sets a date for sentencing. At sentencing, the judge acknowledges the prosecutor's lightened sentence suggestion, but decides that this defendant deserves a harsher sentence. Irate and feeling that the judge has been biased against him, the defendant tries to appeal the denial of the recusal motion.' A split currently exists in the United States Courts of Appeals as to whether this criminal defendant will be able to appeal the judge's denial of his motion to recuse. In 1988, the Tenth Circuit first decided the issue in United States v. Gipson.' In Gipson, the court held that only a charge of actual bias would survive a guilty plea Two years later, the First Circuit came out the other way in United States v. Chantal, holding that Chantal's § 455(a) challenge to the trial judge's qualification was not waived by his guilty plea." Circuits addressing the issue since these two decisions have aligned themselves with one of the two sides." The First and Second Circuits allow a criminal defendant to appeal the denied recusal motion following an unconditional guilty plea-the Fifth, Seventh and Tenth Circuits do not.

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