Opinion · Court of Appeals for the D.C. Circuit
Whitaker v. McLean
118 F.2d 596
- Type
- Opinion
- Court
- Court of Appeals for the D.C. Circuit
- Jurisdiction
- Federal
- Date
- 1941-02-24
- Topic
- litigation
How later courts describe this case
- judge’s bias during trial appeared to have become “overpowering”
Citator
UpLaw has not yet analyzed Whitaker v. McLean. The absence of a flag is not a finding that it is good law.
- Cited by
- 41 opinions
WHITAKER v. McLEAN,118 F.2d 596(D.C. Cir. 1941)
WHITAKER v. McLEAN.
No. 7573.
United States Court of Appeals, District of Columbia Circuit.
Decided February 24, 1941.
Action by Norman T. Whitaker against Evalyn Walsh McLean. From an adverse judgment, plaintiff appeals.
Reversed and remanded.
Nelson T. Hartson, Edmund L. Jones, and Howard Boyd, all of Washington, D.C., for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Justices.
The judge may, as indeed he insisted, have felt no hostility to the plaintiff, and in that view he was, subjectively, free from bias. But bias must be considered objectively. Few, if any, judges would make the reported remarks, in the course of a trial, unless they had developed definite and positive hostility to plaintiff and his case. Hostility is a form of bias. When a judge has shown bias before trial, Section 21 of the Judicial Code, 28 U.S.C.A. § 25, provides means of disqualifying him. The policy underlying Section 21 is that the courts of the United States "shall not only be impartial in the controversies submitted to them but shall give assurance that they are impartial"; i.e., shall appear to be impartial. Berger v. United States,255 U.S. 22,36,41 S.Ct. 230,234,65 L.Ed. 481. A bias which develops during the trial and is "grounded on the evidence" has been held not to be within the terms of Section 21. Craven v. United States, 1 Cir.,22 F.2d 605, certiorari denied276 U.S. 627,48 S.Ct. 321,72 L.Ed. 739. Often some degree of bias develops inevitably during a trial. Judges cannot be forbidden to feel sympathy or aversion for one party or the other. Mild expressions of feeling are as hard to avoid as the feeling itself. But a right to be tried by a judge who is reasonably free from bias is a part of the fundamental right to a fair trial. If, before a case is over, a judge's bias appears to have become overpowering, we think it disqualifies him. It follows that the judgment must be reversed. This is the more regrettable because it is our impression, based on an examination of the record, that the claim on which the plaintiff sued was probably without merit.
Reversed and remanded.Page 597Page 937