Lofton v. State

Donnie Wayne LOFTON v. STATE of Arkansas

CA CR 96-188                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Division II and III
                  Opinion delivered May 7, 1997


1.   Appeal & error -- failure to challenge sufficiency of evidence for
     manslaughter barred argument on appeal. -- Where appellant failed to
     challenge the sufficiency of the evidence for manslaughter at
     the close of the Stateþs case and at the end of all the
     evidence, his argument on the issue was procedurally barred.

2.   Judges -- recusal -- ignorance of grounds cannot constitute waiver of
     disqualification. -- While disqualification of a judge may be
     waived, ignorance of the grounds for disqualification cannot
     constitute such a waiver, and if a party discovers the grounds
     after the trial has been completed, it is grounds for reversal
     on appeal.

3.   Judges -- recusal -- Canon 3E(1)(b) of the Code of Judicial Conduct
     provided no basis for reversal of conviction. -- The appellate court
     concluded that Canon 3E(1)(b) of the Arkansas Code of Judicial
     Conduct provided no basis for reversal of appellant's
     conviction where the trial judge, who had been the prosecuting
     attorney during the initial investigation into the death of
     the child that led to appellant's trial and conviction, denied
     any involvement in the investigation, and where, even had his
     deputy been directly involved during the relevant period,
     there is ordinarily no "association" between lawyers employed
     by a governmental agency within the meaning of Canon 3E(1)(b).
     
4.   Judges -- recusal -- presumption of impartiality. -- In construing
     Canon 3E(1) of the Code of Judicial Conduct, Arkansas
     appellate courts have stated that there is a presumption of
     impartiality, and the party seeking disqualification has the
     burden of proving otherwise.

5.   Judges -- recusal -- within trial court's discretion -- proof required --
     appellant did not allege bias or unfair treatment. -- The decision to
     recuse is within the trial courtþs discretion and will not be
     reversed absent abuse; an abuse of discretion can be proved by
     a showing of bias or prejudice on the part of the trial court;
     appellant did not allege actual bias or unfair treatment by
     the judge in the trial of his case.

6.   Judges -- recusal -- trial judge was not "of counsel" in appellant's case.
     -- A trial judge who signs the information or criminal
     indictment as prosecuting attorney has been þof counsel,þ and
     is disqualified to preside in the trial of the case under Ark.
     Const. art. 7,  20; where appellant was not arrested and the
     information was not filed against him while the trial judge
     served as prosecutor, the appellate court did not find that he
     had been þof counselþ in appellantþs case.

7.   Judges -- recusal -- no objective intimation of bias or prejudice found. -
     - Although appellant questioned the trial judgeþs
     authorization of the arrest warrant, he acknowledged that he
     could not show that the judge was biased or prejudiced in any
     way at the hearing on his recusal motion, and he stated that
     his concern was with the þappearance of impropriety or
     conflict of interest,þ a subjective measure; appellant did not
     argue actual bias, and the appellate court found no objective
     intimation of bias or prejudice.

8.   Judges -- recusal -- refusal to recuse was not abuse of discretion. --
     The appellate court concluded that the trial judgeþs recusal
     was not mandated by either Canon 3E of the Code of Judicial
     Conduct or Ark. Const. art. VII,  20, and that the decision
     to recuse was within the discretion of the trial court;
     because appellant did not allege that the judge was biased or
     unfair in the proceedings, the appellate court could not say
     that his refusal to recuse was an abuse of discretion.


     Jan Thornton, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Andree Layton Roaf, Judge.
     Donnie Wayne Lofton was convicted in a jury trial of
manslaughter for causing the death of the twenty-one-month-old son
of his live-in girlfriend, and was sentenced to ten yearsþ
imprisonment.  He raises two points on appeal.  He first argues
that the trial court erred in denying his motion for directed
verdict.  He also contends that Judge Sam Pope should have recused
and not presided over his trial because Judge Pope had been the
prosecuting attorney during the initial investigation into the
death of the child.  We are unable to reach the merits of Loftonþs
first point because his motion for directed verdict addressed only
the charge of first-degree murder.  We further hold that Judge Pope
did not abuse his discretion in declining to recuse, and affirm the
conviction.
     On November 13, 1994, twenty-one-month-old Christopher Chase
Fleming received a blunt trauma injury to his head that resulted in
his death two days later.  A jury determined that the injury was
caused by Lofton, in whose trailer the child had been living along
with his mother and brother.  The source of the injury as well as
the exact time it occurred was controverted at trial.
     A warrant for the arrest of Lofton was authorized by Judge Sam
Pope and issued on January 24, 1995.  Lofton was arrested on
January 25, 1995, and released on $25,000 bond set by Judge Pope on
February 1, 1995.  The information charging Lofton with first-
degree murder was filed May 18, 1995.  The case was tried before
Judge Pope on July 20, 1995.  Pope had been the prosecutor until
December 31, 1994, and his office had been involved in the early 
investigation into the childþs death.  The judge set June 30th as
a deadline for filing pretrial motions so that they could be heard
on July 3rd.  After initial jury orientation on July 18th, but
before jury selection, Lofton moved to have Judge Pope recuse due
to his former office's involvement with the case during the time
before he became circuit judge.  The judge heard and denied the
motion, stating in essence that it was offered too late, and that
he recalled no direct involvement in the investigation and could be
fair in the case.
     At trial, the State produced the victim's five-year-old
brother as an eyewitness.  After the court determined his
competency to testify, he stated that he observed Lofton throw
Christopher on the couch and that the child hit his head on the
wooden arm, causing him to cry for a long time.  Expert medical
testimony indicated that the fatal injury was consistent with
hitting a smooth surface like the wooden arm on the couch.
     Lofton adduced testimony that Christopher had fallen from a
porch at his grandmotherþs home several days previously. 
Christopherþs mother, Kinda Fleming, stated that Lofton told her
that Christopher had fallen from his porch while she was away at a
video rental store on the day the fatal injury allegedly occurred. 
The time of the injury was brought into question by Flemingþs
statements to emergency medical personnel that the child had been
fine all day up to and including when Lofton had put him to bed. 
Fleming indicated that she became aware of a problem only after she
awoke to the sound of Christopher's labored breathing, and found he
had an elevated temperature.  Expert medical testimony indicated
that the injury would have caused the child severe distress for
several hours before he was brought to the emergency room.
     Lofton moved for a directed verdict on the charge of first-
degree murder at the close of the State's case, and for a directed
verdict on the charges of first- and second-degree murder at the
close of all the evidence.  The motions were denied, and he was
convicted of manslaughter and given a ten-year sentence. 

1.  Directed verdict
     Lofton argues that the trial court erred in denying his motion
for a directed verdict at the end of the State's evidence and at
the end of all the evidence.  However, the State asserts correctly
that because Lofton's motion for a directed verdict at the close of
the State's case addressed only first-degree murder, he has not
preserved the issue of whether there was sufficient evidence to
convict him of manslaughter.  In Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996), the supreme court held that in order to preserve
for appeal the issue of sufficiency of the evidence, the defendant
must have addressed the lesser-included offense he was convicted of
by name or by the culpability required.  Because Lofton failed to
challenge the sufficiency of the evidence for manslaughter at the
close of the Stateþs case and at the end of all the evidence, his
argument on this point is procedurally barred.

2.  Recusal
     Lofton also contends that the trial court erred when it denied
his motion asking that the court recuse.  As an initial matter, the
State asserts that this argument is not preserved for appeal
because the motion for recusal was untimely.  Although the motion
was filed well after the deadline set by the trial court for the
filing of pretrial motions and only two days before Loftonþs
scheduled trial date, the trial court heard the motion on its
merits before denying it.  
     In Arkansas, the state constitution provides the grounds for
the disqualification a judge:  "No judge or justice shall preside
in the trial of any cause in the event of which he may be
interested, . . . or in which he may have been of counsel . . .." 
Ark. Const. art. VII,  20.  While disqualification of a judge may
be waived, ignorance of the grounds for disqualification cannot
constitute such a waiver, and if a party discovers the grounds
after the trial has been completed, it is grounds for reversal on
appeal.  See Byler v. State, 210 Ark. 790, 197 S.W.2d 748 (1946). 
Consequently, we cannot conclude that the motion was not properly
before the trial court or that the trial courtþs ruling on it was
not properly preserved for review.
     As to the merits, Lofton cites Canon 3E(1) of the Code of
Judicial Conduct as authority for his assertion that Judge Pope
should have disqualified himself from the proceeding.  It states in
pertinent part:
          (1)  A judge shall disqualify himself or herself in
     a proceeding in which the judge's impartiality might
     reasonably be questioned, including but not limited to
     instances where:
           . . . 

          (b)  the judge served as a lawyer in the
          matter of controversy, or a lawyer with whom
          the judge previously practiced law served
          during such association as a lawyer concerning
          the matter.
Arkansas Code of Judicial Conduct, Canon 3E(1). 
     Lofton contends that because Judge Popeþs term as the elected
prosecutor coincided with the pendency of the investigation from
November 13 to December 31, 1994, he became privy to certain
information received in the prosecutorþs office during this period. 
Lofton submits that four documents are evidence of the personal
involvement by Judge Pope in the investigation into Christopherþs
death: 1) a notice of child maltreatment form issued by ADHS dated
November 14, 1994, and addressed to Sam Pope; 2) investigation
notes prepared by Bill Setterman dated November 17, 1994,
indicating that Setterman told Chief Deputy Prosecuting Attorney
Joe Wray that Lofton had lived with two other women whose small
babies died; 3) a request from Setterman to þSam or Joeþ dated
November 21, 1994, for a subpoena duces tecum to Ashley Memorial
Hospital for all records of Christopher and the two other infants
who died;  and 4) a subpoena issued by Joe Wray on December 16,
1994, to G and W Family Clinic for treatment records of Christopher
since his birth.
     Lofton further notes that Judge Pope granted the arrest
warrant on January 24, 1995, after Municipal Judge Reid Harrod
failed to find probable cause and suggests that, while it is not
evidence of actual bias, this act puts into question Judge Popeþs
impartiality.  The State contends in response to Loftonþs arguments
that the prosecutorþs office merely received the four documents
listed by Lofton, and that they are not evidence of Judge Popeþs
personal involvement in the investigation.  Moreover, the State
contends that no þcaseþ existed against Lofton until he was
arrested on January 25, 1995, and consequently, Judge Pope did not
serve as a lawyer in the prosecution of Lofton.
     We do not agree with Loftonþs argument that Canon 3E(1) of the
Arkansas Code of Judicial Conduct provides the basis for reversal
of his conviction.  Judge Pope denied any involvement in the
investigation into Christopherþs death, and even if his deputy, Joe
Wray, was directly involved during the relevant period, the
commentary to Section 3E(1) states:
     A lawyer in a governmental agency does not ordinarily
     have an association with other lawyers employed by the
     agency within the meaning of Section 3E(1)(b) ...  A
     judge formerly employed by a governmental agency,
     however, should disqualify himself . . . in a proceeding
     if the judgeþs impartiality might reasonably be
     questionable because of such association.

Moreover, the preamble to the Code of Judicial Conduct states that
the Code should be applied þconsistent with constitutional
requirements, statutes . . . [and] decisional lawþ and þconstrued
so as not to impinge on the essential independence of judges in
making judicial decisions.þ  Significantly, the preamble further
provides:
     The Code is designed to provide guidance to judges and to
     provide for a structure for regulatory conduct through
     disciplinary agencies.  It is not designed or intended as
     a basis for civil liability or criminal prosecution. 
     Furthermore, the purpose of the Code would be subverted
     if the Code were invoked by lawyers for mere tactical
     advantage in a proceeding.
      We thus turn to the decisional law involving former
prosecuting attorneys who have later served as trial judges in
proceedings in which their impartiality has been questioned.  We
first observe that in construing Canon 3E(I), Arkansas appellate
courts have stated that there is a presumption of impartiality, and
the party seeking disqualification has the burden of proving
otherwise.  Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); 
Gentry v. State, 47 Ark. App. 117, 886 S.W.2d 885 (1994). 
Furthermore, the decision to recuse is within the trial courtþs
discretion and will not be reversed absent abuse.  Turner, supra. 
An abuse of discretion can be proved by a showing of bias or
prejudice on the part of the trial court.  Turner, supra.  In
Turner, the supreme court stated:
     We initially observe on this point that there was no
     showing by Turner that he was treated unfairly in the
     trial of this matter.  In fact, in Turnerþs reply brief,
     his counsel admitted that Turner was treated fairly at
     trial.

Id. at 244, 926 S.W.2d  at 847.
     Although Turner involved a trial judge who had prosecuted the
appellant for other crimes before taking the bench, Lofton has
likewise not alleged actual bias in his brief or asserted that he
was treated unfairly by Judge Pope in the trial of his case.
     Furthermore, we have not discovered any decisions which
suggest that Judge Popeþs recusal was mandated in this case.  In
Fisher v. State, 206 Ark. 177, 174 S.W.2d 446 (1943), the supreme
court held that a trial judge who signs the information or criminal
indictment as prosecuting attorney has been þof counsel,þ and is
disqualified to preside in the trial of the case under the Arkansas
Constitution.  However, Lofton was not arrested and the information
was not filed against him while Judge Pope served as prosecutor and
we do not find that he had been þof counselþ in Loftonþs case under
the holding of Fisher.
     In Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982), the
supreme court held that a trial judge who formerly prosecuted a
defendant on three of four felony convictions used to enhance
punishment is not disqualified under Ark. Const. art. 7,  20,
because the prohibition against his presiding in a case in which he
was þof counselþ relates to the case being tried.  However, Jordan
also alleged actual bias, and the court stated that the fundamental
issue was whether under the circumstances the judgeþs impartiality
might reasonably be questioned, pursuant to Canon 3 of the Code of
Judicial Conduct, and held that there was no objective intimation
of bias or prejudice in the proceedings.  Here, Lofton argues that
Judge Pope based his refusal to recuse on þtime constraintsþ and
states that it can be assumed that Judge Popeþs caseload was heavy
and that his docket was full.  Although Lofton questions Judge
Popeþs authorization of the arrest warrant, he acknowledges that he
could not show that Judge Pope was biased or prejudiced in any way
at the hearing on his recusal motion, and states that his concern
is with the þappearance of impropriety or conflict of interest.þ 
Lofton does not argue actual bias, and, as in Jordan, we do not
find any objective intimation of bias or prejudice.  Moreover, in
Jordan, the court stated that it regarded the appellantþs
allegation of the þappearance of biasþ as subjective.
     We conclude that Judge Popeþs recusal was not mandated by
either Canon 3E of the Code of Judicial Conduct or Ark. Const. 
art. VII,  20, and that the decision to recuse was within the
discretion of the trial court in this instance.  As Lofton has not
alleged that Judge Pope was biased or unfair in the proceedings, we
cannot say that his refusal to recuse was an abuse of discretion.
     Affirmed.
     Robbins, C.J., and Pittman, Rogers, and Meads, JJ., agree.
     Griffen, J., dissents.


              Wendell L. Griffen, Judge, dissents.



     The proper administration of the law requires not
     only that judges refrain from actual bias, but also
     that they avoid all appearances of impropriety.

City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990)
(citing Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978).

     Public confidence in the judiciary is eroded by
     irresponsible or improper conduct by judges.  A
     judge must avoid all impropriety and appearance of
     impropriety . . . . The test for appearance of
     impropriety is whether the conduct would create in
     reasonable minds a perception that the judge's
     ability to carry out judicial responsibilities with
     integrity, impartiality and competence is impaired.

Commentary to Canon 2, Section A, Arkansas Code of Judicial Conduct.
     
     Although I agree with the majority that we cannot reach the
merits of Loftonþs first point because his motion for directed
verdict only dealt with the charge of first-degree murder, and
while I do not question the sufficiency of the evidence to convict
appellant of manslaughter, I respectfully disagree with the
decision affirming Judge Pope's failure to recuse.  The decision to
affirm ignores a cardinal principle of justice: that the decision-
maker avoid even the appearance of impropriety.  Indeed, our
decision essentially renders the requirement that a judge
disqualify in a proceeding in which his impartiality might
reasonably be questioned to mean that even when impartiality might
reasonably be questioned, a refusal to recuse based on these facts
is not an abuse of discretion.  This reasoning ignores the
realities of our trial process.  It also disregards the power
imbalance facing the litigant who reasonably questions the
impartiality of a trial judge before trial, but lacks proof of
actual bias or prejudice.  Finally, I cannot reconcile the result
in contrast to the standard practice of dismissing prospective
jurors from jury service in trials þfor causeþ upon similar proof. 
     The law does not guarantee perfect trials, meaning trials
without legal errors.  However, the law guarantees to each person
a trial before a decision-maker whose impartiality is beyond
reasonable dispute.  That is the obvious purpose of the provision
in the Arkansas Constitution that prohibits judges from presiding
þin the trial of any cause in the event of which he may be
interested, . . . or in which he may have been of counsel . . . .þ 
Ark. Const. art. VII,  20.  The Arkansas Code of Judicial Conduct
and its canons also apply to judicial conduct in criminal cases.
Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Canon Two of
the Code states:  "A judge shall avoid impropriety and the
appearance of impropriety in all of the judge's activities."  This
high regard for impartiality is also why Canon 3E(1) of the Code of
Judicial Conduct provides that a judge shall disqualify himself or
herself in a proceeding in which the judgeþs impartiality might
reasonably be questioned.  The preamble to the Code states that
when "shall" is used in the text, it is intended to impose binding
obligations that can result in disciplinary action if violated. 
Whether one refers to such ancient legal codes as the writings of
Moses, those of ancient philosophers, or more recent authorities on
legal ethics, avoidance of the appearance of impropriety is central
to every justice system in the history of human civilization.  The
idea that judges should avoid even the appearance of partiality or
favoritism is so deeply rooted in our sense of justice that we do
not require proof of actual bias or prejudice toward litigants as
the sole basis for disqualifying jurors or judges.  Rather,
disqualification is mandated if reasonable questions may be
asserted concerning the impartiality of a judge or prospective
juror.
     The majority decision disregards this basic aspect of justice
by emphasizing the fact that Lofton has not shown that the trial
judge demonstrated actual bias or prejudice.  That fact does not
address the real issue.  Justice demands that the trial system be
trustworthy, even if it is not otherwise perfect.  Judges may err
on legal rulings even when there are no reasons to question their
impartiality, and judges whose impartiality might reasonably be
questioned may conduct trials without actually manifesting bias or
prejudice.  The issue is not whether a judge whose partiality might
reasonably be questioned has been shown to be biased or prejudiced
in a proceeding; rather, the issue is whether a judge whose
partiality might reasonably be questioned should even conduct the
proceeding in the first place.  
     There were substantial reasons to question the impartiality of
the trial judge in Loftonþs case.  This homicide case involved the
death of a twenty-one-month-old boy from a blow to his head
allegedly caused when Lofton threw the boy onto a couch where the
boyþs head struck a wooden arm.  The trial judge was prosecuting
attorney in Ashley County when the infant died.  After the injury
occurred, the notice of child maltreatment issued by the Arkansas
Department of Human Services was addressed to þSam Pope,
Prosecuting Attorney.þ  The medical examiner addressed a letter to
Pope, in his capacity as prosecuting attorney, concerning the cause
of death.  On or about November 21, 1994, an investigator submitted
a request to þSam or Joeþ (Popeþs chief deputy prosecuting
attorney), for a subpoena duces tecum so that records could be
obtained related to the death of the boy in this case as well as
two other infants who had died while Lofton had lived with their
mothers.  The subpoena duces tecum was issued by Joe D. Wray, Chief
Deputy Prosecuting Attorney, under Popeþs name, to obtain the
medical records for the victim in this case.  Even if Pope lacked
actual knowledge about the results of these inquiries, the facts
plainly show that investigative issues and information were
addressed to him in his official capacity as prosecuting attorney,
and that his chief subordinate acted on it.   
     One must then consider whether these factors might reasonably
cause one to question the impartiality of a person in Judge Popeþs
position.  If a layperson had been involved in a similar situation,
there is no doubt that he or she would have been disqualified from
jury service in this case without any requirement that actual bias
or prejudice be shown.  Indeed, virtually every jury trial in
Arkansas begins with the trial judge asking the prospective members
of the jury whether they are acquainted with the facts of the case
to be decided and whether they have a current or previous
relationship with one of the parties.  Although mere general
knowledge that a crime allegedly occurred does not disqualify one
from serving as trier of fact, the majority has not cited one case
where a former prosecutor has been upheld in serving as judge or
juror in the same case that his office investigated before he
assumed judicial office.  Nobody suggests that an employee from the
prosecutor's office who changed jobs between the time of the
investigation and the trial would have been deemed an impartial
observer so as to qualify as a juror at Lofton's trial.
     The State argues that Judge Pope was not personally involved
in the investigation merely because the prosecutorþs office
received the previously-mentioned documents, and that there was no
case against Lofton until his arrest on January 25, 1995, twenty-
five days after Judge Popeþs tenure as prosecuting attorney ended. 
The þno caseþ argument is unpersuasive.  The police and prosecuting
attorneyþs office were investigating Christopher Flemingþs injury
as a possible crime beginning as early as November 14, 1994 (the
day after he sustained the head injury and one day before he died),
based on the notice of child maltreatment that was addressed to
þSam Pope, Prosecuting Attorney,þ from the Department of Human
Services.  Within a week after Christopher died, the investigation
had widened to include an effort to subpoena the medical records
related to two other children who died while Lofton lived with
their mothers.  The prosecutorþs office was clearly pursuing leads
that it considered incriminating against Lofton while Judge Pope
was prosecuting attorney.  
     The office of prosecuting attorney involves the proprietary
duty of assisting in the investigation and prosecution of suspected
criminal activity.  Homicide cases receive top priority, and the
normally intense investigative and prosecutorial focus of that
office in homicide cases is heightened even more for cases
involving suspected child abuse.  This case attracted considerable
notoriety in Ashley County, as one might reasonably expect.  One
might also reasonably expect that even a prosecuting attorney whose
tenure was about to end would not have been ignorant or
disinterested about the fatality, the growing investigation, and
the role of his office in it.  That reasonable expectation is
confirmed by the fact that investigative inquiries were routed to
Pope as prosecuting attorney and acted upon by his chief deputy. 
These factors would cause one to reasonably question the
impartiality of the former prosecutor who became judge to preside
over the trial of the person accused of killing a child by throwing
him onto a piece of furniture.
     It is certainly true that the Code of Judicial Conduct should
not be applied in ways that unreasonably impinge on the ability of
judges to serve with independence from unwarranted influences, and
that the Code is not intended or designed to serve as a basis for
civil liability or criminal prosecution.  I also recognize that the 
Code does not further its essential purpose if trial lawyers are
permitted to invoke it to gain a tactical advantage or þjudge-
shop.þ  These realities do not justify appellate courts in
disregarding the plain language of a rule that mandates a judgeþs
recusal in a proceeding where his impartiality might reasonably be
questioned and treating the failure to recuse as something other
than an abuse of discretion.  The State has not shown that Judge
Pope's recusal would have been tactically advantageous to the
defense, and the record does not justify that conclusion.
     The abuse-of-discretion standard applied to trial judge
rulings on motions for recusal serves a valuable purpose.  Yet the
goal of protecting the independence of judges from unreasonable
challenges is not advanced by using the standard to shield judges
from the very kind of conduct that would disqualify a layperson
from serving on a jury, and that the Code of Judicial Conduct
defines as mandating recusal.  Trial judges possess great power,
including power to issue search warrants, issue arrest warrants,
impose bail conditions, and decide pre-trial disputes about the
evidence that prosecutors hope to present to show guilt even before
trial occurs.  Even when a case is tried to a jury, the trial judge
decides evidentiary issues that are often reviewed only on the
abuse-of-discretion standard.  
     Where reasonable questions arise about the impartiality of a
trial judge, the concerned litigant faces a particularly difficult
problem.  Only the judge in question can hear and grant a motion to
recuse.  However, an unfavorable ruling on a recusal motion is not
ordinarily subject to interlocutory appeal.  Therefore, the accused
person who reasonably questions the impartiality of a trial judge
based on clear proof that the trial judge served as prosecutor
during the investigation of the matter over which he now presides
must, under this decision, make a motion to recuse, and then have
the former prosecutor preside over the trial of the very proof that
his former office assembled under his supervision.  The judge whose
impartiality might reasonably have been questioned based on
previous association with the prosecution in the case is the same
person who will determine the fitness of prospective jurors, some
of whom may deserve disqualification for having relationships equal
to the relationship that the judge had.  Where there are challenges
to the proof, the accused must wonder how the judge can be
impartial about the fruit of his former employment.  If the accused
challenges the trial judge on the ground of bias or prejudice, he
does so knowing that the same person whose impartiality warranted
questioning before trial will not likely view a direct allegation
of favoritism or prejudice during the trial as an impartial
observer.  Throughout the trial, everyone will know that the former
prosecutor, now judge, will be responsible for significant judgment
calls ranging from whether to direct a deadlocked jury to continue
deliberations or declare a mistrial, whether to accept a jury
recommendation on sentencing, whether to grant defense motions for
directed verdict or new trial, and whether to permit post-
conviction release pending appeal.  The issue is not whether the
former prosecutor will make accurate legal rulings as trial judge;
the issue is whether having the former prosecutor preside over the
case at all is fair given these realities.
     It is unfortunate that we do not recognize the inherent
unfairness in holding that one party to a trial must accept as
judge a person who headed the agency that investigated and now
prosecutes the very case that he will be required to defend.  It is
unrealistic to believe that the average citizen will not question
why appellate judges are unwilling to declare unfair what our own
ethical code calls improper, and what we recognize as just cause
for excusing laypersons from jury service.  If Lofton had been
tried by a different judge with the same result, no one could
question the fairness of the process, even if they disagreed with
the outcome.  Regrettably, our decision will do nothing to
encourage judges to recuse in similar future situations, and does
nothing to remove the suspicion that whatever one thinks about the
outcome in this tragic case, the process was unfair.
     I respectfully dissent.