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02/14/95 EX PARTE CAREY DALE GRAYSON (IN CAREY DALE

February 14, 1995

EX PARTE CAREY DALE GRAYSON (IN RE: CAREY DALE GRAYSON
v.
STATE OF ALABAMA)



Jefferson Circuit Court. (CC-94-3700). Michael McCormick, TRIAL JUDGE.

Rehearing Denied March 24, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Taylor, Presiding Judge, All The Judges Concur.

The opinion of the court was delivered by: Taylor

PETITION FOR WRIT OF MANDAMUS

TAYLOR, PRESIDING JUDGE

Carey Dale Grayson petitions for a writ of mandamus ordering the Honorable Mike McCormick to recuse himself from Grayson's case. Grayson was charged with capital murder. One of Grayson's lawyers, Scott Boudreaux, opposed Judge McCormick in the most recent judicial election and lost. Grayson contends that because Judge McCormick and his lawyer opposed one another in the election, Judge McCormick could not be impartial and should disqualify himself from the case.

We first note that "mandamus is the proper method by which to review whether recusal is required." Ex parte Melof, 553 So. 2d 554, 555 (Ala. 1989).

All Judges are presumed to be impartial and unbiased. Ex parte Cotton, 638 So. 2d 870 (Ala. 1994). "The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice." Melof, 553 So. 2d at 557.

Canon 3(C), Alabama Canons of Judicial Ethics, states:

"(1) A Judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:

"(a) He has a person bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the Judge or such lawyer has been a material witness concerning it."

The Alabama Supreme Court in Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala.), cert. denied, ___ U.S. ___, 115 S. Ct. 528, 130 L. Ed. 2d 432 (1994), stated the following about Canon 3(C):

"Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when 'facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the Judge.' Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982). Specifically, the Canon 3(C) test is: 'Would a person of ordinary prudence in the Judge's position knowing all of the facts known to the Judge find that there is a reasonable basis for questioning the Judge's impartiality?' Matter of Sheffield, 465 So. 2d 350, 356 (Ala. 1984). The question is not whether the Judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the Judge's impartiality ...


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