Halprin, Randy Ethan

In the Court of Criminal
Appeals of Texas
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No. WR-77,175-05
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EX PARTE RANDY ETHAN HALPRIN,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. W01-00327-T(B)
In the 283rd District Court
Dallas County
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YEARY, J., filed a concurring opinion.

Today, the Court grants Applicant a new trial because, it says,
the trial judge was “actually biased” against him. Ultimately, I concur
with the result reached by the Court. But I write separately to clarify
what I believe is the controlling standard by which we are required to
determine whether Applicant is entitled to a new trial.
HALPRIN – 2

I. THE PROBLEM WITH LITEKY
Problematically, the Court’s opinion relies on Liteky v. United
States to reach the conclusion that the trial judge in this case was
“actually biased” against Applicant. 510 U.S. 540, 555–56 (1994).
Specifically, it “discern[s] no reason that Liteky’s basic reasoning . . .
should not apply to a judge’s pervasive patterns of speech and behavior
outside of the courtroom.” Majority Opinion at 6. But it ignores whether
Liteky’s reasoning should apply at all.
To that end, I agree with Presiding Judge Keller that Liteky and
Berger v. United States do not control. See Keller, P.J., Dissenting
Opinion at 10–11. How could they? Applicant alleges a violation of due
process, and due process is never mentioned in Liteky or Berger. Instead,
both cases dealt with federal recusal statutes—not due process, which
is the issue before this Court today. Liteky, 510 U.S. at 540; United
States v. Berger, 255 U.S. 22, 23 (1921). Accordingly, the rationale on
which the Court grants Applicant relief is misguided.
II. THE CONTROLLING STANDARD
As an initial matter, the United States Supreme Court has said
that “[i]t is axiomatic that ‘[a] fair trial in a fair tribunal is a basic
requirement of due process.’” 1 Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868, 876 (2009) (quoting In re Murchison 349 U.S. 133, 136
(1995)). And while “most matters relating to judicial disqualification
[do] not rise to a constitutional level,” FTC v. Cement Institute, 333 U.S.
683, 702 (1948), “[d]ue process guarantees ‘an absence of actual bias’ on

1 See U.S. CONST. amend. XIV, § 1 (requiring that no “State deprive any

person of life, liberty, or property, without due process of law.”
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the part of a judge.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016)
(quoting Murchison, 349 U.S. at 136).
But, of course, “[b]ias is easy to attribute to others and difficult to
discern in oneself.” Id. Knowing this, the United States Supreme Court
established “an objective standard that, in the usual case, avoids having
to determine whether actual bias is [actually] present.” Id. Specifically,
that Court has said that a judge is required to recuse under
circumstances where “experience teaches that the probability of actual
bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Caperton, 556 U.S. at 877 (quoting Withrow
v. Larkin, 421 U.S. 35, 47 (1975)). The Supreme Court explained that
the question is “not whether the judge is actually, subjectively biased,
but whether the average judge in [the challenged judge’s] position is
‘likely’ to be neutral, or whether there is an unconstitutional ‘potential
for bias.’” 2 Id. at 881. And the Supreme Court has consistently stood by

2 Presiding Judge Keller seems to argue that, pursuant to Caperton,

relief is only appropriate in “two instances.” See Keller, P.J., Dissenting
Opinion at 5–6 (“Critically, the Supreme Court has identified only two types of
interest that can establish inferred bias: financial interest and conflict of
interest.”). But this reading of Caperton seems mistaken to me; it appears to
align more with the views espoused in a dissenting opinion in that case. See
Caperton, 556 U.S. at 890 (Roberts, C.J., dissenting) (“Until today, we have
recognized exactly two situations in which the Federal Due Process Clause
requires disqualification of a judge: when the judge has a financial interest in
the outcome of the case, and when the judge is trying a defendant for certain
criminal contempts.”) (emphasis added). Indeed, Caperton’s only limiting
principle was that the decision addressed “an extraordinary situation” and that
the standard would be “confined to rare instances.” Id. at 887, 890; see id. at
891 (Roberts, C.J., dissenting) (“The Court’s new ‘rule’ provides no guidance to
judges and litigants about when recusal will be constitutionally required.”).
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that standard. 3 See Williams, 579 U.S. at 9–11 (explaining that, under
the [14th Amendment] Due Process Clause, there was an impermissible
risk of actual bias when a judge had previous significant, personal
involvement as a prosecutor); Rippo v. Baker, 580 U.S. 285, 287 (2017)
(per curiam) (reversing the Nevada Supreme Court because it did not
apply the controlling standard—“whether, considering all the
circumstances alleged, the risk of bias was too high to be constitutionally
tolerable”).
III. APPLYING THE CONTROLLING STANDARD
Having identified the controlling standard, I turn next to the
specific circumstances and allegations of this case to determine
“whether the risk of bias was too high to be constitutionally tolerable.”
Rippo, 580 U.S. at 287.
In the present case, as pointed out by this Court’s per curiam
opinion, uncontradicted evidence exists that, after the trial judge
learned that he would preside over the trial of five of the Texas Seven
members, he expressed that his appointment was significant “because
[he was] going to get them all the death penalty, even the driver because

3I am sympathetic to the views espoused by Chief Justice Roberts,
Justice Thomas, Justice Alito, and the late Justice Scalia, arguing that the
Supreme Court deviated from what due process requires. See Caperton, 556
U.S. at 890 (Roberts, C.J., dissenting); id. at 902 (Scalia, J., dissenting);
Williams, 579 at 17 (Roberts, C.J., dissenting); id. at 24 (Thomas, J.,
dissenting). But the Supreme Court’s majority opinion pronouncements about
federal constitutional law are binding on this Court. See Ex parte Evans, 537
S.W.3d 109, 111 (Tex. Crim. App. 2017) (“The ultimate authority on federal
constitutional law is the U.S. Supreme Court.”). So—while the majority of the
Supreme Court might have departed from the original understanding of due
process in the context of judicial disqualification—we are bound to follow its
decisions, at least until its own subsequent decisions dictate otherwise. Id.
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he’s guilty.” Majority Opinion at 7. Further, before and during his time
as a judge, he repeatedly used derogatory language regarding Jewish
people generally. And even worse, albeit outside of the courtroom, 4 both
during and after Applicant’s trial, the judge also made anti-Semitic
remarks specifically about Applicant, who is Jewish.
Here, the trial judge’s predisposition to “get them all the death
penalty” suggests a likelihood of bias. In Williams, the Supreme Court
explained that a judge’s impression acquired through having formerly
prosecuted a case prior to presiding over it as a judge was problematic.
This case is similar, and in some respects even worse. The trial judge
seems to have made comments—while serving as the judge on the case,
but again, not in the courtroom—suggesting that he would work to
secure a judgment in this case consistent with his own personal
impression of the proper outcome. Beyond having a mere personal view
regarding the proper outcome of this case, the trial judge here explicitly
expressed an interest in this very case’s outcome—that he would “get
them all [including Applicant] the death penalty.” If a prosecutor’s prior
involvement in a case—as in Williams, for example, where the judge
previously participated in litigating the case himself—suggests a
likelihood of bias, surely a judge’s prior statement regarding a result of
the case he intended to secure also suggests a likelihood of bias. See
Williams, 579 U.S. at 16 (quoting Marshall v. Jerrico, Inc., 446 U.S. 238,

4 It matters not whether the statements were made inside or outside of

the courtroom. To the extent that considering out-of-court statements “breaks
new ground,” Keller, P.J., Dissenting Opinion at 12, no precedent precludes it.
To the contrary, recent precedent might even require it. See Rippo, 580 U.S. at
287 (requiring consideration of “all the circumstances alleged”) (emphasis
added).
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242 (1980)) (explaining that due process entitled the party to “a
proceeding in which he may present his case with assurance” that a
judge is not “predisposed to find against him”).
Further, here, the trial judge made anti-Semitic remarks
specifically about Applicant, outside the courtroom, but both during and
after the time period in which he presided over Applicant’s trial. This
case is not like Aetna Life Ins. Co. v. Lavoie, where the Supreme Court
suggested that more general allegations of bias and prejudice were
insufficient to establish a constitutional violation. 475 U.S. 813, 822
(1986) (explaining that “Appellant concedes that nothing in the record
even suggests that these justices [other than Justice Lavoie] had any
knowledge of the [specific] class action before the court issued a decision
on the merits” and that “[a]ny interest that they might have had when
they passed on the rehearing motion was clearly highly speculative and
contingent”). Instead, the trial judge made specific, derogatory remarks
about Applicant. Those kinds of targeted comments about Applicant
suggest a high likelihood of bias toward Applicant as a party.
And the fact that, here, the trial judge’s comments were clearly
directed at Applicant as a party might serve as a limiting principle for
similar claims. By this opinion, I do not mean to suggest that any time
evidence shows that a trial judge has—in the past—used off-color or
even somewhat bigoted language, in a more general sense, any judgment
signed by that judge must necessarily be reversed. But the trial judge’s
statements in this case suggested that he held a personal animus toward
this Applicant, both because he thought he was guilty and should be
sentenced to death, and because he held specifically prejudicial views
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toward Applicant’s status as a Jewish person. Surely, it seems to me,
this is an example of “an extraordinary situation where the Constitution
require[d] recusal.” Caperton, 556 U.S. at 887.
In this case, the trial judge made statements that expressed a
predisposition toward a particular outcome in Applicant’s case. He also
made direct, derogatory and demeaning statements about Applicant as
a member of a constitutionally protected class. These were not merely
speculative and contingent suggestions of possible bias harbored
generally by the trial judge, which the judge might have been able to set
aside during the course of the trial itself. The judge’s statements
specifically targeted Applicant because of the judge’s belief that
Applicant deserved a death sentence and because of the judge’s clearly
stated prejudice against Applicant as a Jewish person. Accordingly, I
can only conclude that Applicant was subjected to a likelihood of bias
that was “too high to be constitutionally tolerable.” Caperton, 556 U.S.
at 877 (quoting Withrow, 421 U.S. at 47).
IV. CONCLUSION
There is no need in this case to be guided by excess emotion over
the trial judge’s statements and behavior. There is also no need to rely
on an abundance of hyperbole. The required result in this case can be
reached simply by applying the controlling precedent as announced by
the United State Supreme Court, even as recently as in 2017, in Rippo.
580 U.S. at 287. Given the trial judge’s specific preconceived notion
about—and apparent interest in—the result of the Applicant’s own trial,
considered along with the trial judge’s specific expressions of bias and
prejudice against Applicant because of Applicant’s constitutionally
HALPRIN – 8

protected status as a Jewish person, the risk of bias in this case was
simply too high to be constitutionally tolerable. Reversal is therefore
required.
Because the Court’s per curiam opinion applies the wrong
standard before ultimately arriving at the correct result, I concur only
with the Court’s decision to grant relief.

FILED: November 6, 2024
PUBLISH