Defendants were indicted in a federal district court for conspiring to organize as the Communist Party of the United States and to advocate overthrowing the government by force or violence in violation of a federal statute. During argument on their motion for a 90-day extension, the judge remarked he thought "public policy might require that the matter be given prompt attention . . . when perhaps there may be some more of these fellows up to that sort of thing"; that "I am not going to give them anything like 90 days, I am going to tell you right now"; and, in answer to defense counsel's contention that the indictment failed to allege any acts of force or violence, "No they want to wait until they get everything set and then the acts will come." Defendants filed timely affidavits of personal bias and prejudice pursuant to section 144 of the new Judicial Code, setting out the above facts as grounds for disqualification of the judge. The district judge refused to disqualify himself and defendants petitioned the United States Court of Appeals for a writ of mandamus requiring him to do so. Held, petitions dismissed. Taken in their context the remarks of the judge did not lend fair support to the charge that he had a personal bias or prejudice against petitioners; the affidavit was therefore legally insufficient. Foster v. Medina, (App. 2d, 1948) 170 F. (2d) 632.
John C. Walker,
FEDERAL COURTS-DISQUALIFICATION OF DISTRICT JUDGE FOR PREJUDICE- SUFFICIENCY OF AFFIDAVIT,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol47/iss6/18