5th Circuit says judge's comments show "generalized impertinence"

A Harris County trial judge's off-the-record comment in open court that he was "doing God's work to see that defendant [Carl Wayne] Buntion gets executed" is not grounds as a matter of law for a new trial, according to a April 11 opinion by the 5th U.S. Circuit Court of Appeals. In Buntion v.Quarterman, the 5th Circuit denied habeas corpus relief to Buntion, who was convicted of capital murder of a police officer and sentenced to death in 1991 before Judge William Harmon of Harris County's 178th District Court. Harmon, now judge in Harris County Criminal Court-at-Law No. 2, said his comments were meant as a joke, the opinion states. Buntion's defense attorneys at trial also complained that Harmon placed a postcard depicting Judge Roy Bean, the infamous Texas "hanging judge," on the bench during portions of jury selection. Harmon, the opinion states, had altered the message on the postcard to read, "Judge Bill Harmon: Law West of the Perdernales." Harmon, the opinion states, also commented that "sooner or later" Buntion would be convicted and executed, and failed to question a juror about a sheriff's comment that the juror was "dressed to kill," an apparent attempt at gallows humor. Another judge rejected Buntion's recusal motion against Harmon at trial, the opinion states. While the U.S. District Court for the Southern District of Texas granted conditional habeas relief to Buntion on April 28, 2006, the 5th Circuit vacated that judgment in its opinion. "Judge Harmon's comments and actions are certainly inappropriate and indeed atypical for a trial proceeding," the 5th Circuit stated. "However, none of these comments or actions demonstrate that the judge has any of the established bases for presumptive bias." The 5th Circuit stated that to obtain habeas relief, Buntion had to demonstrate that the state court "unreasonably determined that Judge Harmon was not actually biased in his case." The court went on: "Many of Judge Harmon's actions, while revealing lapses in Judge Harmon's judicial temperament, tend to show generalized impertinence and do not provide the kind of evidentiary support needed for an actual bias allegation."
-- Jonathan Fox