Every appeal involves at least one party that is disgruntled with a trial court’s ruling. It often follows that the losing side’s trial lawyer and his or her client are also quite dissatisfied with the trial judge. It may not be much of an overstatement to observe that the side that has won in the trial court believes that justice has been done, while the side that has lost believes the system is corrupt, the trial judge is biased, and a fair hearing before a neutral decision-maker has yet to be obtained.
The degree to which one should affirmatively assert or even suggest that the trial judge was unfairly biased presents a difficult issue on appeal. To begin with, it initiates a battle in which the losing litigant is most unlikely to prevail. As the U.S. Supreme Court observed in Liteky v. United States, 510 U.S. 540 (1994), “The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.”
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