GAY v. U. S.,
411 U.S. 974 (1973)

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U.S. Supreme Court

GAY v. U. S. , 411 U.S. 974 (1973)

411 U.S. 974

John R. GAY
No. 72-5572.

Supreme Court of the United States

May 7, 1973

Rehearing Denied June 11, 1973.

See 412 U.S. 944.

On petition for writ of certiorari to the District of Columbia Court of Appeals.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL concur, dissenting.

Petitioner was convicted of larceny. The District of Columbia Court of Appeals reversed. 241 A.2d 446. The United States Court of Appeals reversed the latter court, 133 U.S.APP.D.C. 337, 410 F.2d 1036, and remanded the case to the District of Columbia Court of Appeals for a ruling on the propriety of the trial court's instruction. That court held that the instructions had not been prejudicial and the United States Court of Appeals affirmed. Thereafter petitioner sought relief by way of coram nobis. The trial court dismissed the case without prejudice and the District of Columbia Court of Appeals affirmed. During the time petitioner's original or direct appeal was being considered by the court Frank Q. Nebeker was Assistant United States Attorney in charge of the Appellate Section in the office of the United States Attorney for the District. One of his duties was to review the appellate briefs submitted by that office of the appellate courts. His name was on the brief opposing petitioner on the appeal. He was named to the District of Columbia Court of Appeals by President Nixon in May of 1969. When the coram nobis action was brought to the District of Columbia Court of Appeals it was heard by a three-judge panel which included Nebeker. His prior role in the case was not brought to his attention and he doubtless was unaware of the fact that this case had been one of the fact that this he had processed while in the United States Attorney's office.

Page 411 U.S. 974 , 975

Nonetheless Canon 3C(1)(b) of the recently adopted Code of Judicial Conduct provides:

    'A Judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where . . . he served as lawyer in the matter in controversy. . . .'

This Canon, as it applies to this case, is merely a reflection of the basic concept of due process of law that a person should not serve as both prosecutor and judge.

The matter might not be considered of any great moment here if the three judges in the panel had taken part. But one of the three, Judge Yeagley, did not participate in the decision. Hence in one view there was only a single qualified judge sitting on the appeal. That fact makes singularly appropriate the suggestion of the Solicitor General that it may be just under the circumstances to vacate the judgment of the Court of Appeals for the District of Columbia and remand for further proceedings. I would do just that.

Although this issue may not rise to the level of a constitutional question and there is no federal statute involved, we should take this action under our supervisory authority over the administration of justice in the federal courts. See, e. g., Mallory v. United States, 354 U.S. 449, 452-453; McNabb v. United States, 318 U.S. 332, 341; Nardone v. United States, 308 U.S. 338, 341-342, 84 L.Ed.307. The District of Columbia Court of Appeals, established by Congress pursuant to Art. I, 8, Cl. 17, of the Constitution,1 clearly is within the parameters of the federal [411 U.S. 974 , 976]

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