10 Söring Myths, Part 9: The Biased Judge

Welcome to Part 9 of my series on myths and misconceptions in the innocence claims of Jens Söring. These were originally intended as teasers for a very long article I wrote in German for the FAZ about the Söring case. That article has now been published under the title “Last Words on the Söring Case”, you can read it here. It is behind a paywall. Yes, I know this is annoying, but I have no control over it. As long as journalism is in a transition phase, paywalls appear to be a fact of life. If you contact me using the form on this website, I will be happy to send you a copy. I am also working on an English translation of the article.

Sources have informed me that the article (which is over 17,000 words long) is being read carefully by parties close to the Söring case, and — more importantly, in my view — by German media representatives. It was originally assumed that Söring would launch his re-entry into German society with a round of easy softball interviews in major German media outlets such as the weekly magazine Der Spiegel or the Markus Lanz talk show. The interviewers, it was assumed, would simply accept Söring’s innocence claims, and allow him to recite the untruths and exaggerations which I and the Scotland Yard detectives have documented. Now I’ve been hearing that many German media figures may be re-calculating their plans. I created a short Twitter thread in German with questions German reporters can ask Söring to help the audience understand whether Söring is a credible source when he discusses his own legal case. These questions are based on documented falsehoods Söring has committed to print.

Today we will turn to one of the oldest chestnuts in the history of the Söring case: the biased judge. Söring was tried before Bedford County District Judge William Sweeney. Before Söring’s trial, Söring’s lawyers filed a motion to disqualify Sweeney for bias. The first reason they cited was that Sweeney had attended Virginia Military Institute at the same time as the brother of one of Söring’s victims, Nancy Haysom. After that, Sweeney and the brother, who bore the unusual name of Risque Benedict, continued to see each other in general social settings in the relatively small social set of upper-middle-class Lynchburg, Virginia. The consensus is that they were social acquaintances, but not close friends. The second ground for disqualification is comments Sweeney made before trial to a local magazine, in which he speculated that Söring “took the dare“:

Soering’s team filed a pretrial motion for Sweeney to recuse himself: he and Nancy Haysom’s brother had gone to the Virginia Military Institute together, and, a few years before the murder, Sweeney had attended a party in honor of Nancy Haysom. He had also given an interview to a local magazine, in which he said, “As far as the acts themselves, I don’t think [Elizabeth Haysom] planned all that out. It was like double-dare-you. I think she was shocked he took the dare.” Sweeney decided that no conflict of interest existed.

Virginia law at the time allowed the judge to make a decision whether to recuse himself.

Should Sweeney have recused himself? Reasonable minds can differ. On the one hand are purists: any comment on the case or any relationship with a party should always lead to disqualification. On the other side are pragmatists: experienced professional jurists can put aside their preconceptions or loose ties of acquaintance or friendship, and judge a case neutrally. The law in both the United States and in Germany (as we will see) firmly reflects the views of the pragmatists, not the purists. Sweeney’s comments were speculation as a private citizen on the prosecution’s anticipated theory of the case. He probably should have kept his mouth shut, but there is no evidence that Sweeney, when later called upon to judge the case, was unable to put aside whatever opinions he had. For that matter, jurors who have expressed opinions about a case are still permitted to serve if they can put those previous opinions aside and judge the case based solely on the merits.

Söring first argued the judges’ bias in his original 1991 direct appeal (similar to a Revision in Germany) to the Virginia Court of Appeals. That court ruled (Record No. 1610-90-3):

In regard to the trial judge’s connection with Risque Benedict, brother of one of the victims, evidence that the trial judge and victim’s brother attended the same high school and college over forty-three years ago, and that there had been infrequent casual social contact between them since that time, did not establish bias, prejudice, or the appearance of impropriety.

This opinion was not published, but I have a copy of it which I’ll be happy to share with anyone who is interested.

However, Söring, like many prisoners, simply refused to accept the initial appeals court’s ruling. So he continued to raise the issue of Sweeney’s alleged bias, over and over and over, in both federal and state courts. The Bedford County Circuit court heard one of these appeals, and in March 2003 issued a decision in which its exasperation is clear:

RUSTBURG – Campbell County Circuit Court Judge J. Samuel Johnston has dismissed a petition filed by Jens Soering, who was convicted in 1990 of killing Bedford County residents Derek and Nancy Haysom, stating that the petition was without merit.

Soering, who is up for parole for the first time this year, has filed roughly a dozen appeals and petitions since he has been incarcerated, asking that his conviction be overturned.

His latest petition, filed in August 2002, asks the court to overturn the guilty verdict on the grounds that trial Judge William W. Sweeney should not have presided over Soering’s case because he was a friend and VMI classmate of Nancy Haysom’s brother, Risque Benedict. The petition was originally sent to Bedford County Circuit Court Judge James Updike, the prosecutor during the trial, who recused himself and transferred the petition to Johnston.

…

Johnston’s letter also stated that the issue of whether Sweeney should recuse himself was presented to state and federal courts before and was dismissed, with the courts saying the law allows Sweeney to make that decision. “The Court of Appeals of Virginia ruled in its opinion dated October 9, 1991, that all of the matters complained of by Mr. Soering regarding Judge Sweeney’s relationship with the victims of the murder and the brother of one of the victims, his presiding over the trial of Elizabeth Haysom, and any extrajudicial statements made by him concerning Mr. Soering’s apparent involvement in the murders did not individually or cumulatively establish bias or prejudice on the part of Judge Sweeney which would require his recusal,” Johnston wrote.

He added that the Supreme Court of Virginia and the U.S. District Court, U.S. Court of Appeals and the U.S. Supreme Court had reviewed the issue brought up by the Virginia Appeals Court and agreed with that court’s decision.” Mr. Soering cannot be granted relief on a theory devoid of merit and one that has heretofore been rejected at every judicial level.  Therefore, I am denying the petition, finding it to be without merit and dismissing the same,” Johnston wrote.

Söring filed yet another federal court appeal, in 2003, this time acting as his own lawyer. The Fourth Circuit Court of Appeals dismissed this appeal with a decision which can be read here. The issue of the trial judges’ supposed bias has been litigated and re-litigated and then re-litigated again, and every court, state and federal, has unanimously found Söring’s claims unfounded. The issue is over, period.

German commentators often claim that Sweeney’s decision to serve on the case was an obvious violation of basic rule-of-law principles which would never be tolerated in Germany. They are wrong. Let’s look at a decision (g) from the Higher Regional Court of Hamm, Germany, from 2012. That case involved an employee suing his former employer, a company, for unpaid wages. German court decisions don’t identify the parties by name (in fact, the plaintiff might be another company), but for simplicity’s sake I’ll call them Worker and Company. Worker filed a motion to disqualify the local court judge hearing the case based on the relationship between the judge and a member of the board of the Company he was suing:

Specifically, the Worker claimed that both persons grew up in the same part of the city Z1 and — like other members of both of their families — were members of the same shooting club and local-history association. Further, the judge’s uncle ran a construction company in which the brother of [the board member] had worked for a long time; this company had also worked for the defendant Company. The defendant Company was also in general a very important source of employment in the region, such that a decision by the judge which was unfavorable to the Company could have had a significant impact in he judge’s social circles.

The local court judge made an official statement that he had no “personal, private, or business” contacts with the Company board member, but that since both of them lived in a small community of under 800 people, they knew each other, met fairly frequently, and were on friendly terms, as shown by the fact that they used the informal greeting du with each other. The Worker pointed out that in court, the judge and the board member referred to each other by the formal Sie address, which, the Worker suggested, showed that the judge might be trying to hide the true extent of the relationship.

Pursuant to German law, the allegedly biased judge referred the motion to disqualify him to another court, which rejected the motion and permitted him to continue presiding over the case. The higher appeals court in Hamm later held this was the right decision:

The rejection of a judge based on concerns about his partiality requires…a reason which would justify distrust of the judge’s impartiality. The relevant standard is not the fears of a specific party to this case, but rather whether a reasonable and thoughtful observer would have doubts about the judge’s impartiality.

…

In general, a mere acquaintance or even a loose friendship will not be enough to justify a party’s doubts about a judge’s impartiality, when the matter is considered from a reasonable perspective…. However, a personal or collegial relationship which goes beyond ordinary friendly relations, or a close friendship between a party and a judge, can present circumstances which justify doubt about the judge’s impartiality….

The court also dismissed the importance of the informal address. When people grow up from childhood on in a close-knit community, they will customarily refer to each other with the informal du as a general matter of neighborliness. The fact that they continue to use the informal address into adulthood simply shows neighborly relations continue, not that there is a special closeness between them.

So even in Germany, it is far from clear that the relations Judge Sweeney had with Risque Benedict would have disqualified him. Sweeney and Benedict grew up in the same social circles and had friendly relations, but nothing more than that was ever proven.

Once again, Söring and his supporters are raising a stale issue without revealing that it has been thoroughly analyzed and rejected by literally dozens of experienced appeals judges. And German commentators who assume a judge could never serve under these circumstances in Germany are simply wrong.

I’ve decided that Part 10 of this series of posts will be an English translation of my FAZ article. That will take a while to produce, so I ask for your patience. In the meantime, I promise to return to the actual subject of this blog, German law. Thanks as always for your comments and feedback.