When will a judge reassign a defendant to a different judge after a finding that his guilty plea was not voluntary?

Where a judge has made detailed findings based on evidence erroneously admitted or factors erroneously considered, the circumstances sometimes are such that upon remand he or she either cannot reasonably be expected to erase the earlier impressions from his or her mind or may tend to lean over backwards or overreact in an effort to be fair and impartial. A new fact-finder would not labor under any such handicap. See, e. g., Halliday v. United States, 380 F.2d 270, 272-74 (1st Cir. 1967) (sentencing judge should not normally conduct hearing upon 2255 petition challenging validity of his prior determination that guilty plea was voluntary). The seriousness of this problem in any particular case will depend upon a number of factors, including the nature of the proceeding, the firmness of the judge's earlier-expressed views or findings, and the reasons for the reversal. Upon remand for a retrial, an additional factor bearing upon whether to reassign to another judge is whether the retrial will be before the judge as a fact-finder or sitting with a jury. See O'Shea v. United States, 491 F.2d 774, 779 (1st Cir.), overruled as to a different holding, Wingo v. Wedding, 418 U.S. 461, 473, n. 19, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). Where the judge sits as the fact-finder, reassignment is the preferable course, since it avoids any rub-off of earlier error. A classic example is the retrial of a criminal non-jury case resulting from a reversal attributed to the erroneous denial of a motion to suppress evidence, where reassignment is essential to preclude any possible consideration being given upon retrial to the suppressed evidence. No such problem is usually confronted upon retrial before a different jury. ²

A resentencing necessitated by the judge's erroneous consideration of certain matters or failure to take others into consideration may involve essentially the same problems and require application of the same criteria. See, e. g., United States v. Stein, 544 F.2d 96 (2d Cir. 1976) (reassignment where original judge erroneously assumed that a presentence report recommended confinement when in fact it suggested probation and the sentencing judge expressed firm views on the defendant's incorrigibility); United States v. Schwarz, 500 F.2d 1350, 1352 (2d Cir. 1974) (erroneous impression that only a specific class of persons

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