The opinion of the court was delivered by: WEBER
The defendant argues that the court should have recused itself. While admitting that recusal can only be requested for extra-judicial actions, defendant argues that the court records demonstrate bias because the court sat on the trial and sentenced the government's chief witness, Pearl Grzybowski (hereinafter called Pearl), a participant in the same robbery for which defendant was charged. At the sentencing of Pearl Grzybowski, the court imposed the maximum sentence of 25 years with a warning that no motion for reduction of sentence would be considered unless she showed cooperation with the government. Pearl, who had previously maintained silence, then began to cooperate with the law enforcement authorities, named Hans as an accomplice, and testified against Hans in his first trial held before Judge Ziegler. Following Hans' conviction, the court granted a Rule 35 motion and reduced Pearl's sentence to seven years of imprisonment. Thus all of the information that the judge possessed he acquired during the course of the proceedings. This is no ground for recusal. Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980).
Effective Assistance of Counsel
Defendant was represented at his second trial by George Schumacher, the Federal Public Defender, an attorney with a long and distinguished career of the trial bar. Attorney Schumacher had won a new trial on defendant's appeal from the first trial, for which defendant accords him high praise. Attorney Schumacher represented him on his appeal from the instant conviction which resulted in affirmance.
Defendant's brief and accompanying excerpts from Pearl's testimony at the first trial, testimony at the second trial, and statements to the FBI, attack alleged inconsistencies which he claims counsel failed to fully explore.
Because we presided at trial, we are able to assess counsel's overall performance. Counsel did have access to the testimony given at the first trial as well as prior statements given by Pearl. He made good use of them. He did question her on many of the inconsistencies. His cross-examination on one of these matters went so far as to cause the government to object because the questions did not involve inconsistent statements. The court sustained this objection.
The transcript showed that defense counsel did cross-examine rather thoroughly on most of the inconsistencies alleged. To a considerable extent, the inconsistencies did not involve material matters, and the cross-examination was pointed to testing the credibility of the witness. While wide latitude may be given to cross-examination by the court, experienced counsel realize that over-use of such tactics in trial may have a reverse effect and lead the jury to believe that the witness is being badgered. Such a witness may earn the sympathy of the jury and enhance her credibility.
None of the recited instances demonstrate ineffective assistance of counsel. During the course of trial, at side-bar, defense counsel moved for leave to withdraw from the case because defendant was criticizing his performance in cross-examining government witnesses. Counsel explained that his actions were "based on a calculated decision on his part to avoid potentially dangerous areas of testimony and to refuse to cross-examine on what I believed to be extraneous matters."
Viewing defense counsel's performance as a whole, as we must, we can find no support for any claim that his performance fell below the objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052 (1984). Defendant has not shown that counsel's performance was "deficient." Any judicial scrutiny of counsel's performance must be highly deferential. 80 L. Ed. 2d at 694. The presumption is that counsel's actions represent sound trial strategy, p. 694-95. Defendant must also demonstrate that the alleged ineffective performance had an actual effect on the outcome. Defendant has failed to carry that burden and has produced no evidence to show that counsel's performance was deficient or that it fell below any objective standard.
Use of False Testimony by Government
Defendant has alleged no facts to indicate that Pearl gave false testimony at trial. The alleged inconsistent statements do not give rise to a claim of perjury. All that they show, at best, is a failure of recollection, which was explored by defense counsel at trial. At no time has defendant shown that Pearl named any other person as the third bank robber. At no place has defendant shown that Pearl named any other person as the third ...