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State v. Fisher
STATE OF CONNECTICUT v. ROBERT L. FISHER
(AC 48859)
Westbrook, Wilson and Eveleigh, Js.
Syllabus
Convicted, after a jury trial, of manslaughter in the first degree as a result of a shooting, the defendant appealed. He claimed that the trial court improperly denied his motion for a new trial because the judge improperly failed to disclose, prior to presiding over the trial, that he had applied for the position of Inspector General within the Division of Criminal Justice, which created the appearance of a lack of impartiality. Held:
The judge’s pending application for the supervisory prosecutorial position of Inspector General while presiding at the defendant’s trial created an appearance of a lack of impartiality, as the Division of Criminal Justice was the same agency that prosecuted the defendant through the state’s attorney’s office, and, pursuant to rule 2.11 of the Code of Judicial Conduct, which requires a judge to avoid the appearance of partiality, the judge should have disqualified himself or disclosed his application to the parties and obtained their waiver prior to proceeding with the trial; accordingly, as the trial court abused its discretion in denying the defendant’s motion for a new trial, the judgment was reversed and the case remanded for a new trial.
This court rejected the state’s contention that the defendant waived his claim regarding the judge’s appearance of partiality, as it was undisputed that the defendant was not aware of the judge’s prospective employment until a hearing on the defendant’s postverdict motions when the judge disclosed that he had been appointed to the Inspector General position, the defendant at that hearing consented only to the judge’s adjudication of the postverdict motions and his presiding at the defendant’s sentencing, and defense counsel made clear that the defendant was preserving his right to file a motion for a new trial based on an appearance of partiality.
The state’s claim that the defendant untimely filed his motion for a new trial based on an appearance of partiality was unavailing, as the record was unclear as to when the defendant became aware that the judge had submitted an application for the Inspector General position prior to presiding at the trial, and, even if this court were to apply a harmless error type analysis, as the state requested, reversal of the defendant’s conviction was appropriate, as there existed a risk of injustice to the parties, a denial of relief would produce injustice in other cases in which judges preside while applying and negotiating for their next jobs, and the public’s confidence in the judicial process would be undermined.
Argued May 28—officially released August 25, 2026
State v. Fisher
Procedural History
Substitute information charging the defendant with
the crime of manslaughter in the first degree, brought
to the Superior Court in the judicial district of Litchfield and tried to the jury before Prescott, J.; thereafter, the
court denied the defendant’s motion for a judgment
of acquittal; verdict of guilty; subsequently, the court
denied the defendant’s motions to set aside the verdict
and for a new trial, and rendered judgment in accordance
with the verdict, from which the defendant appealed to
this court. Reversed; new trial.
Jon L. Schoenhorn, for the appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, was David R. Shannon, state’s attorney,
for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Robert L. Fisher,
appeals from the judgment of conviction, rendered after a
jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). On appeal, the defendant claims, inter alia, that the trial judge improperly
failed to disclose that he had a pending application for
a prosecutorial position within the Division of Criminal
Justice at the time of the defendant’s trial, which created an appearance of a lack of impartiality. We agree with
the defendant and, accordingly, reverse the judgment
of the trial court.1
The record reveals the following facts, which the jury
reasonably could have found, and procedural history. At
1
The defendant also claims that (1) the trial court abused its discretion by prohibiting a character witness for the defense from testifying that he was a former prosecutor, (2) the trial court committed plain error in its final charge to the jury regarding an eyewitness’ testimony on cross-examination, (3) the trial court improperly denied his motion to set aside the jury’s guilty verdict, and (4) the prosecutor made improper remarks during closing argument that deprived him of his constitutional right to a fair trial. In light of our conclusion reversing the judgment, we need not reach these claims.
State v. Fisher
approximately 4:45 p.m. on June 7, 2021, the seventyfive year old defendant parked his car in the parking lot
of Cramer & Anderson LLP, a law firm at 46 West Street
in Litchfield. The defendant, who was an attorney, had
practiced real estate and probate law as a partner of the
law firm for more than four decades.
The decedent, Matthew Bromley, had been driving
his car behind the defendant’s car. Bromley parked at
an angle in the space next to the defendant’s car. He
got out and quickly walked around the rear of his car
toward the driver’s door of the defendant’s car. He pulled
open the door and began punching the defendant in the
face. After he punched the defendant several times,
the defendant exited his car. The altercation continued
and the defendant retrieved a handgun from its holster
in his right front pocket.2 He shot Bromley once in the
head, killing him.3
Immediately after the shooting, the defendant called
911. The defendant spoke to the police at the scene and
indicated that he had shot Bromley, whom he did not
know, after Bromley had assaulted him and threatened to
kill him. The defendant was not arrested at that time. The
defendant also subsequently gave a written statement
to the police through his counsel, providing a detailed
account of his altercation with Bromley and again indicating that he had shot Bromley in self-defense. Almost
one year after the shooting, the defendant was arrested
and charged with manslaughter in the first degree in
violation of § 53a-55 (a) (1).
The case was tried to a jury over the course of several
days in March 2025 with the court, Prescott, J.,4 presiding. The state presented testimony from, inter alios, two
2
The defendant possessed a valid pistol permit.
3
An autopsy revealed that Bromley’s blood alcohol content was 0.11 percent at the time of his death.
4
Judge Prescott was a senior judge at the time of the defendant’s trial. “A senior judge is a judge who elects to retire from full-time service prior to reaching the age of seventy. . . . A senior judge continues to retain all of the powers possessed prior to assuming senior status.” (Citation omitted; footnote omitted.) Wasko v. Farley, 108 Conn. App. 156, 160,
State v. Fisher
eyewitnesses who had seen the shooting.5 Guadalupe
Salazar, one of the eyewitnesses, worked at a restaurant near the defendant’s law office. Salazar had been
walking through the parking lot of a Union Savings
Bank, which was adjacent to the law office parking lot,
as he was returning to work from his car. The parking
lots were separated by a median with grass, trees, and
asphalt curbing.
Salazar testified that he had heard two cars enter the
law office parking lot. He stopped and watched as Bromley parked next to the defendant and got out of his vehicle.6 Salazar testified that Bromley, who he described
as aggressive, went “[f]ast” around his car and rapidly
opened the defendant’s door. He saw Bromley punch
the defendant. He could not remember how many times
Bromley punched the defendant. Salazar testified that
there was no argument preceding Bromley’s attack on
the defendant. When Bromley stopped punching the
defendant, Bromley turned around and walked toward
his car. It appeared to Salazar, at that point, that the
fight was over.
Salazar testified that Bromley had stopped walking
when he got to the rear of his car. Salazar saw the defendant exit his car holding a pistol. Salazar could see that
the defendant and Bromley were arguing, but they were
not yelling and he could not hear what they were saying.
He saw the defendant take two steps toward Bromley and
put the gun on Bromley’s stomach. They kept arguing,
and the defendant moved the gun toward Bromley’s
throat. The defendant then shot Bromley, and Bromley
immediately fell to the ground. Salazar testified that,
947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008); see also General Statutes §§ 51-50d and 51-50i.
5
The state also presented testimony from Henry B. Morehouse, a witness who heard the shooting from a nearby residence, observed the scene from a window after the shooting, and called 911. Morehouse did not observe the shooting itself or the events leading up to the shooting. Although he heard the gunshot and a woman’s scream afterward, he did not hear any argument prior to the shooting.
6
Throughout his testimony, Salazar referred to Bromley as the “younger” man and to the defendant as the “older” man.
State v. Fisher
when the defendant shot Bromley, they were “[r]ight next
to each other” behind their cars and they stood “[f]ace
to face.” He believed that the defendant shot Bromley
in the neck.
Salazar testified that, once the defendant exited his
car, he did not see Bromley hit the defendant. In addition, he saw the defendant walk toward Bromley but did not
see Bromley walk toward the defendant. Salazar did not
see Bromley try to reach for the defendant’s gun but did
see that Bromley’s hands were “[d]own” at the time he
was shot. Salazar explained that he was “right in front
of [the defendant’s] car,” approximately eight to ten
yards away from where the shooting took place, when
he made the foregoing observations. He also testified,
however, that it was “impossible” to hear the argument
between Bromley and the defendant because he was “far
away . . . .” He believed that he was “the only [witness]
who saw the whole thing” because other witnesses were
farther away.
Nakisha Marrero, the other eyewitness presented by
the state, had been sitting in the driver’s seat of her
father’s car in the parking lot of the Union Savings
Bank.7 The car was parked facing toward the law office
parking lot, where the defendant and Bromley were
parked. Marrero testified that she had been looking at her
phone and, when she looked up, saw the defendant reach
into his car and pull out a gun. She could not hear what
the defendant and Bromley were saying but assumed they
were arguing. She saw the defendant shoot Bromley and
watched Bromley fall backward immediately.
During direct examination by the state, Marrero testified that, when Bromley was shot, he was standing
toward the back of his car, and the defendant was still
7
Marrero, who was eighteen years old at the time of the shooting, testified that she and her mother had driven to the parking lot to meet her father so they could have dinner with him in his car while he was on his break at work. Marrero’s father, who was not in the parking lot at the time of the shooting, worked at the same restaurant as Salazar. Marrero’s mother, who was still in her car at the time of the shooting, was not called as a witness at trial.
State v. Fisher
standing in the doorway of his car. She had seen the
defendant “[move] forward a little bit, but [he] was still
very close enough to the door.” She noticed that Bromley
was “way . . . smaller” and “a little bit . . . skinnier” than the defendant, and that, when Bromley was shot, his
hands were “[a]t the side of his body.” She also testified
that she had not seen Bromley hit the defendant or reach
for the defendant’s gun prior to the shooting.
During cross-examination of Marrero, defense counsel
offered into evidence a written statement that Marrero
had provided to the police on the night of the shooting,
which was admitted for impeachment purposes only.8
After reading her statement, Marrero acknowledged
that there were inconsistencies between her initial trial
testimony and her written statement to the police. For
instance, Marrero initially testified that she did not
see any kind of fight or commotion prior to seeing the
defendant retrieve his gun, as she “wasn’t really paying
attention at that time.” On cross-examination, however,
she acknowledged that she previously had stated that she
saw Bromley approach the defendant’s driver’s door, that
he appeared very angry and that he wanted to hit the
defendant.9 She testified, in accordance with her writ8
At the time of the statement’s admission, the court instructed the jury: “Ladies and gentlemen of the jury, this is now a full exhibit, which, my understanding is, it’s her prior statement given to law enforcement. As of right now, all that you can use this document for is to assess her credibility in court. It’s not substantive evidence . . . the things that are in that statement are not substantive evidence of what happened. You have her in-court testimony. That’s going to help you judge whether or not you find it to be credible and consistent.”
In addition, during its final charge to the jury, the court provided the following instruction: “[D]uring the testimony of . . . Marrero, I admitted evidence that she may have made statements outside of court that may be inconsistent with her trial testimony. You should consider this evidence only as it relates to the credibility of her testimony in court, not as substantive evidence. In other words, consider such evidence as you would any other evidence of inconsistent conduct in determining the weight to be given to the testimony of the witness in court. Any other use of that evidence would be improper.”
9
Specifically, Marrero’s written statement provides in relevant part: “I saw [two] males, one younger and one older, the older male was still in his car . . . . The younger male was approaching the driver’s side door
State v. Fisher
ten statement, that the defendant was trying to defend
himself against Bromley, as Bromley kept going after
him while he was in the car. Marrero further testified
that, when the defendant got out of the car, Bromley
“tried to swing, but he wasn’t close.”
In addition, according to Marrero’s written statement,
she had seen Bromley step toward the defendant, while
the defendant was outside the car, before the gun was
fired.10 Marrero explained that her initial testimony
to the contrary was incorrect. As to the reason for her
inconsistent testimony, Marrero explained: “It’s hard
to remember. It was a couple of years ago.”11 She agreed
with defense counsel that the written statement she had
provided to the police on the night of the shooting would
be more accurate than her initial testimony at trial.
The state also presented testimony from several
responding police officers. The officers testified regarding of the older [male’s] vehicle. I could not hear anything because the air conditioning in the car was on high and loud. The younger male seemed really mad from his body language as if he wanted to hit the older male. The older [male’s] door was open and the younger male was in the door trying to hit the older male from what I was able to see. The older male was trying to push the younger male away and protect himself from being hit, trying to push the younger male out of the car. The younger male kept coming toward the older male who was still in the car. I was able to see the younger male punching at the older male, the older male was stopping the younger male from punching him using his hands to block.”
10
Specifically, Marrero’s written statement provides in relevant part: “I don’t remember seeing the older male exit the car, I don’t know if I looked away or blanked out, but I remember seeing the older male out of the car with a gun pointed at the younger male. . . . The older male had the gun pointed at the younger [male’s] neck area backing the younger male toward the rear of the vehicle. The older male lowered the gun slightly towards the chest area of the younger male. It looked like they were yelling at each other but I could not be sure what they were saying. I assume that the older male was telling the younger male to back away or something along those lines. Both males took a few more steps backward towards the rear of the car. The younger male took a step or two towards the older male. I heard a ‘Pop’ and saw the gun rise up towards the younger [male’s] neck, the younger male fell towards the ground.”
11
Marrero also explained: “[T]his happened back in 2021. I don’t have memory problems, but all the details can get foggy over the years.” She agreed with defense counsel that her testimony during direct examination “was a bit foggy because of the time elapsed.”
State v. Fisher
their observations of the scene and initial interactions
with the defendant. James Holm, the resident state
trooper in Litchfield, arrived within minutes of being
dispatched. Holm recognized the defendant,12 and saw
that he was bleeding from his upper lip and that he had
redness to the side of his face. According to Holm, the
defendant looked “upset” and “distraught.” Holm testified that, although the defendant appeared to be stressed
and breathing heavily, he refused medical treatment.
In addition to testimonial evidence, the state presented
numerous exhibits that were admitted into evidence,
including photographs of the scene from the night of
the shooting, autopsy photographs, body camera footage
from the responding officers, and a surveillance video of
the Union Savings Bank parking lot, where the eyewitnesses had been parked, showing those witnesses before
and after the shooting.
The defendant testified at trial and maintained that
he had shot Bromley in self-defense.13 The defendant
had noticed a car driving behind him before he entered
the law office parking lot14 and saw that car park next
to his car. Bromley got out of his car, ran to the driver’s door of the defendant’s car, and pulled the door open.
The defendant did not know who Bromley was. He had
never seen Bromley before.
The defendant testified that Bromley reached into his
car and punched him several times on the left side of his
face, near his jaw. According to the defendant, Bromley
12
At trial, Holm described the defendant as “an acquaintance from a local restaurant in Goshen.”
13
The defendant’s testimony was consistent with his prior statements to the police.
14
The defendant had been driving from the Washington Depot office of his law firm to the Litchfield office. He noticed Bromley’s car behind him somewhere between Bantam and Litchfield. The defendant explained that he had noticed the car because it “had its headlights on, and one of them was either dim or misaimed so that one was bright, and the other one was not. It just seemed a little bit odd at the time, but I didn’t really think too much about it.” The defendant testified that the driver did not show any signs of aggression, was not trying to pass him, and was not sounding the car’s horn.
State v. Fisher
repeatedly yelled at him: “You’re a cocksucker, you’re
a motherfucker, I’m going to kill you, you ruined my
life, you’ll burn in hell forever.” Bromley spit in the
defendant’s face. The defendant described Bromley as
being “so impossibly angry. I’ve never seen anything
like it before. . . . His face was contorted with rage.”
At that point, the defendant was “extremely worried”
and thought his life was in danger, as he believed that
Bromley was trying to kill him.
The defendant testified that he did not believe he could
safely escape from Bromley. He explained that it would
have been impossible for him to run away due to his various health issues and physical limitations. The defendant
had undergone, inter alia, a knee replacement, a hip
replacement, and three back surgeries. His left leg was
“totally numb” due to nerve damage. He presented medical records and testimony from one of his surgeons to
corroborate his testimony about his physical condition.
The defendant further testified that he did not believe
he could safely escape from Bromley by driving away.
According to the defendant, he could not close his car
door because Bromley was in the way, and he did not
know if his car could clear the asphalt curbing of the
median in front of the car.15 The defendant also believed
that he “had a better chance of staying alive if [he] was
outside” the car. The defendant explained: “I felt that if
I was trapped in the car that [Bromley] would be able to
do whatever he wanted. And he had already shown that
he could reach into the car and hit me in the face. So, I
was definitely afraid he was going to hurt me badly or
kill me.”16
15
The defendant explained: “[I]n theory, I could have started the car and moved forward, but we had the asphalt curbing and the grassy median. And my car has only a few inches of ground clearance. I honestly felt that if I tried to go that way, I would have been hung up and then I’d really be in deep trouble.”
The defendant also testified on cross-examination that if he had put his car in reverse, he “probably would have dragged [Bromley] . . . with [the] open car door.” When the prosecutor suggested that would have been “[b]etter than shooting him,” the defendant explained that, “at that point in time, I wasn’t thinking of shooting anybody . . . .”
16
The defendant similarly testified on cross-examination: “I basically felt that as long as I was in my car, I would be trapped. [Bromley] would be able to do whatever he wanted to do.”
State v. Fisher
The defendant explained that he was able to kick Bromley backward and get out of the car. Bromley charged at
the defendant and hit him in the chest. The defendant
was able to push Bromley backward a couple of feet. The
defendant shouted at Bromley, asking, “who are you and
what did I do to you to ruin your life?” Bromley charged
at the defendant a second time, and the defendant again
pushed him backward. According to the defendant, every
time he pushed Bromley away, Bromley “would back up
. . . two or three feet and then come back.” Bromley spit
on the defendant again and continued to yell, among
other things, that he was going to kill the defendant and
that the defendant was going to “burn in hell forever.”
Once the defendant believed that Bromley “was not
going to go away,” he pulled his gun out of his pocket
and aimed it at Bromley’s chest. He did not want to shoot
Bromley but wanted Bromley to know that he “wanted
to defend [him]self” and “certainly didn’t want to die.”
According to the defendant, Bromley charged at him
again, so he pulled the gun down to the area of his right
hip in “more of a defensive position,” making it “harder
for somebody who is trying to take your gun away from
getting it.” The defendant testified that Bromley reached
for him, bent forward, and grabbed his right forearm.
At that point, the defendant believed that Bromley was
going to get the gun, which he was holding in his right
hand, and kill him. As they were “basically tangled up
with each other,” the defendant pulled the trigger and
shot Bromley. He testified that his “intent was to stop
[Bromley] from killing [him].” The entire incident took
place in less than one minute.17
In addition to the defendant’s testimony, the defense
presented testimony from five character witnesses,
17
Surveillance video of the Union Savings Bank parking lot appears to corroborate the defendant’s testimony regarding how quickly the altercation took place. Salazar is shown on the video walking through the bank parking lot at approximately 4:45 p.m., which, according to his testimony, was before the shooting took place. In addition, at 4:46 p.m., Salazar is shown returning to the bank parking lot, which, according to Marrero’s testimony, was after the shooting took place.
State v. Fisher
including the defendant’s daughter and four attorneys
who had known the defendant for more than four decades
throughout his legal career. They described the defendant
as being very calm and levelheaded, and explained that
he did not have a propensity for anger or aggression.
Finally, the defense presented testimony from several
witnesses regarding physical evidence that corroborated
the defendant’s version of events. Mark Davison, a lieutenant colonel with the Connecticut State Police, had
conducted a “distance determination”18 to determine the
distance between the muzzle of the defendant’s gun and
the “target” area, i.e., the location of Bromley’s gunshot
wound, at the time of the shooting. Davison concluded
that the defendant’s weapon was fired when it was six
to eighteen inches away from Bromley. In addition, a
state forensic science examiner testified that a swab
of the exterior lenses of the defendant’s glasses had
tested positive for amylase, a component of saliva. A
different state forensic science examiner testified that
Bromley was included as a contributor to a DNA profile
that had been generated from a swab of the exterior
lenses of the defendant’s glasses.19 According to Brooke
W. Kammrath, the defendant’s criminalist expert, the
physical evidence supported the defendant’s version of
events, rather than the accounts initially provided by
Salazar and Marrero.
To obtain a conviction, the state was required to disprove the defendant’s claim of self-defense beyond a
18
The distance determination was conducted at the request of a prosecutor from the Litchfield state’s attorney’s office. Davison’s report of experimental findings associated with the distance determination was admitted into evidence as a full exhibit.
19
Specifically, the forensic science examiner testified that “the DNA [profile is] consistent with being a mixture of three contributors with at least one of them being male. . . . [The defendant] is assumed to be a contributor to that DNA profile. Assuming three contributors, where [the defendant] is one of the contributors, the DNA profile . . . is at least a hundred billion times more likely to occur if it originated from . . . Bromley and [the defendant] and one unknown individual than if it originated from [the defendant] and two unknown individuals.”
State v. Fisher
reasonable doubt.20 The state argued, inter alia, that
the evidence presented at trial demonstrated that the
degree of force used by the defendant was not necessary
under either a subjective or an objective perspective.21
In addition, the state raised the duty to retreat as a
statutory disqualification to the defendant’s claim of
self-defense pursuant to General Statutes § 53a-19 (b)
(1).22 The state suggested that the defendant could have,
inter alia, driven away from Bromley. The state presented
testimony from Mark Puglielli, an inspector within the
Litchfield state’s attorney’s office, who had test-driven
the defendant’s car. Puglielli testified, among other
things, that the defendant would have been able to start
his car and drive forward even with the door open. He
explained that it took him less than two seconds to engage
the ignition and put the car in drive. He also testified,
20
“The state bears the burden of disproving the defendant’s justification defense of self-defense. . . . To sustain its burden, the state must disprove beyond a reasonable doubt any of the components of [the defense] or establish beyond a reasonable doubt that any of the statutory exceptions . . . applied.” (Citation omitted; internal quotation marks omitted.) State v. Baez, 354 Conn. 564, 570, 354 A.3d 698 (2026).
21
“The Connecticut test for the degree of force in self-defense . . . is a subjective-objective one. The jury must view the situation from the perspective of the defendant. [General Statutes §] 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” (Internal quotation marks omitted.) State v. Hargett, 343 Conn. 604, 620, 275 A.3d 601 (2022). “The components that must exist for an act of violence to be justified on the [ground] of self-defense . . . [are] (1) the defendant must actually have believed that the victim was using or was about to use physical force against him . . . (2) a reasonable person, viewing all the circumstances from the defendant’s point of view, would have shared that belief, (3) the defendant must actually have believed that the degree of force he used was necessary for defending himself . . . and (4) a reasonable person, viewing all the circumstances from the defendant’s point of view, also would have shared that belief.” (Internal quotation marks omitted.) State v. Matheney, 354 Conn. 212, 218, 350 A.3d 516 (2026).
22
“Under § 53a-19 (b), a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating . . . . The underlying policy of the duty to retreat is that the protection of human life has a higher place in the scheme of social values than the value that inheres in standing up to an aggression.” (Internal quotation marks omitted.) State v. Baez, 354 Conn. 564, 570, 354 A.3d 698 (2026).
State v. Fisher
from looking at a photograph of the scene, that nothing
prevented the defendant from driving in reverse. Puglielli, however, acknowledged that there was no barrier
in front of the car while he conducted his testing, and
he did not know whether the defendant’s car could clear
the asphalt curb in the law office parking lot.23
At the conclusion of trial, the jury found the defendant guilty as charged. The court rendered judgment in
accordance with the jury’s verdict and imposed a total
effective sentence of seven years of incarceration, execution suspended after two and one-half years, followed by
three years of probation. This appeal followed.
On appeal, the defendant claims that Judge Prescott
improperly failed to disclose to the parties, prior to
presiding over the defendant’s criminal trial, that he
had applied for the role of Inspector General, which is
designated as a Deputy Chief State’s Attorney position
within the Division of Criminal Justice. He argues that
Judge Prescott’s application for a senior prosecutorial
role within the Division of Criminal Justice—the same
agency that comprised the state’s attorney’s office that
prosecuted the defendant’s case—presented a situation
in which Judge Prescott’s impartiality might reasonably
be questioned. We agree with the defendant.
The following additional undisputed facts and procedural history are relevant to our resolution of the
defendant’s claim. On April 29, 2025, after the jury
had returned its verdict and prior to sentencing, Judge
Prescott was appointed by the Criminal Justice Commission to serve as Inspector General.24 As Inspector General,
23
Although the prosecutor pointed out that the front of the defendant’s car already had cleared the asphalt curbing in photographs from the scene, Puglielli acknowledged that he did not know whether the back area of the car, where the muffler was located, would clear the curb.
24
Judge Prescott presumably did not begin serving as Inspector General until July 1, 2025. See General Statutes § 51-277e (b) (“[t]he Inspector General shall serve a term of four years from July first in the year of the appointment”).
Although the legislature has amended § 51-277e several times since the events at issue; see, e.g., Public Acts 2026, No. 26-14, § 5; those
State v. Fisher
Judge Prescott was tasked with, inter alia, investigating
certain incidents in which police officers used physical
force and determining whether to file criminal charges
and prosecute matters in which the use of force was
not justified, in accordance with General Statutes §
51-277a.25
Judge Prescott disclosed his appointment as Inspector
General to the parties prior to considering the defendant’s postverdict motions,26 specifically, a motion to set aside the verdict filed on April 4, 2025, and a motion for
a new trial filed on April 29, 2025. On May 16, 2025, at
the hearing on the defendant’s postverdict motions, the
following discussion took place on the record regarding
Judge Prescott’s appointment:
“The Court: We have a couple of substantive posttrial
motions to adjudicate this morning. But, before we do
that, I need to put something on the record. . . . Last week . . . counsel and I met via [Microsoft Teams]27 where I
disclosed to the extent that counsel did not know, but I
believe they already did know, that I had recently been
appointed by the Criminal Justice Commission to the role
amendments have no bearing on the merits of this appeal. We therefore refer in this opinion to the current revision of the statute, which was in effect at the time that Judge Prescott applied for the position of Inspector General.
25
Although the legislature has amended § 51-277a several times since the events at issue; see, e.g., Public Acts 2026, No. 26-14, § 3; those amendments have no bearing on the merits of this appeal. Except as noted, all references in this opinion to § 51-277a are to the current revision of the statute, which was in effect at the time that Judge Prescott applied for the position of Inspector General. See also General Statutes § 51-277e. A more comprehensive discussion of the Inspector General position is set forth subsequently in this opinion.
26
We believe that Judge Prescott properly disclosed his hiring at this hearing due to the position’s connection with the state. It is our opinion, however, that the same disclosure should have been made while the application was pending at the start of trial.
27
Microsoft Teams is “collaborative meeting [computer software] with video, audio, and screen sharing features.” Connecticut Judicial Branch, Connecticut Guide to Remote Hearings for Attorneys and Self-Represented Parties (January 17, 2024), p. 5, available at https:// jud.ct.gov/HomePDFs/ConnecticutGuideRemoteHearings.pdf (last visited August 19, 2026).
State v. Fisher
of Deputy Chief State’s Attorney, the Inspector General.
I felt that it was appropriate to notify counsel of my
appointment by the Criminal Justice Commission and
indicate that I would be interested in knowing their position regarding whether or not they think that I should
be disqualified from this case, from further involvement
in this case, or whether I should recuse myself. . . . I do not use those terms interchangeably. . . .
“[A]nd I asked counsel to report back on their positions
with respect to my further involvement in this case,
which would involve both adjudicating these posttrial
motions and, ultimately, conducting the sentencing proceeding, which is scheduled for early June. Counsel and
I met in chambers this morning, and [defense counsel]
reported to me that he has met with his client, discussed
these issues with his client, and that his client . . . believes that I should continue to preside over this matter. Is that accurate, [defense counsel]?
“[Defense Counsel]: That is accurate, Your Honor.
“The Court: And just let me put a couple other things
on the record about that. As I said, I was appointed by
the Criminal Justice Commission. I was not appointed by
the Division of Criminal Justice. And, in fact, the Chief
State’s Attorney, who is the [head] of the Division of
Criminal Justice by statute, had no involvement in my
selection as the Inspector General. And that’s because of
the statutory independence that the Office of Inspector
General has with respect to its regulatory mission. The
office isn’t even allowed to be housed in the same building as other prosecutors, and it is only within the Division
of Criminal Justice for administrative purposes.
“So, I certainly don’t feel like . . . there would be a
basis to disqualify me. I believe that . . . my impartiality cannot reasonably be called into question under these
circumstances. But, having said all of that, I certainly
wanted to know what the party’s position[s] were and
[give] them an opportunity to discuss the issue with [the
State v. Fisher
defendant]. So, [defendant], you’ve had those discussions
with your counsel?
“[The Defendant]: Yes, Your Honor.
“The Court: All right. And . . . I don’t want to get into
the substance of that because it’s attorney-client privileged. But is what I’ve just put on the record consistent
with what you understood the facts to be?
“[The Defendant]: Yes, Your Honor.
“The Court: Okay. And they informed me that you
don’t have any concerns about me conducting the further
proceedings in this case. Is that accurate?
“[The Defendant]: . . . [Y]es, Your Honor.
“The Court: Okay. And that means I will both adjudicate these posttrial motions that your lawyers have
filed, and I’ll conduct the sentencing later in June. Is
that your understanding?
“[The Defendant]: Yes, Your Honor.
“The Court: Okay. And, to the extent that your consent
is necessary for me to do this, and I’m not saying it is,
but to the extent that it is, you consent to me doing this?
“[The Defendant]: Yes, Your Honor.
“The Court: And you don’t have concerns about my
impartiality at this point?
“[The Defendant]: No, Your Honor.
“The Court: Okay. And you’re not under the influence
of anything today that would interfere with you exercising good judgment?
“[The Defendant]: I am under no influence . . . .
“The Court: Okay.
“[The Defendant]: . . . of anything, Your Honor.
“The Court: Okay. And you’re making this decision
voluntarily?
“[The Defendant]: Yes, Your Honor.
State v. Fisher
“The Court: Okay. Thank you, sir. All right. Anything
else you want me to put on the record about that, [defense
counsel]?
“[Defense Counsel]: I do. . . . [A]s we did discuss in
chambers, there was the issue of appellate counsel and I
having a conversation with regard to a potential issue and
a potential basis for a new trial based upon this information that has come [to] light in the last couple of weeks.
. . . The issue with regard to this is the appearance of an issue. Not any substantive issue. He wanted to make sure
that when he relayed that information to me that I was
very specific that it is the question of an appearance of
an issue, more than anything else. But, with that being
said, I wanted to preserve that on the record now, prior
to any other motions that might be filed by appellate
counsel. Or, if for some reason he wants to address that,
I can bring that to Your Honor as quickly as possible
because obviously the time frame is exceedingly short
now.” (Footnote added.)
Once Judge Prescott confirmed that defense counsel
was not pursuing such a motion at that point in time,
he proceeded to consider the defendant’s postverdict
motions, which he denied at the conclusion of the hearing.
On June 2, 2025, the defendant filed a motion for a
new trial based on an alleged appearance of partiality
that had been created by Judge Prescott’s application
for the position of Inspector General. The defendant
attached to his motion the job posting for the Inspector
General position, which indicated that applications were
being accepted by the Division of Criminal Justice from
January 10 through February 26, 2025. In the present
case, jury selection began on February 19, 2025, and the
evidentiary phase of the trial commenced on March 3,
2025, after the jury had been sworn.
In his motion for a new trial, the defendant acknowledged that Judge Prescott had met with counsel to discuss the potential conflict of interest after his April 29, 2025 appointment to the position but argued that “[a]t
State v. Fisher
no time prior to this meeting did Judge Prescott indicate
to the parties that he was a candidate for the position
of Inspector General.” The defendant set forth that the
motion was based on, inter alia, rule 2.11 of the Code of
Judicial Conduct and explained that “[t]he undersigned
possesses no information or belief that Judge Prescott
has, or may have harbored, actual personal bias or prejudice against the defendant, nor does the undersigned
suggest that Judge Prescott was predisposed to reach
a particular result or to rule in a particular way during
the course of the trial. Instead, the defendant seeks a
new trial based on the fact that a Superior Court judge’s
application for employment for the position of Inspector
General within the Division of Criminal Justice creates a
situation where the judge’s objectivity might reasonably
be questioned; i.e., whether a reasonable person might
question the judge’s impartiality on the basis of all the
circumstances presented.”
On June 6, 2025, prior to the defendant’s sentencing,
Judge Prescott denied the motion for a new trial. He
explained that, in his view, the motion was untimely
because there had been a “significant delay” in its filing since he had disclosed his appointment as Inspector
General. Judge Prescott also explained that, “even if it
were timely filed, I would deny it for many of the reasons
I stated in open court last time. And, in particular, in
light of the canvass of [the defendant] that I engaged in
in court last time, where he indicated that he believes the court can be fair in this matter. And it strains credulity, to me, to understand why a new trial would be required
under those circumstances, particularly now that I have
received this appointment. And the mere fact that I
had applied for it, I don’t understand how that changes
anything. So, the motion is denied.”
The following legal principles guide our analysis of
the defendant’s claim. “[T]he law presumes that duly
elected or appointed judges, consistent with their oaths
of office, will perform their duties impartially . . . .”
(Internal quotation marks omitted.) State v. Milner,
State v. Fisher
325 Conn. 1, 12, 155 A.3d 730 (2017). Nevertheless,
“[w]e must continuously bear in mind that to perform
its high function in the best way ‘justice must satisfy
the appearance of justice.’ ” Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 864, 108 S. Ct. 2194,
100 L. Ed. 2d 855 (1988).
Accordingly, pursuant to rule 2.11 of the Code of
Judicial Conduct, a judge must avoid the appearance of
partiality. A judge must disqualify himself, or, alternatively, disclose such grounds for disqualification and ask
the parties to consider, outside his presence, whether to
waive disqualification28 “in any proceeding in which the
judge’s impartiality might reasonably be questioned”;
Code of Judicial Conduct, Rule 2.11 (a); even if there
is no basis for a claim of actual bias. See, e.g., State v. Milner, supra, 325 Conn. 12; see also State v. Herman
K., 212 Conn. App. 592, 603, 275 A.3d 1233 (noting
that rule 2.11 of Code of Judicial Conduct “covers both
claims of actual bias and the appearance of partiality”),
cert. denied, 344 Conn. 902, 277 A.3d 136 (2022); Tracey
v. Tracey, 97 Conn. App. 278, 281, 903 A.2d 679 (2006)
(explaining that Code of Judicial Conduct “encompasses
two distinct grounds for disqualification: actual bias and
the appearance of partiality”).
Rule 2.11 (c) of the Code of Judicial Conduct provides
that “[a] judge subject to disqualification under this Rule, other than for bias or prejudice under subsection (a) (1),29
28
As set forth subsequently in this opinion, rule 2.11 (c) of the Code of Judicial Conduct provides that “[a] judge subject to disqualification under this Rule, other than for bias or prejudice under subsection (a) (1), may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification, provided that the judge shall disclose on the record the basis of such disqualification. If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding.”
29
Subsection (a) (1) of rule 2.11 of the Code of Judicial Conduct provides that a judge must disqualify himself if “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”
State v. Fisher
may ask the parties and their lawyers to consider, outside
the presence of the judge and court personnel, whether
to waive disqualification, provided that the judge shall
disclose on the record the basis of such disqualification.
If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge,
that the judge should not be disqualified, the judge may
participate in the proceeding.” (Footnote added.)
In applying rule 2.11 of the Code of Judicial Conduct,
“[t]he reasonableness standard is an objective one. Thus,
the question is not only whether the particular judge is,
in fact, impartial but whether a reasonable person would
question the judge’s impartiality on the basis of all the
circumstances.” (Internal quotation marks omitted.)
State v. Milner, supra, 325 Conn. 12; see also State v.
Martin, 77 Conn. App. 778, 785, 825 A.2d 835 (“The
standard to be employed is an objective one, not the
judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. . . . Any conduct that
would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality
might reasonably be questioned is a basis for the judge’s
disqualification.” (Emphasis added; footnote omitted;
internal quotation marks omitted.)), cert. denied, 266
Conn. 906, 832 A.2d 73 (2003).
Moreover, as we already have indicated, “it is well
established that [e]ven in the absence of actual bias,
a judge must disqualify himself in any proceeding in
which his impartiality might reasonably be questioned,
because the appearance and the existence of impartiality
are both essential elements of a fair exercise of judicial
authority.” (Internal quotation marks omitted.) State
v. Milner, supra, 325 Conn. 12; see also, e.g., State
v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975) (in
criminal trials, trial judge has “responsibility to have
the trial conducted in a manner [that] approaches an
atmosphere of perfect impartiality” (internal quotation
marks omitted)).30
30
To underscore the high standard to which a judge is held to maintain an appearance of impartiality, we briefly mention an advisory opinion
State v. Fisher
A judge’s decision declining to disqualify himself is
reviewed for an abuse of discretion. See, e.g., State v.
Milner, supra, 325 Conn. 12 (“[o]ur review of the trial
court’s denial of a motion for disqualification is governed by an abuse of discretion standard”).31 Similarly, “a trial court’s decision to grant or deny a motion for a new trial
is reviewable for abuse of discretion.” State v. Johnson,
345 Conn. 174, 204, 283 A.3d 477 (2022); see also State
v. Harvey, 239 Conn. App. 257, 314, A.3d (2026)
(“[o]ur standard of review of the trial court’s denial of
a motion for a new trial is limited to a determination of
whether, by such denial, the court abused its discretion”
(internal quotation marks omitted)), petition for cert.
filed (Conn. June 22, 2026) (No. 250479).
Neither this court nor our Supreme Court has addressed
the issue of whether, and under what circumstances, a
judge’s actions in seeking future employment may give
rise to an appearance of partiality. The defendant cites
several decisions from other jurisdictions to support
the general proposition that a judge places his or her
impartiality in question by presiding over a trial while
from the Committee on Judicial Ethics concerning whether a judge could accept an award from an advocacy organization. The committee opined that a judge may not accept an award from Mothers Against Drunk Driving (MADD) because that organization is a victim support and advocacy group that takes strong positions on cases involving an individual operating a motor vehicle while under the influence of intoxicating liquor or drugs (DUI) and, inter alia, lobbies actively on behalf of its interests. See Connecticut Judicial Branch Committee on Judicial Ethics, Informal Opinion No. 2012-25 (August 31, 2012), available at https://www.jud.ct.gov/committees/ethics/sum/2012-25.htm (last visited August 19, 2026). The committee concluded that acceptance of the award would violate the rules of the Code of Judicial Conduct related to, inter alia, promoting public confidence in the impartiality of the judiciary. The committee reached this conclusion regardless of whether MADD currently was involved in a case before the judge, explaining: “[T]he acceptance of an award under these circumstances would cast doubt on the accepting judge’s impartiality in future DUI cases.” Id.
31
To the extent the defendant suggests that Milner “articulated a more expansive standard of review,” we are not persuaded. The language in Milner relied on by the defendant relates, instead, to the reviewability of an unpreserved claim of judicial bias. See State v. Milner, supra, 325 Conn. 7.
State v. Fisher
actively seeking employment for a position with one of
the parties. See Scott v. United States, 559 A.2d 745,
750 (D.C. 1989); see also In re Continental Airlines Corp., 901 F.2d 1259, 1262–63 (5th Cir. 1990), cert. denied
sub nom. O’Neill Group v. Continental Airlines Corp.,
506 U.S. 828, 113 S. Ct. 87, 121 L. Ed. 2d 50 (1992);
Pepsico, Inc. v. McMillen, 764 F.2d 458, 460–61 (7th
Cir. 1985); Voeltz v. John Morrell & Co., 564 N.W.2d
315, 319 (S.D. 1997); see also State v. Pratt, 813 N.W.2d
868, 877 (Minn. 2012) (“[s]ome courts have found that
merely negotiating for future employment might cause
a reasonable observer to question a judge’s impartiality”); DeNike v. Cupo, 196 N.J. 502, 517, 958 A.2d 446
(2008) (“any sort of employment negotiations with a
party—preliminary, tentative, indirect, unintentional,
[or] ultimately unsuccessful—right before or during a
pending matter, reasonably call into question a judge’s
impartiality” (internal quotation marks omitted)).
Before considering these legal principles in the context
of the present case, we provide an overview of the role of
Inspector General, for which Judge Prescott had submitted an application prior to presiding over the defendant’s
trial. The position of Inspector General and the Office of
the Inspector General were established by the legislature
during its special session in July 2020.32 See Public Acts, Spec. Sess., July 2020, No. 20-1, §§ 33 and 34; see also
General Statutes §§ 51-277a and 51-277e. The Inspector
General, as head of the Office of the Inspector General,
is appointed as a Deputy Chief State’s Attorney within
32
As we will set forth more fully, the Office of the Inspector General is tasked with, inter alia, conducting an investigation “[w]henever a peace officer, in the performance of such officer’s duties, uses physical force upon another person and such person dies as a result thereof or uses deadly physical force, as defined in section 53a-3, upon another person . . . .” General Statutes § 51-277a (a) (1).
Before the Office of the Inspector General was established, the Chief State’s Attorney would initiate such an investigation by “designat[ing] a prosecutorial official from a judicial district other than the judicial district in which the incident occurred to conduct the investigation,” or “appoint[ing] a special assistant state’s attorney or special deputy assistant state’s attorney to conduct the investigation.” General Statutes (Rev. to 2019) § 51-277a (b).
State v. Fisher
the Division of Criminal Justice, which is the agency “in
charge of the investigation and prosecution of all criminal matters in the Superior Court.” General Statutes
§ 51-276; see also General Statutes § 51-277e (a). As a
Deputy Chief State’s Attorney, the Inspector General
“shall receive his or her prosecutorial powers as a designee of the Chief State’s Attorney”; General Statutes § 51-278
(b) (1) (A) (ii);33 who serves as the head of the Division of Criminal Justice. See General Statutes § 51-278 (a) (1).
The duties and responsibilities of the Inspector General
and the Office of the Inspector General are set forth in
§§ 51-277a and 51-277e. Section 51-277a (a) (1) provides
in relevant part that, “[w]henever a peace officer, in the
performance of such officer’s duties, uses physical force
upon another person and such person dies as a result
thereof or uses deadly force . . . upon another person,
the Division of Criminal Justice shall cause an investigation to be made and the Inspector General shall have the
responsibility of determining whether the use of physical
force by the peace officer was justifiable . . . .”
In addition, “whenever a person dies in the custody of
a peace officer or law enforcement agency, the Inspector
General shall investigate and determine whether physical force was used by a peace officer upon the deceased
person, and if so, whether the use of physical force by
the peace officer was justifiable . . . . If the Inspector
General determines the deceased person may have died as
a result of criminal action not involving the use of force
by a peace officer, the Inspector General shall refer such
case to the Chief State’s Attorney or a state’s attorney
for potential prosecution.” General Statutes § 51-277a
(a) (2) (A). The Inspector General similarly must conduct
an investigation whenever a person dies in the custody
of the Department of Correction. See General Statutes
§ 51-277a (a) (2) (B).
33
There are three Deputy Chief State’s Attorneys within the Division of Criminal Justice. In addition to the Inspector General, two Deputy Chief State’s Attorneys are appointed to serve “as assistant administrative heads of the Division of Criminal Justice, one of whom shall be deputy chief state’s attorney for operations and one of whom shall be deputy chief state’s attorney for personnel, finance and administration, who shall assist the Chief State’s Attorney in his duties . . . .” General Statutes § 51-278 (b) (1) (A) (i).
State v. Fisher
Finally, “[w]henever a person who (A) is a next of kin
of a deceased person, (B) is not notified of such deceased
person’s death as required pursuant to section 7-294mm
and no other person who is a next of kin of the deceased
person was so notified, and (C) requests of the Office of the Inspector General an investigation of the lack of notification or timely notification of such death, the Inspector
General shall investigate and determine whether there
was any malfeasance on the part of a peace officer or a
supervisor of the peace officer in the failure to provide
such notification or timely notification, and if so, may
make recommendations to the Police Officer Standards
and Training Council . . . .” General Statutes § 51-277a
(a) (3).
Upon the conclusion of the investigation of an incident
described in § 51-277a (a) (1) or (2),34 the Inspector General must file a report with the Chief State’s Attorney
“which shall contain the following: (1) The circumstances
of the incident, (2) a determination of whether the use of
physical force by the peace officer was justifiable under
section 53a-22, and (3) any recommended future action
to be taken by the Office of the Inspector General as a
result of the incident.”35 General Statutes § 51-277a (b).36
34
As set forth previously, § 51-277a (a) (1) involves incidents during which “a peace officer, in the performance of such officer’s duties, uses physical force upon another person and such person dies as a result thereof or uses deadly force, as defined in section 53a-3, upon another person,” and § 51-277a (a) (2) involves incidents when a person dies while in the custody of a peace officer or law enforcement agency, or while in the custody of the Commissioner of Correction. See General Statutes § 51-277a (a) (1) and (2).
35
The Inspector General must also complete a preliminary status report whenever a peace officer, in the performance of such officer’s duties, uses physical force or deadly force upon another person and such person dies as a result thereof. See General Statutes § 51-277a (a) (5). “The Inspector General shall complete the report and submit a copy of such report not later than five business days after the cause of the death is available to the Chief State’s Attorney and, in accordance with the provisions of section 11-4a, to the joint standing committees of the General Assembly having cognizance of matters relating to the judiciary and public safety.” General Statutes § 51-277a (a) (5).
36
General Statutes § 51-277a (b) also provides that “[t]he Chief State’s Attorney shall provide a copy of the report to the chief executive officer of the municipality in which the incident occurred and to the Commissioner of Emergency Services and Public Protection or the chief of police
State v. Fisher
In addition, the Office of the Inspector General “shall
prosecute any case in which the Inspector General determines that (1) the use of force by a peace officer was not
justifiable under section 53a-22, or (2) there was a failure to intervene in such incident or to report any such incident, as required under subsection (a) of section 7-282e
or section 18-81nn.” General Statutes § 51-277a (c).
Section 51-277e similarly provides that the Office of
the Inspector General “shall: (1) Conduct investigations
of peace officers in accordance with section 51-277a;
(2) prosecute any case in which the Inspector General
determines a peace officer used force found to not be
justifiable pursuant to section 53a-22 or where a police
officer or correctional officer fails to intervene in any
such incident or to report any such incident, as required
under subsection (a) of section 7-282e or section 18-81nn,
as applicable; (3) investigate any failure to report the
death of a person in accordance with the provisions of
section 7-294mm; (4) investigate any failure to report
in accordance with the provisions of subdivision (1) of
subsection (h) of section 7-294d; and (5) make recommendations to the Police Officer Standards and Training
Council established under section 7-294b concerning
censure and suspension, renewal, cancelation or revocation of a peace officer’s certification, provided in the
case of a failure to report a death of a person, any such
recommendation may be made to said council only in a
case where such failure is found to be intentional or made
with reckless indifference, or if there is no finding that
such failure was intentional or made with reckless indifference, a recommendation may be made to the officer’s
employing agency for any further disciplinary action as
so determined by such employing agency.”
In conducting investigations, the Inspector General has
authority to issue subpoenas to, inter alia, municipalities and law enforcement units “requiring the production
of reports, records or other documents concerning an
of such municipality, as the case may be, and shall make such report available to the public on the Division of Criminal Justice’s Internet web site not later than forty-eight hours after the copies are provided to the chief executive officer and the commissioner or chief of police.”
State v. Fisher
investigation . . . and . . . compelling the attendance and testimony of any person having knowledge pertinent to
such investigation.”37 General Statutes § 51-277e (d). In
addition, the Inspector General “shall request the appropriate law enforcement agency to provide such assistance
as is necessary to investigate and make a determination
under subdivision (1), (2) or (3) of [§ 51-277a (a)].” General Statutes § 51-277a (a) (4).38
As the Office of the Inspector General is “a separate
office within the Division of Criminal Justice,” which
is “at a location that is separate from the locations of
the Office of the Chief State’s Attorney or any of the
state’s attorneys for the judicial districts”; see General
Statutes § 51-277e (a) and (f), respectively; the Inspector General may employ necessary staff to fulfill his duties.
See General Statutes § 51-277e (g). Such staff shall be
selected by the Inspector General and shall include, but
not be limited to, an assistant state’s attorney or a deputy
37
The legislature recently repealed § 51-277e (d) of the 2026 supplement to the General Statutes and replaced it with language clarifying that the Inspector General may compel the attendance and testimony of any person having knowledge pertinent to such an investigation “at an investigative deposition conducted by the Inspector General, or the Inspector General’s designee.” See Public Acts 2026, No. 26-14, § 5 (P.A. 26-14).
In addition, P.A. 26-14, § 3, repealed § 51-277a (a) (4) of the 2026 supplement to the General Statutes and replaced it with language providing that “[t]he Division of Criminal Justice and the Inspector General shall have the unrestricted right to access the scene and collect evidence whenever a peace officer, in the performance of such officer’s duties, uses physical force upon another person and such person dies as a result thereof or uses deadly physical force, or a person dies in the custody of a peace officer or law enforcement agency, regardless of whether such incident involved only peace officers employed by the federal government and did not involve any peace officer employed by the state or a municipality.” P.A. 26-14, § 3; see also General Statutes § 51-277a (a) (5) (C) (authorizing action for injunctive relief against any person who has restricted Division of Criminal Justice or Inspector General’s right to access scene and collect evidence in violation of § 51-277a (a) (5) (B)).
38
We note that, in addition to the powers afforded the Inspector General pursuant to §§ 51-277a and 51-277e, the Inspector General, as a Deputy Chief State’s Attorney, “may sign warrants, informations, applications for grand jury investigations and applications for extradition.” General Statutes § 51-277 (d) (1).
State v. Fisher
assistant state’s attorney, an inspector and administrative staff. See General Statutes § 51-277e (g).
The Inspector General may also share resources with,
and receive assistance from, other offices within the
Division of Criminal Justice. “As needed by and upon
request of the Inspector General, the Office of the Chief
State’s Attorney shall ensure assistance from additional
assistant state’s attorneys or deputy assistant state’s
attorneys, inspectors and administrative staff.” General
Statutes § 51-277e (g). In addition, the Inspector General
and the attorneys operating under his direction “shall
be qualified to act in any judicial district in the state and in connection with any matter regardless of the judicial
district where the offense took place, and may be assigned
to act in any judicial district at any time on designation
by the Chief State’s Attorney or the Inspector General,
as applicable.” General Statutes § 51-281.
The selection process for the position of the Inspector
General is administered by the Criminal Justice Commission. See General Statutes § 51-277e. The Criminal
Justice Commission is tasked with, inter alia, appointing
all prosecutors within the Division of Criminal Justice.
See General Statutes § 51-278.39 Although the Chief
State’s Attorney is a member of the Criminal Justice
Commission, he does not participate in selecting the Deputy Chief State’s Attorneys40 and, thus, is not involved
in the appointment process of the Inspector General.
See General Statutes §§ 51-275a and 51-278 (b) (1) (A).
The other members of the Criminal Justice Commission
appoint the Inspector General by a majority vote. See
General Statutes § 51-278 (b) (1) (A) (8).
In the present case, the job posting for the Inspector
General position was listed on the website for job openings
39
The Criminal Justice Commission is comprised of the Chief State’s Attorney and six members, two of whom must be judges of the Superior Court, who are nominated by the Governor and appointed by the General Assembly. See General Statutes § 51-275a.
40
The Chief State’s Attorney is involved in the appointment process for the state’s attorneys for each judicial district, along with the assistant state’s attorneys and the deputy assistant state’s attorneys. See General Statutes § 51-278 (b) (1) (B) and (6).
State v. Fisher
within the executive branch of the state of Connecticut.41
The position was listed as open to the public from January 10 until February 26, 2025. The posting included an
overview of the Division of Criminal Justice;42 explained
that the Office of the Inspector General was a separate
office within the Division of Criminal Justice that was
located in Shelton; and provided examples of the duties
of the Inspector General, including the responsibility to
conduct investigations of peace officers and prosecute
any case in which the Inspector General determines that
a peace officer has used force found to not be justifiable. Although it is unclear from the record before us precisely
when Judge Prescott applied for the Inspector General
position,43 it is undisputed that he must have submitted
his application prior to the evidentiary portion of the
defendant’s trial, which began on March 3, 2025, given
that applications were due by February 26, 2025.
We conclude that Judge Prescott’s pending application for the position of Inspector General created an
appearance of a lack of impartiality. A reasonable person
might question Judge Prescott’s impartiality based on
his application because, as established by §§ 51-277a and
51-277e, the role of Inspector General is a supervisory
prosecutorial position within the Division of Criminal
Justice, the same agency prosecuting the defendant
through the Litchfield state’s attorney’s office. Accordingly, pursuant to rule 2.11 of our Code of Judicial Conduct, Judge Prescott should have disqualified himself or,
41
As previously mentioned, the job posting was attached to the defendant’s June 2, 2025 motion for a new trial.
42
The job posting stated: “The State of Connecticut, Division of Criminal Justice (DCJ) is responsible for the investigation and prosecution of all criminal matters in the State of Connecticut. It is an independent agency of the executive branch of state government, established under the Constitution of the State of Connecticut. The Division is composed of the Office of the Chief State’s Attorney, located in Rocky Hill, Connecticut, and the Offices of the State’s Attorneys for each of the thirteen Judicial Districts in the State of Connecticut.”
43
To the extent the defendant, on appeal, suggests that Judge Prescott was a “finalist” for the position of Inspector General at the time of the defendant’s trial, we note that there is nothing in the record to support this assertion.
State v. Fisher
alternatively, disclosed such information to the parties
and obtained their waiver prior to proceeding with trial.
See Code of Judicial Conduct, Rule 2.11 (a) and (c). As a
result, we further conclude that Judge Prescott’s denial
of the defendant’s motion for a new trial was an abuse
of his discretion.
In reaching our conclusion, we are guided by the decision of the Court of Appeals for the District of Columbia
in Scott v. United States, supra, 559 A.2d 745. In Scott,
the court concluded that the trial judge in that case had
violated canon 3 (C) (1) of the American Bar Association Model Code of Judicial Conduct by negotiating for
employment with the Executive Office for United States
Attorneys, within the United States Department of
Justice (Department of Justice), while presiding over
a criminal case being prosecuted by the Department of
Justice through the United States Attorney’s Office. See
id., 748–56. Canon 3 (C) (1) of the American Bar Association Model Code of Judicial Conduct, which is nearly
identical to rule 2.11 of our Code of Judicial Conduct,
provides that “[a] judge should disqualify himself in a
proceeding in which his impartiality might reasonably
be questioned . . . .”44 (Emphasis omitted.) Id., 748.
At the outset, the Court of Appeals for the District of
Columbia highlighted the importance of impartiality in
the judiciary, particularly in a criminal trial. The court
stated: “Our criminal justice system is founded on the
public’s faith in the impartial execution of duties by the
important actors in that system. . . . It is beyond dispute that the trial judges perform a unique and pervasive role
in that system: confidence in the judiciary is essential
to the successful functioning of our democratic form
44
The model rule governing the appearance of impartiality is now set forth in rule 2.11, within canon 2, of the American Bar Association Model Code of Judicial Conduct. See American Bar Association, Model Code of Judicial Conduct: Canon 2, “Rule 2.11: Disqualification,” available at https://www.americanbar.org/groups/professional_responsibility/ publications/model_code_of_judicial_conduct/model_code_of_judicial_ conduct_canon_2/rule2_11disqualification/ (July 15, 2020) (last visited August 19, 2026).
State v. Fisher
of government. . . . Criminal justice is concerned with
the pathology of the body politic. In administering the
criminal law, judges wield the most awesome surgical
instruments of society. A criminal trial, it has well been
said, should have the atmosphere of the operating room.
The presiding judge determines the atmosphere. He is not
an umpire who enforces the rules of the game, or merely
a moderator between contestants. If he is adequate to
his function, the moral authority which he radiates will
inspire the indispensable standards of dignity and austerity upon those who participate in a criminal trial. . . . To obtain the public trust in the judiciary judges are
required to adhere to high standards of conduct. . . .
[T]he [American Bar Association Model Code of Judicial
Conduct] was designed to protect public confidence in the
integrity of judges since [a]n independent and honorable
judiciary is an indispensible condition of justice in our
society.” (Citations omitted; footnote omitted; internal
quotation marks omitted.) Id.
The court acknowledged that “[v]iolations of the
[c]anons based on appearances is unquestionably a difficult area in which reasonable people can harbor differing views.” Id., 749–50. Nevertheless, based on the
facts presented, the court concluded “that there is a
violation of [c]anon 3 (C) (1) when the trial judge who is
presiding at the prosecution by the United States Department of Justice through the United States Attorney’s
Office is actively negotiating for employment with the
[Department of Justice’s] Executive Office for United
States Attorneys. This circumstance presents the specter
of partiality that the [c]anon and the [United States]
Supreme Court entreat all judges scrupulously to avoid.
The employment sought by the trial judge involved ‘oversight responsibility and policy guidance to the Debt Collection Units in the United States Attorney’s offices,’
and consequently from the perspective of ‘the average
person,’ a fully informed person might reasonably question whether the judge ‘could decide the case with the
requisite aloofness and disinterest when he [was seeking] employment [in the prosecutor’s executive office
State v. Fisher
in the department prosecuting] the case.’ Pepsico, Inc.
v. McMillen, [supra, 764 F.2d 461]. The situation does
not change because of the trial judge’s general reputation
among his colleagues and the legal community.”45 Scott
v. United States, supra, 559 A.2d 750.
The court reached its conclusion notwithstanding the
fact that the trial judge had applied to an executive office within the Department of Justice and not the particular office that had prosecuted the defendant. The trial
judge in Scott had been engaged in discussions with the
Department of Justice about employment as the Assistant Director for the Debt Collection Staff in the Executive Office for United States Attorneys. Id., 747. “[T]he
Debt Collection Staff provided policy and oversight guidance to the debt collection units of the United States
Attorneys Offices across the country and operated as a
part of [the Office of Management Information, Services
and Support], which had essentially a record-keeping
and computer systems management function. The position of Assistant Director was managerial in nature and
did not have direct litigation control.” Id. In reaching
its conclusion that the trial judge had violated canon 3
(C) (1) of the American Bar Association Model Code of
Judicial Conduct, the court explained that “[the situation] does [not] change simply because the prospective
employer is a component of the Department of Justice;
the negotiations at issue for employment with a unit
directly linked to the prosecutor’s office are ethically
analogous to negotiations for employment with a large
private law firm.”46 Id.
The court emphasized that “[t]he dignity and independence of the judiciary are diminished when the judge
45
The Court of Appeals for the District of Columbia explained that the trial judge had “served as a Superior Court Judge in active service for over eighteen years before he assumed senior status, and his good reputation is not at issue here.” Scott v. United States, supra, 559 A.2d 749.
46
The state attempts to distinguish Scott from the present case on the ground that “the Inspector General’s office does not provide oversight or policy guidance to the state’s attorney’s office that prosecuted the defendant.” In Scott, however, the judge’s prospective position involved
State v. Fisher
comes before the lawyers in the case in the role of a suppliant for employment. The public cannot be confident
that a case tried under such conditions will be decided in
accordance with the highest tradition[s] of the judiciary.” (Internal quotation marks omitted.) Id., 750, quoting
Pepsico, Inc. v. McMillen, supra, 764 F.2d 461. The court
concluded that the appearance of partiality in that case
“require[d] a new trial in order to assure the continued
public confidence in the integrity of the judiciary.” Scott v. United States, supra, 559 A.2d 756.
In the present case, Judge Prescott, like the trial judge
in Scott, was actively seeking employment with a unit
directly linked to the office prosecuting the defendant,
as the Office of the Inspector General and the Litchfield
state’s attorney’s office are both components of the same
agency, the Division of Criminal Justice. As a result,
“from the perspective of the average person, a fully
informed person might reasonably question whether the
judge could decide the case with the requisite aloofness
and disinterest . . . .” (Internal quotation marks omitted.) Id., 750; see also Pepsico, Inc. v. McMillen, supra,
764 F.2d 461.
The state contends that the defendant cannot prevail on this claim because, (1) at the hearing on May
16, 2025, he consented to Judge Prescott’s continuing to preside over further proceedings in the case and,
“oversight responsibility and policy guidance to the Debt Collection Units in the United States Attorney’s Office”; (emphasis added; internal quotation marks omitted) Scott v. United States, supra, 559 A.2d 750; not to the office that had prosecuted the defendant. See id., 747 and n.2 (defendant was prosecuted on charge of “assault with intent to kill while armed” by Office of United States Attorney for District of Columbia, which is component of United States Department of Justice). The court in Scott recognized that the judge’s prospective employer was a separate component of the Department of Justice; see id., 747; just as the Office of the Inspector General is a separate component of the Division of Criminal Justice. Moreover, although the Office of the Inspector General is not physically located within the executive office of the Division of Criminal Justice, i.e., the Office of the Chief State’s Attorney, the Inspector General nonetheless has a supervisory role within the Division of Criminal Justice, designated as a Deputy Chief State’s Attorney.
State v. Fisher
therefore, waived any claim regarding the appearance
of partiality at his trial; (2) the motion for a new trial
based on Judge Prescott’s alleged appearance of partiality was untimely; (3) a reasonable person would not
question Judge Prescott’s impartiality on the basis of
his application for the Inspector General position due
to the independent nature and scope of that role and its
lack of connection or relation to the entity prosecuting
the defendant; and (4) even if Judge Prescott’s application for the position of Inspector General created an
appearance of partiality, reversal is not warranted. We
are not persuaded.
First, our review of the record reflects that the defendant did not waive this claim. “[W]aiver is an intentional
relinquishment or abandonment of a known right or
privilege. . . . It involves the idea of assent, and assent is an act of understanding.” (Internal quotation marks
omitted.) State v. Wade, 351 Conn. 745, 757, 333 A.3d
90 (2025). It is undisputed that the defendant was not
aware of Judge Prescott’s prospective employment as
Inspector General at the time of his trial in March 2025,
as Judge Prescott made a disclosure only once he had been
appointed to the position, after the trial, in May 2025.
Compare Ajadi v. Commissioner of Correction, 280 Conn.
514, 526–31, 911 A.2d 712 (2006) (petitioner’s failure
to seek disqualification of judge could not be viewed as
consent when petitioner was not aware of alleged appearance of partiality until after habeas proceedings had
concluded), with Bonilla v. Commissioner of Correction,
231 Conn. App. 836, 843, 334 A.3d 1090 (concluding
that petitioner “implicitly consented” to judge’s adjudication of habeas petition despite alleged appearance of
partiality because petitioner had cause to know of alleged
appearance of partiality at time of habeas trial and failed to move to disqualify judge at that time), cert. denied,
352 Conn. 907, 336 A.3d 81 (2025).
At the hearing on May 16, 2025, the defendant consented only to Judge Prescott’s continuing to conduct
“the further proceedings in [the] case,” i.e., adjudicating
State v. Fisher
the postverdict motions and conducting sentencing.47
Defense counsel made clear at that time that the defendant was preserving his right to file a motion for a new
trial based on “an appearance of an issue . . . .” Accordingly, we cannot conclude that the defendant waived
his ability to raise a claim regarding Judge Prescott’s
appearance of partiality at the time he presided over the
defendant’s trial.
Next, we cannot conclude that the defendant’s motion
for a new trial was untimely. Practice Book § 42-54
provides: “Unless otherwise permitted by the judicial
authority in the interests of justice, a motion for a new
trial shall be made within five days after a verdict or
finding of guilty or within any further time the judicial
authority allows during the five-day period.” The state
acknowledges that the defendant could not have filed his
motion within five days of the jury’s verdict on March 7,
2025, because the Criminal Justice Commission did not
appoint Judge Prescott as Inspector General until April
29, 2025, and Judge Prescott did not discuss his appointment with the parties until after that date. The state,
instead, focuses on the defendant’s “approximately one
month” delay in filing his June 2, 2025 motion for a new
trial based on the timing of Judge Prescott’s disclosure
of his appointment as Inspector General—which took
place off the record during the week of May 5, 2025,
and was discussed on the record on May 16, 2025. It is
unclear from the record before us, however, the timing
of when the defendant became aware that Judge Prescott
had submitted an application for the Inspector General
position prior to presiding over the trial, which was the
basis of the defendant’s motion.
47
We note that, even if the defendant’s consent to Judge Prescott’s conducting the postverdict proceedings in the case is viewed as an implicit waiver of a claim of actual bias—a claim which the defendant explicitly waived in his June 2, 2025 motion for a new trial—that does not preclude the defendant from raising a claim regarding an appearance of partiality. See, e.g., State v. Herman K., supra, 212 Conn. App. 604 (although defendant conceded that trial court had no actual bias, this court considered defendant’s claim that judge’s impartiality might reasonably be questioned under rule 2.11 of Code of Judicial Conduct).
State v. Fisher
We also are not persuaded by the state’s argument that
a reasonable person would not question Judge Prescott’s
impartiality based on his application for the Inspector
General position due to the independent nature and scope
of that role and its lack of connection or relation to the
Litchfield state’s attorney’s office, which had handled
the defendant’s prosecution. The state emphasizes that
the Office of the Inspector General is a separate office
within the Division of Criminal Justice;48 that the Inspector General has the “unique duty” of investigating and
prosecuting unjustified use of force by police officers;
and that the Chief State’s Attorney has no involvement
in hiring or appointing the Inspector General.
The state contends that the circumstances of the present case are comparable to those in Troxel v. State, 875
N.W.2d 302 (Minn. 2016). In Troxel, the Minnesota
Supreme Court considered whether a judge should have
been disqualified from presiding over the defendant’s
criminal jury trial, based on an appearance of partiality, because he was actively negotiating for a position
as a prosecutor in a different county. See id., 312–16.
In Troxel, prior to the defendant’s trial, which would
take place in Pennington County District Court, the
judge had issued an order for recusal disclosing that he
was engaged in employment negotiations with certain
law firms and the Marshall County Attorney’s Office
(MCAO), and that he would therefore be disqualified
from hearing cases involving those entities. Id., 312–13.
The defendant filed a motion to remove the judge from
presiding over his trial on the basis of rule 2.11 (A) of
the Minnesota Code of Judicial Conduct, which, like rule
2.11 of our Code of Judicial Conduct, provides that “a
judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned . . . .” (Internal quotation marks omitted.)
48
In addition to referencing the text of § 51-277e, the state argues that the legislative history of that provision “demonstrates the separation of the Office of the Inspector General from other state’s attorneys in the [Division of Criminal Justice] and further supports that a reasonable person would not question Judge Prescott’s impartiality.”
State v. Fisher
Id., 314. In support of his motion, the defendant filed an
affidavit setting forth, inter alia, that the trial judge
was in the “ ‘final stages’ ” to be appointed to the MCAO
as a prosecutor; that Marshall County and Pennington
County—where the defendant’s trial would take place—
were adjacent and only twenty-nine miles apart; that
Marshall County and Pennington County law enforcement agencies often share resources and cooperate; and
those law enforcement agencies and the county attorney
offices use the services of both the Minnesota Bureau of
Criminal Apprehension and the Minnesota Attorney General’s Office. Id. The Chief Judge of the Ninth Judicial
District of Minnesota denied the defendant’s motion to
remove the judge from presiding over the case, concluding that the defendant had not established that, based
on an objective examination of the circumstances, the
judge’s impartiality might reasonably be questioned. Id.
On appeal to the Minnesota Supreme Court, a majority of the court agreed that “a reasonable and objective
examiner, with full knowledge of the above facts and
circumstances, would not question [the trial judge’s]
impartiality,” and, therefore, he was not disqualified
under rule 2.11 (A) of the Minnesota Code of Judicial
Conduct. Id., 316.
The court focused primarily on the distinction between
the MCAO, with which the trial judge had engaged in
employment negotiations, and the Pennington County
Attorney’s Office (PCAO), which had prosecuted the
defendant’s case.49 See id., 315–16. Despite the defendant’s assertions that the law enforcement entities in
49
The court also emphasized that the judge was in “mere negotiation[s] for future employment” and had not yet been “actually retained” by that office. (Emphasis added; internal quotation marks omitted.) Troxel v. State, supra, 875 N.W.2d 315. The defendant in Troxel had cited secondary sources to support the general propositions that prosecutors must adopt the role as an advocate for the government, that prosecutors would be aligned ideologically with other prosecutors, and that an advocacy function is not consistent with the neutral role of a judge. Id. In response, a majority of the Minnesota Supreme Court stated: “Although these propositions are not incorrect, they do not establish that negotiating to become a prosecutor in the future results in the
State v. Fisher
neighboring Marshall County and Pennington County
sometimes cooperated, or shared resources and services,
the court determined that there was no evidence in the
record that the MCAO had any interest or involvement
in the defendant’s case or that the outcome would have
an effect on the trial judge’s future employment plans.
See id., 316. The court explained that the trial judge
“was not retained by the [PCAO]; he was not expected
to act in a way that was aligned with the interests of the
PCAO; and he did not stand to benefit financially from
the PCAO.” Id., 315. The court further explained: “No
precedent directly supports the argument that a judge is
disqualified for an appearance of partiality based solely
on employment negotiations with a county attorney’s
office when that office is outside the county in which
the trial proceeds, that office is not appearing before the judge, and there are no indications that the office has had any involvement or interest in the case. Here, [the trial
judge] took all necessary steps to avoid an appearance
of partiality by ordering his own recusal from any cases
involving the MCAO.” (Footnote omitted.) Id., 315–16.
In the present case, the state suggests that there exists
a similarity to Troxel insofar as the Office of the Inspector General is separate and independent from the office
that prosecuted the defendant, the Litchfield state’s
attorney’s office. The state contends that Judge Prescott
was seeking employment “with an independent office,
housed in a different building, and that serves a purpose
distinct from the Litchfield state’s attorney’s office.”
We recognize, however, that there are some factual
distinctions between Troxel and the present case. Here,
although the Office of the Inspector General is a separate
office in a different location, it is still a component of
the Division of Criminal Justice and, therefore, a part
of the same overarching agency as the Litchfield state’s
attorney’s office. In addition, there is more potential
overlap between those offices.
appearance of a judge becoming an advocate, re-aligning his or her ideology, or departing from a neutral role.” (Emphasis in original.) Id.
State v. Fisher
As set forth previously in this opinion, § 51-277e (g)
provides that, “[a]s needed by and upon request of the
Inspector General, the Office of the Chief State’s Attorney shall ensure assistance from additional assistant
state’s attorneys or deputy assistant state’s attorneys,
inspectors and administrative staff.” In addition, pursuant to § 51-281, “[t]he Chief State’s Attorney and each
deputy chief state’s attorney, state’s attorney, assistant
state’s attorney and deputy assistant state’s attorney,
including the deputy chief state’s attorney acting as the
Inspector General and any state’s attorney, assistant
state’s attorney or deputy assistant state’s attorney
operating under the direction of the Office of the Inspector General established under section 51-277e, shall be
qualified to act in any judicial district in the state and
in connection with any matter regardless of the judicial
district where the offense took place, and may be assigned
to act in any judicial district at any time on designation
by the Chief State’s Attorney or the Inspector General,
as applicable.”
Moreover, Troxel was a four to three decision of the
Minnesota Supreme Court, and we find more persuasive
the dissenting opinion in that case. See Troxel v. State,
supra, 875 N.W.2d 317 (Lillehaug, J., dissenting). The
dissent concluded that the trial judge should not have
presided over the defendant’s murder case at the time
when he was actively negotiating to become a county
attorney whose duties included prosecuting on behalf of
the state. Id. In the dissent’s view, the judge’s actions
in seeking such employment during that time created
an appearance that the judge lacked impartiality and,
to maintain public confidence in the state’s judiciary,
it would reverse the judgment and remand the case for
a new trial. Id. The dissent reasoned: “By continuing
to preside over criminal cases in which the [s]tate was
a party, while actively negotiating to become a county
attorney—the advocate for the [s]tate in criminal cases—
a reasonable examiner would question the judge’s ability
State v. Fisher
to be impartial.50 Put another way, a reasonable examiner
would see that the judge was seeking to leave his position
as umpire in order to join one of the teams: the [s]tate.”
(Footnote added; footnote omitted.) Id., 318.
The dissent was not convinced by the majority’s distinction between the prosecutors’ offices as being separate offices in different counties. The dissent explained
that the majority “view[s] the issue through too narrow
a lens. The [s]tate, not a county attorney or the attorney
general, was the real party in interest in the case before
the district court judge. Whether the judge’s hoped-for
compensation would flow from county or state coffers,
the judge was working actively to secure employment
that included representing the very party in the case then
before him: the [s]tate.” (Emphasis omitted.) Id., 319.
The dissent added: “[W]e would be myopic if we failed
to see the structure of the relationships between and
among the county attorneys and the attorney general.
The [s]tate is their client in common. They share a mission: to prosecute violations of the state criminal code.
They work closely with the [s]tate’s Bureau of Criminal
Apprehension. All county attorneys and the attorney general are members of the statutorily-created council known
as the Minnesota County Attorneys Association. . . .
Especially in greater Minnesota, the county attorneys
and the attorney general work closely together in major
criminal matters, handling each other’s cases when faced
with specific conflicts or heavy caseloads. Indeed, in this case, both the trial and this appeal were handled primarily by the attorney general. A reasonable examiner would
not view the county attorneys, or the attorney general,
as separate. Rather, a reasonable examiner would view
them to be part of the same team.” (Citation omitted;
footnotes omitted; internal quotation marks omitted.) Id.
The dissent concluded that the facts presented in that
case were reminiscent of those in Scott v. United States,
supra, 559 A.2d 745. As we set forth previously in this
50
Of course, just as in Troxel, the state is the party in interest in the present case, and the entities discussed are arms of the state.
State v. Fisher
opinion, the judge in Scott presided over a trial in which
the United States was a party, and the government was
represented by the United States attorney. See id., 747.
The dissent in Troxel explained: “The position [sought
by the judge in Scott]—Assistant Director for the Debt
Collection Staff—had little, if any, connection to the
day-to-day trial work of the United States Attorney. . . .
The job was managerial with no direct litigation control. . . . Yet, said the District of Columbia Court of
Appeals, the fact that the two components of a large
cabinet department were separate as a practical matter
did not solve the appearance problem: the judge was presiding over a criminal case prosecuted by one component
of the department while the judge was negotiating with
another component. . . . In the same vein, and considering all of the circumstances here, a reasonable examiner
would reasonably question why this district court judge
would preside over a criminal case prosecuted by the
[s]tate during the very time the judge was negotiating
for a job that would include prosecuting for the State in
other criminal cases. He should not have presided over
this trial.” (Citations omitted.) Troxel v. State, supra,
875 N.W.2d 319–20 (Lillehaug, J., dissenting).
Similar to the dissent’s reasoning in Troxel, we believe
that, by focusing on the separate location and distinct
purpose of the Office of the Inspector General, the state is viewing the issue through too narrow a lens. The Inspector General is still a part of the Division of Criminal
Justice, charged with handling criminal investigations
and prosecutions. Thus, even though the position sought
by Judge Prescott “had little, if any, connection to the
day-to-day trial work” of the Litchfield state’s attorney’s office; id., 319 (Lillehaug, J., dissenting); those offices are nonetheless components of the same agency. Accordingly, “a reasonable examiner would view them to be
part of the same team.” Id. (Lillehaug, J., dissenting).
Finally, even if we apply the “harmless error type
analysis” requested by the state, we conclude that reversal of the judgment is appropriate in the present case. In
State v. Fisher
Liljeberg v. Health Services Acquisition Corp., supra,
486 U.S. 864, the United States Supreme Court considered three factors when determining whether to vacate
a judgment due to a judge’s violation of 28 U.S.C. § 455
(a), the federal counterpart to rule 2.11 of our Judicial
Code of Conduct,51 based on an appearance of partiality.52
Those three factors were (1) the risk of injustice to the
parties in this particular case, (2) the risk that denial
of relief will produce injustice in other cases, and (3)
the risk of undermining the public’s confidence in the
judicial process. Id.
As to the first factor, the state argues that the risk of
injustice to the parties in this particular case is low considering that the defendant has raised no claim of actual
bias and, after Judge Prescott disclosed his appointment
as Inspector General, he consented to Judge Prescott’s
continuing to preside over the postverdict proceedings.
In Scott, however, the Court of Appeals for the District
of Columbia explained: “That [the defendant] does not
claim that his trial was unfair or that [the trial judge]
was actually biased against him is not dispositive. The
factors deemed by the [United States] Supreme Court as
significant in determining that Liljeberg was an appropriate case in which to apply a retroactive remedy are
51
Section 455 (a) of title 28 of the United States Code provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a) (2024).
52
The state has cited no cases, and we are aware of none, in which this court or our Supreme Court has applied the three factor test set forth in Liljeberg to a violation of rule 2.11 of the Code of Judicial Conduct. In cases such as Ajadi v. Commissioner of Correction, supra, 280 Conn. 525, and Belcher v. State, 99 Conn. App. 353, 358, 913 A.2d 1117 (2007), it was plain error for the judges not to disqualify themselves and, therefore, automatic reversal was required and there was no need for a discretionary determination by the court regarding the imposition of a remedy. See State v. Bellamy, 323 Conn. 400, 438, 147 A.3d 655 (2016) (“plain error is reserved for the very few cases in which the alleged error is so extraordinary that automatic reversal is required”). The defendant in the present case, however, does not contend that the appearance of partiality here was structural error or that it rose to the level of plain error.
State v. Fisher
present in [the defendant’s] case.” Scott v. United States, supra, 559 A.2d 755.
Even if the risk of injustice to the parties is slight,
there is a risk, under the second factor set forth in Liljeberg, that denying relief will produce injustice in other
cases in which judges preside while applying to and negotiating their next jobs. See Troxel v. State, supra, 875
N.W.2d 320 (Lillehaug, J., dissenting). Granting the
defendant relief in the present case will serve to encourage careful examination by judges of the circumstances
giving rise to concerns under rule 2.11 of the Code of
Judicial Conduct. See Scott v. United States, supra,
559 A.2d 754 (discussing prophylactic value of vacating
defendant’s conviction and remanding for new trial);
see also Liljeberg v. Health Services Acquisition Corp.,
supra, 486 U.S. 868 (“the Court of Appeals’ willingness
to enforce [28 U.S.C. § 455] may prevent a substantive
injustice in some future case by encouraging a judge or
litigant to more carefully examine possible grounds for
disqualification and to promptly disclose them when
discovered”).
The third factor set forth in Liljeberg tips the balance
in favor of reversal of the judgment. As the dissent
in Troxel explained: “[T]he public’s confidence in the
judicial process is undermined when we do nothing in a
criminal case over which a judge presided while seeking
to represent one of the parties—the State—as a prosecutor.” Troxel v. State, supra, 875 N.W.2d 320 (Lillehaug,
J., dissenting); see also Scott v. United States, supra,
559 A.2d 756 (concluding that new trial was required
“in order to assure the continued public confidence in
the integrity of the judiciary”). Accordingly, we conclude that reversal of the judgment is warranted in the
present case.
In reaching this conclusion, we emphasize that our
decision is not based on any actual bias on the part of
Judge Prescott. The defendant does not raise a claim of
actual bias and readily admits that there is no evidence
in the record to support such a claim. Accordingly, our
State v. Fisher
decision does not reflect on Judge Prescott’s ability to
remain impartial nor does it impugn his exceptional
reputation. Rather, our conclusion serves to emphasize
the high standard of impartiality set forth in rule 2.11
of the Code of Judicial Conduct, requiring judges to be
impartial and appear to be impartial.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.