Petitioner McKernan was charged by the Commonwealth of Pennsylvania with murder and opted for a bench trial. The state judge presiding over the bench trial became aware of a website run by one of the victim’s family members, in which she was criticized as being too lenient and soft on crime The judge proceeded to have a conversation, in her robing room, with the attorneys and the victim’s family regarding the website; the defendant was not present. The conversation was transcribed by the court reporter. The judge expressed her anger with the “vicious and unfair” critique. However, she also told the family members they had been hurt enough and did not want them to suffer by having the case heard by a judge they did not trust. She told the family she “just want[ed] to make sure that you folks are happy with me.”
Defense attorney did not speak during the conversation, and it was the assistant district attorney that finally expressed concern with the defendant not being present for the conversation. Defense counsel then left the meeting to confer with his client, without asking the meeting to be held or adjourned. The defendant requested to speak with the judge. She consented and told defendant that the prior conversation was not going to influence her during the trial. The defense agreed to proceed with the bench trial, and McKernan was convicted of first degree murder.
Following a long series of motions and petitions for post-conviction relief, McKernan filed for habeas relief under 28 U.S.C. §2254 arguing his counsel was ineffective for not asking the judge to recuse herself. The Third Circuit agreed finding that “counsel’s performance in failing to move for recusal of [the judge] fell far below the minimum standards of competence in the profession and the state court’s failure to recognize this incompetence was an unreasonable application of the Strickland factors.”