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Published in the Daily Journal - 11/5/2004
Litigant Should Not Have to Hire Hitman to Get Judge's Recusal

By Dana Cephas

Federal judges are required to recuse themselves whenever their impartiality might reasonably be questioned. But a current U.S. District Court case in which a defendant tried to hire a hitman to kill a federal judge suggests that federal judges cannot be trusted to make that determination.

Several years ago, the Aptix Corp. filed a patent case in federal court in the Northern District. In 2000, Judge William Alsup dismissed the case because, among other things, he believed the CEO of Aptix tried to defraud the court.

Alsup believed, as explained in his written decision, that the chief executive officer’s testimony (during depositions and at a hearing) was "knowingly" and "materially false."

The chief executive officer denied any improprieties, but Alsup wrote that the chief executive officer had been "caught red-handed."

The following year, Alsup reportedly wrote a letter to federal prosecutors in San Francisco suggesting they investigate the chief executive officer and his brother for perjury and falsification of evidence.

In March 2003, a criminal indictment was filed against the chief executive officer and his brother.

The new criminal case against the chief executive officer was randomly assigned to a judge in the Northern District, however, and in May 2003, Alsup signed an order transferring the chief executive officer’s criminal case to his courtroom.

Because Alsup seemed to have prejudged the case, the chief executive officer filed a motion to recuse the judge.

The chief executive officer relied in part on Section 455 of Title 28 which provides that "[a]ny justice, judge, ormagistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

That statute also requires disqualification whenever a judge "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

Although Alsup's role in the events leading up to the filing of an indictment would lead most observers (who are not judges) to believe Alsup's "impartiality might reasonably be questioned," Judge Alsup quickly denied the recusal motion.

In March, Alsup revoked the chief executive officer's bail, and sent him to jail pending trial.

On June 13, the jailed chief executive officer allegedly was tape-recorded by the FBI as he tried to hire a hitman to kill Alsup.

Eight days later, Alsup finally signed an order agreeing to recuse himself from the chief executive officer’s trial. Two months later, the Ninth Circuit issued an order assigning the case to an out-of-district judge.

Getting a Federal Judge to recuse him/herself appears to be getting more and more difficult, no matter how obvious the alleged impartiality appears.

And unfortunately, lower level district court judges are being encouraged by examples that are being set by some of our U.S. Supreme Court Justices.

Consider the request by the Sierra Club filed earlier this year to recuse Justice Scalia in a case where Vice President Cheney appealed an order allowing discovery of the records of an energy policy group headed by the Vice President.

The Sierra Club seemed to believe that Scalia's impartiality could reasonably be questioned because he had gone on a hunting trip with the Vice President and flown to the trip on the vice president's plane - in January of this year.

The political polarization of Americans in this election year undoubtedly led many persons to question the impartiality of Scalia.

Nevertheless, Scalia issued a ten-page written opinion rejecting any suggestion that his friendship or recent hunting trip with the vice president would make him favor his long-time good friend.

Scalia admitted that in this election year, "there could be political consequences" from the Supreme Court's ultimate decision in the vice president's case, but he claimed that the political consequences of his friend were not his concern. Is everyone convinced?

To be sure, questionable actions concerning recusals are not limited to Justices appointed by Republican Presidents.

The Supreme Court is currently considering whether the federal sentencing guidelines should be declared unconstitutional. The guidelines were drafted by a commission that included a current Supreme Court Justice, Clinton appointee Stephen G. Breyer, who worked on the Sentencing Reform Act that created that commission.

Obviously, a justice who played a key role in the creation of the sentencing guidelines might be reluctant to rule that the provisions he helped create have been resulting in unconstitutional prison sentences for nearly twenty years.

Most observers probably would question Breyer's impartiality. But so far, no recusal.

Its not hard to understand why federal judges - appointed for life and having to answer to no one - would, over time, refuse to let outsiders tell them when they should or should not recuse themselves from a case.

Why then, should we permit a judge to rule on a motion to recuse him or herself? It makes no sense.

Some districts, like the Central District, will assign an "independent" judge to rule on a motion to recuse filed against another judge, if that judge does not agree to recuse himself or herself.

But that system asks us to hope that one judge will conclude that his or her good friend was wrong and, further, embarrass his or her colleague by publicly ruling in favor of the recusal motion.

While judges in the Central District have occasionally granted such recusal motions, the impartiality of this rebuke- your-colleague approach is itself rather obvious.

So the question becomes how to fix the problem. The California state court system allows attorneys to remove a judge with almost no question, once in a case.

The attorney simply has to file a pleading under oath alleging that "the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge."

If any federal judges believe that such a system would result in the automatic recusal of a particular judge in every case, those judges should be more concerned with the behavior of a judge that would cause so many attorneys/parties to have that judge removed from a case.

However, the fact that each district has only a few dozen federal judges (compared to hundreds of state judges in a similarly sized jurisdiction) might make the state approach unworkable.

In any event, amending the federal rules to permit that process is very unlikely.

Nevertheless, some change is needed, because the recent unwillingness of judges to disqualify themselves in so many seemingly obvious situations proves that federal judges cannot always be trusted to do the right thing, despite the seemingly unambiguous language requiring disqualification whenever their "impartiality can be reasonably questioned."

Supreme Court justices and local federal-court judges alike have proven that they are able to draft lengthy 10-page decisions explaining why, despite all appearances, they are not biased.

But if it takes ten pages to explain why you can be fair, you have missed the point.

Our system is based on faith in our judges, and that faith will erode if we place the burden on a party to prove that a judge is actually impartial. But that is how many judges seem to interpret the rule. A party in a criminal or civil case should not have to order a hit on a judge to get a recusal.

If judges will not abide by the plain language of the phrase "impartiality can be reasonably questioned," then we need a new method for recusals.

And we need it before the public loses all faith in the concept of an "impartial" judiciary.

No one wants to lose a civil or criminal case. But even more, no one wants to lose a case in a courtroom where a judge seems to be biased.