Recusal Rejected

By TChris, Section Court Decisions
Posted on Wed Dec 17, 2008 at 10:09:37 PM EST
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While conceding that she had no reason to believe the City of Boston had acted improperly, Judge Nancy Gertner (among the best and brightest of the federal district court judges) wondered aloud whether plans to deport Ulysses Rodriguez Charles to Trinidad in the near future were "somehow related" to his lawsuit against the Boston Police Department for his wrongful conviction. The lawsuit is scheduled to go to trial in April but immigration authorities seem determined to spirit Charles out of the country before he has a chance to see a jury.

The City's lawyer worked up a show of indignation "that Gertner disparaged his client by voicing 'wholly unfounded suspicions' that federal immigration authorities might have colluded with the city to try to deport Charles before his trial." The lawyer, John Roache, asked Gertner to recuse herself. Gertner declined after reminding the lawyer of her repeated statements that she had no reason to suspect collusion. Her comments instead raised a legitimate question about the timing of the federal government's deportation decision in light of her request to delay deportation so that Charles could have his day in court.

[more ...]

Asking a federal judge to recuse herself because of rulings or comments she made during the course of the proceedings is typically not a smart strategy. Its success depends upon convincing the judge that she isn't capable of being fair. How often do judges say: "You're right, I've prejudged this case and I can't possibly be fair"? About never. In the end, the party asking for recusal is stuck with a judge they've just insulted.

The city did no better on appeal.

In a one-paragraph order, the Court of Appeals for the First Circuit said comments made by US District Judge Nancy Gertner "do not warrant the extraordinary relief" sought by the city ....

So now the City has insulted the judge twice, once by calling her unfair to her face and then by telling the court of appeals that she's unfair. The City is lucky that the case is before a judge who will always strive for fairness, rather than a judge whose bruised ego might make the trial a painful experience for the City's lawyer.

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Recusal Rejected | 1 comment (1 topical)

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The basic rule (none / 0) (#1)
by Steve M on Wed Dec 17, 2008 at 10:34:36 PM EST

is that animus towards a party is not a basis for recusal as long as it is developed in the course of the specific litigation before the court. After all, a judge evaluates credibility like everyone else. If she comes to believe that a party is acting disingenuously, that's of course going to enter into her decisionmaking. It would be ridiculous if, the moment a judge figures out that a party is up to no good, she suddenly has to recuse herself.

So if the judge decided that the immigration authorities were into shenanigans based upon what she saw in this case, there's absolutely nothing wrong with that, and there's nothing wrong with saying it, either. In fact, as a lawyer, I'd rather the judge say that she finds my client incredible rather than just keep it to herself.

On the other hand, if the judge just generally believes the immigration authorities are a bunch of liars, based on her experience in prior cases - even if it's a perfectly rational conclusion - that would be a basis for recusal if it affects her impartiality, because she has an obligation to decide each individual case on its merits rather than her preexisting beliefs.