Free Motion for Recusal - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2753 4 DONNA LEE ELM, #012127 5 Asst. Federal Public Defender Attorney for Defendant 6 [email protected] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender vs. James D. Perino, Defendant. James D. Perino, through undersigned counsel, hereby provides this Court with its memorandum regarding recusal of the District Court in this case, and asks the Court to decide whether it is proper for a sitting District Court judge in Phoenix to remain as the judicial officer on this case (involving threats against another sitting District Court judge in Phoenix, as well as the District court bench sitting in Tucson). His request is based upon 28 U.S.C. §§ 144 and 455, and his right to Due Process under the Fifth Amendment, and is supported by the following Memorandum of Points and Authorities, incorporated by this reference. Respectfully submitted: January 23, 2006. JON M. SANDS Federal Public Defender IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, No. CR-04-1071-PHX-FJM DEFENSE MOTION RE RECUSAL OF DISTRICT COURT JUDGE

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MEMORANDUM OF POINTS AND AUTHORITIES There are two laws that address the need for federal judges to recuse

2 I. Law re Recusal 4 themselves from a case. The first is 28 U.S.C. § 144, entitled (and addressing) Bias 5 or Prejudice of Judge. That statute requires a party to file an affidavit specifying the 6 evidence of personal bias or prejudice toward the party by the judge presiding over 7 the matter. If prejudice is sufficiently shown, the judge should recuse himself or 8 herself and have the matter assigned to another judge. 9 The second statute addressing the issue is 28 U.S.C. § 455, entitled (and 10 addressing) Disqualification of Justice, Judge, or Magistrate Judge. It requires a 11 judge to disqualify himself or herself from proceeding on a matter "in which his 12 impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Like the other 13 statute, it also contains provisions for disqualification based upon personal bias or 14 prejudice (28 U.S.C. § 455(b)(1)), or conflicts of interest (28 U.S.C. § 455(b)(2-5) 15 & (c)). 16 One of the most fundamental and indispensable aspects of the American 17 system of justice and of due process is the impartiality of the federal judiciary. See, 18 e.g., Tumey v. Ohio, 273 U.S. 510, 532 (1927). In order "to promote public 19 confidence in the integrity of the judicial process", judges must not only be impartial, 20 but reasonably be perceived to be impartial. Liljeberg v. Health Services Acquisition 21 Corp., 486 U.S. 847, 859-860 (1988). Consequently, if a federal judge perceives that 22 a party presents a substantial, personal danger to the Court, and if the judge acts on 23 this perception, an appearance of bias exists and recusal is required. United States 24 v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1988). Thus, Due Process requires that 25 "justice must satisfy the appearance of justice." In re Murchison, 349 U.S. 133, 136 26 (1955), quoting Offutt v. United States, 348 U.S. 11, 14 (1954). 27 28 2

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Moreover, even when there is no actual bias or prejudice, the sitting

2 judge may have to recuse himself or herself under this principle. The Supreme Court 3 explained that: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between the contending parties, but to perform its high function in the best way, Ajustice must satisfy the appearance of justice.@ Offutt v. United States, 348 U.S. 11, 14 (1954). In re Murchison, 349 U.S. 133, 136 (1955). The respect for the judiciary is in issue, then, even absent any actual prejudice or bias evident. Hence some judges, faced with a case where there is an appearance of taint or impropriety, exercise their discretion to recuse themselves in order to maintain the public's and the bar's respect for the Court and assurance that the Court will treat litigants fairly. Because the Court has discretion to request that the issue be decided by another judge, further guaranteeing the appearance of propriety, it should exercise that discretion liberally; particularly when sensitive issues such as the judge's (or bench's) fears regarding their personal safety are involved, this is advisable. See, e.g., In Re United States v. Franco, 158 F.3d 26, 3334 (1st Cir. 1998). It should also be borne in mind that judges should recuse themselves when they obtain personal knowledge of evidence at issue from an extrajudicial source. In re Grand Jury 95-1, 118 F.3d 1433, 1438 (10th Cir. 1997). 28 U.S.C. § 455 (b)(1). Hence if a judge has overheard or engaged in any communications with other members of his or her bench regarding a case, that judge should remove himself from the matter. Sub-section 455(a) Aapplies to the varied and unpredictable situations not subject to reasonable legislative definition in which judges must act to protect the very appearance of impartiality.@ United States v. Gipson, 835 F.2d 1323, 1325 (10th 3

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1 Cir. 1988). Of course, even if a judge has not engaged in such communications, if 2 from his position it would appear that he would have engaged in such 3 communications, then there may well exist the "appearance of impropriety" that could 4 hurt the integrity of the Court in the eyes of the public and Bar that would trigger 5 recusal under 28 U.S.C. § 455(a). Hence even if the trial judge has not engaged in 6 ex parte communications, so is "pure in heart and incorruptible," under '455, recusal 7 may be required "even though no actual partiality exists." Nichols v. Alley, 71 F.3d 8 at 351. 9 That Congress would require recusal even in circumstances in which no 10 bias exists is not surprising for the same result has long been mandated by the Due 11 Process Clause. More than seventy-five years ago, the Supreme Court ruled, AEvery 12 procedure which would offer a possible temptation to the average man as a judge ... 13 not to hold the balance nice, clear, and true between the State and the accused denies 14 the latter due process of law.@ Tumey, 273 U.S. at 532. This mandate has remained 15 in full force through the years and is equally effective today. See, e.g., Liljeberg v. 16 Health Services Acquisition Corp., 486 U.S. at 865 n. 12; Mayberry v. Pennsylvania, 17 400 U.S. 455, 466 (1971); In re Oliver, 333 U.S. 257 (1948). 18 This rule is also required to balance against the natural inclination of 19 every person to put undue weight on their fragile ability to remain fair in all 20 circumstances: 21 22 23 Problematic is the fact that judges do not stand outside of the judicial system; they are intimately involved in the process of obtaining justice. Judges who are asked to recuse themselves are reluctant to impugn their own standards.

24 United States v. Jordan, 49 F.3d 152, 156-157 (5th Cir. 1995). Similarly, the Tenth 25 Circuit recognized in Texaco, Inc. v. Chandler, 354 F.2d 655, 657 (10th Cir. 1965), 26 ALitigants are entitled ... to a judge whose unconscious responses in the litigation may 27 28 4

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1 be struck only in the observing presence of all parties and their counsel.@ David 2 Pannick recognized that judges are restricted by the same limitations as are all human 3 beings: 4 5 6 8 Judges are subject to the same ambitions, passions, prejudices, and fears as their contemporaries. If you prick them, they bleed. However high the general standard of judicial competence, there will always be human weaknesses which affect judgment . . . . Note that the extra-judicial source rule, see Liteky v. United States, 114

7 Pannick, Judges at 17 (Oxford University Press 1987). 9 S.Ct. 1147 (1994), does not apply here, as this Court had not been involved in any 10 litigation from which the threat arose. 11 II. Facts 12 Mr. Perino sent a threatening letter to District Court Judge Carroll as 13 well as the entire District Court bench in Tucson. Those letters resulted in the instant 14 prosecution for threatening federal officials. Judge Carroll sits in Phoenix as does the 15 assigned trial judge, the Honorable Frederick Martone. 16 III. Law Applied to the Facts of this Case 17 18 A. Actual Prejudice or Bias The Defense has no information or evidence to support an affidavit of

19 actual bias or prejudice against Mr. Perino from the assigned judicial officer. 20 Nonetheless, Mr. Perino and the parties could not be privy to the many personal 21 encounters between Judge Carroll and the assigned trial judge here, nor the probably 22 occasional encounter with the many judges in the Tucson branch of the District Court. 23 That does not, of course, end the inquiry. It thus falls on the shoulders 24 of the trial judge to review his communications, discussions, and interactions with 25 Judge Carroll, his staff, his family, and all of the Tucson bench, to examine whether 26 there is "cause" for recusal. Hence this Court must consider whether it has had any 27 communications concerning matters in issue in this case (the letters sent to these 28 5

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1 parties, general concerns expressed about threats to their safety, and measures taken 2 to ensure safety of the judiciary) recently;1 if it has had any such ex parte 3 communications, the Court should sua sponte recuse itself. 28 U.S.C. § 455(b)(1). 4 In the same manner, this Court should examine itself to determine 5 whether it has any of the natural and understandable feelings of protectiveness, 6 concern for safety, or brotherly affiliations with the rest of its bench. Such feeling are 7 completely justifiable, and do not impugn the honor of this Court; nonetheless in this 8 case, they should result in the Court referring the case to another Court to decide. 9 This, too, is information not available to the parties, but is known to the Court. The 10 Defense asks the Court to review its feelings about this situation and consider 11 whether it ought to recuse itself for its feelings and concerns that might result in 12 questioning the impartiality of the judiciary otherwise. 13 Hence if the Court is aware of experiences, communications, or its 14 personal reactions of protectiveness or concern about matters touched on by this case, 15 it ought to initiate its own removal of itself from the case. 28 U.S.C. § 455(b)(1). 16 17 B. Appearance of Impropriety Even if the Court has no concerns about its safety or that of its fellow

18 brethren in the District Court of Arizona, and even if there has been no 19 communications with this Court concerning heightened security measures, the 20 presence of threats, these threats in particular, or the victims' (Judge Carroll and his 21 22 If there was any briefing of the bench in the wake of Mr. Perino's threats 23 by the Marshals or other security personnel, then this would represent ex parte 24 communications touching upon issues in this case. It further would suggest that personal feelings of concern might be implicated (or might appear to be implicated 25 in the eyes of the public), such that disqualification is called for. When additional 26 security measures are the product, at least in part, of warnings from the Marshals made in extrajudicial communications, that in itself supports recusal. See Nichols, 27 71 F.3d at 351 (citing Liteky, 510 U.S. at 555). 28 6
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1 family and the entire District Court and its staff from Tucson) concerns, the Court 2 must yet proceed to evaluate whether recusal is advisable to ensure litigants of the 3 fairness of the judiciary and preserve the respect for the Court in the eyes of the 4 public. 5 Mr. Perino's specific request of this Court is to review this issue and 6 decide whether proceeding on his case within the District of Arizona would cast a 7 shadow over the impeccable integrity that the District Court may enjoy here. Would 8 litigants and the public harbor concerns about the case being presided over within the 9 same District Court that Mr. Perino threatened? If that could be answered in the 10 affirmative, then the Court ought to consider disqualifying itself from this case. 11 Would litigants and the public believe that there had been no communications 12 between judges sitting in the same small courthouse, so that this judge would have 13 no ex parte information concerning this case? If it would appear likely, then the 14 Court should seriously consider taking the initiative to disqualify itself. Would 15 litigants and the public rest easy that no feelings of personal concern for safety of 16 oneself or of one's colleagues and families could affect the assigned trial judge ­ 17 whose chambers are on the same floor as the one threatened by Mr. Perino? If there 18 could be any appearance of impropriety, then the Court may need to disqualify itself 19 so as ensure parties and the community that it could not be questioned about its 20 integrity and impartiality. 21 IV. Conclusions 22 Mr. Perino does not have evidence establishing any bias on the Court's 23 part, so had not filed an affidavit for recusal previously. Nonetheless, the Court needs 24 to first review whether it has any feelings that could prejudice the parties, or 25 information about issues relevant to the case; if so, it should undertake to disqualify 26 itself. Second, it should consider objectively how the Courts' the perception of 27 impropriety is maintained or impugned by proceeding to prosecute this case here; 28 7

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1 hence the Court must comply with its ethical obligations in reviewing what the 2 public's perceptions of the Court may be if it does not remove the case to another 3 district court. If under either of those cases, the Court has some question as to the 4 answers, then it should exercise its discretion in a manner consistent with preserving 5 the integrity of the judiciary, and reassign the case elsewhere. It is respectfully 6 submitted that justice may best be served by the Court's exercise of this discretion. 7 See Franco, 158 F.3d at 33-34. 8 There is a Ninth Circuit case suggesting that this reassignment could be 9 within the District to a differently located bench. In Clemens v. U.S. District Court 10 for the Southern District of California, no. 05-548 (9th Cir. November 7, 2005),2 the 11 defendant threatened three sitting judges on the District Court (at the same location). 12 To remedy any appearance of impropriety, the Court removed the case within the 13 same district but to a bench sitting elsewhere that would not, consequently, have been 14 threatened or had concerns for threats being carried out within its own courthouse. 15 That solution, unfortunately, will not work here since Mr. Perino's second letter was 16 addressed to the bench sitting in Tucson. If the Court disqualifies itself, it should 17 therefore refer the matter out of district. 18 19 20 21 22 23 24 25 Counsel has not been able to verify whether this is a published decision, and so it may not represent precedent. Nonetheless it certainly is a practical approach 27 to the remedy and its reasoning is persuasive. 28 8 26
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Respectfully submitted: January 23, 2006. JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

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1 Copy of the forgoing was transmitted by CM/ECF 2 on this 23rd day of January, 2006 to: 3 CLERK'S OFFICE Sandra Day O'Connor Courthouse 4 401 W. Washington, Suite 160 Phoenix, Arizona 85003 5 6 Copy of the foregoing mailed rd through the U.S.Mails this 23 7 day of January, 2006, to 8 CLARENCE BUTLER Assistant U.S. Attorney 9 5400 Federal Plaza, Ste 1500 Hammond, IN 46320 10 11 JAMES D. PERINO Defendant 12 13 s/Donna Lee Elm 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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