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Requesting a judge’s recusal tricky business for attorneys

By: DAVID E FRANK//November 12, 2012//

Requesting a judge’s recusal tricky business for attorneys

By: DAVID E FRANK//November 12, 2012//

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For J.W. Carney Jr., the decision to file a motion to recuse in the James “Whitey” Bulger case may have been a clear choice, but it was also a risky move.

In an Oct. 28 filing, Carney argued that U.S. District Court Judge Richard Stearns’ prior employment in the U.S. Attorney’s Office and his long-standing friendship with FBI Director Robert Mueller III could create “questions in the minds of reasonable people” about whether the judge could be fair and impartial. The Boston defense lawyer went on to say that 28 U.S.C. §455 required Stearns to disqualify himself and allow another judge to preside over the reputed mobster’s murder case.

“There is probably no more difficult act for an attorney than to seek the recusal of a judge,” Carney noted in the motion.

Former federal prosecutor Paul Kelly doesn’t disagree. While justified in making the request, Carney put himself in an unenviable position, Kelly says.

“Seeking a recusal is not an easy thing to do, because these are people you’ve practiced before in the past and will practice in front of in the future,” says Kelly, a partner at Boston’s Jackson Lewis. “The legal community is small, and there’s a real concern that other judges, whether in the same court or elsewhere, are going to look unfavorably on what you’re doing the next time you appear in front of them on some other case.”

Certainly, Stearns made his feelings on the recusal request clear. In a move that surprised lawyers who have been following the hotly contested case, the judge refused to grant Carney a hearing before denying the motion. Stearns cited his denial in July of a similar motion, in which he called Carney’s accusation that he would betray his oath of office by protecting his former colleagues “gratuitous” and “overheated.”

“It would be institutionally irresponsible for me, or for that matter, any other judge, to enter a recusal in a case where a party has chosen to make untrue accusations in the possible hope of subverting that process,” Stearns wrote, “or at the very least, forcing a delay of a trial by injecting a diversionary issue into the proceedings.”

Both Carney and a spokeswoman for U.S. Attorney Carmen M. Ortiz declined to comment for this story.

‘All over the map’

Chester Darling says he made few friends when he successfully had U.S. District Court Judge Nancy Gertner removed from a racial discrimination suit he fought in 2001.

Darling had argued that the judge’s ex parte comments to the Boston Herald violated the Code of Judicial Conduct, requiring her recusal from the case.

Though Gertner denied the Andover attorney’s motion, the 1st U.S. Circuit Court of Appeals reversed and ordered the judge off the case.

“I’d never made that kind of a request before, and I haven’t done anything like that since,” says Darling, who’s been practicing since 1970. “Taking on a judge is something you don’t do lightly, because it can taint you as an attorney. And that’s not something that’s easy to deal with.”

While acknowledging that a lawyer’s ethical obligation to his client leaves an attorney little choice on how to proceed, Gertner says a recusal attempt can, indeed, leave a lasting impression on a judge.

In fact, 11 years later, Gertner says she’s still upset about the 1st Circuit’s ruling, given that her comments were intended to correct reporting errors in the Herald and inaccurate statements made by Darling.

“I can now say that I thought it was a totally inappropriate decision,” Gertner, who retired from the bench last year, says of the ruling. “The notion that my discussion with the press so compromised me that I couldn’t be fair in the underlying case made no sense and highlighted the real problem that exists whenever recusal is raised — which is that the standards for what conduct requires recusal are all over the map.”

But Gertner emphasizes that her ire is directed at the 1st Circuit, not the lawyer who filed the motion. Most judges understand that recusal requests come with the territory, she adds.

“I used to get motions to disqualify me because of positions my husband took on various issues,” says Gertner, who’s married to former Massachusetts ACLU Legal Director John Reinstein. “It really never bothered me. I had great fun writing opinions saying I never, ever listen to my husband.”

‘Very low standard’

Boston lawyer Michael McLaughlin can relate to what Darling went through in 2001.

McLaughlin currently has a recusal motion before the Supreme Judicial Court in which he alleges that a Superior Court judge in a 2010 construction case failed to disclose a prior relationship with one of the opposing counsel and defendants in the suit. McLaughlin filed the motion after the judge set aside his clients’ $1 million jury verdict.

McLaughlin says his allegations against the judge made him the subject of a motion for sanctions before the SJC, and that he was labeled a troublemaker, when all he was doing was fulfilling his duty to zealously represent his clients.

“In addition to the problems it creates for you personally, considerable thought must be paid to the issue of whether the filing of the motion will permanently alienate the jurist to your client,” McLaughlin says. “One would hope that would not be the case, but judges are human beings and it’s something you have to be really worried about. I can tell you in my 30 years as a lawyer, this recusal motion ranks number 1, easily, as the most difficult experience I’ve ever had.”

The problem, according to McLaughlin, is that too many judges improperly put the burden to prove actual bias on the moving party, even when that’s not the real issue before the court.

“There is generally a disregard among judges of the very low standard that exists for proving the existence of the appearance of impropriety,” he says. “Judges instead rely on a defense of, ‘Hey, I didn’t do anything wrong, so I’m not getting off,’ when the issue is really whether their remaining on would create an appearance of impropriety.”

‘Look in your heart’

The question of whether a reasonable person might believe a judge can be impartial is “extremely confusing,” with opinions from the 1st Circuit and appellate courts across the country varying drastically, says Gertner, a professor at Harvard Law School.

Because the standard is not a firm, clear one, Gertner says it doesn’t surprise her that people are critical of where some judges draw the line. Judges have to answer recusal questions from the perspective of a person reasonably educated on the details of the motion, she adds.

“It has to be what a reasonable person, with all of the facts before them, would think,” she says. “If the threshold were any lower, it would be open season.”

Gillian E. Pearson, who recently retired as executive director of the Commission on Judicial Conduct, says the canons contain detailed information about certain categories of disqualifications. But the rules do not cover all situations.

“If you can’t find any part of the rule or the commentary that applies, then you’re really in a tough spot,” she says. “It’s hard to determine what is and what is not an appearance problem.”

Pearson, who worked at the CJC for more than two decades, believes the burden should be high for recusal motions and that a judge’s gut instinct should control.

“We always told judges that they had to go by the precedent set down by the SJC, which said that you have to look in your own heart and mind to see whether you feel you can be impartial,” Pearson says. “If the judge feels he can be impartial, he can stay in the case because the wheels of justice have to be allowed to turn without having blocks thrown under them every two minutes.”

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