What does it take to spark mandatory recusal of a district court judge? More than a couple of threatening messages on a judge's home answering machine, says Judge Bybee. United States v. Holland, __ F.3d. __, 2007 WL 2472543 (9th Cir. Sept. 4, 2007), opinion available here. This will be the lead case on mandatory recusal in the Ninth -- the opinion sets forth a new, three-part "process" for the recusal analysis.
Players: Opinion by Judge Bybee.
Facts: Holland pled guilty to threatening the President. 2007 WL 2472543, *1. Before sentencing, he called the district court judge’s personal residence from jail and left more than one threatening message on a voice machine. Id. The judge declined to recuse himself sua sponte, concluding that this was an attempt to manipulate the criminal justice system. Id. Holland didn’t object to the refusal to recuse. Id. At sentencing, the judge noted Holland’s history of violent crimes and “impose[d] a sentence for the protection of society.” Id.
Issue(s): “We are confronted with a narrow question: When does a judge have an obligation under 28 U.S.C. § 455 to recuse himself sua sponte in response to threats made against him, his family members or associates? Because the issue was not raised before the trial court, we review for plain error.” Id. at *1. “Here we must decide when a judge must recuse himself sua sponte in response to threats even if he would prefer to continue his work on the case.” Id. at *2 (emphasis in original).
Held: “We hold that the district judge reasonably construed Holland's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal.” Id. at *1.
Of Note: As noted above, Holland will be the lead decision on the issue of sua sponte recusals in the Ninth. Judge Bybee sets out a three-part “process” that a judge should undertake when a recusal issue comes up. Id. at *3. First, the judge “must evaluate the threat itself to determine how much risk there is that it may be carried out and how much harm there would be if it were.” Id.
Second, the judge must “determine whether he can be truly impartial when trying the case.” Id. at *4.
Third, the judge must apply an “objective” standard, to determine whether “someone who understands all the relevant facts” would perceive a significant risk that the judge will be influenced by the risk. Id. at *4.
How to Use: There are two interesting angles on the Bybee process articulated in Holland. First, the Court emphasizes that this “objective” test is statutorily-required, and that it isn’t from the perspective of the judiciary. Bybee quotes a candid insight from the Seventh Circuit: “We must bear in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” Id. at *4, quoting In re Nettles, 394 F.3d 1001, 1002 (7th Cir. 2005).
Moreover, a tie goes to the defense. As Judge Bybee explains, “If it is a close case, the balance tips in favor of recusal.” Id. at *4.
Given these rules – and this test – it’s a fair question to ask if this case would have turned out the same way if the defense hadn’t faced the (near)-insurmountable hurdle of plain error review.
For Further Reading: Holland isn’t about whether a judge can recuse him or herself after a threat – the opinion thoughtfully acknowledges recent violence against judges, and emphasizes a court’s discretion to recuse itself when threatened. Id. at *2 & n.2.
The case is instead about when a judge must recuse him or herself after a threat. Not surprisingly, a judge who toughs out a case despite a threat will very rarely be second-guessed. Bomb threats in a RICO trial won’t do it. LoCascio v. United States, 473 F.3d 493 (2007). Being the object of mailed threats won’t do it. United States v. Mattison, 731 F.Supp. 831 (1990). Taking out a contract to murder the judge, however, does trigger the mandatory-recusal statute (despite the judge’s assurance that he harbors no prejudice to the defendant!) United States v. Cerella, 529 F.Supp. 1373, 1381 (S.D. Fla. 1982) (“The circumstances of this case are unique: a defendant persists in a plan to kill the sentencing judge, despite a grand jury investigation of his criminal scheme.”)
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org