Case o' The Week: Recusal Refusal - Mikhel and recusal of district judge in federal capital proceedings

“[A]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The goal of section 455(a) is to avoid even the appearance of partiality.”

  
United States v. Mikhel, 2018 WL 2124086, *13 (internal quotations and citations omitted) (9th Cir. May 9, 2018), decision available here.

Players: Decision by Judge Bybee, joined by Judges M. Smith and Friedland.

  Extraordinarily hard-fought appeal (over many years) by former San Diego AFD Ben Coleman, CD Cal AFPD Michael Tanaka, and many other defense counsel.  

Facts: Along with others, Mikhel and his co-defendant, Kadamovas, kidnapped and killed a number of victims. Id. at *1-*6. They were tried on capital charges before District Judge Tevrizian. Id. at *7.

  During the guilt phase of the trial, Judge Tevrizian submitted his name to be considered as the next U.S. Attorney (for the same U.S. Attorney’s office involved in the trial over which he was presiding). Id. at *11. Judge Tevrizian disclosed this fact: neither side objected. Id. at *12.

  A month later, after the jury returned guilty verdicts, and after the government rested in the penalty phase, the defense moved for recusal. Id. “Defendants argue they did not become aware of the need for recusal until . . . they read a newspaper article suggesting that Judge Tevrizian was among the frontrunners for the position.” Id. at 12 & n.5.

  Judge Tevrizian denied the recusal motion, stated that he had withdrawn his name from consideration, and said that his application “had never progressed past a preliminary stage.” Id. at *12.

  The men were sentenced to death. Id. at *8.         

Issue(s): “Defendants claim 28 U.S.C. § 455(a) required Judge Tevrizian to recuse himself after he applied to a local screening committee for the position of United States Attorney for the Central District of California—the same office prosecuting this case.” Id. at *11.

Held: “Where ‘unexplained delay’ in filing a recusal motion suggests that the recusal statute is being misused for strategic purposes, the motion will be denied as untimely.” Id. at *12 (quotations and citation omitted). “Although a delay of a little over a month would not always, or even ordinarily, doom a motion for recusal, defendants’ delay here renders their motion untimely.” Id. at *12.

  “The fact that Judge Tevrizian immediately withdrew his application is particularly significant. If defendants had made a timely motion and Judge Tevrizian had not immediately withdrawn his application, this issue might have presented a closer question. As it is, we cannot say that a reasonable person with knowledge of all the facts would have questioned Judge Tevrizian's impartiality.” Id. at *13.

Of Note: Another issue in this long opinion is the role of capital counsel under 18 USC Section 3005. Id. at *18. After an accident, one of Mikhel’s capital counsel could not attend trial for three days. Id. at *18. The trial proceeded despite a defense request for a continuance. Id. The Ninth found no problem with this “de minimis” absence from trial. Id. at *19. The Ninth does, however, concede that it is not addressing whether a “more extended absence” might violate § 3005. Id. at 19 & n. 10.

  Expect increased litigation over Section 3005 as the number of federal capital prosecutions explode. Mikhel’s discussion of this important statute merits close review by capital counsel.

How to Use: In Mikhel, two men were sentenced to death by a jurist who, while presiding over their trial, was applying for the job of the district’s top prosecutor. This troubling holding potently illustrates the complexity of recusal motions. If the motion is timely but unsuccessful, our clients could bear the consequences in the trial court. If not aggressively pursued in the district court, however, Mikhel is the result.

  Note that in Mikhel, the Ninth goes beyond the timeliness holding, and (in apparent dicta) also rejects the recusal challenge on its merits. Id. at *13.

  Recusal motions are sometimes unavoidable, to ensure our clients a fair shake in the district court. Before filing a recusal motion, however, Mikhel deserves a very close read.  

                                               

For Further Reading: Are peremptory challenges the solution to the recusal concerns raised by Mikhel? Many states allow peremptory challenges to presiding jurists, and the ABA has supported the idea for the Feds.

   For the Federal Judicial Center’s report on the idea, see A. Chaset, Disqualification of Federal Judges by Peremptory Challenge (Federal Judicial Center 1981), available here.

Image of CD Cal US Attorney Office logo from https://twitter.com/cdcanews

Image of Lady Justice from https://www.pinterest.com/pin/57632070206568126/

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: "Tend to Your own Knitting," Ninth Warns Gov't - Wells and CJA Appointments

“As Justice Louis D. Brandeis warned many years ago: ‘The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’ Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). 

  After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells' trial fundamentally unfair. Therefore, we reverse and remand for a new trial.”

  United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and partial dissent by Judge Tashima. Big win for former CD Cal AFPD Davina Chen (the case was reversed on grounds not reported here).

Facts: Wells was charged with death-eligible homicide counts. Id. at *3.

  Federal Defender Rich Curtner was appointed to represent Wells, and second CJA counsel was appointed under 18 USC § 3006A. Id. The government challenged the ex parte nature of the CJA appointment. Id.

  The government proceeded on the case with three attorneys.

  After the government confirmed it would not be seeking death, it moved to have the second CJA counsel removed. Id. FPD Curtner fought the motion, explaining he was managing an office in financial crisis because of sequestration, that another AFPD was not available to try the case, that CJA counsel had a relationship with the client and a deep understanding of discovery, and that if CJA counsel was removed it would be three government prosecutors against one public defender. Id.

  Despite FPD Curtner’s objections, the magistrate judge granted the government’s motion, CJA counsel was removed, and Wells was convicted after trial. Id. at *4.

Issue(s): “[ ] Wells challenges the district court’s removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty.” Id. at *4.

Held: “Applying [a] deferential standard, we do not find that the removal of [CJA counsel] was reversible error, but neither can we accept without comment the Government’s interference in the status of Wells’ representation.” Id. at *5.

  “[W]e find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole counsel.” Id. at *6.

  “[O]f much greater concern to this Court, is the means by which the question of [CJA counsel’s] continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of [CJA counsel’s] appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. While such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. . . .

   The Government's decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” Id. at *6 (citations omitted) (emphasis added).

Of Note: What role should the government play in the question of CJA representation?

  The Ninth is unequivocal: “[I]n the future, the Government should tend to its own knitting.” Id. at *7.

  Wells is a seminal case on the need for independent and realistic assessment of the need for CJA counsel --and the USAO is to play no role in this assessment.

  Wells also calls out the injustice of the resource imbalances facing CJA counsel, calling out the “stacked deck” orchestrated by the government.

  A must-read for FPD and CJA counsel (and, as Judge Ngyuen warns, an opinion that DOJ should mull deeply). Id. at *29.

How to Use: When Death departs, so does Learned Counsel, right?

  Maybe not.

  The Ninth provides a sympathetic discussion of the procedure by which second CJA counsel can stay in a (former) capital case. Id. at *5. 

  RICO-wrestling CJA counsel should give this primer a very close read: seconds should stay, in some cases.

               

                         

For Further Reading: The homicides on this remote Alaskan island have a vaguely Fargo-esque quality. 

  For an article describing the work feud that (allegedly) triggered the murders, see the article here. 

Image of men knitting from https://here-is.com/kentishtowner/wp-content/uploads/sites/13/2015/01/knittingmen.jpg

Image of James Wells from http://wirelessestimator.com/articles/2016/wives-of-murdered-tower-techs-sue-the-coast-guard-for-wrongful-death/ 

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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