Sunday, May 13, 2018

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  Judge Tevrizian denied the recusal motion, stated that he had withdrawn his name from consideration, and said that his application “had never progressed past a preliminary stage.”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

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


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