The color black is made through a combination of all primary colors. It is often believed to represent authority and power. Black is an appropriate color for judicial robes because judges wield considerable power, and their judgments, much like the color itself, are made through a combination of all factors. A judge’s ability to remain impartial through the course of criminal litigation became the center of the Aaron Hernandez case.
NFL star Aaron Hernandez is charged with one count of first-degree murder and five counts of weapon possession. These charges stem from the June 17, 2013 killing of Odin Lloyd. Sports Court Media, a trusted provider of sport and legal analysis founded by Tamara Holder and Linda Baden, reported that on his last court appearance, prosecutor William McCauley demanded that Bristol County Superior Court Judge, Susan Garsh recuse herself from the case. McCauley cites a long antagonistic history with Judge Garsh as the basis for his request for recusal. He believes that Judge Garsh would be unfriendly to the prosecution’s case. Judge Garsh’s recusal would have brought the trial and all pretrial matters under the control of a different judge. However, Judge Garsh stated that she harbored no ill will or bias, and was not partial towards the Commonwealth or defendant. This case presents an opportunity to explore the rules and guidelines for judicial recusal, and the options available to the prosecution when a request for recusal is denied.
Sections 47, 144, and 455, under Title 28 of the United States Code lists the factors that are taken into consideration for judicial recusal. Section 144 applies exclusively to district court judges and operates on the standard of personal bias or prejudice. Under §144 a judge only needs to consider whether the allegations are sufficient to demonstrate bias if one assumes the allegations to be true. A plain reading of § 144 would suggest that obtaining a grant of recusal was a simple endeavor. However, § 144 has been criticized for having a loose interpretation regarding its procedural requirements. Consequently, this makes §144 more difficult to use than § 455.
Section 455 is more thorough, and is the most detailed of the three sections. The first part of § 455 states that any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding where his impartiality might reasonably be questioned. It functions as a wide net provision to prevent improper case participation. The second part of § 455 lists additional circumstances that require a judge’s recusal. These circumstances include (1) harboring personal bias or prejudice concerning a party, (2) possessing personal knowledge of disputed evidentiary facts concerning the proceedings, being lawyer in or material witness to the matter in controversy, (3) serving as counsel, an adviser, or material witness while under governmental employment, (4) knowing that he, his spouse or minor child has a financial or substantial interest in the outcome of the proceeding, (5) having a spouse or close relative that is a party to the proceeding.
Lastly, § 47 under Title 28 of U.S.C. requires that an appellate judge recuse herself when she is scheduled to preside over a case on appeal that has already been previously decided by her.
While the Heranadez case is not currently on appeal, prosecutor William McCauley’s request for recusal seems to fall squarely into that first circumstance listed in the second part of § 455. However, Judge Garsh did not grant McCauley’s request. Judges have the power to make the decision despite being affected by the outcome. With this amount of power, how should a party proceed when they disagree with a judge’s decision? Although the prosecution stated that they would not pursue an appeal of the decision, some jurisdictions have adopted rules to address such concerns. For instance, Oklahoma adopted a rule that provides an aggrieved party with an alternative to the challenged judge deciding the motion to disqualify. The initial decision upon a motion to recuse is still within the discretion of the challenged judge. However, upon refusal of a judge to grant the recusal motion, an interested party may re-present the motion to the Chief Judge. If the Chief Judge chooses to uphold the refusal, the aggrieved party may institute a proceeding with an appellate court. However, this course of action may be time consuming and expensive.
Though judicial robes are black, an approach to recusal decisions should be as well. Judges are required to perform acts of introspection that address the multiple factors governing impartiality because it is a judge’s neutrality that provides the pillar on which the public’s faith in the justice system rests. Judge Garsh appears to have done so. Had she not, perhaps Massachusetts would benefit from an Oklahoma styled approach to recusal grievances.
Stephane L. Plantin
Junior Staffer, Criminal Law Practitioner
Photo from Wikimedia Commons.