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
No comments:
Post a Comment