Three recent state, federal and Supreme Court controversies show how judges thwart the public's right to due process when judges with apparent conflicts refuse to recuse themselves.
Texas judge Tracy A. Gilbert, for example, decided a custody case in March by ending a father's legal relationship with his child. The judge continued to preside even after the father showed in mid-trial that the mother's attorney also represented the judge in a separate paternity case.
The law of recusal is clear-cut: It's not enough for judges to act in an unbiased manner when suspected of a potential conflict of interest. A judge must avoid even the appearance of impropriety.
One test is whether any independent and reasonable observer might think that an appearance of bias exists. If so a judge must withdraw from supervising a case. In 1988, the U.S. Supreme Court ruled in Liljeberg v. Health Svcs. Acq. Corp. that a judge must also inform litigants of potential conflicts, not simply wait for the parties to become super-sleuth detectives.
In reality, however, litigants have scant power to enforce the rule, especially if a judge is determined to retain control.
For one thing, litigants may not know of the judge's conflicts until so late in the process that the Liljeberg holding is, in effect, ignored. Second, litigants and their attorneys may fear a judge's power too much to push the recusal issue. Third, a judge may become so arrogant or deeply compromised that he or she disdains legal requirements. Finally, other judges and opinion leaders show scant interest in scrutinizing judges more rigorously, especially if any scandal seems likely to fade away because watchdogs lack resources.
These problems are well-known in the justice system, particularly after a coal company CEO made $3 million in campaign donations to re-elect a West Virginia state Supreme Court of Appeals justice. That justice then wanted to rule on his donor's appeal of a $50 million jury verdict against his company, A.T. Massey. This led the U.S. Supreme Court to describe the right of parties to a fair judge in the 2009 case, Caperton v. Massey. More specifically, the court ruled that the West Virginia justice should have disqualified himself from hearing the appeal.
But even Massey illustrates a litigant's difficulty in removing a judge. The court decided the case by a 5-4 margin, and not every litigant has $50 million of incentives to keep fighting such battles.
In Texas, Judge Gilbert cut off a father's legal rights regarding his five-year-old daughter. Presiding in Conroe just north of Houston, the judge declined to recuse himself even though the daughter's mother was represented by the judge's personal lawyer. The Houston Chronicle published an in-depth, hard-hitting column last week about the case under the headline, "No excuse for not recusing."
In Alabama, Democratic former Gov. Don Siegelman and co-defendant businessman Richard Scrushy face potential resentencing on corruption charges by Chief U.S. Middle District Judge Mark Fuller, a Republican partisan. In a rare photo and in an apparently joyful mood, he sat for a photo session with Alabama journalist Phil Fleming in chambers minutes after the Siegelman jury verdict in 2006.
Fuller remains the presiding judge despite sworn evidence that the judge hated Siegelman before the case, and helped prosecutors railroad the defendants during their 2006 trial with many controversial, pro-prosecution rulings. Also, the judge was enriched by $300 million in Bush federal contracts from 2006 to 2009 to a company the judge controls as its largest stockholder, as I documented in reports published by OpEd News and the Huffington Post in 2009. Authorities deny corrupt motives, or indeed any irregularities. But no one has ever dared hold a public hearing with sworn statements to get to the bottom of the allegations, as whistleblowers have long hoped.
The Bush Department of Justice claimed that not one independent, reasonable person in the United States would think the judge compromised by even an appearance of impropriety. Authorities made this preposterous argument even after a CBS 60 Minutes investigation in 2008 revealed prosecution coaching of the main prosecution witness with up to 70 pre-trial test-runs without required disclosure to the defense. Such independent investigations of the case have prompted thousands if not tens of thousands of citizen complaints to the White House and Justice Department.
Protecting its own, a federal appeals court in 2009 rejected the defense recusal complaint with scant comment, saying defendants should have known about the judge before trial. Last week, the same three judges reiterated their recusal ruling here, on page 57 of their opinion. But the judges failed to address the Liljeberg holding and its important due process protection for the public against abuse of judicial power.