Latest recusal in the Brown supporters' cases

[Dezcad]

In addition to the previous recusal by Judge McAuliffe, Judge Barbadoro has recused himself from the Brown supprters' cases.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE


United States of America
v.
Jason Gerhard
Daniel Riley
Robert Wolffe
Cirino Gonzalez
Case No. 07-cr-168-01-PB
Case No. 07-cr-189-01-PB
Case No. 07-cr-190-01-PB
Case No. 07-cr-191-01-PB
O R D E R

The defendants in the above-captioned cases have been
charged with criminal offenses, including conspiracies, that
allegedly stem from their efforts to prevent the United States
Marshals Service from arresting two fugitives, Edward and Elaine
Brown. The Browns were convicted of multiple counts of tax fraud
in a trial overseen by one of my colleagues, Chief District Judge
Steven McAuliffe. The Browns were fugitives until their recent
arrests and the defendants in the above-captioned cases allegedly
assisted the Browns in avoiding apprehension.

It has been widely reported in the media that the Browns and
other members of the alleged conspiracy have threatened to kill

Judge McAuliffe. In orders disqualifying himself in the Gonzalez
and Riley cases, Judge McAuliffe noted that “ecause those
public statements included threats of violence and physical harm
directed at me, a reasonable person, fully informed of the facts,
might understandably question my ability to remain impartial were
I to preside.” In this order, I explain why I, too, have decided
to disqualify myself from presiding over these cases.

Canon 3(c)(1) of the Code of Conduct for United States
Judges requires a judge to disqualify himself from any case “in
which the judge’s impartiality might reasonably be questioned.”
Under this test, a judge ordinarily must disqualify himself if a
reasonable person, knowledgeable of the relevant facts, would
have reason to question the judge’s impartiality.

Judge McAuliffe and I have been friends for more than 20
years. Although I am confident that I could preside impartially
over the above-referenced cases notwithstanding this friendship,
it is likely that at least some reasonable observers would
conclude that my impartiality was compromised by my friendship
with someone who allegedly has been threatened by the defendants’
alleged co-conspirators. See United States v. Jordan, 49 F.3d
152, 158 (5th Cir. 1995) (trial judge abused her discretion in
presiding over a criminal case in which defendant “was involved
in an extremely hostile relationship” with the judge’s close
friend because a reasonable person would doubt the judge’s
impartiality).

A defendant cannot force a judge to disqualify himself in a
previously assigned case by making threats against the judge or
his friends. However, the threats at issue here allegedly were
made before the cases were assigned to me and I have no basis to
believe that the alleged threats were made to provoke my
disqualification. Under these circumstances, prudence suggests
that the cases should be handled by a judge who does not have a
close friendship with Judge McAuliffe. Accordingly, I disqualify
myself from presiding over these cases.


SO ORDERED.


/s/Paul Barbadoro
Paul Barbadoro
United States District Judge


October 12, 2007


cc: Counsel of Record

[Cobalt Shiva]

This might give the kooks an idea: if they threaten enough judges, the "reasoning" will go, then the judges will have to recuse themselves, and if there are no judges available, they can never be tried.

[The Observer]

This might give the kooks an idea: if they threaten enough judges, the "reasoning" will go, then the judges will have to recuse themselves, and if there are no judges available, they can never be tried.

But isn't there a legal doctrine that ensures that defendants don't benefit from actions they take in trying to sabotage their trial? An example would be in the Charles Manson trial where the jury had been sequestered and one of the defense attorneys, against the judge's orders, brought a newspaper into the court room. This particular paper had the big bold headlines stating that President Nixon had said that Manson was guilty. Charlie, a bit of a jailroom lawyer himself, grabbed the paper and flashed the headlines at the jury before the bailiffs could restrain him. At that point the Manson defense team moved for a mistrial, claiming that the jury was possibly influenced by the headlines. The judge ruled against them based on the fact that Manson was the one bearing the responsibility for any prejudicial influence.

So I can't imagine, that once it became apparent that the threats against the judges were systematic, that judges would continue recusing themselves.

[Cobalt Shiva]

I didn't say it would actually work, I said the kooks might get the idea that it WOULD work.

[LPC]

From the order reproduced above:

A defendant cannot force a judge to disqualify himself in a previously assigned case by making threats against the judge or his friends. However, the threats at issue here allegedly were made before the cases were assigned to me and I have no basis to believe that the alleged threats were made to provoke my disqualification.

I read that to mean that, for purposes of recusal, judges can ignore threats that seem to have been made for the purpose of disqualifying the judge.

[Dezcad]

From the order reproduced above:

A defendant cannot force a judge to disqualify himself in a previously assigned case by making threats against the judge or his friends. However, the threats at issue here allegedly were made before the cases were assigned to me and I have no basis to believe that the alleged threats were made to provoke my disqualification.

I read that to mean that, for purposes of recusal, judges can ignore threats that seem to have been made for the purpose of disqualifying the judge.

I agree with you LPC, but I was wondering why he chose to add the qualifying language of "in a previously assigned case". Why is he inferring that the assignment of the case should predate the threats?

[Dr. Caligari]

I agree with you LPC, but I was wondering why he chose to add the qualifying language of "in a previously assigned case". Why is he inferring that the assignment of the case should predate the threats?

Once the case is assigned to a judge, a threat by the defendant against that judge should not result in recusal, because defendants will just use that as a way to get rid of a judge they don't like. Here, he is saying that if the threats precede the assignment, the case should not be assigned to the threatened judge. On some level that makes sense, especially if the prosecution is for the threat itself. But if taken too far, that will result in defendants trying to game the system by making threats before the filing of a case they expect to be filed.

I remember a case in New York about 10-15 years ago in which a defendant, after his release from prison, tried to kill the judge who had convicted him. Every judge in the Southern District of New York recused, and they had to bring in a judge from Pennsylvania to handle the trial.[/code]