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Why Judge Beaty should recuse himself
Topic Started: Mar 19 2011, 01:05 PM (3,759 Views)
Quasimodo

Again, can all this history be put out of his mind (virtually his entire life story--including the struggle to
get him confirmed as the first African-American judge on the Fourth District Bench, which was held up
for four years by Jesse Helms)--

so that he can rule that major black organizations which were part of that righteous struggle
may now have to suffer disgrace and even admit to criminal conspiracy

so that out-of-state privileged white youth can prevail against them?

Are we obliged to say that there is no possibility that his own life experiences
have influenced him? And that because he is a federal judge, he has no personal
feelings?

Some people could put all that behind them. Perhaps Judge Beaty is one of them.

I have no way to see into his mind; and I can only judge him by his actions.

And his actions do not go far enough to dispel the appearance of bias.

In fact, they create such an appearance.

Ergo, even though he may in fact not be guilty of bias; as noted in the first post,
that appearance is sufficient to require that he recuse himself.


Edited by Quasimodo, Mar 19 2011, 10:34 PM.
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Quasimodo

Quote:
 
http://blogs.phoenixnewtimes.com/bastard/2009/07/mary_murguia_recuses_self_afte.php

Joe Arpaio Scores: Judge Mary Murguia Recuses Self From Racial Profiling Lawsuit Against Joe Arpaio

By Stephen Lemons, Thu., Jul. 16 2009

In a surprise turn of events yesterday in the ongoing racial profiling lawsuit against Sheriff Joe Arpaio (Melendres v. Arpaio), U.S. District Judge Mary Murguia recused herself from the case in response to a motion filed in February by the sheriff's legal team. The motion claimed that because Murguia's twin sister Janet is President and CEO of the National Council of La Raza,a Hispanic advocacy group that's been harshly critical of Arpaio's immigration policies, the judge was therefore biased against Arpaio and must step aside.

Murguia disagreed with almost all of the defense's argument
s in her 27 page order, pointing out that "no reasonable person would automatically ascribe the views of one sibling to another." However, she ultimately concluded that, "the Court is mindful that it must be vigilant to avoid even the slightest appearance of impropriety," and granted the defense's motion for recusal, directing the clerk of court to reassign the case to another judge by random lot. This has already been done, and the case is now assigned, at least temporarily, to the Honorable Lawrence O. Anderson, a Magistrate Judge.

(snip)

"Our position was that there's absolutely no reason in the law where she has to recuse herself," said ACLU legal director Dan Pochoda (the ACLU joined the amended complaint last year). "We thought [recusal] was not required, but if the judge thought so, so be it."

(snip)

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Quasimodo

Quote:
 
Case 2:07-cv-02513-MHM Document 138 Filed 07/15/2009 Page 1 of 27

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,)No. CV-07-2513-PHX-MHM

Plaintiff, ORDER

vs.


Joseph M. Arpaio, et al.,

Defendant.

(snip)

On February 23, 2009, thirteen days after the Court’s Order was
entered, Defendants moved to recuse the Court under both 28 U.S.C. § 144 and 28 U.S.C.
§ 455.

(snip)

The Court has an identical twin sister, Janet Murguia. Janet Murguia is currently
President and CEO of the National Council of La Raza (“NCLR”). NCLR is the largest
national Latino civil rights organization in the United States. Janet Murguia previously
served as Deputy Director of Legislative Affairs to President William J. Clinton, and as
Executive Vice Chancellor for University Relations of the University of Kansas.
Furthermore, one of the Court’s older brothers, Ramon Murguia, an attorney in private
practice in Kansas City, Kansas, has also been affiliated with NCLR, having served on the
organization’s Board of Directors, including a term as its Chairman.

(snip)

Overall, the law supports the denial of Defendants’ recusal motion as untimely.
However, because the Court must abide by an unwavering commitment to the perception of
fairness in the judicial process, it will not deny the petition on the basis of timeliness and will
instead address the substantive questions raised by the request for recusal.


B.
Whether The Court Is Actually Biased Against Defendants Under §
455(b)(1)

(snip)

Defendants set forth their bias argument by asserting, without reference to any
evidence whatsoever,
that the Court “has a natural, personal bias in favor of Plaintiffs, as well
as [a] corresponding, natural prejudice against Defendants.
This bare
bones assertion, even in combination with similar statements peppered throughout
Defendants’ motion, falls well short of the “compelling evidence” standard
promulgated by
the Seventh Circuit in Hook. See Hook, 89 F.3d at 355. As Plaintiffs argue in their
opposition brief, Defendants can point to nothing the Court has ever done to suggest that it
holds an opinion of any party that is wrongful or inappropriate.


Moreover, Defendants, in particular Maricopa County and Sheriff Arpaio, are frequent
litigants before this Court on a wide variety of civil matters. It is not an overstatement to say
that the Court has presided over a countless number of cases involving these Parties, and it
has ruled in Defendants’ favor on scores of their dispositive motions. The Court can think of
no other case involving either Maricopa County or Sheriff Arpaio where it has been accused
of harboring a “personal animus or malice” towards either one of them.

(snip)

In light of the record before the Court, Defendants’ “natural bias” contention could
easily be interpreted as an argument that this Court’s alleged bias somehow flows from her
racial heritage.


Obviously, such an argument would be unwarranted and baseless.
Beyond
that, the idea that an Hispanic judge should never preside over a controversial case concerning
alleged acts of racial profiling purportedly committed against Hispanics is repugnant to the
notion that all parties are equal before the law, regardless of race. See Plessy v. Ferguson, 163
U.S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither
knows nor tolerates classes among citizens.”).

Given the absence of any factual foundation
5In their reply brief, Defendants proclaim that the Court’s race played no role in their
recusal motion, and that they are not contesting whether a Hispanic judge should ever sit on
a case concerning Hispanic civil rights, only that this Court should not sit on this case given
the nature of her sister’s work and the public positions advocated by her employer.

(snip)

E.
Whether The Court’s Impartiality Might Reasonably Be Questioned under
§455(a)

The more difficult question presented by this motion is whether the Court’s impartiality
might reasonably be questioned under 28 U.S.C. §455(a). The standard for recusal under
§455(a) is “whether a reasonable person with knowledge of all the facts would conclude the
judge's impartiality might reasonably be questioned.”
Taylor v. Regents of Univ. of Cal., 993
F.2d 710, 712 (9th Cir. 1993), cert. denied, 510 U.S. 1076 (1994).

The Court is acutely aware that it owes an independent duty to uphold the integrity of
the judicial system, see Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988)
(recognizing that the purpose of § 455(a) is “to promote public confidence in the integrity of
the judicial process by avoiding even the appearance of impropriety whenever possible”
),
even when a party’s pleadings are bombastic and its position relies upon inflammatory and
meritless forms of argumentation.
This Court will not dodge the critical question of whether
its continued role in this case is appropriate under the circumstances, even though it would
have been entirely justified in denying Defendants’ recusal motion on timeliness grounds
alone.

Two competing concerns govern the Court’s decision on the merits of this question.
First, of course, “[t]he test for recusal under [§ 455(a)] asks “whether a reasonable person with
knowledge of all the facts would conclude the judge’s impartiality might reasonably be
questioned.”
Taylor, 993 F.2d at 712. Critically, “the judge’s actual state of mind, purity of
heart, incorruptibility, or lack of partiality are not the issue.
Nichols v. Alley, 71 F.3d 347,
351 (10th Cir. 1995) (internal quotations and citations omitted).

The test is purely an
objective one, which focuses on “whether a reasonable person perceives a significant risk that
the judge will resolve the case on [any] basis other than the merits.”
In re Mason, 916 F.2d
384, 385 (7th Cir. 1990); Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (“The
inquiry is whether a reasonable person would have a reasonable basis for questioning the
judge’s impartiality, not whether the judge is in fact impartial.”).

(snip)

Second, courts have “a strong duty to sit” when there is no legitimate reason to recuse.
Clemens v. U.S. Dist. Ct. For the Cent. Dist. of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005).
A judge should not recuse him or herself based “on unsupported, irrational, or highly tenuous
speculation; were he or she to do so, the price of maintaining the purity of appearance would
be the power of litigants or third parties to exercise a negative veto over the assignment of
judges.” In re United States, 666 F.2d 690, 694 (1st Cir. 1981).

As the Parties acknowledge in their filings, this is a high profile case, one that is not
likely to be free from controversy, regardless of who is presiding over it. . .

Further, allegations of violations of Constitutional rights often arouse
strong public passions. These passions are no doubt shared by both those who allege the
violations and those who dispute them.


(snip)

Nonetheless, the Court recognizes its somewhat unique position, in that the Court’s
twin sister plays a prominent public role in advocating policy positions that diametrically
oppose those taken by Defendants. At the same time, the statute does not require the Court
to recuse itself from a matter merely because a case concerns Hispanic civil rights, our
nation’s immigration policy, or some related matter. Section 455(a) does not require such a
cautious approach on the part of a judge, and the Court must be careful to avoid allowing her
sister’s public profile to serve as a proxy for a race-based recusal challenge.

Also providing
context to this inquiry is the rather unremarkable yet often overlooked proposition that “[a]
district judge is not a sterile creature who dons judicial robes without any prior contacts in the
community but rather is very likely to be a man or woman with a broad exposure to all kinds
of citizens of all shades of persuasion and background.”
United States v. Suren, 1992 U.S.
App. LEXIS 38216, *16 (9th Cir. Aug. 18 1992) (Memorandum Opinion) (quoting In re
Searches Conducted on March 5, 1980, 497 F. Supp. 1283, 1290 (E.D. Wis. 1980) (internal
citations omitted)).

(snip)

One of the focal points of the Parties’ arguments in this case is the notion that a judge
might be seen as unwilling to take a position inconsistent with her sibling’s ideological,
political or social interests.


(snip)

In weighing the Parties’ competing views, there is little, if any, guidance from case
law. The Parties have not cited to—and the Court is not aware of—a similar case, where
nothing more than a sibling’s political or social affiliations could arguably create the
appearance of impropriety for a judge under § 455(a).
Cognizant that a “reasonable person”
is well-informed and thoughtful, the Court agrees with Plaintiffs that no reasonable person
would automatically ascribe the views of one sibling to another.


(snip)

A reasonable
and impartial observer apprised of all the facts would not conclude that identical twins are
more likely to share a common view point or interests than other siblings, much less that a
twin who is a judge would be incapable of impartiality. The Court is not aware of any
evidence that would tend to show that it has been unduly influenced by her sister’s political
or social views.
Moreover, there is no proof that the Court, in light of her sister’s stated
positions, would be hesitant to rule against Plaintiffs, if the law so required.


(snip)

On the one hand, the views of the Court’s sister and her organization cannot be fairly imputed
to the Court, and there is nothing in the record to support an inference that the Court would
be unwilling to issue a ruling contrary to her sister’s publicly-held positions.
On the other
hand, much of the commentary contained in the articles is highly disparaging of specific
Defendants in this case, and the website takes a strong stand on disputed factual matters lying
at the heart of the litigation.

The United States Court of Appeals for the Ninth Circuit has instructed that when a
case is close, the balance should tip in favor of recusal.
United States v. Holland, 519 F.3d
909, 911 (9th Cir. 2008) (quoting United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.
1993)). No Court should tolerate even the slightest chance that its continued participation in
a high profile lawsuit could taint the public’s perception of the fairness of the outcome
.

Certainly, this Court is unwilling to take such a risk. Thus, because at the district court level
all doubts should be resolved in favor of recusal when the issue is close, strictly on the sole
issue remaining—whether the Court’s impartiality might reasonably be questioned under
Section 455 (a)—the Court, in an abundance of caution, will recuse itself from this matter.

Accordingly,
IT IS HEREBY ORDERED granting Defendants’ Motion for Recusal. (Dkt.#63.)
IT IS FURTHER ORDERED directing that the Clerk reassign this case to another

judge in the District of Arizona by random lot.

DATED this 15th day of July, 2009.




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Quasimodo

Quote:
 
http://www.charlotteobserver.com/2011/03/09/2124908/ri-judge-recuses-self-in-brown.html

Judge recuses self in Brown University rape suit


By IAN MacDOUGALL
Wednesday, Mar. 09, 2011

PROVIDENCE, R.I. A federal judge in Rhode Island recused himself Wednesday from a lawsuit brought by a former Brown University student who says he was falsely accused of raping a classmate and unfairly pressured to leave school, a move likely to send the case to a judge in New Hampshire.

Judge Ronald Lagueux said he based the decision on his relationship with a defense attorney in the case who, he said, would also probably appear as a witness. The attorney, Joseph Cavanagh, represented Lagueux in judicial proceedings in 1988.

"I'm recusing myself because not only did Joseph Cavanagh represent me, but I've known him for a long time, and I have a great deal of respect for him," Lagueux said, explaining his recusal. "A reasonable person looking at this might conclude that I could have some partiality for Joseph Cavanagh as a witness."

(snip)

Cavanagh may have to take the witness stand
to answer accusations that he put undue pressure on McCormick to sign the settlement agreement, Lagueux said.

(snip)



Will Barber have to take the stand? Joyner? Stephens? Wagoner? Titus? Hudson? Bell? Baker?
Does Beaty know any of these people? Has he ever worked with any of them?
Can he say he "has a great deal of respect" for them?

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Quasimodo

Quote:
 
The terms, “biased” or “prejudiced,” when used in reference to a judge
before whom a cause is pending, implies a hostile feeling or spirit of ill will
or undue friendship or favoritism toward one of the litigants
or his attorney,
with the formation of a fixed anticipatory judgment on the part of the judge,
as contradistinguished from an open state of mind which will be governed by
the law and the facts. State ex rel. Pratt v. Weygandt (1956), 164 Ohio St.
463.
OHIO JUDICIAL CONFLICTS – DISQUALIFICATION/RECUSAL RULE


Who are the plaintiffs in the suits? Are they individuals who have a claim of injury?

Or are they perceived as out-of-state students from families of privilege?

("Carpetbagger families"?)

Can such receive a fair trial in North Carolina?

Can they do so after a deluge of adverse publicity (over 100,000 print articles)?

Can the judge fail to have been affected by this?

(I don't know. I can only judge by appearances. And in matters of recusal,
it is appearances that count.)
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Quasimodo

Quote:
 


http://ftp.resource.org/courts.gov/c/F2/853/853.F2d.1351.86-1483.html

(snip)

In addition to realleging that Judge Feikens graduated from the Law School and is acquainted with several of its faculty and administrators, Easley alleged the following associations between Judge Feikens and the University of Michigan Law School [which was involved in the case] :

32
(1) That Jon Feikens, Judge Feikens' son, graduated from the Law School in 1966;

33
(2) That Jon Feikens and Robert Feikens, also a son of Judge Feikens, are members of Judge Feikens' former law firm, whose client list includes the University of Michigan Hospital;

34
(3) That Judge Feikens is an active member of the Law School's Committee of Visitors;

35
(4) That Judge Feikens is an active member of the University of Michigan Club; and

36
(5) That Judge Feikens served on the Board of Governors of the University of Michigan Fund.

(snip)

Nonetheless, the procedural shortcomings of Easley's motion do not bar our consideration of its merits under the separate disqualification provisions of Sec. 455.

39
Section 455(a) is a self-executing provision for the disqualification of federal judges. There is no particular procedure that a party must follow to obtain judicial disqualification under Sec. 455(a). Instead, this section sets forth a mandatory guideline that federal judges must observe sua sponte.

40
Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir.1980) (footnotes omitted). Further, the fact that Judge Feikens' rulings in the case might be legally correct does not render Easley's motion moot.

41
The purpose of the disqualification statute is to avoid even the appearance of impropriety; the appearance of impropriety is not lessened by the fact that the litigation would have come out the same anyway.

42
Health Serv. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 801 (5th Cir.1986), aff'd, --- U.S. ----, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Accord 13A C. Wright & A. Miller, Federal Practice and Procedure: Civil, Sec. 3553 at 657 (1984).

(snip)

46
We do not mean to suggest that Judge Feikens somehow lacked candor in the proceedings below simply because his membership on the Committee has been raised initially on appeal. Indeed, the information about Judge Feilkens' membership on the Board of Visitors and his son's association with his former law firm were obtained by Easley from a biographical resume previously provided by Judge Feikens to the clerk of the district court for distribution to interested members of the public. Rather, we stress that:

47
The goal of Sec. 455 is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearanceof partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible.

The judge's forgetfulness, however, is not the sort of objectively ascertainable fact that can avoid the appearance of partiality. Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983). Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.

48
Liljeberg, --- U.S. at ----, 108 S.Ct. at 2202 (quoting Health Service Acquisition Corp. v. Liljeberg, 796 F.2d at 802 ) (emphasis added ).

(snip)


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Quasimodo

The Timothy Sherman case drew a lot of criticism. For reference' sake, it follows
in the post below this:


Quote:
 
http://www.libertyparkusafd.org/lp/Jay/ebooks%5CAn%20Independent%20Judiciary.htm



Report of the ABA Commission on Separation of Powers and Judicial Independence

(snip)

A. DECISIONAL INDEPENDENCE ISSUES

Over the course of the Commission's hearings, a number of issues surfaced
concerning perceived threats to the ability of individual judges to render
impartial decisions in individual cases without inappropriate outside
interference.

1. Judicial Criticism

In recent years, a number of judges have been criticized, sometimes severely,
by elected officials, the press and public, for decisions in particular cases.
There is, moreover, reason to suspect that this recent cycle of judicial
criticism is and will remain on the upswing. A booklet widely circulated on
Capitol Hill urges members of Congress to initiate impeachment proceedings
against "activist" judges, regardless of whether such efforts are likely to
result in removal:

Even if it seems that an impeachment conviction against a certain official
is unlikely, impeachment should nevertheless be pursued. Why? Because just
the process of impeachment serves as a deterrent. A judge, even if he knows
that he is facing nothing more than a congressional hearing on his conduct,
will usually become more restrained in order to avoid adding "fuel to the
fire" and thus giving more evidence to the critics calling for his
removal.13

This view has not been ignored in Congress. In March 1997, the Majority Whip
of the House of Representatives stated that "[a]s part of our conservative
efforts against judicial activism, we are going after judges"; that "Congress
has given up its responsibility in [overseeing] judges and their performances
on the bench, and we intend to revive that and go after them in a big way."14
The following episodes of judicial criticism are illustrative of those brought
to the Commission's attention.

(snip)

District Judge James Beaty: In December 1995, District Judge James Beaty,
sitting by designation on the United States Court of Appeals for the Fourth
Circuit, voted with the majority of a three judge panel to overturn the
conviction of and grant a new trial for murder defendant Timothy Sherman.24
At the time, Judge Beatty's nomination to the United States Court of Appeals
for the Fourth Circuit was pending. In February 1996, the Senate Judiciary
Committee Chairman said on the floor of the Senate:

President Clinton is rewarding Judge Beaty by promoting him. While the
President cannot force activist, soft-on-crime judges to resign, he can
choose to keep them where they are instead of promoting them to the
appellate courts where they can do even more damage to the law and to our
communities. Maybe he ought to withdraw the nomination.

(snip)
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Quasimodo

Quote:
 


http://law.justia.com/cases/federal/appellate-courts/F3/70/1263/601159/


70 F.3d 1263:
Before MURNAGHAN and WILKINSON, Circuit Judges, and BEATY, United States District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:
Timothy Sherman, convicted in the Maryland Circuit Court for Harford County for the shotgun murders of his mother and stepfather, sought habeas corpus in the federal district court because of a claimed error which occurred during his trial. A juror, without the trial judge's permission and in contravention of the handbook distributed to jury members at the start of the trial,1 visited the scene of the crime and particularly, a tree in the branches of which authorities had located the murder weapon. The juror explained to another jury member that he went "so that everything would be clearer in his mind" and because he was dissatisfied with the photographs of the tree.

The district court presumed error, but found it harmless trial error and denied the writ. It appears evident that there was error. Not following a rule that is consistently and uniformly practiced cannot be correct. However, the question remains whether the error was harmless. Brecht v. Abrahamson, 113 S.Ct. 1710, 1722 (1993). Because we have concluded that the error was not harmless, O'Neal v. McAninch, 115 S.Ct. 992, 995 (1995), there is no reason for us to investigate whether it was structural. See Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991) (discussing distinction between structural and trial errors). We need only to give the error significance, even if it is merely trial error.

Our conclusion of non-harmlessness proceeds from the consequences of several circumstances:

It denigrates much of our entire judicial system when a juror takes into account factual matters not before the jury as a whole and communicates what he so has learned to other jurors, all in contravention of the jury instructions.

The capability of Sherman to place the shotgun amid the branches as it was found was a question in the trial, and an answer to it, for a juror dissatisfied with the photographs of the tree,5 could be clarified by an actual visual inspection.

The juror's description of his erroneous visual viewing may well have affected the factual viewpoints of the other jury members.

Aside from what the view of the tree would disclose, the other evidence against Sherman was conflicting, particularly since no evidence of gunpowder residue was found on Sherman.

We cannot say, therefore, that the error did not have a "substantial and injurious effect or influence" on the jury's verdict. Brecht, 113 S.Ct. at 1722 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946));8 see also O'Neal, 115 S.Ct. at 995.

What the juror saw and what he described to other jurors certainly influenced the jury's verdict. Unlike other cases in which courts have found an error harmless in light of "overwhelming" or clear evidence against the defendant, see, e.g., Correll v. Thompson, 63 F.3d 1279, 1291-92 (4th Cir.1995), the case against Sherman is less than compelling. The evidence is largely circumstantial. The prosecution presented no eyewitnesses to the killings, no confession by Sherman, nor any evidence of gunpowder residue, tree sap, or pine needles on him. See id. (finding admission of defendant's confession harmless in light of co-defendant testimony, eyewitness accounts, and other testimony that defendant admitted involvement in crime).

Bearing all the considerations which must be taken into account, the error was not harmless. Granting a writ of habeas corpus does not necessarily set Sherman free. If the state of Maryland elects promptly to retry him, a jury, acting properly, may well again convict. It also may not, however, for Sherman, like all criminal defendants, must be proven guilty beyond a reasonable doubt. But a subsequent trial, unlike the trial at issue, presumably would be conducted without harmful error, which is a basic objective of our judicial system.

Accordingly, the writ is granted, subject to the right of Maryland to retry Sherman on the charges of murder within six months of our adoption of this order.
WRIT GRANTED

---------------------------------------------------

WILKINSON, Circuit Judge, dissenting:

I respectfully dissent. It is clear that juror Miller's unauthorized visit to the crime scene constituted trial error, but it is equally clear that the error was harmless under the standard enunciated in Brecht v. Abrahamson, 113 S.Ct. 1710 (1993). See also Smith v. Dixon, 14 F.3d 956, 974-81 (4th Cir.1994).

(snip)

First, the state offered powerful evidence at trial that Timothy Sherman killed his mother and stepfather.

The murder occurred in the middle of the night when Timothy Sherman was home; there was no indication of forced entry, and the house was equipped with an alarm system. The murder weapon was a 12-gauge shotgun that belonged to the Shermans. Police discovered Timothy Sherman's fingerprints on the weapon's trigger mechanism and a box of 12-gauge shotgun shells under his mattress. The box itself contained only three shells, and police located two matching (the box held five) expended shells that experts concluded were fired from the murder weapon. Police found the shotgun lodged in the branches of a large tree, where Timothy Sherman had previously hidden objects and which is located between his own house and that of his grandparents where he ran to report the murder. It is true that there was no sign of gunpowder residue on Timothy Sherman and no pine needles or sap were found on his clothing. But against the powerful array of evidence presented at trial, these facts seem insubstantial.

Second, little prejudice could have resulted from the juror's visit to the crime scene. Juror Miller apparently traveled to the scene in order to see the hiding place for the weapon, even though aerial photo graphs of and testimony about the tree had been introduced into evidence. When the district court considered the prejudicial effect of the visit, it granted Sherman the benefit of several assumptions: "that Miller examined the tree, told the other jurors that he disagreed with the photographs, and concluded that it was possible for Sherman to hide the gun in the tree in the condition in which it was found."

Even under these assumptions, however, the district court found that the error was harmless because substantial evidence demonstrated that Timothy Sherman hid the weapon in the tree. That evidence included photographs showing that Timothy Sherman had an opportunity to hide the weapon in the tree and testimony that he used the tree as a hiding spot and would have been physically able to wedge the gun in the tree. Given this context, the district court appropriately concluded that the juror's site visit "was cumulative of the detailed evidence presented at trial" about the neighborhood where the murder took place and the hiding place for the weapon.

In light of all the evidence presented at trial, Juror Miller's unauthorized excursion to the crime scene was harmless. Brecht, 113 S.Ct. at 1722; Smith, 14 F.3d at 979. I would affirm the judgment of the district court for the reasons set forth in its careful opinion.

---------------------

(notes) :

At sentencing, the trial judge acknowledged that "there's no question that [the juror] had violated instructions which were given about not doing his own investigation" but then found the visit did not constitute prejudicial error

The trial judge had refused Sherman's request for a jury visit to the crime scene. He believed "the issue was fully covered" and consequently, the trip would be a waste of time and resources

The federal district judge declared that the prosecution's most crucial photograph, a close-up of the pine tree, "does not show me anything on its face."

The attorneys at the sentencing hearing were prohibited from inquiring why the juror searched for the neighborhood and the tree. Yet the evident effect of doing so illuminates the motivation behind his investigation. In addition, the juror testified: "The reason why I went there was so I could see the tree that was so much in question."

(snip)

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Quasimodo

The following three posts show more of Judge Beaty's background. He cannot have been unaware
of where he came from, or the struggles necessary for him to advance to his present
position.

Whether or not this resulted influencing his later decisions is unknown; and is not to the point.

What is relevant is whether or not, in examining his background, and the unusual handling of the
lacrosse case, a reasonable person might have cause to wonder if personal bias exists which
is affecting the case (consciously or subconsciously).

And if a reasonable person can have such doubts, then the proper course for a judge is to
recuse himself, in order to avoid even the appearance of potential bias.

(Recall what is is that Judge Beaty is being asked to do--to side with those who throughout his
entire life have been regarded as opponents of his equality; and to compel those organizations which fought
in the struggle for equality to be revealed as having potentially aided a criminal conspiracy.)




Quote:
 


THE UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
A SESQUICENTENNIAL HISTORY
III. THE EVOLUTION OF THE MODERN LAW SCHOOL: CRUCIAL TRENDS THAT BRIDGE PAST AND FUTURE

73 N.C. Law Review 675 (1995)
by
Charles E. Daye

The number of minority students who earned degrees from the School of Law at the University of North Carolina at Chapel Hill remained small throughout the 1960s. From 1960 to 1970, only eight degrees were awarded to African-Americans.# Undoubtedly this group was no less determined, well-motivated, and challenged than the door openers and the early pioneers had been to enroll in the law school of the state's flagship public university.

No degrees were awarded to minorities in 1960, 1965, 1966, 1969.
The eight degrees were awarded to African-Americans as follows: 1961 -- 1; 1962 -- 4; 1963 -- 1; 1964 -- 1; 1967 -- 1


The early 1970s opened a new era in the law school. A visit by Professor Harry Groves to teach in the summer session of 1970, making him the first African-American to teach at the Chapel Hill law school, and the hiring of the author of this essay in the fall of 1972 as the first African-American permanent faculty member, signalled a commitment by the dean and the faculty to create a more diverse law school.

Because of the three-year lead time to reach graduation, the graduation of minorities in the decade of the 1970s, of course, started slowly. Only one minority student graduated in the class of 1970, two in 1971, three in 1972, two in 1973, and three in 1974. The earlier work began to pay off in 1975 when six minorities graduated. In 1976 a quantum leap of sixteen minority students graduated.

Two of the three minority members of the class of 1974 are judges. James A. Beaty, Jr., entered private practice in Winston-Salem, North Carolina after graduation. He was appointed a North Carolina Superior Court Judge in 1981, and was reelected to that position until his appointment as a United States District Judge for the Middle District of North Carolina in November 1994.

(snip)
Edited by Quasimodo, Mar 21 2011, 06:42 PM.
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Quasimodo

The following letters were sent to the the Senate Judiciary Committee
Chairman (Sen. Patrick Leahy) on the nomination of Judge Shedd
to the Fourth Federal Circuit; and demonstrate the volatile and racially-charged
nature of appointments to that seat:



Quote:
 

http://www.gpo.gov/fdsys/pkg/CREC-2002-11-18/html/CREC-2002-11-18-pt1-PgS11247-3.htm

Congressional Record Volume 148, Number 149 (Monday, November 18, 2002)]
[Senate]
[Pages S11247-S11284]

Legislative Black Caucus,

Columbia, SC, September 4, 2002.
Re Fourth Circuit Nomination of Judge Shedd.


Dear Senator Leahy:

(snip)


African-Americans constitute a full one-third of South
Carolina's population, yet there is only one active African-
American federal judge in the state. And, there are only two
South Carolinian female federal judges, one on the federal
District Court and the other on the Fourth Circuit. This is
unfair and unjustified because there are many well-qualified
African-American and women jurists and lawyers who deserve an
opportunity to serve this nation on the federal judiciary.

Because African-Americans are one-third of South Carolina's
population and the Fourth Circuit has a greater number of
African-Americans than any circuit, it is critical that any
nominee, especially one from South Carolina, be an unabashed
champion of civil rights. The appointee should have a record
that demonstrates fairness and justice to all people. Based
on our careful review of Judge Dennis Shedd's performance on
the U.S. District Court for the District of South Carolina,
we have concluded that his record shows a serious hostility
to civil rights and constitutional protections.

(snip)

This record shows that Judge Shedd does not have an abiding
concern for civil rights and fairness. It further shows that
Shedd lacks the requisite moderate reasoning to bring balance
to the Fourth Circuit. In fact, his membership to the Fourth
Circuit would push it further beyond the mainstream of
American values and would subject South Carolinians and
residents of other states within the Fourth Circuit to an
extreme right-wing interpretation of this nation's civil
rights laws and constitutional protections.

Accordingly, we oppose Judge Shedd's nomination without
reservation. His values represent the Old South, where
African Americans and women were judged by different and
unequal standards.

Sincerely,
Joseph H. Neal,
Chairman.

------------------------------------

South Carolina State Conference, National Association for
the Advancement of Colored People,

Dear Chairman Leahy: We write to oppose the nomination of
Dennis Shedd to the Fourth Circuit Court of Appeals.

By now, you must be familiar with the importance of the
Fourth Circuit to the African American community.
Almost a
quarter of the Fourth Circuit's residents are African
American. The Fourth Circuit, with over 6 million African
Americans in the five states, has the greatest number of
African Americans of any Circuit Court in the country. The
Latino population within the Fourth Circuit now at more than
one million persons, has nearly tripled in the last decade.
Based on these demographics, more may be at stake here for the future
of civil rights than in any other Circuit Court in the
country.

The Fourth Circuit is already an extremely conservative
Court on civil rights and Constitutional issues.

(snip)

This is also the Court to which moderate African American
nominees were repeatedly denied membership.
No fewer than
four African Americans were nominated to this Court by
President Clinton, only to have their nominations languish
for years due to Senatorial obstruction. [including Beaty] Thus, if a nominee
is to be confirmed to this Court, the nominee must be a
jurist who will bring moderation and ideological balance to
this Court. It is our strongly held view that this nominee is
not Dennis Shedd.


Judge Shedd's judicial record reveals a deep and abiding
hostility to civil rights cases.

(snip)

Our membership in South Carolina, deserves to be
represented on the Circuit by a nominee who has a record of
judicial impartiality, is committed to the progress made on
civil rights and individual liberties, and has a deep respect
for the responsibility of the federal judiciary to uphold
that progress. Dennis Shedd is not that nominee. We urge you
and the Senate Judiciary Committee to vote against his
nomination.
Sincerely,
James Gallman,
President.

--------------------------------

Rainbow Push Coalition

Chicago, IL, August 24, 2002.

Dear Senator Leahy:

(snip)

As a native of South Carolina, I am deeply disturbed by the
direction taken by the Fourth Circuit in recent years. As a
Judicial Circuit with considerable influence on the Supreme
Court, those elevated to the Court should reflect the highest
American ideals of inclusion and equal protection under the
law. Moreover, the states included in the Fourth Circuit are
comprised of the highest percentage of African Americans,
than any other Circuit, thus judges on the Court must be
sensitive and respectful for the civil rights laws for which
we fought so hard.
Currently, the Fourth Circuit is the most extremist court
in the nation on civil rights issues,
criminal justice
issues, and those involving the power of the federal
government, to enact legislation, which holds States
accountable for civil rights violations. The nomination of
Dennis Shedd threatens to take the Court in a further
extremist direction. . .


To preserve this nation's ideals of inclusion, and to
ensure equal protection under the law for all Americans
, I
urge you, and other members of the members of the Senate
Judiciary Committee to vote ``No'' on the nomination of
Dennis Shedd.
Sincerely,
Reverend Jesse L. Jackson, Sr.
-------------------------------

National Bar Association,

Washington, DC, September 4, 2002.



Dear Senator Leahy: The National Bar Association hereby
submit this letter in strong opposition to the confirmation
of Dennis Shedd to the United States Court of Appeals for the
Fourth Circuit. We strongly urge you to vote to defeat his
appointment to this critical Court.
The National Bar Association, established in 1925 is the
oldest and largest organization of minority attorneys,
judges, legal scholars and law students in the United States
and in the world. During our 77 year history we strive to
obtain equal justice for all persons within the jurisdiction
of these United States of America. Real diversity can only be
achieved as a result of equal justice for all which directly
results in equal opportunity. Real diversity, equal justice,
and equal opportunity does not currently exist in our federal
judiciary.


The National Bar Association maintains a watchful eye on
federal judicial nominations, as part of its' historical
mission. We have a duty and obligation to support or oppose any
nomination which directly affects our struggle for equal
justice and equal opportunity for all.
During these difficult
times, the United States of America must set an example to
the world by assuring equal justice and equal opportunity to
a truly diverse nation.

The National Bar Association feels, confirmation of Dennis
Shedd to the United States Court of Appeals for the Fourth
Circuit will severely undermine and inhibit its' goals of
equal justice for all, equal opportunity for all, and real
diversity. In our opinion the one thing which insulates the
United States of America from anarchy, civil strife, etc. is
our Constitution (as currently amended), which provides an
open judiciary, where any citizen regardless of race, creed,
color, gender, economic status, social status, etc. can seek
redress. Absent an open federal judiciary, citizens will seek
other less civil means to voice their concerns and seek
redress.
An open judiciary is the balance for the scales of
justice.

(snip)

Sincerely,
Malcolm S. Robinson,
President.

------------------------------

The National Black Caucus


of State Legislators,

Washington, DC, September 19, 2002.

Dear Senator Leahy: The National Black Caucus of State
Legislators (NBCSL) is the body that represents some 600
African American state legislators in 44 states, the District
of Columbia and the U.S. Virgin Islands. . .

…In reviewing the
information presented therein and having also researched the
history and record of Judge Shedd, we find it woefully
deficient regarding the issues of fairness, equality and
justice. Moreover, as has been pointed out by our colleagues
in South Carolina ``African Americans constitute a full one-
third of South Carolina's population yet there is only one
active African American federal judge in the state.'' In that
there are unquestionably ``many, well-qualified African
American . . . jurists'' in South Carolina, this is rightly
seen an unfair and unequal treatment in the sight of fair
representation.
Further, considering the existent
disproportionate representation of jurists of Color,
certainly
an effort must be made to insure that any South Carolina
nominee be a strong advocate of civil and human rights.

(snip)


The Fourth Circuit must have a judge who is mindful of the
rightful place that African Americans have in this nation
,
and be a strong advocate of civil rights, human rights and
constitutional rights. Any nominee should have demonstrated
his dedication to such virtues and ideals. No other
individuals should be considered for this important position.

(snip)

Very truly yours,
James L. Thomas,
President.


--------------------------------

Congressional Black Caucus


of the United States Congress,

Washington, DC, July 26, 2002.

Dear Senator Leahy: On behalf of the Congressional Black
Caucus, we write to express our strong opposition to the
confirmation of Dennis Shedd to the United States Court of
Appeals for the Fourth Circuit. We urge you to vote to defeat
his appointment to this critical court.
The Fourth Circuit has the highest percentage of African-
American residents of any federal circuit in the nation. As
you know, President Clinton tried in vain for many years to
integrate the Fourth Circuit by nominating no fewer than four
moderate African-Americans to the court, only to see their
nominations languish.
James Beaty and James Wynn from North
Carolina, Andre Davis from Maryland and Roger Gregory from
Virginia were never given hearings before the Judiciary
Committee at any time during the Clinton presidency. It was
not until President Clinton took the extraordinary step of
giving Roger Gregory a recess appointment in the final days
of his Presidency that the last all-White circuit court in
the nation was finally desegregated.


The Fourth Circuit is also the most conservative of the
federal circuits. Its rulings on the rights of those accused
of crimes, employees who face discrimination, and individuals
with disabilities are far outside the judicial mainstream.
Given the importance of the Fourth Circuit to the African-
American community
and the current ideological imbalance on
the Court, it is imperative that any nominee to this Court be
a jurist of moderate views who will protect the civil and
constitutional rights of all Americans. Dennis Shedd is not
that nominee.
Above all, we are concerned that any nominee to the Fourth
Circuit be committed to the rigorous enforcement of federal
civil rights laws. We are particularly troubled by Dennis
Shedd's record in this area.

(snip)

Sincerely,
Eddie Bernice Johnson, Chair;
John Conyers;
Edited by Quasimodo, Mar 21 2011, 06:43 PM.
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Quasimodo

Quote:
 

---------------------------------------

Letters of Opposition to the Nomination of Dennis Shedd to the 4th
Circuit Court of Appeals


Local Civil Rights Groups

NAACP of South Carolina State Conference, June 24, 2002;
May 21, 2002.
NAACP of Andrews Branch, August 7, 2002.
NAACP of Eutawville, South Carolina, August 7, 2002.
NAACP of Newberry, South Carolina, August 7, 2002.
NAACP of Hilton Head Island/Bluffton, South Carolina,
NAACP, August 24, 2002.
NAACP of Moncks Corner, South Carolina, August 7, 2002.
NAACP of Kershaw, South Carolina, September 17, 2002.
NAACP of Clarendon County Branch, August 12, 2002.
Urban League of the Upstate, Inc., South Carolina,
September 24, 2002.
NAACP of North Carolina, June 24, 2002; June 26, 2002.
NAACP of Maryland State Conference, September 4, 2002.
Progressive Maryland, August 8, 2002.
NAACP of California State Conference, September 9, 2002.
NAACP of Mississippi State Conference, August 24, 2002.
NAACP of Delaware State Conference, August 14, 2002.
Public Justice Center, October 7, 2002.
NAACP of West Virginia State Conference, August 14, 2002.
Quad County (IL) Urban League, September 27, 2002.
Birmingham Urban League, Inc., September 24, 2002.
Advocates for Ohioans with Disabilities, August 31, 2002.
National Organization for Women, Western Wayne County (MI),
October 8, 2002.


national civil rights groups

Black Leadership Forum, September 16, 2002, November 12,
2002 (Dr. Joseph E. Lowery).
NAACP, September 17, 2002 (Kweisi Mfume).
Mexican American Legal Defense and Educational Fund, Sept.
30, 2002 (Antonia Hernandez).
People for the American Way, June 24, 2002; September 4,
2002.
American Association of University Women, June 20, 2002;
November 14, 2002.
National Council of Jewish Women, August 15, 2002.
Rainbow/Push Coalition, August 24, 2002 (Reverend Jesse L.
Jackson, Sr.).
Alliance for Justice, November 15, 2002 (Nan Aron).
People for the American Way, November 15, 2002 (Ralph
Neas).
Leadership Conference on Civil Rights & Alliance for
Justice, July 11, 2002, coalition letter signed by the
following groups: Alliance for Justice and Leadership
Conference on Civil Rights August 30, 2002, NARAL, NAACP
Legal Defense and Educational Fund, NAACP, American
Association of University Women, ADA Watch, National Council
of Jewish Women, AFL-CIO, NOW Legal Defense and Education
Fund, People for the American Way, Feminist Majority,
National Partnership for Women and Families, National
Organization for Women, and Disability Rights Education and
Defense Fund.
Alliance for Justice and Leadership Conference on Civil
Rights, September 18, 2002, coalition letter signed by the
following groups: Leadership Conference on Civil Rights,
Alliance for Justice, People for the American Way, NARAL,
Planned Parenthood Federation of American, Human Rights
Campaign, National Organization for Women, American
Association of University Women, NOW Legal Defense and
Education Fund, National Family Planning and Reproductive
Health Association, National Council of Jewish Women,
National Abortion Federation, and The Feminist Majority.
Alliance for Justice and Leadership Conferee on Civil
Rights, November 15, 2002, coalition letter signed by the
following groups: Leadership Conference on Civil Rights,
Alliance for Justice, NARAL, NAACP Legal Defense and
Educational Fund, NAACP, People for the American Way,
American Association of University Women, Feminist Majority,
ADA Watch, National Partnership for Women and Families,
National Council of Jewish Women, National Organization for
Women, AFL-CIO, NOW Legal Defense and Education Fund, and
Disability Rights Education and Defense Fund.


elected officials

National Black Caucus of State Legislators, September 25,
2002.
South Carolina Legislative Black Caucus, September 4, 2002.
North Carolina Legislative Black Caucus, September 26,
2002.
Legislative Black Caucus of Maryland, Inc., September 9,
2002.
Wisconsin Legislative Black & Hispanic Caucus, August 21,
2002.
Margaret Rose Henry, State Senator, State of Delaware,
September 19, 2002, November 12, 2002.
Maryland State Delegate Howard ``Pete'' Rawlings, August
21, 2002.
Congressional Black Caucus, July 26, 2002, October 2, 2002.


bar associations

National Bar Association, September 4, 2002.
Old Dominion Bar Association, September 11, 2002.
North Carolina Association of Black Lawyers, August 30,
2002.
Alliance of Black Women Attorneys of Maryland, Inc., August
30, 2002.
National Employment Lawyers Association, September 17,
2002, November 15, 2002.
North Carolina Academy of Trial Lawyers, September 26,
2002.


law professors

UNC--Chapel Hill School of Law: John Carles Boger, Lissa L.
Broome, Kenneth S. Broun, John O. Calmore, Charles E. Daye,
Eugene Gressman, Ann Hubbard, Daniel H. Pollitt, and Marilyn
V. Yarbrough.
Duke University School of Law: Christopher H. Schroeder and
Jerome Culp.
North Carolina Central University School of Law: Renee F.
Hill, David A. Green, Irving Joyner, Nichelle J. Perry, and
Fred J. Williams.


Law School Students

Howard University School of Law Students, September 11,
2002, signed by 58 Howard University Law Students.


(snip)


Religious Leaders

South Carolinians, September 30, 2002.
Ms. Elvira Faulkner--McIlwain, Lancaster District Pee Dee
Conf. AME Zion Church.
Rev. Dr. Lloyd Snipes, Presiding Elder, Lancaster District
Pee Dee Conf. AME Zion Church.

[[Page S11257]]

Rev. Matthew L. Browning, Pastor, David Stand AME Zion
Church.
Rev. Dr. Reid R. White, Paster, El Bethel AME Zion Church.
Rev. Harold Jones, White Oak AME Zion Church.
Rev. Dr. Marion Wilson, Steele Hill AME Zion Church.
Rev. R.A. Morrison, Pastor, Salem AME Zion Church.
Rev. Albert Young, Pastor, Mt. Zion AME Zion Church.
Rev. Theodis Ingram, Pastor, Warner Temple AME Zion Church.
Rev. Henry I. Dale, Pastor, North Corner AME Zion Church.
Rev. Eldren D. Morrison, Pastor, Pleasant Hill AME Zion
Church.
Rev. Beatrice H. Massey, Pastor, Mt. Nebo AME Zion Church.
Rev. Dorothy N. Wallace, Pastor, New United AME Zion
Church.
Rev. Deborah Waddell, Pastor, Gold Hill AME Zion Church.
Rev. Thomas R. Moore, Mt Carmel, AME Zion Church.
Rev. Gloria Stover, Pastor, Greater Frazier AME Zion
Church.
Rev. Toby L. Johnson, Pastor, Clinton Chapel AME Zion
Church.
Rev. Len Clark, Pastor, Bingham Chapel AME Zion Church.
Rev. James R. Thomas Jr., Pastor, Camp Creek AME Zion
Church.
Rev. James E. Gordon, Pastor, St. Paul AME Zion Church.
Rev. Dr. Roy H. Brice, Pastor, Mt. Moriah AME Zion Church.
Rev. Albert Tucker, Pastor, Centennial AME Zion Church.
Rev. Roosevelt Alexander, Mt. Tabor, AME Zion Church.

-------------------------------------------------


Leadership Conference on Civil Rights and Alliance for
Justice,
Washington, DC, August 30, 2002.

Dear Senator Leahy: We, the undersigned civil and human
rights organizations, write to express our strong opposition
to the confirmation of Dennis Shedd to the United States
Court of Appeals for the Fourth Circuit.

(snip)

We strongly believe that the composition of the federal
judiciary is a civil rights issue of profound importance to
all Americans, because the individuals charged with
dispensing justice in our society have a direct impact on
civil rights protections for us all. As you know, the role of
the federal judiciary in protecting the rights of the
powerless is particularly acute in the Fourth Circuit, which
has the highest percentage of African-Americans of any
federal circuit in the nation.

(snip)

Sincerely,
Wade Henderson, Executive Director, Leadership Conference
on Civil Rights; Nan Aron, President, Alliance for
Justice; Kate Michelman, President, NARAL; Elaine R.
Jones, President and Director-Counsel, NAACP Legal
Defense and Educational Fund; Hilary Shelton,
Director--Washington Bureau, NAACP; Ralph Neas,
President, People for the American Way; Nancy Zirkin,
Director of Public Policy, American Association of
University Women; Eleanor Smeal, President, Feminist
Majority; Jim Ward, Executive Director, ADA Watch;
Judith L. Lichtman, President, National Partnership for
Women and Families; Marsha Atkind, National President,
National Council of Jewish Women; Kim Gandy, President,
National Organization for Women (NOW); William Samuel,
Director--Department of Legislation, AFL-CIO; Patrishia
Wright, Director of Government Affairs, Disability
Rights Education and Defense Fund; Liza M. Maatz, Vice
President of Government Relations, NOW Legal Defense
and Education Fund.
-----------------------------

National Association for the Advancement of Colored People,

Baltimore, MD, September 17, 2002.

Dear Senator: On behalf of the NAACP, the nation's oldest,
largest and most widely-recognized grass roots civil rights
organization, I am writing to let you know of the
Association's strong opposition to the nomination of District
Court Judge Dennis W. Shedd to the Fourth Circuit Court of
Appeals. Delegates from every state in the nation, including
the five states comprising the Fourth Circuit, unanimously
passed a resolution from the South Carolina State Conference
in opposition to the nomination at the NAACP's annual
convention in Houston in early July.
Members of the NAACP believe that the Federal judiciary, as
the final arbiter of the U.S. Constitution, is the branch of
government primarily charged with protecting the rights and
liberties of all Americans. In many instances in our nation's
history, the courts have been the only institution willing to
enforce the rights of minority Americans. We cannot afford to
permit the Federal judiciary to retreat from its
constitutional obligation and resort to the type of judicial
activism that threatens civil rights and civil liberties.
No other federal circuit reflects this extreme right-wing
activism more than the Fourth Circuit Court of Appeal,
which
is home to more African Americans than any other circuit. The
Fourth Circuit Court of Appeals' hostility to civil rights,
affirmative action, women's rights, voting rights and fair
employment is unrivalled. Its decisions are so far out the
mainstream that the Supreme Court has reversed the Fourth
Circuit on basic constitutional protections such as Miranda
warnings.

(snip)

Accordingly, as unanimously passed by the over 1,200
delegates to the 2002 NAACP National Convention, I ask that
you oppose the nomination and that you use your influence to
encourage the Senate Judiciary Committee to not vote him out
of Committee. However, if the nomination makes it to the
Senate floor, we ask you to vote against it.

Sincerely,
Kwesi Mfume,




Judge Beaty cannot have been unaware that he was the first African-American
judge appointed to the Fourth Circuit.

Now he is presiding over a case in which the President of the NC NAACP and others
affiliated with that and other civil rights organizations may be revealed to have participated
in a criminal conspiracy.

In effect, he is being asked to judge against those who struggled for so long to see that
he could achieve the position he holds.

Just as there are those in the Civil Rights division of the DOJ who will not prosecute cases
against African-Americans; there may be judges who feel the same way.

The Duke lacrosse case was one in which racial animus was deliberately incited
and in which racial stereotypes and prejudice played a primary roll.

Whether or not Judge Beaty has remained unaffected by all of this; and whether or not
he has been influenced (consciously or subconsciously) by a case which divided North Carolina
society, remains unknowable.

However, given the unusual handling of these cases--including judicial intervention to prevent
the normal course of testimony--and in which a reasonable person might come to believe that
there exists the possibility of bias on the part of the presiding judge,

it becomes incumbent upon that presiding judge, in the paramount interest of avoiding
even the appearance of bias, to recuse himself.

(Note that this "reasonable apprehension of bias" derives not from the judge's background
or his color; but from his actions, which are so unusual and so clearly detrimental to the interests
of the plaintiffs--resulting in irreparable harm through the death of witnesses and the loss
of evidence--that a reasonable person must have cause to wonder at the basis for it.)




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Quasimodo

Quote:
 
“Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality…to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.”.Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

“…an objective, disinterested, lay observer
fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality”.See Parker v. Connors Steel Co.,855 F.2d 1510 (11th Cir.) (1988) citing Potashnick v. Port City Const. Co., 609 F.2d 1101,1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed. 2d 22 (1980).

“justice must give the appearance of justice” Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954).

Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.").

That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice.”


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Quasimodo

Suppose now that Judge Beaty should rule against a substantial part of the plaintiffs' cases?

Will reasonable lay observers have cause to doubt whether or not bias played a part?

The City of Durham has argued:

“White Duke lacrosse players are not a protected class recognized as needing protection by the government under federal civil-rights law.”

What if Judge Beaty agrees? Whether or not that is a proper conclusion of the law, how many will be prepared
to believe it is because of his record of conceivably prejudicial actions in these cases?



Quote:
 


http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/43/0.pdf

F. Plaintiffs’ Federal Conspiracy Claims Relating to Alleged Deprivation
of Equal Protection Must Be Dismissed Because Plaintiffs Fail to Allege
Discrimination Against a Protected Class.


(snip)

Neither of these groups is a protected class. . .

The list of potential “classes” is neither large nor expanding. Indeed, “n
construing this requirement neither the Supreme Court nor the Fourth Circuit has
identified any classes other than racial or religious classes.” Trerice v. Summons, 755
F.2d 1081, 1085 (4th Cir. 1985) (military prisoners not “protected class”); Buschi v.
Kirven, 775 F.2d 1240, 1258 (4th Cir. 1985)

(“the class protected can extend no further
than to those classes of persons who are . . . in unprotected circumstances similar to those
of the victims of Klan violence.”
); Cloaninger v. McDevitt, No. 1:06CV135, 2006 U.S.
Dist. LEXIS 65913, at *18 (W.D.N.C. Sept. 3, 2006)

(“As recognized by the controlling
law in the Fourth Circuit,
. . . the only class of persons protected by Section 1985(3) are
African-Americans.”)
(citing Harrison v. KVAT Food Mgmt., 766 F.2d 155, 161-62 (4th
Cir. 1985)).

Because a claim under section 1986 is dependent upon the existence of a claim
under section 1985, section 1986 also requires that plaintiffs be members of a protected
class. See Brissett v. Paul, No. 97-6898, 1998 U.S. App. LEXIS 6824, at *4 (4th Cir.
April 6, 1998);
Trerice, 755 F.2d at 1085; Estate of Hezekiah Harvey v. Roanoke City
Sheriff’s Office, No. 7:06CV00603, 2007 U.S. Dist. LEXIS 12614, at *11-12 (W.D. Va.
Feb. 23, 2007)

(“Because the plaintiff has failed to allege facts supporting the existence
of such animus on the part of the defendants, the plaintiff’s conspiracy claim under §
1985 is subject to dismissal.
Moreover, because the plaintiff has failed to state a claim
under § 1985, her claim under § 1986 must also be dismissed.”);

(snip)

Merely asserting “racial animus” without alleging any facts to support that
assertion amounts to a “legal conclusion,” which is insufficient to state a claim “because
‘it is the alleged facts supporting those words, construed liberally, which are the proper
focus at the motion to dismiss stage.’” Id. at 346 (quoting Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)).



What if Judge Beaty were to agree with the city's arguments, above? What if those are proper conclusions
of law?

Again, what lay observer, after following Judge Beaty's handling of these cases, is prepared to accept
that as a neutral and unbiased intepretation of the law?

In Arizona a judge recused herself from a case because her sister was a major figure in a hispanic
militant group. She was not herself a member, nor was her sister involved in the case. But the standard
is that there must not be even the appearance of bias on the bench. And so, she stepped aside.

Neither did she have to wait for a motion to do so (although in this case such a motion was made). A judge
can decide on his own-sua sponte--to step aside:


Quote:
 
"Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).

Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.

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Quasimodo

Quote:
 


[Motion denying discovery conference]

(snip)

To the extent Plaintiffs raise general
concerns regarding possible loss or destruction of evidence, the Court notes that Defendants
have an ongoing duty to preserve potentially relevant evidence,
and the Court of Appeals for
the Fourth Circuit has made clear that “when a proponent’s intentional [but not necessarily bad
faith]
conduct contributes to the loss or destruction of evidence, the trial court has discretion
to pursue a wide range of responses both for the purpose of leveling the evidentiary playing
field and for the purpose of sanctioning the improper conduct. [The court may, inter alia,]
permit the jury to draw unfavorable inferences against the party responsible for the loss or
destruction of the original evidence.”

Thus, Defendants in this case are already under a legal duty to preserve any potentially
relevant evidence, and this Court can appropriately address if necessary any potential loss or
destruction of such evidence.

In light of these existing duties and remedies, and in the interests
of efficiency and sound judicial case management, the Court in its discretion will deny Plaintiffs’
Motion to Compel Defendants to Confer Under Rule 26(f) [Document #67] at this time, and
as a result, additional discovery will proceed only after the Motions to Dismiss are resolved and
Answers have been filed.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Defendants to
Confer Under Rule 26(f) [Document #67] is DENIED


Durham has already stated that it has probably destroyed any email records
from before August 2007 -- which would be in violation of knowledge of
a probable pending action (though no suits had as yet been filed).

Here we have an order in which the judge deliberately inserts the phrase,
"but not necessarily bad faith". And that the trial court, in its discretion, "may"
permit a jury to draw inferences.

Is there anyone at this point who believes that if Durham is shown to have destroyed
relevant evidenciary material (particularly recordings and electronic material),
that there will be any meaningful sanctions forthcoming from the court?


If not, then think about what that means--

have reasonable lay observers of the court's actions already concluded
that it is likely to be biased?


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Quasimodo

Quote:
 
http://www.lacba.org/Files/LAL/Vol32No6/2625.pdf

The Impact of an Adversary Filing for Bankruptcy during Civil Litigation


(snip)

The filing of a bankruptcy petition “automatically stays” (that is,
automatically stops) most actions against the debtor or the debtor’s
property, including a civil lawsuit.

(snip)

The Bankruptcy Code provides three
grounds for a court to grant relief from the
automatic stay or to modify the stay. First,
relief from the automatic stay may be granted
for cause including, but not limited to, lack
of adequate protection. Cause may also
exist if the case was filed in bad faith, such as
solely for delay or if fraud is involved.

[Was claming $180 million in debts even remotely a "good faith" claim?]


(snip)

Civil litigants who have filed a claim against
a number of defendants, only one of whom
has filed for bankruptcy, are theoretically
permitted to proceed with the litigation
against the nonbankrupt parties.

If the nondebtor
parties are officers or principals of
the debtor, however, the debtor may seek to
enjoin the litigation regarding these nondebtor
parties.

The bankruptcy court may
issue an injunction to enjoin the civil lawsuit
if there is evidence demonstrating that proceeding
with the civil action will impede the
debtor’s efforts in the bankruptcy court pursuant
to Section 105(a) of the Bankruptcy
Code.

Similarly, if the bankrupt debtor is a
principal party to the civil action, a civil court
may decide that the furtherance of justice
mandates a stay of the entire proceeding.


IMHO, none of the above circumstances applied in the current lawsuits.
Only the last might be applicable--that Nifong was a "principal party";
but he was never a "principal party" insofar as monetary awards
were involved.

He was only a "principal party" as regards his testimony as to
what took place.

Ergo, his bankruptcy status had no impact whatever on his ability
to testify as to his actions or the actions of others.

Moreover:

On what basis could Nifong believe that he could submit a claim for $180 million in debt,
while at the very same time he was claiming that he had immunity from legal judgments?

What judge could accept such a claim as having been made in good faith, and not simply
as a stalling tactic?

What judge would not be said to have lost control of his courtroom and the trial if he permitted
such a ploy to proceed unquestioned?

How does it assist "judicial economy" to permit such a claim to obstruct and delay the work of the
court for months?

And wouldn't this claim of $180 million indebtedness be laughed out of any other court, in
any other jurisdiction, if the matter did not involve the Duke lacrosse case?

To what extent is animus and bias connected with that case (improperly) affecting
the court's decisions?











Edited by Quasimodo, Mar 23 2011, 02:11 PM.
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