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Why Judge Beaty should recuse himself
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Topic Started: Mar 19 2011, 01:05 PM (3,759 Views)
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Quasimodo
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Mar 19 2011, 07:52 PM
Post #16
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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.
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Quasimodo
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Mar 20 2011, 12:02 AM
Post #17
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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 arguments 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
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Mar 20 2011, 12:21 AM
Post #18
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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
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Mar 20 2011, 12:29 AM
Post #19
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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
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Mar 20 2011, 09:02 AM
Post #20
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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
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Mar 20 2011, 09:08 AM
Post #21
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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
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Mar 21 2011, 08:48 AM
Post #22
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The Timothy Sherman case drew a lot of criticism. For reference' sake, it follows in the post below this:
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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
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Mar 21 2011, 08:54 AM
Post #23
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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
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Mar 21 2011, 06:18 PM
Post #24
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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.)
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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)
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Quasimodo
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Mar 21 2011, 06:27 PM
Post #25
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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:
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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;
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Quasimodo
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Mar 21 2011, 06:42 PM
Post #26
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---------------------------------------
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.
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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
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Mar 22 2011, 08:24 PM
Post #27
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“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
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Mar 22 2011, 08:58 PM
Post #28
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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?
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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:
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"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
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Mar 23 2011, 01:40 PM
Post #29
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[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
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Mar 23 2011, 01:58 PM
Post #30
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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?
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