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Judicial Roulette: Recusal Motions in Criminal Cases
Medievals believed that fortune was controlled by a wheel that brought prosperity one day but woe the next. The fate of defendants in criminal cases is shaped by a wheel no less capricious: the random assignment of judges. And while fortune's wheel may be inescapable, a recent Ninth Circuit decision vacating a conviction because the trial judge failed to recuse himself, and a pending recusal application by convicted executive Jamie Olis, remind us that sometimes defendants try to improve their judicial lot through recusal, though with little hope for success.
The Law on Recusal
Federal law addresses recusal primarily in two statutes, 28 U.S.C. ” 144 and 455. Section 144 requires district court judges to recuse themselves whenever a party files a 'timely and sufficient' affidavit that the judge 'has a personal bias or prejudice' against that party or favors an adverse party. It allows litigants to file one bias affidavit in a case, and requires that the affidavit be accompanied by counsel's certification that it is made in good faith. The terms of ' 144 thus appear to permit litigants to make what amounts to a peremptory challenge against a judge, which some states allow. But the Supreme Court has somewhat blunted ' 144's impact by allowing the challenged judge to determine whether the affidavit sufficiently alleges actual bias. Berger v. U.S., 255 U.S. 22 (1921). A judge must, however, assume that the affidavit's factual allegations are true.
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