Judges Have “Life Experiences” Too

There are judges whose entire pre-judicial career was spent in a prosecutor’s office. There are judges who believe in a particular faith that differs from a defendant’s.  And there is a judge whose father was murdered.  Raising this as a basis for recusal will not only fail, but generate some actual antagonism toward the lawyer who raised it, if not the defendant who claimed it.

In Mile v. Ryan, the defense moved to recuse 9th Circuit Judge Susan Graber, who was regarded as pretty tough on defendants, based upon the fact of her father having been murdered. The underlying case was a murder for which the death penalty had been imposed, and the defendant sought a writ of habeas corpus.  During the pendency of the petition, the defendant changed lawyers, with his new lawyer moving for recusal.

Judge Graber refused to recuse herself.  More importantly, the other two judges on the panel, Berzon and Tallman, felt compelled to chime in.



Should our silence be misunderstood, however, we wish to state that were it appropriate for us to have participated in the recusal decision, we would have voted to deny the motion. Indeed, we regard the request itself as an inappropriate one.

The basis for the requested recusal was a tragedy in Judge Graber’s life that occurred close to forty years ago, her father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly decide this capital murder case because of that history and some broad similarities between the two criminal cases.

Judge Graber has been a judge for almost twenty-five years. In that time, she has sat on numerous capital murder cases, voting to affirm some and to reverse others. She has never been asked to recuse in any of them and never has. There is absolutely no reason she should do so now.


Nothing in here suggests a lack of bias or an affirmative reason why Judge Graber would be able to overcome her personal experience, but that isn’t the point.  When the Senate confirmed her appointment, she came with a life filled with experiences, like every other judge on the bench. No judge lived in a bubble, devoid of history that bears upon their sensibilities and perspective. Every judge comes with bias, as does every other person in the world.

All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and other relatives with disabilities and illnesses, physical and mental, while others do not; some have had personal experience, directly or through family members, as crime victims, while others have not; some have relatives who are police officers, civil rights activists, or journalists, and others do not; some served in the armed forces and others did not; some had personal experiences as immigrants and others did not. These life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences.

The point is the ability of the judge to overcome their personal bias and rule to the best of their ability, as fairly as possible.

This same “life experience” argument was raised with Judge Vaughn Walker in Perry v. Brown, which is noted in the opinion.  Was Judge Walker incapable of deciding the gay marriage issue because of his sexual preference?  If his being gay precluded him from being fair, would a heterosexual judge not have similarly been presumed biased based on his preference?

It’s a circular argument, and if we were to demand a judge with absolutely nothing in his personal life that could potentially influence his thinking, there would be no judge who fit the bill.

For a client to raise questions as to a judge’s potential bias is routine. Whether real or paranoia, defendants regularly raise issues of their judge’s prejudice and presumed inability to be fair.  Indeed, in many instances, it’s just a matter of a judge being unduly oriented toward the prosecution, which is less a flaw with the judge than a flaw with judicial selection. 

Most judges are prosecution oriented, because that’s the prevailing attitude of the pool from which judges are picked.  The only answer to this complaint is to get over it, as there is nothing to be done about it once a President appoint and the Senate confirms. They get robes and we get burned. That’s how it works.  If you don’t like it, write your senator, but it’s not going to help you much today.

However, the decision of whether to seek recusal of a judge is one that belongs exclusively to the lawyer, and making a motion based on a reason that neither has any likelihood of success or substantive basis is likely to have consequences.

We well understand that this is a death penalty case, and that the petitioner’s lawyers properly regard it as their duty to try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit. And doing so by reciting in detail the facts of a long ago, tragic incident in her life, requiring her to relive them yet again and exposing them anew to public view is, in our opinion, beyond the limits of appropriate representation.

The upshot wasn’t a new judge (who, I might add, could be little different than the one already on board), but a panel, at minimum, that will remember that you made a very poor decision in both raising the issue and the manner of presentation.  A motion like this may well demand a “scorched earth” approach, but remember that the lawyer doing so may just as well get burned.

It’s understandable that a defendant, not to mention his lawyer, wants desperately to get as far away from a hanging judge as possible. Indeed, it’s one of the grave failings of the system that the exercise of discretion, despite platitudes to the contrary, is so dependent on a judge’s individual proclivities, often being the difference between decades in prison.  But the system is flawed. Judges are flawed. To the extent there is a trick, it’s not making a bad situation worse.

It is extremely rare that a colorable basis exists to move for recusal.  Believing that a judge is inclined to rule against you just isn’t one of them. Don’t make it worse by trying anyway.