When Judges Get Goaded

To absolutely no one’s surprise, Roger Stone’s counsel moved long-suffering D.C. District Court Judge Amy Berman Jackson to recuse herself. To absolutely no one’s surprise, she denied the motion.

The defense does not argue that the jurors did not “serve[] . . . under difficult circumstances,” but it complains that the Court’s use of the words “with integrity” are disqualifying because there is a pending motion for new trial with respect to a single juror, and the hearing has not yet taken place.

This is just about the thinnest reed possible to argue that a judge should disqualify herself. The basis for recusal under 28 U.S.C. § 455(a) is that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” For those hellbent on believing any negativity will do, there’s nothing to be said that will change their minds. But then, the standard isn’t whatever the craziest supporter believes.

Recusal is required when “a reasonable and informed observer would question the judge’s
impartiality.”

What constitutes a reasonable and informed observer may be more difficult to say these days, given that the historic objective test of the reasonable person seems to have few models anymore. Yet, Judge Berman went through the labor of addressing the defense’s argument.

There are several reasons why recusal is not warranted.

First of all, the Court did not make any “finding” about the pending motion for a new trial, much less a “categorical” one. The motion raises questions concerning the completeness of one juror’s responses during the jury selection process, and it speculates about exposure to  prejudicial extra-record material during deliberations. See generally Def.’s Mot. for New Trial. But it does not include any allegations, or set out any facts, impugning the integrity of any other juror or jurors. The Court’s very general comment that “jurors” served with integrity – three words on the 88th page of the 96-page transcript of a two-and-a-half-hour hearing – did not purport to, and did not, address the motion

Judge Berman goes on to provide her rationale by soundly addressing the defense’s borderline frivolous arguments. But at the very end of her decision, she took the bait.

At bottom, given the absence of any factual or legal support for the motion for disqualification, the pleading appears to be nothing more than an attempt to use the Court’s docket to disseminate a statement for public consumption that has the words “judge” and “biased” in it.

For these reasons, defendant’s motion is hereby DENIED.

Maybe she had enough of the defense’s shenanigans. Maybe the judicial veneer cracked. But this paragraph, while likely true, was probably the real reason for the defense’s motion. To be clear, Stone’s lawyers knew, with absolute certainty, there were not going to win the motion and that Judge Berman was not going to recuse herself. No judge would grant that motion unless the judge desperately wanted to rid herself of this case and sought an excuse to do so. For Judge Berman, that ship had sailed, and she had acquitted herself, even if Stone had not, in imposing a below-Guidelines sentence of 40 months.

But as much as that final paragraph is very appealing to some, and likely felt pretty darn good to write, it now gives rise to a better argument than the defense had before: Judge Berman ascribed malevolent intent to the defense for bringing the motion. While it’s likely insufficient to do much damage, Judge Berman gave the defense more to work with than they had before.

Defendants often beg, sometimes even demand, that their lawyers move to recuse the judge, certain that the judge is biased against them. To some extent, all judges are biased against the defendant, as they tend to play the odds that the defendant is guilty and, let’s be frank, guilty people tend not to be particularly sympathetic, even to judges. Judges are people too, as anyone reading here should understand.

But that does not mean that a judge will not do their job.

On the other hand, recusal motions are more commonly made for tactical reasons, kind of like a push-back pitch. When it’s already clear that the judge is not going to be your best friend, and there’s nothing to lose by playing hardball, it can serve to let the judge know that you’re creating a record to go after the judge later. The hope is that the judge, while hating the defendant as much if not more than before, will at least moderate her rulings to create the appearance of impartiality. It may not work, but then, it doesn’t hurt if the judge already hates the defendant enough.

Then there’s the tactical use of a recusal motion to goad a judge into doing something that creates the appearance of impropriety where none existed before. A paragraph such as appears at the end of Judge Berman’s order is the sort of reaction one hopes to evoke.

The nature of a recusal motion under § 455(a) is such that it’s almost invariably doomed. After all, it’s asking the judge, whom you argue is biased, to decide whether she is biased. What are the chances? There are times when a judge might recognize, from a well-founded motion, that something they’ve done has created the appearance, maybe even the fact, of impropriety, but that only happens with the best and wisest judges. The best judges tend to be capable of neutrality despite the accusations, and so they aren’t the judge whose actions give rise to the appearance of impropriety.

As for Judge Berman, she took the bait, allowed herself to be goaded by this quasi-frivolous motion, and decided to call out the defense in her final paragraph. As much as it must have felt good to do so, and for a great many readers brought cries of “yasss, kween, slay,” it’s unfortunate that she gave the defense, and Roger Stone fans, something to point at where before they had nothing.

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