Judges Who Refuse to Recuse Taint Our Justice System

By Andrew Kreig / Project Director

Three recent state, federal and Supreme Court controversies show how the public is nearly powerless to obtain due process when apparently conflicted judges refuse to recuse themselves. The latest example is Texas judge Tracy A. Gilbert, right, who presided over a child custody case. In it, the judge ended a father's legal relationship with his daughter. Before that, the judge refused to withdraw from the case even when the father showed in mid-trial that the mother's attorney was also representing the judge in a separate paternity case.

The law of recusal is clear-cut: It’s not enough for judges to act in an unbiased manner when suspected of a potential conflict of interest. A judge must avoid even the appearance of bias. A test is whether any independent and reasonable observer would think that an appearance of bias is likely. If so a judge must withdraw from supervising a case.

In reality, however, litigants have scant power to enforce the rule, especially if a judge is determined to retain control. Among the reasons illustrated by recent disputes.

First, litigants may not know of the judge’s conflicts until late in the process. Second, litigants and their attorneys may fear a judge’s power too much to push the issue. Third, a judge may become so arrogant or deeply compromised that he or she rejects all evidence, no matter how solid or embarrassing. Finally, other judges and opinion leaders show scant interest in scrutinizing each other more rigorously, especially if any scandal seems likely to fade away.

These problems are well-known in the justice system, particularly after a coal company CEO made $3 million in campaign donations to re-elect a West Virginia state Supreme Court of Appeals justice. The judge then wanted to hear his donor's appeal of a $50 million jury verdict against the coal company, A.T. Massey. This led the U.S. Supreme Court to reiterate the law in a 2009 case, Caperton v.Massey. The U.S. Supreme Court ruled the justice should have disqualified himself. But even Massey illustrates the difficulty of removing a judge. The court decided the case by a 5-4 margin, and not every litigant has $50 million of incentives to keep fighting such battles. Three cases this year show the ongoing problems:

In Texas, state court judge Gilbert ruled in a custody case to cut off all of a father’s legal rights regarding his five-year-old daughter. The judge declined to recuse himself even though the father learned during trial that the mother was represented by the judge’s personal lawyer, who is handling separate a paternity case against the judge.  The Houston Chronicle published an opinion column last week about it under the headline, “No excuse for not recusing.”

In Alabama, Democratic former Gov. Don Siegelman and co-defendant businessman Richard Scrushy face potential resentencing on corruption charges by Chief U.S. Middle District Judge Mark Fuller, a partisan Republican portrayed at left (photo courtesy, Phil Fleming). For now, Fuller remains the presiding judge despite sworn evidence that the judge hated Siegelman before the case and helped prosecutors railroad them during their 2006 trial with many controversial, pro-prosecution rulings. In 2007, defendants learned that a closely held company the judge controlled as its larger stockholder was receiving from the Bush administration huge federal contracts, totaling $300 million between 2006 and 2009. Most recently last week, federal appeals court judges have refused to address the recusal issue in any depth. This is  despite tens of thousands of citizen complaints to the DOJ and White House about Siegelman’s treatment, plus a Supreme Court decision in the former governor’s favor last June.

At the Supreme Court, Justice Clarence Thomas was exposed by Common Cause for lying on his financial disclosure forms by false statements about his family income. For virtually his entire time on the court, Thomas routinely said he had no outside family income on required financial disclosure forms. But his wife, Virginia Thomas, was making hundreds of thousands of dollars as high-level public policy advocate on the kinds of cases routinely coming before the court. False statements on such official forms are a potentially serious criminal violation, although prosecutors usually use their discretion to ignore such infractions by the powerful. Thomas made a travesty out of the recusal process by failing to note the financial conflicts that could have alerted litigants to seek his recusal. Additionally, he has not recused himself from major cases, such as his concurrence in the 5-4 2000 Bush v. Gore opinion that stopped the Florida Presidential vote recount, and handed the presidency to George W. Bush. Among other results, the justice’s vote made his wife’s job as head of Heritage Foundation Bush presidential transition planning far more important.

More on the Controversies
In Conroe, the county seat for Montgomery County a few miles north of Houston, District Judge Gilbert ruled in March that Artemis Suarez Eden, age 51, of Wisconsin should lose any parental rights regarding his five-year-old daughter under the prevailing legal standard of the child’s best interests. Chronicle columnist Lisa Falkenberg amplified below:

On the last day of the three-day trial, Eden said he learned that the lawyer representing his ex-wife also was the judge's personal attorney. And that attorney, Steve Jackson, was then representing Gilbert in a paternity lawsuit in which the judge himself was being sued by a former lover for an estimated $300,000 in back child support for a child the judge allegedly fathered 17 years ago.

In Eden's case, the judge hadn't offered to recuse himself. He hadn't even disclosed the relationship in court. And when Eden filed a motion for continuance, asking to halt the trial because of several concerns, including the judge's perceived conflict, he says the judge ignored it. Eden said Gilbert did the same thing with all but one of his more than a dozen motions.

I met the father, Eden, in Washington in March at a news briefing by House Judiciary Committee ranking Democrat John Conyers. On first impression, he’s a passionate, pushy, gadfly-type personality advocating big ideas. This concurs roughly with Falkenberg’s impressions in her column below and several other portrayals I found in a Google search. To obtain further background, I emailed Eden’s judge seeking comment. Kimberly Perry, the court coordinator for the 418th Judicial District Court, responded, "The rules of judicial ethics do not allow a judge to comment on cases before the court."  The Chronicle columnist went through similar steps, with her results as follows:

When I called to talk to the judge about Eden's case, he referred the call to Jackson, which seemed both odd and illustrative. It was like a judge asking a prosecutor to speak for him. And at certain points in the interview, I wasn't sure if Jackson was speaking for his client, the girl's mother or for the judge in his official capacity….

Jackson said he believes the judge terminated Eden's rights because he believed he was a danger to his daughter, failed to adequately provide for her and because of his "bizarre behavior" in court. Among other things, Eden, who represented himself, refused to answer many of Jackson's questions.

As a bottom line, the columnist reported:

It's true that Eden is intense. He's eccentric. His mind spends more time on rabbit trails than the main road. He's an activist in Wisconsin who has tangled with the law a few times, although background checks turned up no criminal convictions. None of these things are grounds for taking away a father's right to his daughter. Terminating rights is a severe punishment, usually avoided by courts that are hesitant to let any father, even a bad one, off the hook eternally for paying child support. There are plenty of other options, like supervised visitations….While the Code of Judicial Conduct is vague about recusal or disclosure in such circumstances, it's clear about a judge's duty to avoid the appearance of impropriety. As veteran Houston family law attorney Brian J. Fischer told me: "It would have been a slam-dunk motion to recuse. Slam dunk."

Alabama Justice
The Siegelman case and conflicts by the presiding trial judge, Fuller, have been the subject of many  investigatory columns, including by the Justice Integrity Project. They are cited below. To recap: Siegelman’s co-defendant, Scrushy, provided extensive and newly discovered evidence seeking Fuller’s recusal in the spring of 2007, but the judge dismissed those arguments by saying he believed he was fair. Destroying its credibility, the Department of Justice remains on record with its preposterous claim that not one independent, reasonable person in the United States would think that Fuller is compromised by even an appearance of unfairness.  Protecting its own, a federal appeals court concurred in March 2009. Last week, it reiterated, on page 57 of its opinion here, its view that defendants Siegelman and Scrushy gave up their right to object to Fuller because they failed to raise the issue before trial.

But the court failed to address a Supreme Court holding that judges are supposed to initiate their own recusal if circumstances warrant. In Liljeberg v. Health Svcs. Acq. Corp., the court ruled in 1988 that a Louisiana judge inexcusably failed to remove himself from a case when he knew he was a trustee of a hospital involved. In a Huffington Post column published in 2009, I described that law and its applicability to Fuller and all such judges.

Meanwhile, Fuller has encountered so much new criticism that he took the step of asking last summer for a review on whether he should recuse. The question was assigned to a Florida federal judge, Clinton-appointee Robert Hinkle, chief judge of the state’s northern district based in Tallahassee. Hinkle postponed decision on recusal. Alabama legal commentator Roger Shuler wrote that Hinkle’s delay in such a clear-cut case is “a sign the federal judiciary is trying to protect Fuller, one of its own rogue members.”

Below are extensive links to Fuller’s conflicts and other disgraceful behavior. I asked Fuller for comment in 2009. He declined, writing that his position as a judge foreclosed comments. Since then, the appalling scandal within the Alabama federal judiciary and Justice Department demonstrated by this case helped prompt me and others to found the Justice Integrity Project. As indicated by several recent columns, we seek public hearings whereby those who witnessed irregularities in Fuller’s conduct have an opportunity to describe them for the first time under oath in public.

The ideal occasion for this would be the confirmation hearing for George Beck, 69, whom powerful Democrats and Republicans alike have long wanted for the post of U.S. attorney for Fuller’s middle district. There's good reason to suspect that Beck would be inclined to cover up wrongdoing in the Siegelman prosecution. Beck was counsel for the prosecution’s main witness in framing Siegelman and Scrushy.  He has not yet responded to my invitation to comment. But his views were captured on video shortly after the Siegelman/Scrushy sentencing (as illustrated in a link below), and thus are part of the evidence of the corruption of the process.

Supreme Injustice
As noted above, Common Cause exposed Justice Thomas by showing his contempt for the public by so brazenly failing to disclose his wife’s income.  The Los Angeles Times broke the story on Jan. 22 that Virginia Thomas earned over $680,000 from conservative think tank the Heritage Foundation. Thomas checked “none” for at least five years on a box requiring his disclosure of “spousal noninvestment income."  After the revelations Thomas revised his forms for his nearly two decades on the bench in order to comply with the law. There is no public indication that any law enforcement authority is investigating. Others not so fortunate as to hold a judgeship are currently serving time in prisons around the country for arguably similar false statements on documents of far lesser importance.

But Supreme Court justices are virtually immune from any normal sanction, including those occurring from their acceptance of money, travel or failure to recuse themselves over conflicts. Thomas, like his colleague Justice Antonin Scalia, has been at the center of several such controversies.  None of the disputes have, or seems likely to have, any significant impact on their behavior. They are professionals with long and demonstrable skill in using the law to judge others, not themselves.

What to do?
“Learn. Act. Connect.” That is the reform mantra of the American Association of University Women. Its chapter in McLean, Virginia invited me to speak May 10 about civil rights issues, providing an opportunity for me to reflect on its apt slogan for public policy reform. The recusal issue carries a special set of challenges, which we have been illustrating in columns such as this. We'll provide tools to help overcome the obstacles shortly on our upgraded website.

For now, I see hope based on both common sense and my personal observation through the years of the court system: Most judges are civic-minded and trying to sustain their profession as an honorable calling. Judicial leaders are thus important potential allies in any reform on the recusal issue. But human nature being what it is, reform will occur only after those of us writing and reading about such problems insist on reform in visible ways.

To put it more bluntly, judges must be reminded from time to time to apply the so-called rule of law to themselves.

Below are related articles, several of which are source documents for the column above. See the full article by visiting News Reports at the top of the homepage and clicking the relevant link

Houston Chronicle, No excuse for not recusing, Lisa Falkenberg, May 13, 2011.  In late March, Art Suarez Eden stood in a Texas courtroom and listened as a judge sentenced him to the death penalty of fatherhood.  Eden's ex-wife had prevailed in her effort to terminate his parental rights to their 5-year-old daughter.  There's no doubt that the ruling by state District Judge Tracy A. Gilbert was tainted by error — an ethical one.  On the last day of the three-day trial, Eden said he learned that the lawyer representing his ex-wife also was the judge's personal attorney. And that attorney, Steve Jackson, was then representing Gilbert in a paternity lawsuit in which the judge himself was being sued by a former lover for an estimated $300,000 in back child support for a child the judge allegedly fathered 17 years ago.

Washington City Paper, The Ballad of Artemus Suarez, Patrick Symmes, Nov. 19, 1993.  Art Suarez—born Artemus Suarez right here in America, of Argentine extraction via Fort Apache the Bronx, business consultant and lobbyist, hyperactive street activist, one-man employment agency, perpetual self-promotion machine, sometime-candidate for D.C. Council, amateur pamphleteer, and free radical of the charity scene—doesn't slow down for anybody.

Living Lake Country (Hartland, WI), Grassroots leader Suarez-Eden gets probation, Jim Stevens, Aug. 31, 2009.  The man who tried to start a grassroots effort to save Midwest Airlines from a hostile corporate takeover in 2007 was sentenced Friday to two years' probation on charges of disorderly conduct and bail jumping. Art Suarez-Eden, 50, of City of Oconomowoc, was also ordered not to have any contact with Midwest Airlines.

Associated Press / Greenwich Time, Fed court reverses 2 convictions in Siegelman case, Greg Bluestein, May 10, 2011.  A federal appeals court has reversed two bribery convictions of a former Alabama governor and a high-profile businessman, but upheld the rest of the 2006 corruption convictions. The 11th U.S. Circuit Court of Appeals said in ruling Tuesday that there was not enough evidence to convict former Alabama Gov. Don Siegelman and ex-HealthSouth CEO Richard Scrushy of the two bribery counts, which involved a hospital license and equipment.  But the three-judge panel's ruling upheld the rest of the jury's verdict on corruption-related counts against the two, finding that it "commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it."  The two are scheduled to be re-sentenced.

Justice Integrity Project, Obama DOJ Continues War Against Bush Prosecution Victims, Andrew Kreig, May 13, 2011. The Obama/Holder Justice Department’s win-at-all-costs campaign against political prosecution victims of the Bush administration continued this week. In unrelated prosecutions of Democrats in New Jersey and Alabama, the Department illustrated once again the unfairness of its procedures and its self-serving ethic of silencing critics.

Justice Integrity Project, Reform Needed After Court Drops Two Siegelman Charges, May 12, 2011. A federal appeals court in Atlanta May 10 reversed two bribery convictions of former Alabama Gov. Don Siegelman and businessman Richard Scrushy but upheld the rest of their 2006 corruption convictions in what our Project has long denounced as the nation’s most notorious political frame-up. The ruling by the 11th U.S. Circuit Court of Appeals sending the case back to the district court for resentencing is yet another reason for the public to demand a thorough investigation of the case.

Legal Schnauzer, Why Is Federal Judge Stalling on Siegelman Ruling? Roger Shuler, Nov. 24, 2010. A federal judge has delayed ruling on whether the judge who presided over the Don Siegelman case should be allowed to rule on motions for a new trial. Robert Hinkle, a U.S. District Judge in Florida, says he will wait until the U.S. 11th Circuit Court of Appeals has ruled on appeals filed by Siegelman and codefendant Richard Scrushy. What does it mean? It's hard to know for sure, but we think it might be a good sign for Siegelman and Scrushy. We also think it's a sign that the federal judiciary is trying to protect Fuller, one of its own rogue members.  The record in the Siegelman case is filled with grounds that require Fuller's recusal. In fact, the law requires Fuller to make that ruling on his own. But he shuffled it off to another judge. And now that judge, Hinkle, is shuffling his feet, seemingly in hopes that the 11th Circuit will take him off the hot seat.

Huffington Post, Alabama Decisions Illustrate Abuse of Judicial Power, Andrew Kreig, June 10, 2009.  The track record of Chief U.S. Middle District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts.  Exposure of Fuller's record is timely because of the Senate's forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard. These include the U.S. Supreme Court's 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign. Also, a federal judge in Georgia admitted last month that he shouldn't have tried and sentenced a high-profile political adversary who now seeks dismissal of the charges.

Huffington Post, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company, Andrew Kreig, May 15, 2009.

Supreme Court
Los Angeles Times, Clarence Thomas failed to report wife's income, watchdog says, Kim Geiger, Jan. 22, 2011. Supreme Court Justice Clarence Thomas failed to report his wife's income from a conservative think tank on financial disclosure forms for at least five years, the watchdog group Common Cause said Friday. Between 2003 and 2007, Virginia Thomas, a longtime conservative activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation's IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labelled "none" where "spousal noninvestment income" would be disclosed.

Legal Schnauzer, Will Clarence Thomas get away with a federal crime? Roger Shuler, Jan. 25, 2011. U.S. Supreme Court Justice Clarence Thomas is amending financial-disclosure forms dating back more than 20 years, in an apparent effort to avoid prosecution for making false statements to the United States government. Hal Neilson, an FBI special agent in Oxford, Mississippi, undoubtedly wishes he had been given such an opportunity. He also probably wishes the mainstream press would try to make the kind of excuses for him that are being made for Clarence Thomas.

Legal Schnauzer, Did Clarence Thomas Commit a Federal Crime by Hiding Wife's Income? Roger Shuler, Jan. 24, 2011. Does this mean a justice on the nation's highest court has committed a crime? The answer probably is yes. Will the legal system kick into high gear in an effort to protect one of its most exalted members? The answer to that definitely is yes -- in fact, it already seems to be happening.

Think Progress, Justice Thomas Omitted His Tea Partying Wife’s Income From Financial Disclosure Forms, Ian Millhiser, Jan. 22, 2011. This revelation that Justice Thomas failed to comply with his disclosure obligations comes as he is caught up in another ethics scandal regarding his participation in fundraisers for far-right political groups. Thomas once attended a gathering of wealthy corporate activists convened by billionaire Charles Koch to raise money for right-wing political causes, and he also attended at least one fundraiser hosted by the far-right think tank that used to employ his wife.