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.

By Andrew Kreig / Project Director

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.

In New Jersey, prosecutors disclosed they would indict former Jersey City mayoral candidate Louis Manzo, left, for a third time after four federal judges threw out previous bribery charges against him because prosecutors improperly expanded the law’s reach to cover candidates. The law is supposed to apply only to those in office. Wouldn't the Justice Department have known that before ruining the lives of Manzo and multiple other candidates by indicting them in the much-touted 2009 “Bid Rig III” sting? To pull off the government-run sting, Soloman Dwek, the perpetrator of a $50 million bank fraud, worked out a sweetheart deal with authorities. Dwek was paid to be paid between $10,000 and $12,000 a month from a victim's fund under government control. Then Dwek went to work for ambitious prosecutors in a scheme devised by Bush-appointed New Jersey U.S. Attorney Chris Christie, now governor, to offer money to local New Jersey politicians and others suspected of wrongdoing. When prosecutors don't know well-settled law before issuing indictments they should admit the mistake. Instead, the Obama Justice Department will take up to 45 days to devise a legal strategy to indict Manzo is some new way, as yet undisclose. “It’s like being waterboarded,” the defendant Manzo told me last evening about his ongoing ordeal. His brother Ronald, his campaign manager, succumbed to the pressure and pleaded guilty this week to federal charges in an unrelated case.

In Alabama, DOJ prosecutors who have relentlessly pursued former Alabama Gov. Don Siegelman won a victory this week when a federal appeals court again side-stepped the injustice in the case by issuing a ruling that ensures the government’s decade-long jihad against the defendant continues. More specifically, the all-Republican appeals court panel announced that it was vacating 2006 two corruption convictions, counts eight and nine, against Siegelman. Upon first impression, the decision to vacate seemed to address concerns expressed by the Supreme Court last June when it remanded Siegelman’s case to the appeals court. In fact, the appeals court had already dismissed the charges in March 2009 for lack of any evidence to support the jury verdict. Therefore, some initial news reports last week were misleading. This week's ruling is here, and the 2009 decision is here.