Split Noted: What is the Yardstick to Evaluate Decisions Whether to Recuse?

Per United States v. Holland, 2008 WL 696903, *9 (9th Cir. Mar. 17, 2008)

Russell Holland pled guilty to charges of mailing threatening communications and threatening the President of the United States. He also has a long criminal record, including a prior conviction for threats against state officials. Holland somehow obtained the sentencing judge’s home number and, in keeping with his criminal behavior, left threatening messages prior to sentencing. At sentencing, the judge acknowledged these threats but stated that they “are attempts to manipulate the criminal justice system rather than threats as such.” He proceeded to impose sentence without objection, so the Ninth reviews his failure to recuse himself for plain error.

28 U.S.C. § 455 details the bases for recusals; § 455 (a) states that disqualification is mandatory “in any proceeding in which his impartiality might reasonably be questioned.” The circuit split noted in this case concerns what reasonably means. The CAs 2, 9, and 10 define the reasonable person standard to mean a well-informed, thoughtful observer who is not hypersensitive. On the other hand, the CA 7 applies a stricter standard because outside observers are more sensitive to the appearance of impartiality than the judiciary itself.

The Ninth Circuit panel creates an objective test to apply when a threat is the basis for recusal. The judge must evaluate (1) defendant’s capacity to carry out the threat, (2) the context of the threat, and (3) the purpose of the threat. The panel continues to note that the final factor is perhaps the most important. In this case, where the sentencing judge found that Holland was attempting to manipulate the system and had a history of making empty threats, any failure to recuse was not plainly erroneous.

Also from the Ninth yesterday, the best case name ever: United States v. Approximately 64,695 Pounds of Shark Fins. Coverage from Decision of the Day.