SAYLOR, District Judge.
This is a criminal prosecution arising out of an allegedly corrupt hiring scheme at the Massachusetts Office of the Commissioner of Probation between 2000 and
Defendants John J. O'Brien and William H. Burke, III, now joined by defendant Elizabeth V. Tavares, have filed a renewed motion that I recuse myself in this matter. The motion is, in part, a renewal of defendants' prior motion, which I denied in a written memorandum and order dated February 6, 2014. Familiarity with that memorandum is presumed.
Defendants now contend that they intend to call one of my colleagues, United States District Judge Timothy S. Hillman, as a witness in this case. Defendants' renewed motion comes on the eve of trial, and is based on a claim of alleged "newly-discovered" evidence: that Judge Hillman is not merely a colleague, but a friend.
For the following reasons, the motion will be granted.
As with the earlier motion, the first question under § 455(a) is whether the motion to recuse was timely filed. See In re United States, 666 F.2d 690, 694 (1st Cir.1981) (holding that "a motion for disqualification [under § 455 must] be timely filed"). Among other things, the timeliness requirement allows courts to "reject what appear to be strategic motions to recuse a judge whose rulings have gone against the party." In re United States, 441 F.3d 44, 65 (1st Cir.2006); see also In re Abijoe Realty Corp., 943 F.2d 121, 126 (1st Cir.1991) (denying Rule 60(b) motion "[i]n light of [the] calculated withholding of the disqualification claim").
As noted, this case was indicted, and assigned to me, on March 22, 2012. It was assigned to then-Magistrate Judge Hillman the same day. Counsel became aware no later than the end of 2012 that Judge Hillman was a potential witness in this case. They did not, however, raise the issue until January 2014, on the eve of trial. Indeed, they did not even raise it in their first motion for recusal.
Counsel acknowledge that they were well aware that Judge Hillman and I are colleagues on a relatively small court, and that we were the only two judges in Worcester (save the bankruptcy judge) for a period of more than six years. They contend, however, that they had no way of knowing that we had a friendly relationship until I specifically mentioned that fact during a hearing on January 24, 2014.
That claim is scarcely credible. More to the point, it is objectively unreasonable. It is hardly necessary to point out that counsel who intends to call a federal judge as a witness in a case in federal court has an obligation to raise that issue at the earliest possible juncture. And that is obviously true whether the witness judge and the trial judge are friends or not.
In short, counsel waited at least 15 months before raising the issue of Judge Hillman's involvement, notwithstanding the fact that they knew he was my colleague on a relatively small court. That was plainly untimely. See, e.g., Lunde v. Helms, 29 F.3d 367, 370 (8th Cir.1994) (motion untimely where seven or eight months elapsed between filing of complaint and motion to recuse); Willner v. Univ. of Kansas, 848 F.2d 1023, 1028-29 (10th Cir. 1988) (untimely where ten months elapsed); Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1164 n. 3 (5th Cir.1982) (untimely where more than two years elapsed). And they have given no valid excuse for the delay. See United States v. Whorley, 550 F.3d 326, 339 (4th Cir.2008) ("The facts underlying [litigant's] motion were available to him as a matter of public record at the time of his arraignment, and he has shown no cause excusing his failure to seek recusal before the eve of trial.").
Nonetheless, because of the relatively high stakes involved, I am reluctant to deny the motion solely on the grounds that it is untimely. I will therefore proceed to consider the merits of the motion. See S.E.C. v. Loving Spirit Found. Inc., 392 F.3d 486, 494 (D.C.Cir.2004) (finding recusal motion untimely but also addressing its merits).
As with the previous motion, the principal statute under which defendants seek my recusal is 28 U.S.C. § 455(a). That statute provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The focus of that provision "is not [the judge's] actual state of mind at a particular time, but the existence of facts that would prompt a reasonable question in the mind of a well-informed person about the judge's capacity for impartiality." In re Bulger, 710 F.3d 42, 46 (1st Cir.2013).
Section 455(a) does not impose "the standard of `Caesar's wife,' the standard of mere suspicion." In re Allied-Signal, 891 F.2d 967, 970 (1st Cir.1989). Instead,
Bulger, 710 F.3d at 47 (quoting Allied-Signal, 891 F.2d at 970) (emphasis in original) (internal quotations omitted).
The test is an objective one, based on the factual circumstances viewed as a whole; it is not based on the subjective state of mind of the judge, or that of the party seeking recusal. United States v. Voccola, 99 F.3d 37, 42 (1st Cir.1996) (noting that "the charge of lack of impartiality" must be "grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man" (quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976))).
Furthermore, the test is not that of a casual observer, but rather a reasonable and objective observer who is "fully informed of all the relevant facts." In re United States, 158 F.3d 26, 31 (1st Cir. 1998); see Bulger, 710 F.3d at 46 (question depends on "the existence of facts that would prompt a reasonable question in the mind of a well-informed person"); In re Boston's Children First, 244 F.3d 164, 167 (1st Cir.2001) (issue of recusal must be analyzed from the perspective of "an objective, knowledgeable member of the public")
A threshold issue, as with the earlier motion to recuse, is whether I can consider the potential testimony of the claimed witness as part of the recusal analysis. Defendants continue to contend that I cannot look behind their claims to ascertain whether or not those claims have any substance. They have now refined that argument somewhat; specifically, they now contend that if they make a "non-frivolous showing" that a claimed witness is "materially connected to the case" — and, presumably, to me — no further inquiry may be made, and my recusal at that stage must be automatic. (Def. Mem. at 24).
That position, if adopted, would produce a profound change in the law of recusal. If defendants' theory were correct, the effective power to decide whether recusal was required would shift dramatically away from the court and to the parties. Consider, for example, the recent filing made by defendants identifying certain expected trial witnesses (which, they take pains to say, may be incomplete). Defendants have identified 96 present or former state and federal judges as witnesses — as well as 64 legislators and 19 law enforcement officials. It is hard to imagine that any judge in this district does not have a "material connection" to multiple individuals on that list. It is also highly doubtful that all 179 individuals actually would testify. And it is likewise doubtful that all 179 individuals actually have testimony that is relevant and admissible; at the very least, much of that evidence surely would be repetitive or cumulative. Nonetheless, under defendants' view, if I have a connection to any one of those people, and defendants make a "non-frivolous" showing that the person might possibly be a witness, recusal is automatically required. Moreover, according to defendants, I must accept their claim at face value; I cannot even examine whether that person actually has anything relevant to offer, or whether that testimony is even admissible. Defendants could thus effectively veto any judge simply by coming up with a "non-frivolous" basis to list someone as a witness, and could keep a judge by omitting the "witness" or waiving the conflict.
That is not, and never has been, the law. In fact, the principal case cited by defendants in support of their position is to the opposite effect. In United States v. Gordon, 354 F.Supp.2d 524 (D.Del.2005), the defendants in a case charging criminal racketeering and fraud alleged that the extrajudicial activities of a federal judge were relevant to their defense, and proposed to subpoena him as a witness. The court did not simply accept the defendants' claim on faith, but reviewed the alleged evidence in some detail. Id. at 525-26. After remarking that "[i]t is not enough to simply ask what role may be thrust upon the judicial colleague [who may be called as a witness]; one must also ask what that colleague has at stake," the judge recused himself. Id. at 528. Among other things, the judge noted that the alleged evidence did not simply involve "taking some factual testimony from a disinterested third party," but rather involved testimony concerning the reputation of the judicial colleague. Id. In short, the court conducted a sufficient degree of inquiry to satisfy itself that the claim was substantial enough to merit consideration, although of course it did not rule definitively on any of the defendants' claims.
I will adopt a similarly sensible and practical approach. I will therefore examine
Defendants contend that Judge Hillman has "directly relevant, firsthand knowledge" about the allegations in the indictment. (Jan. 29 Tr. at 9). Although defendants' contentions are somewhat vague, they have identified at least six subjects of proposed testimony.
First, defendants contend that over the course of several years Judge Hillman "recommended" 22 candidates for positions in the Probation Department. (Def. Mem. at 14). Defendants characterize Judge Hillman as one of the "most frequent sponsor[s] [sic] of candidates for employment at Probation." (Id.)
Second, defendants contend that Judge Hillman's name appears on four so-called "sponsor lists" for different candidates for Probation positions. (Feb. 24 Hrg. Ex. 1). As noted, there is no evidence that Judge Hillman prepared those lists, or that he was even aware that they existed.
Third, defendants contend that Judge Hillman would testify that he "saw nothing wrong" with "recommending qualified candidates." (Def. Mem. at 14).
Fourth, defendants contend that Judge Hillman "sat on some [hiring] interview panels during the time that defendant O'Brien was Commissioner of Probation." (Def. Mem. at 15).
Fifth, defendants contend that Judge Hillman was aware of, and can describe, hiring practices in the courts prior to the legislative change in 2001 (and prior to the period charged in the indictment). (Id.)
Sixth, defendants contend that Judge Hillman would testify that he was aware that the state judiciary experienced substantial problems implementing a computer system in the 1990s, and that he had been involved in efforts to remedy those problems. (Id.) Defendants further contend that Judge Hillman may opine that "the legislature was angry" about the computer problems and "there was strong pressure to remedy the problem and that the legislature was treating the judiciary unfavorably as a result." (Id.)
It appears that Judge Hillman's principal connection, if any, to this case is the fact that he wrote reference letters, or allowed his name to be used as a reference, for various applicants for positions or promotions. According to the government, hundreds, if not thousands, of individuals gave similar references, and it is a perfectly normal practice to do so. The government contends, however, that the hiring process in the Probation Department was rigged (at least where certain key legislators "sponsored" candidates), and therefore references from individuals such as Judge Hillman were essentially ignored.
If Judge Hillman were simply one of a parade of witnesses who had written reference letters for candidates, or allowed their names to be used as references, it seems unlikely that his testimony on that topic would raise any recusal issues. The mere fact that a witness, especially a minor
Defendants, however, seek to go further. They have argued that Judge Hillman did not simply provide a reference, but "sponsored" candidates; that as a judge he was a powerful figure, like the leaders of the state legislature; and that at least some of his "recommendations" were "followed." The characterization by defendants of Judge Hillman as a "sponsor" of candidates is by no means accidental. In context, it is a statement fraught with implications. Defendants are clearly seeking to draw explicit parallels between what he did and what they are alleged to have done (and which the indictment charges constitutes a crime).
It is also important to note that defendants apparently intend to make other arguments that may implicate the testimony of Judge Hillman. The contours of their arguments are not always clear, and it is somewhat difficult at this stage to ascertain what actual evidence they will seek to
Whether any of this has any basis in fact, whether defendants will succeed in getting any of it in evidence, or whether defendants will be permitted to make any of these arguments at trial, is not the key issue at this stage. Rather, it is the fact that the trial judge — whoever that judge may be — will have to sort through those issues, and limit counsel to evidence and arguments that are legally valid. See Gordon, 354 F.Supp.2d at 528 ("Some judicial officer must determine how far to permit the defense to develop evidence about [the involvement of the judge's colleague] ... and how much of any such evidence can properly be presented at trial.").
Again, Judge Hillman is both a current colleague and a friend. I have high confidence in his integrity and character, and defendants have proffered nothing to suggest that he did anything improper or illegal. There is certainly nothing wrong with serving as a reference for a qualified applicant. But it seems clear that I would have to rule upon the validity of entire lines of questioning, and that in all likelihood I would limit the testimony in multiple respects. That, in turn, would open me up to the criticism that I was excluding evidence not for proper reasons, but to shield my colleague from embarrassment. That issue at the very least raises a serious possibility that recusal may be appropriate.
Unfortunately, the potential issues do not stop with the testimony of Judge Hillman. To that must be added the possibility of yet another round of claims by the defense that my recusal is required. As noted, when I required the parties to make a filing identifying all present and former judges, public officials, and lawyers they expected to call as witnesses in this case, defendants produced a list of 179 names. Given that I have been a member of the bar or a public official in Massachusetts for 33 years, it is not surprising that the list included a number of people with whom I have some degree of connection. Among other things, the list includes former colleagues at Goodwin Procter, former colleagues at the U.S. Attorney's Office, spouses of former colleagues, professional acquaintances, and at least one former client. While my connections with those newly identified individuals are generally tenuous, and the relevance and importance of their testimony is unclear, it is reasonably likely that defendants will contend that those individuals, too, are material witnesses.
Finally, the issues previously raised by defendants, to the extent that they are not entirely specious, must also be added to the mix. Taken as a whole, those issues add at least some marginal weight to the balance.
The question, then, is whether my impartiality might reasonably be questioned if I were to preside over the trial of this case. Again, the test is that of a reasonable and objective observer who is fully informed of all the relevant facts. And I must also be cognizant of "the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons." See Bulger, 710 F.3d at 47 (quoting Allied-Signal, 891 F.2d at 970).
The recusal question here involves a difficult balancing act. There is certainly a realistic probability, because of my relationship with Judge Hillman, that my impartiality might reasonably be questioned. It will be easy to make the accusation that I am trying to protect Judge Hillman, and difficult to dispel the doubts. Nonetheless, I am very much cognizant of the costs such a recusal will impose. Judicial recusal always imposes some degree of cost; here, the price of recusal will be very steep indeed.
One cost will be disruption and delay. Defendants' recusal motions could hardly have been more ill-timed; the case was indicted nearly two years ago, and is now less than three weeks away from the start of trial. The government, not just the defendants, has an interest in a speedy trial, and for that matter so does the public. No matter where this case is reassigned, delays — possibly significant ones — are likely to follow.
Another cost is that defendants will inevitably reap the full reward of an untimely tactical maneuver. Whether they deliberately waited to raise the issue, or held back out of inattention or negligence, is unimportant; the result will be the same.
Finally, there is a real danger that recusal would set a new and pernicious precedent, emboldening counsel to file untimely recusal motions or otherwise seek to manipulate circumstances to their own advantage. Recusal could thus undermine the very goal of public confidence in the fair and impartial administration of justice that I am seeking to uphold.
There is no completely satisfactory answer to this problem, and whatever choice I make may lead to at least some unfortunate consequences. Under the circumstances, however, I have concluded that the paramount consideration is maintaining public confidence in the fairness and integrity of this proceeding. That consideration outweighs the other factors, however strong those factors may be. Therefore, and with considerable misgivings, I feel duty-bound to recuse myself.
The resulting and inevitable delay in the trial of this matter is unfortunate. But the trial will begin at some point; that day will not be postponed forever. As to the possible precedent, it is perhaps enough to say that each case must rise and fall on its own facts, and that I have great confidence in
For the foregoing reasons, defendants' renewed motion for recusal is GRANTED.
(Gov't. Mem. at 3).
