"Only one tribunal ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber."-U.S. v Faretta , 422 U.S. 806 (1975)

OUTSIDE, IT'S AMERICA

REASONABLE DOUBT

"Silence in the face of evil is itself evil: God will not hold us guiltless.
Not to speak is to speak. Not to act is to act." ― Dietrich Bonhoeffer

(c) 1995-2026

All Rights Reserved

Recusel, NEVER!

Standard of Review
           

A District Court’s decision whether to grant a motion for recusal is reviewed for an abuse of discretion.  United States v. Martin, 278 F.3d 988, 1005 (9th Cir. 2002).  "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit … such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." U.S. v. Sibla, 624 F.2d 864 (9th Cir. 1980).  The substantive standard for recusal under 28 U.S.C.S 144 and 28 U.S.C. S 455 is the same: "[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. " United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quotation omitted). Ordinarily, the alleged bias must stem from an  "extrajudicial source." Liteky v. United States, 114 S. Ct. 1147, 1157 (1994). "[J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion. " Id. "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.

Argument      
Section 455(a) of 28 U.S.C. provides that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 
The test whether a judge should shall disqualify himself in any proceeding is "whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned."  United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997), quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). 
One of the chief complaints Killercop had against Judge Matz was the fact that he would not appoint a competent counsel to represent Killercop, and thus unnecessarily delaying the trial to Killercop’s detriment.   (See Right to Counsel argument, infra).  After appointing three incompetent attorneys, the fourth attorney, Mr. Nicolaysen, appointed by Judge Matz refused to accept Dr. Backer‘s conclusion that Killercop was competent to proceed to trial and ultimately persuaded the doctor to opine that more evaluation may be necessary.  When urged by Mr. Nicolaysen, Judge Matz made a finding without Killercop being present in court that Killercop was suffering from a mental defect and issued an order for a mental treatment.   Subsequently, upon learning that Killercop had named Mr. Nicolaysen as a defendant in a lawsuit for violation of his civil rights, Judge Matz relieved Mr. Nicolaysen from representing Killercop.
It was based on the above actions of Judge Matz, coupled with Judge Matz’s comment that he will not consider any alternative other than a trial and the fact that he is referred to in a lawsuit as a co-conspirator to violate Killercop’s civil rights, that Killercop moved for Judge Matz’s recusal.
The fact that Judge Matz is accused by Killercop of conspiring to violate his civil rights alone would be sufficient to question Judge Matz’s ability to stay impartial.  However, the details of the alleged conspiracy would lead any reasonable person with knowledge of all the facts to question the judge’s impartiality.
Such conclusion is also supported by Judge Matz’s subsequent actions and rulings in the trial.  Judge Matz grew increasingly more impatient with Killercop.  At one point, Judge Matz yelled at Killercop.  (RT 881).  Such an outburst by the judge demonstrates his impatience and bias toward Killercop. Also, the court issued a ruling on 10/28/2003, Docket 273, ORDER DENYING DEFENDANTS MOTIONS: which stated "On or about February 6, 2003, the Court issued an order allowing Defendant to file certain motions directly, although he was then represented by counsel of record.
Given these developments, it is now feasible to rule upon Defendant’s motions and the Court can do so without further papers or argument. (Indeed, at a recent hearing Defendant requested the Court to do so.) Accordingly, the Court now rules as follows:"

Actually and factually, the Defendant specifically requested a hearing. See RT 10.21.2003, page 37, lines 21-25 and Page 38, lines 1-6. Such a ruling by the judge again demonstrates judge’s impartiality.  
Moreover, after relieving Mr. Reed as his counsel, Judge Matz forced Killercop to go to trial pro per and also denied Killercop’s request for appointment of counsel for sentencing.  (See denial of right to counsel argument).  Such a ruling by the judge again demonstrates judge’s impartiality.

Judge Matz’ denial of Killercop’s meritorious pre-trial motions also shows that Killercop did not receive a fair and unbiased consideration of his motions because the judge was so set on going to trial in this case.  (see motion to dismiss arguments, infra).

Because any reasonable person with knowledge of all of the above facts would have concluded that the judge’s impartiality might reasonably be questioned, the district court erred in denying Killercop’s motion for recusal of Judge Matz.

OPINION OF JUDGE KOZINSKI:

F. Recusal
Defendant also appeals the denial of his motions for recusal of the trial judge. We review for abuse of discretion.

Defendant’s recusal motions were based on the trial judge’s alleged failure to appoint competent counsel to represent Defendant, his order that Defendant’s competency to stand trial be evaluated, his order that Defendant not communicate directly with the court while represented by counsel, and his alleged failure to consider Defendant’s motions to dismiss the indictment, as well as the fact that Defendant filed a civil complaint alleging that the trial judge was involved in a conspiracy to violate Defendant’s constitutional rights. His recusal motions were randomly assigned to a different district court judge and were denied. As the judge ruling on the motions correctly noted, " ‘judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.’ " (E.R. at 175 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).) "Almost invariably, they are proper grounds for appeal, not for recusal." Liteky, 510 U.S. at 555. Even hostile judicial remarks made during the course of a trial will not ordinarily support a challenge to the judge’s partiality. Id.

Moreover, "[a] judge is not disqualified by a litigant’s suit or threatened suit against him, or by a litigant’s intemperate and scurrilous attacks." United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citation omitted). Because Defendant failed to make the required showing that the trial judge’s actions or remarks were based on an extrajudicial source or "reveal[ed] such a high degree of favoritism or antagonism as to make fair judgment impossible," Liteky, 510 U.S. at 555, we conclude that the motion judge did not abuse her discretion in denying Defendant’s motions for recusal.

Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005) (Record indicated judge’s bias against defendant).

Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government," Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 86 (1st Cir. 2004)

CONTACT

COLLECT A BOUNTY

COLLECT A REWARD

FILE A COMPLAINT

TO PURCHASE KILLERCOP.COM™ CLICK HERE

(c) 1995-2026

All Rights Reserved