If you believe in the fundamental fairness of our justice
system, there's a beautiful paragraph in the middle of a truly
extraordinary order issued Friday by 9th Circuit Court of
Appeals judges Marsha Berzon and Richard Tallman.
The two sat with Judge Susan Graber in a death penalty case
in which the defendant, Kevin Miles, sought to reverse an
Arizona federal judge's denial of a habeas petition challenging
his sentence. A month after Graber wrote the 9th Circuit
majority opinion affirming the denial of habeas, Miles's new
lawyer, assistant federal public defender Timothy Gabrielsen,
moved for Graber's recusal from consideration of Miles's
petition for rehearing. The judge's father, Gabrielsen wrote,
was carjacked and murdered by two teenagers in Ohio in 1974. One
of his killers appealed his death sentence all the way to the
U.S. Supreme Court, which eventually struck down both the
sentence and Ohio's death penalty law because the law didn't
take adequate account of mitigating circumstances. Miles's
counsel, Gabrielsen, argued that there were significant
parallels to his client's case: Miles's conviction also stemmed
from a car-jacking-related murder and he also claimed that
mitigating circumstances weren't considered in his sentencing.
"The average person on the street or the disinterested lay
observer would, if apprised of these facts, entertain a
significant doubt as to Judge Graber's impartiality," Gabrielsen
Judges in the 9th Circuit make their own decisions about
whether to step aside in response to recusal motions, and in
this case Graber decided not to. But her colleagues Berzon and
Tallman took the rare step of issuing their own statement, in
the form of an order, in connection with Miles's recusal motion.
"Should our silence be misunderstood," they wrote, "we wish to
state that were it appropriate for us to have participated in
the recusal decision, we would have voted to deny the motion.
Indeed, we regard the request itself as an inappropriate one."
The two appellate judges went on to note that the tragic
murder of Graber's father took place 40 years ago. Graber has
been a judge for almost 25 of those years and has been called
upon to decide many capital murder cases, some of which she has
voted to affirm and some of which she has called for reversing.
The judges acknowledged that defense lawyers in death penalty
cases regard it as their duty to raise every colorable issue to
save their clients. But this motion, which dredges up painful,
40-year-old memories in a case in which Graber has already
ruled, is "beyond the limits of appropriate representation,"
they said. Calling Graber incapable of impartiality in a death
penalty case, Berzon and Tallman said, is as misguided as the
failed attempt by gay marriage opponents to overturn former U.S.
Chief District Judge Vaughn Walker's ruling in the Proposition 8
case because Walker is gay.
"All of us as judges have had life experiences that could be
said to affect our perception of the cases that come before us,"
Berzon and Tallman wrote, in a lovely and moving paean to the
federal judiciary. "Some of us have served as prosecutors and
others have not; some have experienced discrimination as women
or minorities and others have not; some are intensely religious
and others are not, and our religions vary; some have children
and other relatives with disabilities and illnesses, physical
and mental, while others do not; some have had personal
experience, directly or through family members, as crime
victims, while others have not; some have relatives who are
police officers, civil rights activists, or journalists, and
others do not; some served in the armed forces and others did
not; some had personal experiences as immigrants and others did
not. These life experiences do not disqualify us from serving as
judges on cases in which the issues or the facts are in some
indirect way related to our personal experiences."
Retired federal judge Nancy Gertner, now a professor at
Harvard Law School, spoke with me recently about the need for economic and all other sorts of diversity on the federal bench.
The restrained passion in Berzon and Tallman's statement in the
Miles case makes that point with memorable eloquence.
Miles counsel Gabrielsen of the Arizona federal public
defenders office said, "I stand on what I wrote in the recusal
motion," and declined additional comment.
(Reporting by Alison Frankel)
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