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 said.

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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