There's a lot about this I like. A lot.
It's unusual for appellate judges to make a published "Statement." Dissents, concurrences and the like are routine. But "statements" are rare. So you know you're in for something good.
As indeed this one is. Here's a large piece of what Judges Berzon and Tallman have to say:
"Appellant’s motion to recuse Judge Graber was, in its format, directed to all three judges on the three-judge panel in this case. Under this Circuit’s procedures, however, each judge may decide for himself or herself whether recusal is appropriate. [Cites] We therefore directed the motion to Judge Graber alone, who has denied the recusal request.
Should our silence be misunderstood, however, 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 basis for the requested recusal was a tragedy in Judge Graber’s life that occurred close to forty years ago, her father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly decide this capital murder case because of that history and some broad similarities between the two criminal cases.
Judge Graber has been a judge for almost twenty-five years. In that time, she has sat on numerous capital murder cases, voting to affirm some and to reverse others. She has never been asked to recuse in any of them and never has. There is absolutely no reason she should do so now.
All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. 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.
Here, the suggested basis for questioning Judge Graber’s impartiality is especially flimsy, as the acts on which it is based happened close to forty years ago. Judge Graber has had that much time to absorb her loss. And there can be no rational suggestion that Judge Graber has anything at all to gain by denying habeas relief in this capital case, which concerns a crime and a defendant with nothing to do with her loss. . . .
Further, the motion for recusal in this case is peculiarly timed. This case has already been decided, with Judges Graber and Tallman voting to affirm the denial of habeas relief in this death penalty case and Judge Berzon voting to reverse the penalty but not the conviction. The case is currently pending on a petition for rehearing. Although new counsel was substituted while the case was pending, there is no reason why the information about Judge Graber recited in the recusal motion, derived from a very simple Internet search, could not have been found by the former lawyers or the new ones before the opinion issued. Indeed, the motion states that the general historical facts were known, but not the details. To make the motion after the initial outcome of the case was known renders it even more inappropriate than its content alone would indicate — which, as we have said, is itself considerable.
We well understand that this is a death penalty case, and that the petitioner’s lawyers properly regard it as their duty to try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit. And doing so by reciting in detail the facts of a long ago, tragic incident in her life, requiring her to relive them yet again and exposing them anew to public view is, in our opinion, beyond the limits of appropriate representation."
As I said, I like it. Strong words where appropriate. Moderation in places where also appropriate. Right rule, and right sentiment as well.
The only thing I might have changed was the last line. Judges Berzon and Tallman conclude by saying that "reciting in detail the facts of a long ago, tragic incident in her life, requir[ed] [Judge Graber] to relive them yet again," presumably causing unnecessary distress. As a factual matter, that may well be right; I know I might not like to read about painful experiences in my life, and the ones on my end are far less serious than the ones that Judge Graber had to endure.
But this point somewhat conflicts with Judge Berzon and Tallman's earlier statement that these events were so long ago that "Judge Graber has had [] much time time absorb her loss," presumably meaning that she is unlikely to be currently effected by these prior events. Indeed, the central trust of defendant's motion for recusal, as I understand it, revolves around the argument that the facts and circumstances of the crime at issue are so similar to a prior traumatic event in Judge Graber's life that her judgment might be impaired. I agree that argument's meritless, but I'm not sure it helps things to simultaneously say in response that (1) the events transpired long ago, so are unlikely to be present in her mind, and yet also arguing (2) that bringing them up again requires her to relive them and will have an emotional impact on her. If (2)'s true, it seems to suggest that (1) may well not be true -- or at least that even neutral outsiders may be far from certain about the validity of (1).
So I'd have stuck with the themes that the motion is meritless, overly tactically timed, and simply in poor taste. I -- like the panel -- have no doubt whatsoever that Judge Graber is a capable jurist in every case before her, including but not limited to those that may involve events similar to her prior life experiences. I could perhaps understand a lawyer thinking (as potentially the lawyer did here) that if a juror might perhaps be excused for cause -- and that might arguably be the case were Judge Graber on the jury venire selected to potentially hear the underlying case -- then the equally fuzzy judicial recusal provisions might also apply. Especially in a death penalty case. But I also agree with the disposition of that argument here. As well as the decision by Judge Berzon and Tallman to expressly support their colleague.
Which is not to say that these things aren't tough all around. They are.
But my favorite paragraph was the one about the life experiences of the various judges . Everything Judges Berzon and Tallman say there is totally true. There are lots -- lots -- of different perspectives on the Ninth Circuit. Which in turn make the institution a wonderful place.
And Judges Berzon and Tallman are not judge talking about these things in the abstract. Every description they make silently refers to one or more particular judges currently on the Ninth Circuit. From the very first category (former prosecutors) to the last (immigrants). They're talking about someone they, and we, know. It's true. It's real. It happens every day.
And it's a good, not a bad, thing.
