Deciding Whether to Recuse Yourself When the Appearance of Bias is Alleged

If you sit on the bench for any length of time, you will be faced with a motion to recuse.  Some motions are legitimate, some are frivolous, but they all require a judge to engage in honest self -reflection that is not always easy.  It is perhaps natural to get defensive when someone questions whether you can be fair.  When the basis of the recusal motion involves issues like race or religion, it is particularly hard.

The Chicago Sun Times recently had a story on a motion to recuse which began as follows:

A Jewish federal judge whose family has raised more than $3 million for a pro-Israeli charity angrily refused on Thursday to recuse himself from the terrorism-related trial of a southwest suburban Palestinian immigrant.

U.S. District Judge Paul Borman accused lawyers for Rasmieh Odeh of “careless and rank speculation” for suggesting that he couldn’t be impartial in Odeh’s case. He said Odeh’s lawyers do not have “a shred of factual support” for their “startling” suggestion that his many trips to Israel mean he has information about torture in Israeli prisons — a key issue in Odeh’s defense.

About 50 Chicagoans traveled by bus from Chicago to Michigan on Thursday to protest outside the Detroit courthouse where Borman sits. They later packed into his courtroom to show their support for the 66-year-old Odeh, who denies she lied to immigration officials about a terrorist past when she emigrated to the U.S. in 1995.

Odeh spent 10 years in an Israeli prison after an Israeli court convicted her of two terrorist bombings — one of which killed two people — in Jerusalem in 1969. But she failed to acknowledge that fact when she came to the U.S., and again when she successfully applied for U.S. citizenship in 2005, the feds said when they arrested her in the Chicago area in October.

In his order denying the motion to recuse, Judge Paul Borman said his religious and philanthropic activities were commonplace, and fell far short of the standard for personal involvement where a judge should remove himself from a case such as the prosecution of Arab-American activist Rasmea Odeh for allegedly failing to disclose her convictions by an Israeli military court in connect with a pair of bombings in Jerusalem in 1969.

 

“The law of recusal is clear that a judge’s prior activities relating to his religious convictions are not a valid basis for questioning his impartiality in a particular case,” Borman wrote in an 11-page ruling rejecting the defense motion.

 

 

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