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Judge's public comments warrant recusal

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    NMU         FIRST CIRCUIT         Secret Courts         Feb 21, 2001    

Judge’s public comments warrant recusal

  • A letter to and later interview with a Boston newspaper created enough doubt about a federal district judge’s neutrality that she should have stepped aside from the case, according to a court of appeals decision.

A federal district judge who spoke to a newspaper to clarify procedural matters should have recused herself from the case because her comments could have been interpreted to indicate that she was biased, even though the judge in no way abdicated her ethical responsibilities by speaking, the U.S. Court of Appeals in Boston (1st Cir.) ruled on Feb. 5.

The lawsuit at issue was filed by a group of plaintiffs who alleged that racial preferences were used in Boston’s elementary school assignment procedures, a violation of state and federal law. The plaintiffs sought class-action status. However, the trial court judge, Nancy Gertner, found that some of the plaintiffs might not have standing for injunctive relief because they did not apply for a new school assignment. In an order issued last June, Gertner recommended that further discovery be done on the issue of standing before certifying the class.

Despite the judge’s recommendation, the plaintiffs filed a motion for class status. The plaintiffs further criticized the judge in a Boston Herald article because the judge failed to immediately certify the class in the pending case, even though she had certified a class in a prior case the plaintiffs thought was similar.

Gertner responded to the Herald article with a letter in late July. She clarified that she had not denied class certification but had merely postponed a ruling until further discovery occurred.

The Herald wrote a follow-up article and interviewed Gertner.

“In the (prior) case, there was no issue as to whether (the plaintiffs) were injured. It was absolutely clear that every woman had a claim. This is a more complex case,” the newspaper quoted the judge on Aug. 4.

Based on that comment, the plaintiffs moved for Gertner to recuse herself, arguing that the comment called her impartiality into question. Gertner refused, stating she merely provided an explanation of court procedure and did not comment on the merits of the case.

On appeal, the court found that Gertner should have recused herself because a reader might interpret her comments as evidence bias. Even though she did not violate judicial ethics, the court said just a perception of bias was sufficient for recusal.

(In re: Boston’s Children First) AG

© 2001 The Reporters Committee for Freedom of the Press

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