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March 27, 1991


The opinion of the court was delivered by:  Walker, Circuit Judge.[fn1] [fn1] Sitting in District Court by designation.


Defendant Leona M. Helmsley moves to disqualify this judge from ruling on her motion for a new trial pursuant to Fed.R. Crim.P. 33. She argues, in substance, that hostility and antagonism demonstrated toward me by her lawyer prior to his representation of her makes it questionable whether I can act impartially in her case. Helmsley contends that my recusal is required under 28 U.S.C. § 455(a) and Canon 3 C(1) of the American Bar Association Code of Judicial Conduct.


From June 26, 1989 to August 30, 1989, I presided over the criminal trial of Helmsley and two co-defendants. The jury found Helmsley guilty on thirty-three counts of tax evasion, filing false tax returns and mail fraud. On December 12, 1989, I imposed a sentence that included a term of imprisonment of four years and fines exceeding $7 million. Throughout the pre-trial, trial, post-trial and sentencing proceedings, Helmsley was represented by Gerald A. Feffer, Esq. and Williams & Connolly. Shortly after sentencing, Heimsley retained Alan M. Dershowitz, Esq. for her appeal and subsequent proceedings.

In April 1990, Helmsley's co-defendants filed motions in the District Court to reduce their sentences. In so doing, they requested that Chief Judge Brieant assign their motions to me. Chief Judge Brieant asked me whether I was willing to resume handling the matter in the District Court. I agreed and the motions were then assigned to me.

On October 10, 1990, while her appeal from conviction was sub judice in the Court of Appeals, Helmsley filed a motion for a new trial pursuant to Rule 33 in the District Court. With her motion, she submitted a stipulation substituting Mr. Dershowitz and his colleagues for Mr. Feffer and Williams and Connolly as well as a motion to permit their appearance pro hac vice. The stipulation of substitution was "so ordered" before Judge Duffy in Part I. On October 10, 1990, Chief Judge Brieant asked me whether I would handle the new trial motion. I agreed to do so. On October 11, 1990, Chief Judge Brieant granted the pro hac vice motion and referred the motion for a new trial to me. Apparently, copies of Chief Judge Brieant's order of referral were not forwarded by his chambers to counsel for either side.

On December 13, 1990, at a conference, Helmsley, through Mr. Dershowitz, suggested that I recuse myself from the matter. While I concluded that nothing said at the conference seemed to warrant recusal, I set a schedule for the submission of motion papers. This motion followed.


Section 455(a) provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Helmsley argues that events surrounding her attorney's criticisms of me and his public opposition to my appointment to the Court of Appeals give rise to an appearance of bias on my part that requires my disqualification.

Helmsley does not contend that I in fact harbor bias, or will be motivated to rule against her out of resentment for her attorney's antagonism. Despite the absence of an allegation of actual bias, I address the question because I would recuse myself even in the absence of a motion if I believed I would have difficulty ruling impartially. In fact, I have no bias toward Helmsley or toward the conduct of her litigation through Mr. Dershowitz. I can perceive no danger that I would be influenced in any ruling by any feelings about Mr. Dershowitz or reaction to his conduct toward me.

In this regard I note two points. First, although it is never pleasant to be criticized, Mr. Dershowitz's opposition was not of major significance for me. He was alone in expressing opposition to my appointment.*fn2 There was no indication that any of the Senators who needed to pass on my confirmation gave any credence to his criticisms, which were consistent with his longstanding, widely known practice of criticizing judges.*fn3 It appeared from one Senator's questioning that his criticisms may have been seen as motivated by a ruling I had made in a matter in which he was interested. See Part B, infra n. 5.

I therefore never regarded Mr. Dershowitz's hostile campaign as a cause for any concern. I did not feel that it required a response, and, apart from brief and neutral responses to a few Senators' questions at the hearing, I did not address or respond to his criticisms. In short, Mr. Dershowitz's attacks and criticisms have not been an important preoccupation for me.

Secondly, it is not at all unusual, given the combative nature of litigation for a judge to have an attorney before him with whom the judge has had prior acerbic relations. It is one of the earliest and most fundamental lessons of judging that a judge must rule on the merits without regard to the personality of the attorney or any unpleasant experiences the judge may have had with the attorney in the past. In fact, it is a standard part of a judge's instructions to the jury that any predisposition toward or against any attorney must be set aside in reaching a verdict. Jurors are directed to follow this instruction; judges follow it as a matter of course.

Thus, I have no reason whatsoever to question my ability to rule with impartiality on Mrs. Helmsley's motion. Whether she is represented by Mr. Dershowitz or any other lawyer, my ruling would be based on the merits. I therefore move on to ...

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