to him, such as, if recollection serves, accommodating his
request that continued deposition sessions be conducted in
Massachusetts where he resides. The contention that these
rulings demonstrate bias against Mr. Dershowitz, or would ever
be perceived as such, is outlandish.
Precisely to avoid such far-fetched claims, courts have
consistently ruled that claims of prejudice and
disqualification may not, ordinarily, be based on a judge's
rulings. See, e.g., In re Cooper, 821 F.2d at 841; In re IBM,
618 F.2d at 929-31; United States v. Wolfson, 558 F.2d at 63,
n. 12. It is part of a judge's job to make rulings. Every
ruling of necessity disfavors someone. If those affected by
rulings in the normal course of litigation — be they parties,
attorneys or witnesses — could seek disqualification because a
judge's rulings disfavored them, our system of justice would
become difficult, if not impossible, to administer.
In an imaginative effort to avoid this rule, Helmsley claims
that my alleged bias, demonstrated by rulings in von Bulow,
stem from an extrajudicial source. In 1982, Mr. Dershowitz
wrote a book entitled The Best Defense in which he criticized
certain prosecutors in the United States Attorney's office for
this district. I had worked in that office as an Assistant U.S.
Attorney from 1970 to 1975. I was not mentioned in the book.
Helmsley nonetheless claims that a reasonable observer would
believe that I would so resent Mr. Dershowitz's 1982 criticism
of prosecutors I worked with in 1975 that it would now cause me
to make biased rulings against Mrs. Helmsley in 1991. This
far-fetched notion is simply too "remote, contingent [and]
speculative" to support a claim of apparent bias under §
455(a). In re Drexel Burnham Lambert, Inc., 861 F.2d at 1313.
As noted above, even if bias or apparent bias against Mr.
Dershowitz in present or past proceedings could be shown,
courts have consistently held that to require recusal, judicial
bias must be against a party, not the party's counsel. See,
e.g., In re Cooper, 821 F.2d at 838-839; In re Drexel, Burnham,
Lambert, Inc., 861 F.2d at 1314, 1316; In re IBM, 618 F.2d at
932; United States v. Wolfson, 558 F.2d at 63 n. 12.
The next asserted ground is Helmsley's claim that at a
judicial conference in September 1986, during the von Bulow
litigation at which I presided, I had an ex parte conversation
with Michael Armstrong, Esq. attorney for plaintiffs in that
case, in which I told him that, in sum and substance, I
intended to give Mr. Dershowitz a "hard time" as a witness in a
hearing because of what he had written in The Best Defense. No
such conversation ever took place.
The only support offered is Mr. Dershowitz's assertion by
affidavit that Mr. Armstrong told him so in 1987 during a break
in his deposition in the von Bulow matter. This is inconsistent
with other versions that Mr. Dershowitz told the press: that
his source was an unnamed friend of a friend who told him about
it either shortly after the supposed conversation occurred or,
in another version, several months later. An affidavit by Mr.
Dershowitz's brother and co-counsel Nathan Dershowitz, Esq.
asserts that he was present when Mr. Armstrong spoke of having
had a conversation with me, but he does not state any content
of the supposed conversation. Meanwhile, I have stated under
oath that no such conversation occurred. Mr. Armstrong
certifies by affidavit that the conversation did not take place
and that he never told Mr. Dershowitz any such thing. An
associate of Mr. Armstrong (Mr. Parnon), who all agree was
present at the deposition, states in his affidavit that Mr.
Armstrong said no such thing to Mr. Dershowitz.
In sum, no such conversation occurred, and Helmsley's
submissions do not support a reasonable inference otherwise.
But even assuming that in 1986 a judge had had such a
conversation about a lawyer or witness involved in a matter
before him, it would not support a reasonable inference that
the judge would be partial in an unrelated case nearly five
years later in which the attorney appeared. For the reasons
given above, as a matter of law, even if this allegation were
true, it would not
justify my disqualification in the Helmsley case.
C. Ex Parte Communication in the Helmsley Case
Finally, Helmsley contends that my fairness can reasonably be
questioned because of a telephone call made by my clerk to the
Assistant U.S. Attorney in the Helmsley matter. The contention
When Helmsley made her motion for a new trial and it had been
assigned to me by the Chief Judge of the District Court, my law
clerk telephoned the Assistant U.S. Attorney and suggested that
the Assistant write a letter proposing a schedule for the
submission of papers on the motion. Helmsley asserts that this
was an ex parte communication and that it evidences partiality,
bias and unfairness. Helmsley speculates that the clerk would
not have made such a call without my being aware of it. This
much is quite true. I indeed instructed my clerk to make the
call. The proposition that the event suggests bias, however, is
Where scheduling is involved, it is commonplace for trial
judges to have their clerks telephone counsel from one side
requesting either that he initiate discussion with the
adversary over a schedule for submissions or that he write a
letter setting forth a proposal for scheduling. Such a call
would not involve discussion of the merits or of any issue in
the case; furthermore, it is not made by the judge. It serves
only to set in motion an exchange of proposals for a schedule.
It is routine court practice in case management.
The further suggestion that sinister implications arise from
the fact that Helmsley's counsel did not receive notice from
the Chief Judge of the order assigning Helmsley's new trial
motion to me is even more strained. As noted above, the
post-sentence motions of Helmsley's co-defendants had been
assigned to me months before. It is usual procedure for the new
trial motion to go to the judge who presided at trial because
this avoids requiring another judge to familiarize himself with
the trial record. The only unusual feature here was that in the
meantime, I had become a judge of the Court of Appeals. I
nonetheless accepted the assignment when this was suggested by
the Chief Judge of the District Court. The fact that the Chief
Judge's staff did not send notice of the order of reassignment
to counsel for either side was apparently nothing more than an
administrative oversight. I knew nothing about it. In any
event, the capacity of these events to suggest bias on my part
I find no basis to disqualify myself for either actual bias
or the appearance of partiality. The motion is denied.
*fn2 At the Senate hearing, Senator Simpson noted:
"Apparently, there is only one real thorough
objection to you. I have heard that criticism that
came from a single person, but I have not heard
that echoed by any other member of the committee.
And I would not think that your nomination would