recusal motion, defendants have relied on the same unsubstantiated statement made by Ms. Fink about the "Church Report" and remarks made by this court regarding alleged FBI activity at U.C.L.A. Yet, defendants' have made no attempt to corroborate any of these alleged "facts." Accordingly, such statements do not warrant recusal in this case.
C. Trial-Related Conduct and Rulings
Defendants further complain that the court exhibited its partiality through various comments made during the course of the trial. More specifically, defendant Coughlin refers to comments made by the court concerning the attentiveness of the Department of Correctional Services in transferring inmates who were scheduled to testify at the trial, comments concerning the credibility of defendants' trial witnesses, and statements about the competency of defense counsel during trial. Coughlin Aff., PP 8-10. Because of these statements, defendants argue that "the Court's [sic] impartiality in this case could reasonably be questioned, and . . . the Court [sic] has demonstrated personal bias against [them]." Id. at P 11.
It is well-settled that comments and opinions expressed by the judge that are solely based on the evidence presented during trial are not grounds for disqualification. In Liteky v. United States, 127 L. Ed. 2d 474, U.S. , 62 U.S.L.W. 4161, 4165, 114 S. Ct. 1147 (March 8, 1994), the Supreme Court recently held that a judge could not be disqualified from a case because of judicially-related trial rulings and comments against defendants even if the judge had previously presided over the same defendants at another trial.
In 1991, John Patrick Liteky, Charles Joseph Liteky ("Litekys"), and Roy Lawrence Bourgeois ("Bourgeois") were tried and convicted for the wilful destruction of United States property during a protest against the United States policy in El Salvador. Eight years earlier, the same District Judge who presided over the 1991 trial presided over another trial ("1983 trial") in which defendant Bourgeois was convicted on misdemeanor charges resulting from a similar protest. Id. at 4162.
Before and during the 1991 trial, defendants moved that the District Judge recuse himself from the case pursuant to 28 U.S.C. § 455 (a). The first motion was based on rulings and statements made by the judge that allegedly displayed "impatience, disregard, and animosity towards the defense during and after defendant Bourgeois' 1983 trial." Id. at 4161. The second motion was based on the judge's admonishment of defendant Bourgeois defense counsel and codefendants in front of the jury at the 1991 trial. Both motions were denied. The Court of Appeals affirmed the decisions, agreeing that matters arising from judicial proceedings are not a proper basis for recusal. Id.
The Supreme Court upheld the decision of the Court of Appeals,
deciding that recusal is required only where a judge cannot render a fair judgment based on (1) knowledge acquired outside the judicial proceeding in which recusal is being sought; or (2) a deep-seated and unequivocal antagonism displayed in the judicial proceeding. Id. More specifically, the Liteky Court found the following types of judicial action cannot form the basis of a recusal motion:
First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. . . . Not establishing bias or partiality, . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration--even a stern and short-tempered judge's ordinary efforts at courtroom administration--remain immune.
Liteky, 62 U.S.L.W. at 4165-66 (emphasis supplied).
The Second Circuit similarly has rejected those recusal motions that are based solely on comments and rulings made in a judicial capacity. In In re Drexel Burnham Lambert Incorporated, 861 F.2d 1307 (2d Cir. 1988), cert. denied, Milken v. S.E.C., 490 U.S. 1102, 104 L. Ed. 2d 1012, 109 S. Ct. 2458 (1989), the Second Circuit held that a district judge's "sharp colloquy" with defense counsel did not demonstrate a bias toward defendant that warranted recusal. Rejecting petitioner's claims that the judge's "criticism of [defense counsel's] trial behavior" mandated recusal, the court found that disqualification must be determined "on the basis of conduct which shows bias or prejudice or a lack of impartiality by focusing on a party, not on counsel." 861 F.2d at 1316. As a result, "the sharpness in colloquy between the judge and counsel, . . . does not demonstrate bias, but is well within the acceptable boundaries of courtroom exchange." Id.; see also, In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir. 1980) ("IBM II") (the court's sporadic "flare-ups" toward counsel do not provide any basis for finding personal prejudice against a party).
Based on established recusal jurisprudence, it is clear that the following types of evidence will not support a recusal motion: judicial rulings based on evidence presented at trial, Liteky, 62 U.S.L.W. at 4165; judicial comments based on evidence presented at trial, Id.; the court's observations regarding the legal sufficiency of evidence presented at trial, U.S. v. Conforte, 624 F.2d 869, 882 (9th Cir. 1980); or the court's observations regarding the credibility of trial witnesses. U.S. v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976). Essentially, "what a judge learns in his [or her] judicial capacity . . . is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification." Bernstein, 533 F.2d at 785.
Defendants claim that the court's comments on the events occurring during trial are not the result of the evidence presented but, instead, reflect a "deep-seated bias" against them obtained from "the Court's [sic] previous experiences in other cases." Def.'s Memo. at 12. Were a reasonable person to consider the court's alleged comments in the context in which defendant has presented them, he or she might possibly consider disqualification appropriate. However, to lend clarity to these statements, I am quite certain that this same reasonable person would want to hear the full record to completely understand the circumstances in which they were made.
For example, while defendant Coughlin quotes excerpts of comments that the court made regarding the delays in bringing the inmate witnesses to the federal Metropolitan Correctional Center ("MCC") in his affidavit, he neglects to mention that plaintiff filed writs ad testificandum with this court one week before the inmates' scheduled appearances and that defendants had a witness list long before trial began. Tr., 456. Yet, despite this preparation, defendants, most of whom are responsible for the transportation of the prisoners in their facilities, failed to properly produce them on time, causing unnecessary and excessive delay. Accordingly, the court's comments reflect the frustration which certainly has been experienced by every judge interested in efficient trial administration as opposed to a "deep-seated antagonism" against defendants.
Likewise, the court's comments regarding the credibility of the defense witnesses and the legal sufficiency of evidence presented against defendants were based on the facts adduced at trial. While it is true that the court wrote the opinion in Sostre v. McGinnis, 312 F. Supp. 863 (S.D.N.Y. 1970), rev'd in part, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 30 L. Ed. 2d 740 (1972), the opinion reached in that case approximately twenty-four years ago could not form the basis for a recusal motion in this case. Liteky, 62 U.S.L.W. at 4165-66. As my opinion of defendants' conduct has not changed since the trial, I feel it most appropriate to repeat those comments which most adequately summarize the evidence presented:
THE COURT: The point is that this is an extraordinary case and as I pointed out when the plaintiff first came in here with a lot of allegations in their prior pre-trial order, . . . I cautioned them, [sic] that they would have to produce evidence and proof of these allegations, which seemed really unusual; is the mildest way I can put it.