JENNIFER LUDDEN, HOST:
This is TALK OF THE NATION. I'm Jennifer Ludden, in Washington. Last week, George Zimmerman, the former neighborhood watch volunteer in Florida, asked for a new judge in his murder trial. Zimmerman's attorney claimed his current judge is biased because, in a recent ruling, he declared that Zimmerman had, quote, "flaunted the system."
This is the second judge on the case. The first one recused herself after Zimmerman also accused her of a conflict of interest. This got us thinking: When is a judge deemed biased, and who decides? And is it fair to expect judges to be utterly impartial arbiters?
We want to hear from lawyers. If you've dealt with the issues of judicial bias, tell us your story. Our number is 800-989-8255. Our email address is email@example.com, and you can join the conversation at our website. Go to npr.org and click on TALK OF THE NATION.
Later in the program, we'll talk with - about public officials and taxes. Should they have to disclose their returns? But first, Steven Lubet is a professor of law at Northwestern University, where he focuses on legal ethics, and he's co-author of the book "Judicial Conduct and Ethics." He joins us now by phone from his office in Chicago, Illinois.
Steven, welcome to TALK OF THE NATION.
STEVEN LUBET: Very glad to be here.
LUDDEN: So how do you define judicial bias?
LUBET: The courts define bias as favoritism or an inclination to favor one party to the litigation or one of the lawyers. So they exclude things like predisposition to have a certain view of the law. It needs to be personal, or directly in favor or against one side of the case.
LUDDEN: So you can't read bias in their whole history of decisions from the bench.
LUBET: Well, typically you can't read bias through their whole history of decisions. And another factor, which is directly relevant to the Zimmerman situation, is that it needs to come from something outside the case itself. This is called, sometimes, the extrajudicial source rule. So if a judge got mad at Mr. Zimmerman for something that happened in the course of the case, that would not be bias.
LUDDEN: Huh. Interesting. Now, the - is it true that the definition, though, or the parameters for deciding bias can vary from state to state?
LUBET: There is a general approach that most states follow, which is called - the issue is whether there is a reasonable question about the judge's impartiality. But some states have adopted different rules.
LUDDEN: And then what about state versus federal courts?
LUBET: A reasonable question about impartiality is the rule in federal courts.
LUDDEN: OK, and can you just give us examples of, you know, something that - either in your own experience or a theoretical example that would qualify, that would meet these parameters?
LUBET: Well, there's a famous federal case in which the trial judge held some stock in a company that was going to be affected by the outcome of the case. So he didn't own any shares in the actual hospital corporation, but he - actually, he was a trustee of a university that was going to be selling some land if the deal went through. So that's a pretty famous example where the judge was disqualified.
Other cases have happened where, you know, somebody is related by marriage or owns stock in a company, or something like that.
LUDDEN: OK. Is there a most common list of allegations, a most common reason people might suggest this or allege this?
LUBET: Well, the most common one, of course, is some sort of financial relationship. That happens fairly often, and usually judges just step aside on, you know, of their own accord when something like that shows up. There's also the situation where a judge might have a relative - say the judge is sitting in criminal cases and has a child or a spouse who works for the public defender or the prosecutor or the probation department.
LUDDEN: OK. And then who decides? I mean, is it always the judge who recuses him- or herself? Is there someone who decides for them whether this is a legitimate concern and they should not hear that case?
LUBET: That's a pretty sensitive issue, actually, and it differs from state to state. Almost everywhere, motions to disqualify a judge go initially to the judge herself or himself. Then, in many places, many states, the motion would be referred to another judge, which seems to make a lot of sense, doesn't it?
LUDDEN: Well, are you being facetious or...
LUBET: No. I think it...
LUDDEN: Yes, it does make sense.
LUBET: It makes a lot of sense to send a motion like that to somebody else, but not every court does that, and rather famously, the United States Supreme Court doesn't do that. You know, the Supreme Court...
LUDDEN: Well, yes. Which is we all - yes. That's maybe what most people are familiar with.
LUBET: Yeah, I thought that you were headed there.
LUDDEN: They're an exception, then.
LUBET: Well, they're an exception in the sense that there's no appeal. So in a state, for example, where each judge makes their own decision, there's always an appeal. You can appeal to a higher court within the state. You can appeal to the federal courts. So every single judge in the United States is subject to some sort of review for bias, with the exception of the nine who sit on the U.S. Supreme Court who solely, independently, idiosyncratically and individually decide whether they're biased or not, and that's the end of it.
LUDDEN: OK. All right. Let's get a caller in on the conversation, here. Miriam is in Kansas City, Missouri. Welcome to the show.
MIRIAM: Thank you. It's a pleasure to be on. My comment is that I live in, you know, obviously, the heart of the Bible Belt, and I find that the conservative bent of a lot of judges tends to manifest itself a lot, especially in family law cases. You know, if you have a parent - for example, a mother or father - who's, you know, had a misspent youth, so to speak, I find that a lot of the judges, that the conservative judges tend to focus on that. And it spills over - has a tendency to spill over into their analysis of how good a parent that particular person is at the present time.
LUDDEN: That sounds like a hard thing, though, to base an accusation on, no?
MIRIAM: Well, it is. And it's absolutely not something that you can get a judge removed for bias for, no matter how obvious it may or may not be. You know, for example, I've had judges issue opinions where, you know, they've found things, you know, for example, you know, said that there was, you know, alcohol or drug use when - in the past, when nobody has even alleged it. And it's just been based on, you know, a bar fight or something like that.
LUBET: Well, conservatism - being conservative socially or religiously or politically, would fall into the category of, say, predisposition, and not bias. It's something that the rules of ethics just cannot take into account, that people come to the bench with a life experience, and they tend to view the world in a particular way.
Sometimes it's enlightened, whatever your definition of that might be, and, you know, sometimes it's not. But that's inherent in the system of having people act as judges.
LUDDEN: All right, Miriam, thanks for the call.
MIRIAM: Thank you.
LUDDEN: Well, that leads me to a question of, you know, is it fair to expect a judge to be utterly impartial? I guess there is a distinction there, are you just said.
LUBET: Well, that's why impartiality is defined as relating to a party to the case or a - or one of the lawyers, and rather as a general outlook on life. Because once you start calling outlook bias, there's nobody who's free. There's nobody who's unaffected.
And you have situations in the past, for example, when African-American judges were first coming onto the bench, you know, litigants would say that they can't be fair in civil rights cases because they have a certain outlook on life. And, of course, that theory was rejected, and it should have been. But you can see how that might be applied to anybody, based on the outlook of the litigants.
LUDDEN: We're going to bring another person in, here. Judge David Peeples is the presiding judge for the Fourth Administrative Judicial Region in San Antonio, Texas. He hears and assigns bias complaints for judges in his district, and he joins us now from Texas Public Radio in San Antonio. Welcome to you.
JUDGE DAVID PEEPLES: Good to be here.
LUDDEN: So have you ever had a complaint of bias filed against you?
PEEPLES: Yes, I've had a few over the years. They've dwindled as I've become older.
LUDDEN: Can you give us a sense? I mean, did you - what happened? What was the complaint, and did you actually hear those cases or not?
PEEPLES: Well, there are many, many kinds of complaints that can be lodged against a judge. For example, I've had people complain in family law cases that they didn't like some of my rulings previously in that case. And, you know, it just goes with the territory.
Complaints about rulings, as Professor Lubet said, are just not a basis for trying to remove a judge from the case. But that's what people complain about, I think, more than anything else.
LUDDEN: Was there a case where you felt someone made a fair point, and you stepped down?
PEEPLES: Yes, there have been some of those. I remember one a long time ago, a very troublesome lawyer filed a motion to remove me from the case, and he said that he thought I didn't like him. And there may have been some truth to that allegation, and I just decided life was too short. I'm in a big city. There are many judges here, and so I decided to let someone else hear that case, and I heard a different case that day.
LUDDEN: You just didn't like him? Now, but...
PEEPLES: Well, that's what he said.
LUDDEN: But did he ever come up again? I mean, can you control whose cases you hear?
PEEPLES: Well, there's the possibility that something like that could happen again and again. It did not happen in this case. He's not practicing law anymore. But that's just an example of a case in which I thought, you know, there may be a glimmer of truth in this. I could be fair to him, but why fight it?
LUDDEN: Does it hurt to get that accusation put at you? Because you - I mean, the job does, you know, require impartiality.
PEEPLES: Well, it doesn't hurt when someone says I didn't like that judge's rulings. The allegation that you can't be fair, yeah, I think that hurts a little bit. But it goes with the territory.
LUDDEN: Have you - if you stay on the case, though, when someone has made that accusation, is it hard then to hear that case when you know how they feel about you?
PEEPLES: I find that once you get into hearing a case, you focus on the witnesses and the exhibits and the law and what ought to be done, and you move on.
LUDDEN: All right, David Peeples, stay with us. And we've also got Professor Steve Lubet on the line. We're going to talk more about judicial bias in just a moment. If you're an attorney and you've dealt with this issue, we'd like to hear your story. Call us at 800-989-8255. The email address is firstname.lastname@example.org. More coming up. I'm Jennifer Ludden. This is TALK OF THE NATION, from NPR News.
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LUDDEN: This is TALK OF THE NATION, from NPR News. I'm Jennifer Ludden. We're talking about the issue of judicial bias today in light of the George Zimmerman case. His legal team has twice requested the judge be removed from the trial. The first Seminole Circuit Judge Jessica Recksiedler stepped aside after Zimmerman's lawyer alleged conflict of interest.
Now, Zimmerman's lawyer has asked that Judge Kenneth Lester, Jr. be disqualified for bias. Today, we'd like to hear from lawyers. If you've handled the issue of judicial bias, what happened? Our number is 800-989-8255. And our email address is email@example.com.
My guests today are Steven Lubet, co-author of the book "Judicial Conduct and Ethics," and Judge David Peeples, the presiding judge for the Fourth Administrative Judicial Region in San Antonio. And I would like to bring in a caller to start off, Tom, Tom in - whoops. There we go - Tom in Salt Lake City. Hi, there.
TOM: Hi, thank you. I would not be very likely to do what George Zimmerman's attorneys are doing right now. I find that - I'm an attorney here, and I find that making a single motion to remove a judge for bias, even if the judge really is - and I've had that scenario before, where a judge really does have an actual conflict of interest, I find 99 percent of the time it's just not worth it. I'm just scratching my head a little bit about why...
LUDDEN: Why do you say it's not worth it?
TOM: Well, I feel you - the risk of making that motion frivolously can really damage your reputation as an attorney, and frankly has a potential of damaging your client's case. Where a judge may have had no bias before, after you've made the allegation, then the judge, you know, it's like asking someone not to think of a purple elephant. As soon as you make that allegation, then the judge starts to - whether they would like to believe that they would or not, they start to - it starts to percolate in their mind.
And maybe there would be a bias after you make the motion, and there's just too many risk factors involved to make that kind of motion.
LUDDEN: All right. Well, Tom, thanks for the...
TOM: You'd have to have a really egregious case of...
LUDDEN: Thanks for the call, Tom.
LUBET: A good judge shouldn't care, of course, but...
LUDDEN: Is this David Peeples? No, sorry, is that Steven or David speaking there?
LUBET: This is Steve.
LUDDEN: Hi. Go ahead.
LUBET: Just saying a good judge shouldn't care. You should take it in stride, as Judge Peeples obviously does, and just proceed with the case. But I was saying, in the Zimmerman case, you know, the first judge really did have a conflict of interest. And so she stepped aside for good - you know, she didn't...
LUDDEN: We can remind people she was married to, what, a CNN analyst who was commenting on that case?
LUBET: No, I think she was a married to a partner or a former partner of the defense lawyer. So - or somebody in the prosecutor's office. But there was a, you know, a connection there that really did justify getting out of the case.
PEEPLES: I agree that most judges do just take it in stride and move on. I will say, though, that a lawyer who has tried to recuse a judge and failed will be on pins and needles during the rest of that case. It's a gutsy thing to do.
LUDDEN: But is there - yeah. Well, is there a risk, though, even if it's not the case that the judge will then not be impartial in that case, are there some other risks with the lawyer making this motion?
PEEPLES: Well, the risk of sanctions is pretty remote, but I think the main risk is that for the rest of that trial, that lawyer will have in the back of his or her mind the failed motion to recuse.
LUDDEN: OK. Let's get one more call in here - Tom in Madison, Wisconsin. Go ahead.
TOM: Hi. Thanks for taking my call. I've represented a number of people in situations like this. I had a case where we were suing on behalf of a youth who was in a correctional mental health facility. And the judge that got assigned was the former administrator, the former head of the Department of Corrections.
And being an excellent judge, Judge Fiedler(ph), he removed himself when we filed a motion. On the other hand, I've had - in federal court, there was a federal judge who would refuse to remove himself, even though as a legislator, he was tremendously anti-civil liberties, anti-defense bar and so forth. But to at least not make the record of trying to remove him puts you in a bad position. So sometimes you had to do, you know, a file, even though as the commentator said, you find yourself really up against it sometimes during the trial.
What concerns me even more is, for example in Wisconsin right now, you may have noticed we have an allegation that one justice tried to choke the other on the Wisconsin Supreme Court, and the judges are refusing to recuse themselves...
LUDDEN: OK, I missed that bit of drama. My goodness.
TOM: Yeah. And - you know, it's - we've gotten to the point where - and one of these justices, her husband sat on the board of a bank where she heard numbers of cases affecting that particular bank and never recused herself one bit. So you kind of get - you get to wonder anymore how much - and then I think of the chief - not the chief justice, but Scalia making the kind of comments he does...
LUDDEN: Well, yeah.
TOM: ...and goes to these Republican fundraisers and everything else. And...
LUDDEN: Of course, the Supreme Court is sort of a different case there. We're going to move on. Tom...
TOM: But the question is: What happened to the perception of, you know...
LUDDEN: Perception of unbiased. All right...
TOM: Lack of bias, yeah. It's used to be the...
LUDDEN: Thank you. Thank you, Tom. What about that perception, gentlemen? Steve Lubet?
LUBET: He raised a lot of issues. I think there's still a perception that judges do their best to be unbiased. There are some high-profile cases that draw a lot of attention, where judges have done some pretty outlandish things. Obviously, maintaining the appearance of impartiality is almost as important as being impartial itself.
LUDDEN: All right. Let's bring in Thomas Fitzpatrick. He's a lawyer and professor at the Seattle University School of Law. He helped to establish the Model Code of Judicial Conduct for the American Bar Association, and he joins us now from his office in Seattle. Welcome to you.
THOMAS FITZPATRICK: Oh, hello. Glad to be with you.
LUDDEN: So you helped to kind of make the rules for what can be considered bias, right? I mean, what factors do you consider as you kind of are dealing with this and updating the rules?
FITZPATRICK: Well, the factors have primarily already been raised in your discussion, but the basic test is whether or not the judge's impartiality might reasonably be questioned. That's not just for the person in the sense of - or the party before the court. It's whether, in a sense, reasonable people could come to the conclusion that the judge is biased. And so that's the basic test.
Then in addition, there's a bunch of specific factors that call for a judge to step aside when there is a variety of factors - some of which have already been alluded to - such as the judge has a particular bias or prejudice against a party in the case or the party's lawyer. And by the way, the party's lawyer was a new one that was added in 2007.
LUDDEN: Why? What prompted that?
FITZPATRICK: Well, because of a feeling that one of the callers just indicated, that the judge indicated that a lot of times, there's - the judges have more knowledge about the lawyers than they certainly do about the parties. And so there's a fear that if a judge dislikes a particular lawyer, that could affect the person or entity that that lawyer is representing.
LUDDEN: And it can be as simple as dislike? There's no other...
FITZPATRICK: No, it's still going to be the basic test of whether or not it could be reasonably questioned. And - but, you know, those are not - those are difficult propositions to put before. But the code has been expanded to include bias not only in regard to the parties to the case, but the various lawyers who represent them.
Then, in addition, you know, there are the issues that we already talked about. Does the judge have a financial interest in what could happen? Could somebody in his family have a financial interest in what happens? Does the judge have personal knowledge about what's in dispute in the case, i.e., you know, they saw the crime.
So in that sort of situation, the judge would not be an appropriate person to try the defendant, because he has personal knowledge about what happened in that particular situation, and then whether or not the judge had ever acted as a lawyer in the proceeding before going on the bench. Those sorts of things are specifically covered in the code.
LUDDEN: What has been updated in recent years? Are there new things that come up that you decided to put into the code?
FITZPATRICK: Well, there have been changes - and by the way, what I want everybody to know is these codes get adopted, and then they become a basis for whether or not a judge gets disciplined and sanctioned in some way, which can include removal from the bench.
In the last 20 years, there has been a move to further define some aspects of - that relate to bias, one of which is that judges are prohibited from belonging to discriminatory clubs - clubs that don't admit people on the basis of race, or clubs that don't admit people on the basis of gender, such as - would be like Augusta National.
And, in addition, in the latest version of the code, we included a prohibition in regard to engaging in sexual harassment. All of those have been, in a sense, evolving with specific delineations, as do protected groups - racial, ethnic. And in the latest draft, sexual orientation was included.
LUDDEN: Hmm. And finally, can I ask you about the difficulty that maybe elections pose? It seems that more and more judges are being elected. And I read in the ABA joint commission report that there's an effort to - you sought, quote, "sought to find a balance that accommodated the political realities of judicial selection and election, while also ensuring judicial independence and integrity."
FITZPATRICK: Yes. Well, the reason for that was prior to a case of a few years ago, which is called Republican Party of Minnesota versus White, most of these codes prohibited judges from, when they were running for office, speaking about their views in regard to disputed legal or political issues. The U.S. Supreme Court struck that down and said that is an unconstitutional impairment of the First Amendment. These people - prospective judicial candidates or judges running for reelection - have a right to give their views or announce their views on these disputed matters.
The balance that's left after the U.S. Supreme Court decision - which is still contained in the code - is that a judge or someone running for judge cannot make a pledge or a promise as to how they will rule in a particular case or a category of cases, such as you cannot run for office and say, if you elect me, I'll never rule for the landlord in a case.
LUDDEN: Right. But they can express views on what?
FITZPATRICK: On disputed political issues, such as, you know, I have never supported the abortion rights. That would be something that the judge could say. Now, that doesn't prohibit them from saying it. Then if an abortion case came before that particular judge, there would then have to be a decision that by making this statement, has a - would - could the judge's impartiality be reasonably questioned?
LUDDEN: Interesting. OK.
FITZPATRICK: But the overall - the old days of they can't say anything are gone.
LUDDEN: Thomas Fitzpatrick is a lawyer and professor at the Seattle University School of Law, and joined us from his office in Seattle. Thank you so much.
FITZPATRICK: Thank you.
LUDDEN: Let's squeeze in one last call, here. Charles is in Des Moines, Iowa. Hi, there.
LUDDEN: Go right ahead.
CHARLES: I think the commentators who have been excellent - and Steven Lubet is certainly the number one expert on the subject from the academy. One has to take into account that if you are in a court of two or more judges, the judge has to consider whether the same accusation toward the judge who has been assigned the case might equally apply to the others, because if a judge just quickly recuses and says I'll turn it over to someone else, that is unfair to other judges who may have the same problem.
LUDDEN: All right. Charles, thank you for the phone call. Let me remind people that you're listening to TALK OF THE NATION, from NPR News. David Peeples, Steven Lubet, do you want to address that issue?
LUBET: It's called the rule of necessity sometimes, that if every judge is disqualified, then no judge is disqualified. And that certainly needs to be the case if lawsuits are going to go forward.
PEEPLES: Jennifer, let me make a point that I think we're skirting around: You made a very perceptive opening when you said there are two questions here: What is bias? And, second: who decides? And I think that the question of who decides is maybe more important than trying to define what is bias.
LUDDEN: All right. So tell us how it works where you are.
PEEPLES: It - OK. Well, if - in Texas, and I think in more and more states, the judge who's being challenged, once the motion is filed, is frozen and cannot do anything on that case until the motion has been decided. And the judge has two choices: to step aside voluntarily or to refer the motion to the chief judge of that district, who will then hear the case himself or herself, or assign someone else to hear it.
And so the very important point is that the challenged judge does not decide his own case. And when you've got an initial decision-maker making this decision, I think that goes a long, long way to ensuring that there's integrity and openness in the system. On appellate courts, the remainder of the court decides whether the challenged judge will sit.
LUDDEN: All right.
LUBET: Yeah. That's an enlightened approach, and I strongly endorse it, and I wish all the other courts in the other states and in the federal system would follow that same procedure.
LUDDEN: All right. We just have a minute left here, but an email from Chip in California: What is your guests' opinion of the case of the California judge who made a decision about our marriage equality law, and later it came out that he was gay? Steven Lubet?
LUBET: My opinion is the same as an African-American judge ruling in a civil rights case. Somebody's personal characteristics don't have anything to do with whether they can be fair.
LUDDEN: And, David Peeples, how often are these allegations granted? How often - what share of the cases that you deal with there does the judge - is it decided that he should not hear that case?
PEEPLES: It's hard to answer, because there are so many different situations. For example, a lot of these motions are filed by prisoners who are getting ready to - say, their conviction's been affirmed, and they're getting ready to challenge by habeas corpus their consignment, and they don't want the judge who presided over their trial to hear those motions. Well, that's a pretty frivolous motion, but we get a lot of those. Lawyers...
LUDDEN: We just have a few seconds left, here.
PEEPLES: OK. Lawyers are much more discerning in deciding when to file them. It's hard to say but...
LUDDEN: You know what, we're going to have to...
PEEPLES: ...a lot of them are granted voluntarily. And the others, it's just case by-case.
LUDDEN: All right. Judge David Peeples, presiding judge for the fourth administrative judicial region in Texas, and Steven Lubet, professor of law at Northwestern University. Thanks so much to both of you.
LUBET: It's been a real pleasure. Thanks for having me.
PEEPLES: Thank you.
LUDDEN: After a short break, David Lightman joins us. He works for McClatchy, which asked every congressman for tax returns and got back only 17. Do public officials need to disclose their tax returns? I'm Jennifer Ludden. It's TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.