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Thursday, October 13, 2011

Mississippi's recusal rules are a bad joke and an injustice4yall

If you want a hint on what goes on and why it needs to change please look at this post I have stolen from Phillip: His website and NMC's are both linked so read the whole story there please.

Why Wasn't Ed Peters Prosecuted for Mississippi State Crimes?

That's a question that was asked in this weekend's Clarion-Ledger article by Jerry Mitchell following the unsealing of Ed Peters' grand jury testimony [available here courtesy of NMC] in Scruggs-gate.
The photo to the right is of Peters and Bobby DeLaughter. Now we know what they are smiling about.
The article quotes Oxford lawyer and blogger Tom Freeland (NMC) on this issue and states:
Oxford lawyer Tom Freeland, who has covered the case closely on his website, North Mississippi Commentor,, said Peters' statements "show a lot more about what was going on inside and how corrupt it was."
Elsewhere in the FBI statement, Peters described how he had been approached by both sides in the same lawsuit involving a fatality.
"It's totally unethical," Freeland said. "Peters is on both sides of a transaction, hoping money shakes loose."
What has surprised him is the Scruggs cases weren't pursued by Mississippi prosecutors.
"These are state crimes, too," Freeland said. "Both local and statewide prosecutors have left it alone."
Attorney General Jim Hood sent letters to the local district attorneys in those counties, offering his assistance to them.
District Attorney Ben Creekmore of New Albany said his office met with federal prosecutors and let them know if there was anything that needed to be pursued, he would.
"We felt like any insertion of our office into that whole mess would have gained very little as far as criminal justice is concerned," he said. "It would have been more attention-seeking than justice."
He added that his office has "our hands full with our dockets."
I raised this question in 2010 in this post about a Sid Salter interview of Rankin County District Attorney Michael Guest. Salter raised the question in 2008 in a column that he quotes in his comment responding to my 2010 blog post, and took issue to Johnny Come Lately's on this issue:
District attorneys in multiple venues in Mississippi have already spoken to the fact that since Mississippi's attorney general didn't prosecute public corruption cases against Peters, DeLaughter, Langston, Scruggs, Balducci, Patterson, et al, then they didn't think they had the resources to go after such charges either. If you will recall in the Neshoba County state charges against former Klansmen Edgar Ray Killen and other high profile cases, the local DA got the active support of General Hood's office and his personal intervention in the case.
But Hood took a pass on the judicial bribery cases altogether — all of them.
Where were you in 2008 on this issue, Mr. Thomas? Massaging your "certified civil trial advocate" plaque?
What color is that, Bubba?
Next time you have a question about how I go about the interview process, be sure and weigh in again. I love interaction with "certified civil trial advocates" — being a mere mortal and all.
 My Take:
I still can't get over the Salter personal attack, but that's neither here nor there. 
I find it interesting how this issue has evolved since Salter first raised the question in 2008. Salter seemed to blame Attorney General Jim Hood for there being no State prosecution against Peters. But Jerry Mitchell's 2011 article states that General Hood offered to assist local D.A.'s in prosecutions. And there were at least three D.A. jurisdictions where charges could have been brought. And the feds could have prosecuted too in either the Northern or Southern Districts.
So who's to blame for what many agree is an injustice that Peters was never charged? I never came up with a good answer to this question. I heard a lot of theories; many of which made sense. But I never heard what I thought was a good definitive answer.  
On the issue of Eaton's culpability for Peters' actions in the Eaton v. Frisby case, Tom Freeland makes a good point at NMC:
It strikes me that the question isn’t whether Ed Peters, hired as a lawyer by Eaton, was supposed to influence the judge– after all, isn’t that what lawyers do?  The question is whether Peters (who was hired secretly and off the record, a fact Eaton’s legal pleadings keep omitting) was hired to improperly influence Judge DeLaughter.
 Specifically, I would like to see Eaton's answer to these two questions that I posed in this 2009 post:
I would like to see Eaton and McGrath answer these two questions:
  1. exactly who told you that you should hire Ed Peters? 
  2. what was the reason(s) you were given for why you should hire Peters?  
Because let's face it: somebody on the Eaton side of the 'v' knew that they were hiring Peters to improperly influence DeLaughter. Or at a minimum, they figured it out pretty quickly that that's what Peters was doing when he came back reporting to them on what he was doing.
Think about it. In the Scruggs v. Wilson case Scruggs' lawyers knew every move Peters made in communicating with DeLaughter. Eaton v. Frisby was a very complicated trade secrets case. Peters was not Eaton's primary lawyer—not even close. But we are supposed to believe that—completely on his own—Peters got up to speed on the details of the case and then discussed them with DeLaughter? Come on.
If you haven't seen it already, you want to check out this recent NMC post on Eaton v. Frisby. NMC also has Ed Peters' 302 Report here, which details Peters' involvement in the case. In the 302 report, Peters states that he was hired by Eaton lawyer Mike Shauman of the Quarles Brady law firm in Milwaukee and that Jackson lawyer Mike Allred was Eaton's local counsel. It's impossible to read Peter's account of his improper meeting with DeLaughter about the Eaton case without concluding that the Eaton camp knew about the meeting. 

I have also stolen the following from Phillip:

Mississippi Supreme Court Removes Judge Bowen from $322 Million Verdict Case--Where Does Case Go From Here?

As widely reported, the Mississippi Supreme Court ordered Judge Eddie Bowen to recuse himself in the Smith County asbestos drilling mud case that was tried to a $322 million verdict in May. In June the defendant Union Carbide moved for Judge Bowen's recusal in the case because his father sued Union Carbide 20 years ago and settled the case. Judge Bowen and the plaintiffs opposed the motion.
The Mississippi Supreme Court's hand-down list on Thursday included the following unanimous ruling:
    In Re: Union Carbide Corporation, et al.; Smith Circuit Court; LC Case #: 2006-196; Ruling Date: 05/19/2011; Ruling Judge: Eddie Bowen; Disposition: Union Carbide's Petition for Disqualification of Trial Judge Pursuant to M.R.A.P. 48B, for an Immediate Stay of All Proceedings, and for Other Extraordinary Relief is granted. Judge Eddie H. Bowen shall immediately recuse himself from further proceedings in Smith County Circuit Court Cause No. 2006-196, and all matters pending therein shall continue to be stayed until such time as a judge is appointed to preside. To Grant: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens and Chandler, JJ. Not Participating: Randolph, Pierce and King, JJ. Order entered.
Anderson links the actual order in the comments.

My Take:

I miss Judge Evans.
This case is a mess. $322 million for a single plaintiff case in a venue that—let's be honest—is funny. As in 'odd' funny. The chances of that verdict holding up on appeal are exactly 0.
A new judge will be appointed by the Supreme Court. That judge will presumably order a new trial or significantly reduce the verdict. Then they may all get to go back down to Raleigh for another trial with Gene Tullos and a Smith County jury. Where Union Carbide will once again be a big underdog.


So we have a case where a judge's father had an asbestos case years ago that the judge didn't know about and he is recused, Ok. However, after the trial when it was not brought up or apparently known to anyone. It was only known after the defendants got whacked and hired a PI to search for something to help them out, aka "dig up dirt" on the judge. I am sure, Phillip, a change of venue motion is coming and will be granted.

Meanwhile, a few counties away I am aware of a lawyer who discovered that the main fund raising event for his Judge was held in the same lobby that many of  the deposition have been taken by the defense firm on the other side of an important pending case. It was not disclosed by anyone by the way. How would you like to find out the your case was going to be decided by a Judge who was elected by the other side? The defendants response basically is "so what". In case you had any doubt the judge recently made a ruling on a motion without all parties even being present, so as to "just get it out of the way." Really didn't need to hear the other side anyway.

Do you think the public would think a appearance of "possibly of impropriety" exist here. (See below FN1) So what, public is not involved. Chance of recusal 0%. Chance on appeal 0%. Welcome to Mississippi justice boys! The judge decides whether he is unfair and his ruling sticks 98% of time. (See FN2) If in favor of big money defendants never seen it changed actually. Unfortunately, stories like this are common and have been for many years. (See FN3)

This archaic and horrible recusal system has been pointed out by national media as one of worst systems in America, and now with changes to West Virginia we may clearly be the worst.(FN4) (Yeah we are number one in something again.) After Scruggs public disaster you would think the bar would do something about this right? (FN5) Nada. Not a damn thing.

 Oh, The county newspaper editor is also wife of one of the defendants and has been sure the his company gets none of the blame and will no doubt continue to do so. Chance of change of venue 0%. Now if we get lucky and get a substantial verdict like above maybe the defense firm will move to recuse the judge on grounds he didn't do a good enough job for him or that venue was unfair. (LOL) There chance of success
50-50. What a county, I mean State!

I have argued and discussed this matter with the last two out of three of the last bar presidents, committees etc   and will do it again this year.. It is a rotten system that will only foster further loss of public confidence in our legal system is that is evenly possible at this point.  Even Louisiana has a much better system. This matters should be decided by an impartial panel that includes lay people in my opinion. That is because the standard is not whether anything is improper but whether Joe the plumber would think so.  Or maybe what the Breenan Center for Justice said in its 2011 report Promotiong Fair and Impartial Courts though Recusal Reform  said:

Shoring up public confidence in and support for the courts will be furthered by procedures
that provide independent review of recusal decisions; transparent, reasoned decisions on
disqualification requests; disclosure of spending in judicial campaigns; and recusal in cases
where this campaign spending raises reasonable questions about judicial impartiality. The
Brennan Center stands ready to work with state court leaders as they continue to develop
and implement recusal rules that advance judicial independence and increase the public’s
faith in fair, impartial courts.

Tilting at windmills.............I remain...INJ4Y

FN1- In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient Motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge.
The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.

was perception among judges and justices that lawyers were attempting to use recusal
motions to gain tactical advantages.
Waller — who served as chair of the rules committee when the current provisions
were adopted — addressing this gamesmanship concern was critical because “the
issue of recusal is very important from the standpoint of public confidence in judges
and the judiciary.”
first decision on a recusal motion. If the justice denies the motion, the decision is
Prior to adoption of Mississippi’s current recusal rules in 2002, there24 According to Mississippi Chief Justice William25 Under the rules adopted in 2002, a targeted justice makes the
subject to review by the entire court upon the filing of a motion for
appoint a replacement.
these procedures, the number of occasions in which litigants seek to disqualify a
justice has declined. (INJ4Y: I agree with Judge Waller it was a problem and this rules changes addressed it. But it left us with a bigger problem now)
26 If a justice of the Supreme Court is disqualified, the governor may27 According to Chief Justice Waller, following the adoption of

FN3- Now as never before, reinvigorating recusal is truly necessary to preserve
the court system that Chief Justice Rehnquist called the “crown jewel” of our
American experiment.
The Honorable Thomas R. Phillips
Retired Chief Justice, Supreme Court of Texas

FN4- Recusal Reform Adopted
Arizona Recusal is required if a party or lawyer, in previous 4 years, made contributions to a
judge exceeding $840, effective September 1, 2009.
California A judge is disqualified if he or she has received contributions exceeding $1,500 from
party or lawyer in preceding election (or in anticipation of upcoming election).
Iowa Court rule adopted in May 2010 mandates disqualification when the “judge’s
participation in a matter or proceeding would violate due process of law as a result
of: (a) Campaign contributions . . . or (b) Independent campaign expenditures.”
Michigan Requires disqualification when a “judge, based on objective and reasonable
perceptions,” has . . . “a serious risk of actual bias impacting the due process rights
of a party as enunciated in Caperton.”
Missouri Conduct rules urge candidates for judicial office “to consider whether his or her
conduct may create grounds for recusal . . . pursuant to Caperton.”
New York Rule effective July 15, 2011 provides that “no case shall be assigned” to a judge to
whom party or lawyers donated $2,500 in preceding 2 years.
Oklahoma Requires recusal when a judge, within previous 4 years, has received contributions
from a party or lawyers “in an amount that a reasonable person would believe could
affect the fairness of the judge’s consideration of a case . . . . The judge should
consider what the public perception would be as to such contributions affecting the
judge’s ability to be fair to the parties.”
Utah Disqualifies a judge if he or she has within the previous three years received more
than $50 from a party or lawyers.
Washington Requires recusal when a judge’s impartiality can reasonably be questioned based on a
party’s contributions or independent spending, considering the total amount of
support and the timing of the spending relative to the pendency of matter at issue.
Recusal Reform Pending
Georgia Pending proposal would require recusal if the judge has received an aggregate
amount of contributions or support that would create a question as to the judge’s
impartiality, taking into consideration the amount, timing, and impact of the
spending. Proposal pending final adoption.
Tennessee Pending proposal would impose a “flexible standard” that would disqualify judge
when a party or lawyer has given such contributions or support to the judge’s
campaign that the judge’s impartiality may reasonably be questioned, considering a
range of factors including the amount and timing of the financial support, and the
relation of the aggregate spending in support of the judge to the total spending in the
1. The ABA’s Model Code and
Per Se, Automatic Recusal Rules
Since 1999, the ABA’s Model Code of Judicial Conduct has contained a provision, Rule
2.11(A)(4), that provides for automatic disqualification when a judge learns that a party or
the party’s lawyers have made campaign contributions exceeding a specific threshold within
a particular number of years.48
The per se rule in the Model Code is simple to apply — when contributions exceed a preset
level, disqualification is automatic, with no further analysis required. But Rule 2.11(A)(4)
does not sufficiently address the full array of contemporary campaign spending, seriously
undermining its value even if it were adopted in states with the highest judicial election
spending. The rule applies only to contributions made directly to judicial candidates. It does
not call for recusal based on independent campaign expenditures of the sort that triggered
disqualification in Caperton. It also opens the door to gamesmanship by lawyers and litigants,
who may attempt to engage in judge-shopping by making a disqualifying campaign
contribution to a disfavored judge.
Perhaps in part because of these criticisms, to date only two states, Utah and Arizona, have
adopted the Model Code’s rule.

FN5:  See, e.g., Adam Skaggs, Brennan Center for Justice, Buying Justice: The Impact of Citizens United on Judicial Elections 4-7 (2010), available at (collecting survey data on national and state level data demonstrating that Americans believe, by significant margins, that campaign spending has an impact on judicial decision-making).  A recent national survey conducted by Harris Interactive showed widespread, bipartisan concern about the escalating influence of money in judicial elections and its potential to erode impartiality.  See Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at  Among the findings of the survey were the following:  71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. Id.  Only 23 percent of all voters believe campaign expenditures have little or no influence on elected judges. Id.  In addition, 82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election. Id.  Finally, 88 percent of Republicans, and 86 percent of Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Id.