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U.S. v. Spangle (9th Cir. - Nov. 19, 2010)

By Shaun Martin

It's not that I find anything objectionable about this opinion.  It's just pretty strange/unusual to have an appeal that's in part about whether Judge Kozinski, sitting by designation in the Central District, should have recused himself from a criminal trial against a guy accused of sending threatening communications to various criminal justice officials when the dude had lots of stuff about Judge Kozinski in his car when he was busted.  So it definitely got my attention.

Ultimately, I'm totally fine with Judge Tallman's conclusion that Judge Kozinski didn't have to recuse himself.  Judge Kozinski clearly could have done so, and perhaps (out of an abundance of caution) should have.  (To be clear:  Judge Tallman didn't say that last part; that's my personal thought, and -- perhaps -- what I would have done had it been me.)  But it's not reversible error.  Yep.

But let me address one thing that the panel doesn't even mention.  Isn't it also a little strange that the three Ninth Circuit judges here are reviewing the (somewhat) ethical propriety of one of their colleagues?  Their (technical) boss, even?  What about them potentially recusing themselves?

Yes, I know:  Judges review the actions of people they know all the time.  But to me, there's something slightly different -- perhaps even qualitatively different -- about (1) reviewing the actions of someone you've worked closely with for (in Judge Tallman's case) a full decade, in a court that contains less than 30 people; and (2) reviewing a recusal motion, which seems somewhat special:  something more akin to reviewing the ethics of a colleague rather than a mere sentencing or legal decision of theirs.

None of which is to say that the panel members here should have recused themselves.  That's a personal decision.  Nor do I have any doubt that there was any actual bias here.  I'm quite confident that any of the three would be more than willing to smack down Judge Kozinski if they thought he'd done wrong.  Some on the Ninth Circuit might even find particular joy in doing so.

But at the same time, I could have totally seen someone recusing themselves here.  Or perhaps the entire Ninth Circuit.  I might have even leaned that same way myself.  Not because we have to.  But purely as a protective measure.  Just like we don't let (I believe) district judges sitting on the Ninth Circuit by designation rule on decisions of their colleages from the same district, a similar procedure might be valuable in cases like this one.

Just a thought.

Full post as published by California Appellate Report on November 19, 2010 (boomark / email).