Judge Wolf recusal motion: meritorious or pretextual?
Co-authored by Thomas E. Dwyer, Jr.
The U.S. attorney’s efforts to remove U.S. District Court Judge Mark L. Wolf from the resentencing phase of the death penalty case United States v. Sampson bring to mind the famous words of Ralph Waldo Emerson to Oliver Wendell Holmes, Jr.: “When you strike (at) a king, you must kill him.”
Emerson’s quote was a retort to a young man who wrote an essay criticizing Plato. On Sept. 8, Wolf provided a clear rebuke to the government’s recusal motion in a 114-page order. After reviewing the voluminous record of the motion, any fair analysis leads to only one conclusion — it is entirely pretextual. Why would the government voluntarily choose to put itself in such an untenable position?
On July 16, the government moved to have Wolf recuse himself pursuant to 28 U.S.C. §455(a), whereby a judge must recuse himself “if a fully informed, reasonable person might question his impartiality.” After an extensive investigation of the facts, the government did not allege that Wolf had any actual bias, but rather claimed that the public may perceive a bias due to Wolf ’s role moderating a panel discussing a film.
The 1st U.S. Circuit Court of Appeals has adopted a very strict standard on recusal due to an appearance of bias: The disqualification decision must reflect not only the need to secure public confidence in proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.
In the words of then-Circuit Judge Stephen G. Breyer, “a district judge asked to recuse is not to use the standard of Caesar’s wife, the standard of mere suspicion.”
Background on Sampson
The government indicted Sampson in 2001 for allegedly murdering three individuals. Wolf was randomly assigned to the case. In 2003, Sampson pleaded guilty. During subsequent sentencing, the jury examined aggravating and mitigating circumstances, including mental health issues, and recommended a death sentence. Wolf sentenced Sampson to death pursuant to the Federal Death Penalty Act in early 2004.
In 2011, during the appeal phase, Wolf overturned the death sentence as he found that one of the jurors in the original sentencing phase committed misconduct. The 1st Circuit upheld Wolf ’s decision in 2013, and the parties are presently preparing for the resentencing trial.
It is important to note that most observers, including the media, fail to mention that this is not a retrial of the facts underlying Sampson’s conviction.
The recent motion by the government seeking recusal is not the first time Wolf has had to render a decision on bias or the appearance of bias. In 2010 Wolf raised, sua sponte, the fact that one of the assistant U.S. attorneys assigned to the Sampson case was a close social friend, and he wanted to make sure the parties had a chance to address the issue. At the time, the government and the defense agreed that there was no actual bias and waived any appearance of bias as grounds for recusal.
In 2014 the government asked Wolf to revisit his prior ruling on recusal, as the close social friend was now the lead prosecutor for the Sampson case. Wolf did not find grounds for recusal, as, among other reasons, it could improperly encourage the public perception that the government could seek recusal by the choice of prosecutor. The government did not appeal this finding.
Government alleges perception of bias
The government filed a motion on July 16 claiming that, because Wolf moderated a panel on July 27, on which a potential expert witness sat, Wolf must recuse himself from the resentencing. It is important to note that, at the time of the panel, the potential expert witness had not been listed as anything other than a supporting expert, i.e., the defense had not indicated that it intended to call him.
The panel followed a film discussing the story of an individual incarcerated in Florida state prisons and examining allegations of extensive abuse. The film also discusses potential mental impairment of the subject individual resulting from that abuse. What is undisputed is that Wolf did not discuss the Sampson case at all while interacting with the potential expert witness or while moderating the panel.
In Wolf ’s introduction to the panel discussion, he made clear that he was not endorsing the video or any views of the panelists. At times during the discussion, he did say that extrajudicial punishment by Florida prison guards violates the Eighth Amendment and that the panel members were leading experts on the issues presented in the film. But once the panel ended, Wolf had no further contact with the potential expert witness.
Wolf asserts that he did not know the potential expert witness prior to the movie screening and subsequent panel. While the potential witness did submit an affidavit in support of a defense motion in 2010, the submission was one of approximately 200 exhibits, and it did not support any part of the motion on which Wolf eventually ruled. Finally, Wolf did have the film director and panel members over for dinner prior to the film screening, but it was a brief courtesy meal.
Having been engaged in numerous matters before federal district courts for over 30 years, one author of this article finds it hard to comprehend why the government filed a recusal motion based primarily on those facts.
The only possible conclusion is that the motion is entirely pretextual. So why would the government place itself in the position of attempting to force recusal on such weak grounds, especially when the underlying conviction is not in jeopardy as Wolf is presiding over a resentencing, and not a retrial?
There are three potential big-picture explanations for the actions of the government that may well illuminate the underlying strategy: the present competency of Sampson; the constitutionality of the Federal Death Penalty Act; and the application of the Federal Death Penalty Act to Sampson.
As to the first point, Wolf already has expressed his own concern regarding Sampson’s competency. In his order denying a new trial in 2004, Wolf indicated that he believed Sampson had bipolar disorder. However, because the jury found Sampson competent and because Wolf found that reasonable people could differ on the issue, he denied the motion.
As there now will be a substantial reexamination of Sampson’s present mental condition, the government may be concerned that Wolf ’s prior statement and Sampson’s potential incompetency may well prohibit imposition of the death penalty.
Second, as to the potential that Wolf will find the Federal Death Penalty Act itself unconstitutional, the government can look to his decision in Kosilek v. Spencer. In that case, Wolf held that a prisoner’s gender identity disorder constituted a serious medical need that triggered Eighth Amendment protection. With Wolf reversing Sampson’s sentence due to jury misconduct, the government appears to be highly concerned that Wolf will hold the death penalty unconstitutional under the Eighth Amendment — an area of the law that has substantially evolved over the past 12 years.
Even though Wolf denied a 2003 pre-trial defense motion challenging the constitutionality of the Federal Death Penalty Act, numerous recent critical studies of the death penalty and the declining number of states that have a death penalty statute may mean that Wolf will find that it violates the Eighth Amendment. The Kosilek case shows that Wolf will not be swayed by public perception or government interest, and will take a hard look at any Eighth Amendment claim by the defense.
And as to the final concern, in 1976, the Supreme Court set the standard that any state’s death penalty would be unconstitutional if “inflicted in an arbitrary and capricious manner.” The federal death penalty was reinstated in 1988, but the same analysis applies. The recent dissent by Justice Breyer in Glossip v. Gross, decided less than three weeks before the government filed its initial recusal motion in this matter, questions the constitutionality of Oklahoma’s lethal injection protocol.
Justice Breyer’s dissent provides a strong attack on the application of the death penalty, examining studies and statistical analyses regarding the application of the death penalty, and finds that the times have rendered it untenable. The government appears to be concerned that Wolf will take Breyer’s points and apply them in such a manner as to find the Federal Death Penalty Act unconstitutional as applied to Sampson.
In the words of former U.S. Supreme Court Justice Robert H. Jackson, the actions of a prosecutor should be “dispassionate, reasonable, and just.” Sampson stands convicted of murder, and that decision is no longer at issue. The viability of the Federal Death Penalty should not force the government to place itself in a compromised position. Instead, rather than appealing Wolf ’s order by the Oct. 13 deadline, we suggest that the government adopt that admonition and simply prepare for the resentencing trial.