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Boston Bar Journal

Mandating Recusal in the Absence of Bias:  In re Bulger, 710 F.3d 42 (1st Cir. 2013)

January 07, 2015
| Winter 2015 Vol. 59 #1

Newhouse_Martinby Martin J. Newhouse

Legal Analysis

Two policy goals require that, in certain circumstances, a trial judge should be disqualified from presiding over a case.  The first goal, enshrined in both the Due Process clause of the federal Constitution and in our state constitutions, is to prevent the judge from deciding a case in which he or she is biased with regard to a party or has a personal interest.  Ward v. City of Monroeville, 409 U.S. 57, 61-62 (1972); Article 29 of the Massachusetts Declaration of Rights (“[i]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit”).   The second goal is to ensure, not only that the trial judge is personally impartial, but also that the proceedings are perceived by the public as such.  As the Court of Appeals for the First Circuit has explained, “the disqualification decision must reflect . . . the need to secure public confidence through proceedings that appear impartial.” In re Allied-Signal, Inc., et al., 891 F. 2d 967, 970 (1st Cir. 1989).

This article discusses the recent application of the “appearance of impartiality” standard by the First Circuit in In re Bulger, 710 F.3d 42 (1st Cir. 2013), which demonstrates that this standard may—and in that case did—require disqualification even in the absence of any evidence that the trial judge is personally biased or has a disqualifying personal interest.   This article will also address whether Bulger changed the standard for recusal, as at least one court has suggested.

The Rules Governing Judicial Disqualification in the Federal Courts

The principal federal statute governing recusal[1] is 28 USC § 455, which provides:  “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  § 455(a).[2]

In contrast to the generality of sub-section (a), sub-section (b) of § 455 lists five specific circumstances in which partiality may be presumed and recusal is required.  These include where a judge has a personal bias or prejudice against a party, personal knowledge of disputed facts in the case, former involvement as a government lawyer with the matter, a financial interest in the subject matter of the controversy, or when a judge’s relation is involved or has an interest in the matter.

By its terms § 455 would require a judge to recuse him or herself sua sponte when the statute applies.[3]  The statute may also be invoked by a party to the litigation through  a motion to recuse.   Any party making such a motion must consider the potential ramifications of doing so:  when such a motion is made, it is the very judge whose impartiality has been questioned who, in the first instance, decides whether disqualification is required.

Under the “appearance of impartiality standard” of § 455(a) the test is  “what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. ”  In re United States, 666 F.2d 690, 695 (1st Cir. 1981)).  Mere suspicion or unsupported allegations are not enough to support recusal under § 455(a).  “[W]hen considering disqualification, the district court is not to use the standard of ‘Caesar’s wife,’ the standard of mere suspicion.  That is because the disqualification decision must reflect not only the need to secure public confidence through 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 re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (Breyer, J.) (citations omitted) (emphasis in the original).

In re Bulger

The federal criminal proceedings in Boston in 2011-2013 against James “Whitey” Bulger were notable in many respects, not least for the unusual defense that Bulger raised, namely that, in return for his work as an FBI informant, Bulger had been granted immunity by the federal Government for the same crimes (including multiple murders) for which he was being prosecuted.  Bulger’s criminal case was initially assigned to District Court Judge Richard G. Stearns, who,  during some of the period covered by the indictment (and the immunity claim) had been, within the United States Attorney’s office in Boston, Chief of the General Crimes Unit, Chief of the Criminal Division, First Assistant United States Attorney, and Senior Litigation Counsel.  Unsurprisingly, Bulger’s attorneys moved for Judge Stearns’s recusal under 28 U.S.C. § 455(a) and (b).

Under (b), Bulger alleged that, by virtue of his positions with the United States Attorney, Judge Stearns should be disqualified because of his prior involvement with the matter and the likelihood that he would be called as a witness with regard to the immunity defense.  It was upon these arguments that Judge Stearns concentrated in his decision denying the motion.  Judge Stearns found no merit in any of Bulger’s factual claims, noting that anything to do with Bulger at that time would have been handled by the New England Organized Crime Strike Force (OCSF), which, by design, was completely separate from the Office of the U.S. Attorney.  Judge Stearns explained that, as an Assistant U.S. Attorney “in the 1980s, supervisory or otherwise, I was not, and would not have been privy to knowledge of any OCSF investigation of the defendant.”  U.S. v. Bulger, 2012 WL 2914463 (D. Mass. July 17, 2012), at *2.

With regard to § 455(a), Judge Stearns concluded in strong terms:

It would be institutionally irresponsible for me, or for that matter, any judge to enter a recusal in a case where a party has chosen to make untrue accusations in the possible hope of subverting that process, or at the very best, forcing a delay of a trial by injecting a diversionary issue into the proceeding . . . .These special considerations have special force where, as here, I have no doubt whatsoever about my ability to remain impartial at all times while presiding over this case.  Moreover, I am confident that no reasonable person could doubt my impartiality.

Id., at *3.

Bulger’s attorneys sought review of Judge Stearns’s denial of the motion to recuse through a Petition for Mandamus to the First Circuit.  And, despite Judge Stearns’s forceful opinion, the Court of Appeals, in a decision written by retired Supreme Court Justice David Souter, sitting by designation, granted Bulger’s writ and ordered that the case be reassigned.  In re Bulger, 710 F.3d 42, 49 (1st Cir. 2013).

Judge Stearns had primarily concentrated on the questions raised by Bulger under § 455(b) about his personal impartiality, but the First Circuit avoided that subject altogether.  Expressing “great respect for the trial judge,” id. at 43, and pointing out that “defendant has made no claim that Judge Stearns has in fact demonstrated any bias in his handling of the case,” the Court of Appeals granted the petition entirely under § 455(a), “it being understood that a reasonable person may question impartiality without the presence of any evidence that a judge is subjectively biased.” Id.

In reaching its conclusion, the Court of  Appeals applied what it described as a difficult standard to meet in the context of a Petition for Mandamus. Id. at 45.   In short:

[R]elief for the defendant is only warranted if it is “clear and indisputable” that no reasonable reading of the record supports a refusal to recuse.  In other words, the issue here is this: is it clear that a reasonable person might question Judge Stearns’s ability to remain impartial in hearing the case?

Id.  at 45-46.

In answering that question, the Court of Appeals looked first at the allegations of Bulger’s immunity defense, noting that “a reasonable member of the public could easily think that anyone who held a position of high responsibility in the Office of the United States Attorney during this period would only be human in reacting to such a claim in either a defensive or adversarial way.”  Id. at 46.  However, the Court noted, the defendant’s allegations alone cannot suffice to require recusal “lest the law confer a veto power on the assignment of his trial judge to any heckling defendant who merely levels a charge that implicates a judge’s defensive or vicariously defensive reactions.”  Id. at 46-47.   There must be independent factual support for the challenge, which in this case the Court found in “official reports and conclusions predating these proceedings, and already largely in the public domain, that disclosed disquieting links between the Government and the criminal element during the years in question, and that may fairly stimulate a critical attitude on the part of an independent observer.”  Id. at 47.

Reviewing these sources (such as those associated with the conviction of former FBI agent John Connolly), the Court treated as undisputed the existence of a “special relationship” between Bulger and the FBI which  “overlapped both the dates of the activity alleged in the defendant’s indictment and the years that Judge Stearns held supervisory position in the federal prosecutor’s office.”   The Court noted that, while none of these facts proved Bulger’s immunity claim, any evidence produced by an inquiry into the relationship between Bulger and the Government during this period “could reflect on the United States Attorney’s Office, as it was constituted in those days.”  Id.  at 48.  The Court concluded:

Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and Government, and to preside over whatever enquiry may ultimately be conducted.  On this record, the question could not reasonably be avoided.

Id. at 48-49.

In short, in the First Circuit’s view, Judge Stearns’s denial of the motion to recuse was the result of a “good-faith failure to recognize how a reasonable member of the public would perceive [his] relation to the case,” and it ordered that the case be reassigned. Id. at 46,49.

Bulger thus illustrates that under § 455(a) recusal may be required to protect the integrity of the judicial system even though the trial judge is not biased or interested.  That “a reasonable person might question the judge’s ability to preserve impartiality,” id., is enough. 

Did Bulger Change the Standard for Recusal under § 455(a)?    

Not long after the First Circuit’s decision, Judge Stearns, in allowing a motion to recuse in a medical malpractice case, expressed the view that Bulger had indeed eased the ability of parties to obtain recusal under § 455(a).   Bradley v. Sugarbaker, M.D., 2013 WL 6279299 (D. Mass., Dec. 4, 2013).  Judge Stearns first characterized the legal standard that existed before the First Circuit’s Bulger decision as “a blend of a ‘reasonable person’ and grounded-fact test,” quoting his own (reversed) decision in the Bulger proceedings as follows:

The test for . . . determining whether a judge’s impartiality might reasonably be questioned is “whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality . . . in the mind of the reasonable man.”

U.S. v. Bulger, 2012 WL 2914463, at *2 (D. Mass. July 17, 2012) (quoting U.S. v. Voccola, 99 F. 3d 37, 42 (1st Cir. 1996)).

Judge Stearns then concluded that, in its In re Bulger decision, the First Circuit changed this traditional test:

It appears to be true, as plaintiffs argue, that the First Circuit’s blended test, requiring recusal where facts would create a reasonable doubt of impartiality, has been supplanted by a more expansive standard that requires recusal where “a reasonable person might question [the judge’s] ability to remain impartial in  hearing the case.”  In re Bulger, 710 F.3d at 46 [emphasis added by the court].

Id., at * 4.  Thus, for Judge Stearns, In re Bulger had substituted a new “might” standard for what he characterized as the prior “would” standard under § 455(a), making recusal more likely even where the likelihood of perceived partiality was remote. Id.

A major flaw in this view is that the statute itself uses the word “might,” requiring a judge’s disqualification “in any proceeding in which his [or her] impartiality might reasonably be questioned.”  § 455(a). (emphasis added).   Furthermore, the court in Bulger uses the term “would” frequently, thus indicating  that in the analysis under § 455(a) the terms “might” and “would” are basically interchangeable.  See, e.g., Bulger, 710 F. 3d at 46 (“The point under § 455(a) is not [the judge’s] actual state of mind at a particular time, but the existence of facts that would prompt a reasonable question in the mind of a well-informed person about the judge’s capacity for impartiality . . . ” (emphasis added.))

In short, it does not appear that Bulger changed the recusal standard under § 455(a).  However, what it may have done is to encourage trial judges in the First Circuit, in a publicly sensitive case, to err on the side of recusal under § 455(a) in order to preserve the public’s perception of impartiality.   As noted, Judge Stearns recused himself in Bradley v. Sugarbaker , which he apparently would not have done before Bulger.   Similarly, Judge Saylor in a more recent (and also a fairly notorious) case, United States v. O’Brien, __ F.Supp. 2d __, 2014 WL 905613 (D. Mass. March 6, 2014), allowed the defendants’ motion for recusal, despite the fact that it was brought on the eve of trial.[4]  The motion was based on the defendants’ intention to call as a witness another federal judge who was not only Judge Saylor’s colleague, but also his friend.  Id., at *1.  Largely citing Bulger for the standard to be applied, see id., *5-*6, and after a thorough review of the facts, Judge Saylor wrote:

There is no completely satisfactory answer . . . and whatever choice I make may lead to some unfortunate consequences.  Under the circumstances, however, I have concluded that the paramount consideration is maintaining public confidence in the fairness and integrity of this proceeding.  That consideration outweighs the other factors, however strong those factors may be.  Therefore, and with considerable misgivings, I feel duty-bound to recuse myself.”

Id., at *10. The lead defendant, O’Brien, had been the Massachusetts Commissioner of Probation and, although his case did not have the national press that Bulger’s did, it also raised within Massachusetts an issue of public perception to which Judge Saylor was obviously sensitive.

Time will tell whether the impact of Bulger suggested here will continue to resonate as federal trial judges wrestle with recusal motions under §455(a), especially in highly publicized cases.  Judge Saylor was troubled, as one would guess all courts are, by the specter that recusal in such circumstances  “would set a new and pernicious precedent, emboldening counsel to file untimely recusal motions or otherwise seek to manipulate circumstances to their own advantage.”  O’Brien, 2014 WL 905613, at *10.   His answer to this concern is perhaps the best we can hope for at the moment:

As to the possible precedent, it is perhaps enough to say that each case must rise and fall on its own facts, and that I have great confidence in the wisdom and good judgment of my colleagues in making appropriate decisions in future circumstances.



Martin J. Newhouse (AB, Columbia College; JD, Yale Law School) is President of the New England Legal Foundation, a member of the BBA Ethics Committee, and teaches Professional Responsibility at Suffolk Law School. The author thanks Lauren Maynard, presently a student at Harvard Law School, for her assistance with the initial research for this article.



[1] The terms “disqualification” and “recusal” are equivalent and are used interchangeably by the courts (see Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1 (2013), n. 5.) and in this article.

[2] In addition to § 455, two other federal statutes address recusal, but on a more limited basis.  28 U.S.C. § 144 requires recusal upon the filing of a “timely and sufficient” affidavit that the judge is personally biased or prejudiced with regard to a party.  28 U.S.C. § 47 prohibits any judge from hearing the appeal of a case or issue that the judge has tried.

[3] The language of the § 455 is clear on this point:  “Any justice, judge, or magistrate of the United States shall disqualify himself . . . .” (emphasis added).  Similarly, under Canon 3C of the Code of Conduct for United States Judges, a judge is required to recuse him or herself under the circumstances listed (as are Massachusetts judges under the analogous Canon 3(E) of the Massachusetts Code of Judicial Ethics).

[4] In general, timeliness is essential for a successful motion to recuse.  See, e.g., In re United States, 666 F.2d 690, 694 (1st Cir. 1981).  Lack of timeliness creates that impression that the motion has been strategically filed “to recuse a judge whose rulings have gone against the party.”  In re United States, 441 F.3d 44, 65 (1st Cir. 2006).  Thus, generally a party must raise the question of disqualification “at the earliest moment after acquiring knowledge of the relevant facts.”  In re Abijoe Realty Corp., 943 F. 2d 121, 126 (1st Cir. 1991).  In O’Brien, Judge Saylor concluded that “because of the high stakes involved, I am reluctant to deny the motion solely on the ground that it is untimely,” and proceeded to decide the motion on its merits.  2014 WL 905613, at *5.