15 Jul 2016
A recent headline tells us that a federal judge in a pending case in Ohio has voluntarily recused himself. The case, according to the article, involves the attempted murder-for-hire of a hit man to kill that same judge. It sounds pretty confusing. How, you might ask, was a case where the intended victim was a federal judge, get assigned to that judge in the first place? In order to understand what appears to be a rather unusual set of circumstances, you need to know the background of the situation.
What is “recusal”?
Federal law, as well as state laws, provide a mechanism for disqualifying a judge in a trial or other judicial proceeding under certain circumstances. The simplest example would be a case where the judge has a financial stake in the outcome of the case. There are many possible scenarios where recusal may be required, but the most common situation does not involve actual prejudice or bias, or a pecuniary interest in the matter. It concerns, rather, what is sometimes referred to as the “appearance of impropriety.” In the language of the federal law on the issue, 28 U.S.C. § 455(a), a judge “shall disqualify himself” in any proceeding in which the judge’s impartiality could reasonably be questioned. Most state laws, including those in Texas, generally follow the federal model in this area. While Texas uses the word “disqualification” in some circumstances, and “recusal” in others, the words are essentially interchangeable.
What happened in the terrorist cases?
Getting back to the case in Ohio, there’s a lot that the article we cited does not tell you. The genesis of the matter is not the attempted murder-for-hire case, but an earlier criminal matter that had already been assigned to United States District Judge Jack Zouhary. In that case, four individuals were charged with providing financial support to al-Qaeda back in 2009. That case was scheduled for a pretrial hearing in front of Judge Zouhary later this month. After that case was filed and assigned, one of the named defendants was charged with trying to arrange to hire a hit man to have the judge killed. Because the judge was the subject of the alleged murder plot, a reasonable person might question his impartiality in the case. As a result, Judge Zouhary voluntarily stepped down in both the attempted murder case and the underlying terrorism case.
Note that in any recusal situation involving a judge, there can be no waiver, even by agreement of all the parties in the case.
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