Federal Judge Subject to In-Court Death Threat by Criminal Defendant Not Required to Recuse Himself from Sentencing, Holds Split Seventh Circuit Panel

In United States v. Walsh, No. 21-1220 (7th Cir. Aug. 24, 2022), a 2-1 panel holds that a federal district court did not abuse its discretion in denying recusal from sentencing a criminal defendant who made a direct and credible death threat against the judge, his family, and court employees in court.

“At 71 years old, [Walsh] robbed a bank with a firearm and nearly robbed another a few days later. During his sentencing hearing and just after the district court announced an intended 13 year sentence, Walsh lashed out with threats of violence against the judge, the judge’s family, the probation officer, and the government’s attorney. The judge denied Walsh’s subsequent motion to recuse, finding that Walsh’s tirade was strategic and made for the purpose of getting a different sentencing judge. Over three months and several hearings later, the judge imposed a life sentence.” (The panel opinion quotes some of the profanity-laced threats, and the reader is invited to follow the link to read it.)

On appeal, the defendant challenged the sentence on substantive grounds and the denial of the recusal motion. The Seventh Circuit affirmed the sentence. The panel majority addressed the substantive argument of excessiveness (not further discussed here), while the dissent declined to address that ground.

The panel first notes that the Seventh Circuit has had no occasion to consider the appellate standard of review of fact-finding on recusal motions. “We conclude that a clear-error standard is appropriate. We employ this standard when reviewing district court factfinding for other statutes relating to judicial duties, and we see no reason to take a different tack here.”

The defendant argued that the judge had an obligation to recuse under two prongs of the recusal statute. “Under the recusal statute, ‘[a]ny … judge, … of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,’ 28 U.S.C. § 455(a), or when the judge has a disqualifying circumstance, including ‘a personal bias or prejudice concerning a party,’ id. § 455(b)(1).”

The panel majority made short work of the latter ground, finding no evidence of actual bias. “Here, the district court’s imposition of a life sentence occurred during judicial proceedings and was based on facts acquired during those proceedings. To constitute a valid basis for a recusal motion, then, the sentence must involve one of the ‘rare[] circumstances,’ in which the ruling itself ‘display[s] a deep-seated favoritism or antagonism that would make fair judgment impossible’ . . . . Yet, as discussed above, the judge imposed a substantively reasonable sentence after a thoughtful and measured explanation of the rationale supporting that sentence. Therefore, no reasonable person could find that the imposition of the life sentence displays a deep-seated antagonism that would make fair judgment impossible. With no additional evidence of actual bias, Walsh has not shown that § 455(b)(1) required recusal.”

On the latter, the panel majority applies a four-factor test applied in making a recusal decision in light of a threat by the defendant: “(1) the defendant’s demeanor in making the threat and the context in which it was made; (2) the perceived purpose of the threat; (3) the defendant’s capacity to carry out the threat; and (4) the court’s response to the threat.” The panel majority finds no clear error in the fact-finding or weighing of these factors, concluding that only (1) weighed in favor of the defendant, and that overall the judge did not err in finding that the threat was strategic, i.e., to disqualify the judge in hopes of reassignment to a more lenient courtroom. “Walsh was motivated, at least in part, by a desire to manipulate the judicial system, he had little capacity for carrying out the threats, and the district court took no actions in response to the threats that could call his impartiality into question. Since no objective, fully informed observer could reasonably question the judge’s impartiality here, the judge did not err by declining to recuse himself under § 455(a).”

Dissenting, Judge Jackson-Akiwumi would have ordered recusal based on the appearance of impartiality. “The majority opinion concludes that a judge who changes a previously announced five-year sentence to a life sentence— after being excoriated and threatened by the defendant—does not create the appearance of impartiality requiring the judge’s recusal under § 455(a). I respectfully disagree.”

In addition to addressing the four-factor test at length, the dissent also notes that, holistically, this was a situation that called out for recusal.

“[W]hile the [multi-factor] test may be helpful guidance in some cases, it should not overwhelm the larger, more important question of whether there is an appearance of impropriety that must be avoided. Beyond Walsh’s direct threats to the judge, his prolonged diatribe was profanity-laced, full of name-calling, and questioned the judge’s ethics. And Walsh didn’t just threaten the judge, but the judge’s family and other public servants—the probation officer and the prosecutor—meaning his actions affected individuals inside and outside the courtroom. The current case law on threats to judges does not take these additional factors into account. I therefore wholeheartedly agree with my colleagues that this case is an aberration. As such, the unique circumstances in this case represent one of those rare circumstances where a judge should recuse himself, even where the judge, rightly or wrongly, finds that a purpose of the threat was to force recusal.”

The dissent closes by noting other options that were available to the judge to address the tirade, including contempt and referring the matter to the U.S. Attorney’s office for additional charges.

[Ed. note: Considering that a credible death threat was issued against a federal judge with chambers in the same courthouse as the Seventh Circuit and known individually to the panel judges, might the wiser course here have been to impanel three judges from other federal courts of appeals, as authorized by 28 U.S.C. § 291?]

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