In Creech v. U.S. Dist. Ct. for the District of Idaho, No. 24-4455 (9th Cir. Oct. 16, 2024), the Ninth Circuit grants mandamus to remove a district court judge in a case where the judge admitted a long-term friendship with one of the defendants, going back to when they were Ninth Circuit clerks. This comes on the heels of the Fifth Circuit last week reassigning an institutional reform case away from a judge who adjudicated the case for thirteen years (Fifth Circuit Orders Removal of District Court Judge from Institutional Reform Lawsuit for Alleged “Intemperate Conduct” During Contempt Proceedings).
Plaintiff Creech, a prisoner on death row, filed a § 1983 suit challenging alleged due process violations in his clemency hearing before the Idaho Commission of Pardons and Parole (“Commission”). “The Ada County Prosecutor’s Office (‘ACPO’)—led by elected Prosecuting Attorney Jan Bennetts—opposed Creech’s petition for clemency.” Creech alleged that the ACPO potentially tampered with evidence. “The complaint included other claims of prosecutorial misconduct, such as allegations that the prosecution misled the Commission into believing that Creech had been definitively identified as the killer of Daniel Walker, whom Creech had previously been suspected of murdering in California.”
During the pendency of the case, Creech moved to recuse the judge. “Creech argued that [U.S. District Court] Judge Brailsford and Ada County Prosecutor Jan Bennetts have a close, personal relationship stemming from their days as co-clerks on the Ninth Circuit. Creech pointed to Judge Brailsford’s investiture to the Idaho Court of Appeals in 2019, where Bennetts publicly recounted her friendship with Judge Brailsford. Creech also emphasized that Judge Brailsford previously recused herself in a case in which Bennetts was sued in her personal capacity.”
“Judge Brailsford denied Creech’s recusal motion. She explained that, although she and Bennetts were close while clerking on the Ninth Circuit, she has since ‘lost touch with her.’ She concluded that ‘a reasonable person with knowledge of all the facts of my relationship with Ms. Bennetts would not either conclude my impartiality might reasonably be questioned or perceive a significant risk that I would resolve the case on a basis other than the merits.’”
The Ninth Circuit orders recusal and remands. While noting that the court had never before granted recusal on a mandamus petition, it concludes that “it is clear that [the judge’s] ‘impartiality might reasonably be questioned’ under the unique circumstances of this case, 28 U.S.C. § 455(a),” and thus the denial of recusal was clear error as a matter of law.
First, there was the nature and intensity of the judge’s friendship with the defendant. “Judge Brailsford and Bennetts became friends in 1993, during the year they spent together as co-clerks to Judge Thomas Nelson, our former colleague on the U.S. Court of Appeals for the Ninth Circuit. As we consider that relationship, we may draw on our own experiences as judges and former law clerks. Our clerks represent the best and the brightest from American law schools. Although the selection process is highly competitive, once our clerks begin—typically for a one or two-year period of service—they are no longer competitors but colleagues in service to the courts of the United States. Our clerks work long hours in monastic conditions, bound by duties of confidentiality and loyalty to the judge. Chambers are tight-knit environments that depend on constant collaboration between co-clerks. The friendships developed between co-clerks can be especially intimate and enduring, often lasting long beyond the clerkship itself.”
“It is a testament to the strength of friendship between co-clerks that Bennetts spoke at Judge Brailsford’s investiture to the Idaho Court of Appeals some twenty-five years after they completed their clerkships. At the 2019 investiture, Bennetts recounted her ‘vivid memories’ of spending ‘nearly 24/7 in the chambers’ with Judge Brailsford. She recalled how the two of them ‘discussed [their] lives, [their] challenges, [their] hopes, [their] dreams for the future.’ Bennetts continued, ‘Amanda and I met by circumstance, but we became friends by choice. Amanda is the kind of friend you feel incredibly fortunate to find. They’re few and far between.’”
“Bennetts’ public statements at Judge Brailford’s investiture (and Judge Brailsford’s remarks in response) could cause a reasonable person to question Judge Brailsford’s impartiality. Importantly, Bennetts remarked at the investiture that she and Judge Brailsford ‘have continued to share lunches’ together and described her friendship with Judge Brailsford in the active tense, declaring ‘that Judge Brailsford ‘shares in the excitement of successes and is supportive in challenging times.’ Although Bennetts acknowledged that she and Judge Brailsford sometimes ‘go months and even years without catching up,’ Bennetts expressed that ‘Amanda is the kind of friend for whom I would drop everything if she needed me and I know she would do the same.’”
“Judge Brailsford’s public remarks about Bennetts also go beyond simply commenting on their friendship. At the investiture, Judge Brailsford commended Bennetts for ‘receiv[ing] the Professionalism Award from the Idaho State Bar,’ which—in Judge Brailsford’s words—’is most apropos of Jan, a consummate professional every day, all day, for her entire career’ . . . . Creech’s allegations of prosecutorial misconduct are in tension with Judge Brailsford’s laudatory comments on Bennetts’ professionalism. A reasonable observer could question Judge Brailsford’s impartiality in a case that may challenge Bennetts’ professional and ethical reputation.”
Second, while the panel notes that a professional friendship may itself not be enough to disqualify a judge, here the defendant was personally accused of prosecutorial misconduct. She not only headed the office alleged to have violated Creech’s rights, but “Bennetts herself was present at the clemency hearing, and thus implies that Bennetts might have had an obligation to correct any misrepresentations made to the Commission, for which she could be held liable.” Bennetts also allegedly put out a false press release about the Creech case. And “because Creech has alleged that ‘the minutes do not accurately reflect what the prosecutor said to the Commission,’ Bennetts may be called to provide evidence or testimony about the hearing itself.” The judge would potentially be required to assess her friend’s credibility and even enter a judgment against her.
Along with clear error, Creech also satisfied the mandamus requirements of “whether petitioner has other, adequate means of relief or will suffer irreversible damage or prejudice.” The panel notes that “there are compelling institutional reasons to use mandamus when the grounds for recusal are obvious, as here. For one, as Justice Souter recognized while sitting by designation, ‘public confidence is enhanced where a clearly disqualified judge is removed swiftly’ . . . . This fact militates in favor of mandamus even though recusal is ordinarily reviewable on direct appeal. The failure to remove immediately a judge who may be perceived as biased inflicts an institutional injury on the judiciary that is not correctable through the normal appellate process . . . . Confidence in subsequent appellate proceedings turns in part on confidence in the compilation of the record on appeal and suggests that a judge who must recuse should do so sooner rather than later in order to mitigate questions concerning her judgment.”
“Mandamus and disqualification are both highly fact-dependent inquiries. Based on the specific facts here, we have a firm conviction that Judge Brailsford abused her discretion in declining to recuse herself. We conclude that Creech has shown that Judge Brailsford’s order was clearly erroneous as a matter of law because her longstanding relationship with Prosecuting Attorney Jan Bennetts might call into question any judgments she would have to make regarding Bennetts’s own professional and ethical obligations.”
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