Herndon recuses himself from Peel case

Steve Gonzalez May 30, 2006, 7:11am

Gary Peel

Six weeks after U.S. District Judge David Herndon said he would not recuse himself from a criminal case involving a former law associate, he's changed his mind by stepping aside from former Lakin Law Firm attorney Gary Peel's June 12 trial on bankruptcy fraud, obstruction of justice and child pornography charges.

Peel's public defender Phillip J. Kavanaugh asked for Herndon's recusal to avoid the appearance of impropriety since his client and the judge had a prior working relationship.

Herndon was the former managing partner of Lakin, Herndon & Peel while Peel was an associate there between 1982 and 1985.

In recusing himself, Herndon wrote, "…despite the fact that the Court carefully pointed out that it has no relationship with Defendant, Peel filed the present motion to recuse based on some perceived relationship."

Peel was indicted by a federal grand jury in March. At his arraignment on April 13, Herndon said, "I do not intend to recuse myself."

At the time Herndon said he did not perceive a conflict. He also said he does not recuse himself from Lakin cases that come before him now.

In his recusal order, Herndon also wrote, "A judge should always begin with the proposition that he or she handle the caseload entrusted to him or her in order to facilitate an efficient and well organized court system with a truly random assignment of cases. Doing so further insures a well balanced assignment of cases. A judge's recusal from a case is not something to be exercised on a whim or without considerable thought and certainly only for appropriate reasons," Herndon also writes.

"This judge certainly considers his work ethic seriously and only recuses when absolutely necessary. If anything, the judge is used to taking on extra work rather than passing on work to his brethren who are already burdened with plenty to do. The judge's colleagues can attest to his absence from this district while helping out in another district much of November and December of last year and April and May of this year."

"Trivial risks of perceived impartiality are insufficient to warrant recusal."

"In support of his recusal motion, Peel contends a prior business relationship between the undersigned and himself and the publicity surrounding this case warrants recusal. Specifically, Peel contends that recent local media accounts and future media accounts regarding the undersigned's association with Peel require the undersigned to recuse from this matter. The Government and the undersigned disagree."

"A judge's friendship with one of the attorneys, or acquaintance with witnesses or even parties, does not ordinarily require recusal ... however, there are cases where the extent of intimacy, or other circumstances, renders recusal necessary."

"This is not such a case. The mere fact that a judge knows any attorney, witness or litigant is insufficient to warrant recusal. Further, the mere fact that at some point in time the attorney, witness or litigant may appear before him is insufficient to warrant recusal. Similarly, the mere fact that a judge was once a boss of a litigant is insufficient to warrant recusal."

"The Court finds it odd that the Defendant would rely so heavily on an editorial in a local newspaper in the face of case law, cited by this Court, in the presentation of his motion. An editorial is an opinion piece by the editorial writer of the paper, which may or may not represent the opinion of the ownership of the paper or the beat writer covering the courthouse who is most familiar with the case and the daily operation of the court.

"It may be read by five percent of the paper's readership or twenty-five. The readership may constitute five percent of the local population or twenty-five and, more importantly, only one or two percent of the potential jury pool. In any event, the editorial is not a factual accounting of an event.

"It may hope to lead opinion, it clearly purported to give this Court advice. Based on facts surrounding this case, the Court finds that a reasonable person would not find an appearance of impropriety in this case."

"At bar, all of the reasons cited by the Defendant meet the trivial risks of perceived impartiality described, suggesting that the Court need not recuse in this case."

"However, because this is a criminal case and further because this Court is concerned that even the trivial and unreasonable comments will weigh too heavily on the process ahead and be grist for the press mill of irrelevant inquiry, the Court will find this one of those close calls and this judge does hereby recuse."

"By random assignment, this Court is informed by the Clerk's office that the case is assigned to United States District Judge William D. Stiehl."

Recuse, please

To support his motion for recusal, Kavanaugh included newspaper articles from around the country and a nationwide press release by the U.S. Attorney as a basis for the need for recusal.

"These articles, which are just a sampling of the media glare which will only intensify in the months ahead," Kavanaugh wrote. "Not surprisingly, local media accounts have already begun publicizing the former association between the Defendant and this Court."

"Similar publicity from elsewhere appears to be only a matter of time, given the reputation of Edwardsville as 'the epicenter of America's tort crisis' and the often-repeated description of Madison County as a 'judicial hellhole.'"

"Indeed, just a few blocks from the federal courthouse in East St. Louis is a billboard which has elsewhere been described as 'picturing a man with his mouth stuffed with cash' - - with the caption, 'Please Don't Feed the Trial Lawyer'...," Kavanaugh wrote.

He also claimed that while newspapers have already begun to write editorials, observers have already begun concluding that the appearance of impropriety hovers over this case.

"The Court does not simply know one of the Defendant's former bosses - the Court is one of Defendant's former bosses," Kavanaugh wrote.

Assistant U.S. Attorney Kevin Burke is prosecuting the case against Peel.

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