Peel wants Herndon recused from criminal case

By Steve Gonzalez | May 16, 2006

Gary Peel

Former Lakin Law Firm attorney Gary Peel, who faces criminal charges of bankruptcy fraud, obstruction of justice and two counts of child pornography, has filed a motion asking presiding U.S. District Judge David Herndon to recuse himself.

In a motion filed May 8, federal public defender Phillip J. Kavanaugh, who will represent Peel at his June 12 trial, wrote, "...Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

"Although undersigned counsel do not claim any actual bias or prejudice by the Court, the impartiality of this Court 'might reasonably be questioned' due to the relationship between the Court and the Defendant," the motion states. "That relationship includes this Court's prior status as a managing partner while Gary Peel was an associate at the same law firm."

At Peel's arraignment on April 13, Herndon said, "I do not intend to recuse myself."

Herndon explained that Peel was an associate at the firm Lakin, Herndon & Peel between 1982 and 1985 while he was the managing partner.

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

In his motion, Kavanaugh claims the extensive publicity surrounding Peel's case, including a local newspaper's editorial calling for Herndon to recuse himself.

"..It is the risk of an appearance of impropriety - rather than any actual impropriety - which is the basis of this motion for recusal," the motion states.

Kavanaugh also includes 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 writes. "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 claims 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.

"Moreover, this is not a case in which the exact nature of any connection between the Defendant and the Court can be stated at the outset with certainty. The prosecution encompasses actions going back decades. It is respectfully submitted that Gary Peel's professional life during those decades is so intertwined with the bar of which this Court was a member that the only prudent course is for this Court to recuse itself before further judicial resources are expended in consideration of this issue.

"Of course, at Gary Peel's first appearance in this case, this Court candidly addressed the relationship which it has had to the Defendant. Unfortunately, as noted above, this Court's candor has not satisfied all observers. In light of the French maxim, "qui s'excuse, s'accuse," it may well be that no cautionary measures taken by this Court, no matter how well-intentioned, can avoid the dangers which 28 U.S.C. § 455(a) is designed to prevent."

Count I of Peel's indictment for bankruptcy fraud states, "Between on or about January 20, 2006, and on or about January 31, 2006, within St. Clair County, within the Southern District of Illinois, Gary Peel, did knowingly and fraudulently give, offer, receive, and attempt to obtain money and property, remuneration, compensation, reward, advantage, and promise thereof for acting and forbearing to act in a case under Title 11; all in violation of Title 18, United States Code, Section 152(6)."

Count II, the obstruction of justice county states that Peel did knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding; all in violation of Title 18, United States Code, Section 1512(c)(2).

Counts III and IV claim Peel knowingly possessed child pornography and placed it in his ex-wife's mailbox and also had copies of the photographs in his possession.

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

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