When Does Friendship Require Recusal of a Judge?

The Bencher  |  January/February 2025

By Francis G.X. Pileggi, Esquire and Aimee M. Czachorowski, Esquire

A recent decision of the U.S. Court of Appeals for the Ninth Circuit addressed the titular question in the context of a judge and a prosecutor who served as co-clerks for the same Ninth Circuit judge three decades ago. See In re: Thomas Eugene Creech, No. 24-4455 (Ninth Circuit, October 16, 2024).

Over the past 25 years that Francis has written this ethics column, he has published many articles on the standards for judicial disqualification or recusal, too numerous to list here, in this and other publications. See, e.g., Francis G.X. Pileggi, “Criteria for Judicial Recusal,” The Bencher, (May/June 2023) (addressing the federal standard); Francis G.X. Pileggi, “Supreme Court Addresses Judicial Recusal Standard,” The Delaware Corporate and Commercial Litigation Blog (January 22, 2008) (reviewing the Delaware standard—which is not identical to the federal standard).

The underlying case in which recusal was sought involved a death row prisoner in a § 1983 suit who alleged that the prosecution had introduced fabricated or intentionally misleading evidence at his clemency hearing. The prisoner sought a writ of mandamus requesting recusal of the U.S. District Court judge who presided over the case on the basis of the close friendship between the judge and the county prosecutor.

The prisoner seeking mandamus, while serving sentences for multiple murders, violently beat to death a disabled inmate with a sock filled with batteries. After pleading guilty, the prisoner was ultimately sentenced in 1995, and the death penalty was imposed.

In 2023, the prisoner sought to have his sentence commuted to life without parole. The prisoner claimed, contrary to the sentencing judge’s factual findings, that the sock turned murder weapon belonged to another inmate. Presumably to rebut that contention, the prosecution, at the hearing, introduced contrary evidence, which the prisoner contended constituted misconduct. The meeting minutes of the clemency hearing did not match the statements the prisoner contended the prosecution made at the hearing in his § 1983 suit.

The Ninth Circuit, in the context of a mandamus action seeking recusal, analyzed whether the district court’s order refusing to recuse was clearly erroneous as a matter of law. Two primary grounds were presented in requesting recusal: the longstanding friendship between the prosecutor and the judge, as well as potential claims of prosecutorial misconduct against prosecutors supervised by the county prosecutor with whom the judge had a friendship lasting several decades.

Of particular interest is the court’s discussion of the type of friendship that may require recusal in certain circumstances and the close relationships forged by co-clerks working for the same judge.

The court examined the transcript of the prosecutor’s public statements made during the judge’s investiture, about 18 years earlier, in addition to the judge’s comments about her friend, the prosecutor, during the same investiture ceremony. The court explained that the allegations of prosecutorial misconduct were in tension with the judge’s public praise about the prosecutor’s professionalism, which could lead a reasonable observer to question the judge’s impartiality.

While friendship by itself would not necessarily require recusal in a run-of-the-mill case involving the prosecutor’s office, the court found that the allegations of misconduct in this case made a crucial difference requiring recusal. There was an additional concern that the judge’s prosecutor friend may be called to testify before the judge concerning the allegations of prosecutorial misconduct.

The court concluded that the friendship per se between the two was not alone grounds for recusal, but, due to the possibility that the judge may be called upon to make judgments about the potential prosecutorial misconduct, or hear the testimony of her friend, recusal was required.

Several highlights of the court’s reasoning and the standards applied by the court include the following:

• The court called its analysis and its conclusion in this case a “close-call” and ruled that in close-calls, recusal is favored. Slip op. at 14.
  
• Applying the federal standard for recusal, the court explained that it is an objective test that requires recusal “where a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Slip op. at 13. The court emphasized that the objective standard focuses on the appearance, as opposed to the reality, of bias or prejudice. Id.
  
• The court underscored that the goal in this context is to “avoid even the appearance of partiality.” Id.
  
• The court noted that the failure to recuse is directly appealable because of the need to remove a disqualified judge quickly. Slip op. at 22. The court observed that even “apparent” bias is an “abuse of judicial power…[and a] threat to the integrity of the judicial system.” Slip op. at 23.
  

The Court of Appeals reasoned that even though it thought the trial judge could “think dispassionately and submerge private feeling,” the appellate panel emphasized that “justice must satisfy the appearance of justice.” Slip op. at 25 (citing Offut v. United States, 348 U.S. 11, 14 (1954)).

The court concluded that “[t]here is no reason for [the] judge to subject herself to the very human pressures that arise out of sitting in judgment in cases involving people we know and value as friends.” Slip op. at 25.

Another topic for another article is how the standard applies when an attorney appearing before a judge is perceived by others to be “the opposite of the judge’s friend” or the judge is reasonably perceived to be inimical to that attorney.

Francis G.X. Pileggi, Esquire, is the managing partner of the Delaware office of Lewis Brisbois Bisgaard & Smith LLP. He comments on key corporate and commercial decisions and legal ethics topics at www.delawarelitigation.com. He published a book on legal ethics titled American Legal Ethics, A Retrospective From 1997 to 2018. Aimee M. Czachorowski, Esquire, is a lawyer in the Delaware office of Lewis Brisbois Bisgaard & Smith, LLP.