Friday, March 04, 2011
Ind. Decisions - 7th Circuit issued one Indiana ruling today
The 4-page opinion is In re: Rich Bergeron, on a petition for writ of mandamus to the USSD, SD Ind., Judge Barker.
Judge Posner writes:
Rich Bergeron asks us to remove the judge presiding in Eppley v. Iacovelli, a case pending in the district court. Bergeron had repeatedly asked her, without success, to recuse herself. * * *
We need to distinguish between Bergeron’s desire that the district judge be removed from Eppley v. Iacovelli and his desire that she be removed from the contempt proceeding. * * *
So the cleanest remedy against the creation of an appearance of judicial bias is to seek the judge’s removal as soon as the appearance materializes, hopefully before trial. That is why we won’t order a new trial unless the party complaining of the appearance of bias seeks mandamus, e.g., United States v. Diekemper, supra, 604 F.3d at 352; it is far better to correct the problem by ordering recusal in advance than by ordering a new trial. “If a party is deprived of his substantial rights in a trial before an actually biased judge the harm can be remedied (though not costlessly) by a new trial before an unbiased judge. But the harm to the public’s perception of the judicial system when a judge who appears to be biased proceeds in a case is more difficult to correct. Prevention in such circumstances is clearly preferable to attempts to cure.” United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985). Because a district court’s denial of recusal is not an appealable order, the requester is allowed to seek mandamus from the court of appeals in lieu of appealing. Id.
Although he asked us for mandamus before Judge Barker concluded the contempt proceeding by her award of sanctions to Eppley, Bergeron did not ask us to stay the proceeding in the district court and we did not, and now it’s too late for us to order the judge removed from the case, because she’s through with it. We could order a do-over of the contempt proceeding were this an egregious case of apparent bias, as the Supreme Court considered Liljeberg to be; but the appearance of impropriety in this case is too attenuated to justify that extraordinary remedy. The petition for mandamus is therefore denied.
Posted by Marcia Oddi on March 4, 2011 11:01 AM
Posted to Ind. (7th Cir.) Decisions