Opinion
CRIMINAL NUMBER 98-165-B-M2
April 5, 2004
RULING
The defendants Edwin Edwards, Stephen Edwards, Andrew Martin, and Bobby Johnson have filed separate motions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. In addition, Edwin Edwards, Stephen Edwards, and Andrew Martin have each filed motions to recuse United States District Judges John V. Parker and Frank J. Polozola. Bobby Johnson did not file a motion to recuse. Cecil Brown, who was also convicted with these defendants, did not file a Section 2255 motion.
These defendants will sometimes be collectively referred to in this opinion.
Rec. Doc. Nos. 1969, 1978, 1987, 1995 and 2010.
Rec. Doc. Nos. 1975, 1984 and 1992.
The United States has filed an opposition to petitioners' recusal motions.
Rec. Doc. No. 2019.
For over twenty years, I have served as a United States District Judge. I also served for almost seven years prior to my appointment as a United States Magistrate Judge. During this period, expanding almost thirty-one years, I have tried to perform my duties with the highest integrity in a fair, honest, and impartial manner. This Court also strongly believes that the trust and confidence of the public I am honored to serve, and the parties and attorneys who appear before me, must never be diminished or questioned.
The issues involved in this recusal motion and the Section 2255 motion are of great importance to the parties, the Court, and the federal criminal justice system. It is important to me that any decision rendered on the merits of these motions not be tainted or questioned by the arguments and issues presented in these motions or my participation in this case.
I know without any doubt that I can preside in this case in a fair, honest, and impartial manner without bias, prejudice, or sympathy in favor of, or against, any party. The standard to be applied in a recusal motion is an objective one. Simply put, if a reasonable person with knowledge of all the facts would harbor any doubts about a judge's impartiality, then recusal is warranted. Because of the issues related to my medical status at the trial and the request for my personal and private medical records and other medical information, I am concerned that there could be some reasonable people who might question my further participation in this case and my partiality. It is for these reasons that I now recuse myself in this case.
Since I have recused myself, the focus can now return, as it should be, to the petitioners, who were indicted, convicted, and sentenced for committing very serious crimes, and not on the presiding judge at the trial. The important issue to be decided is not what my health was during these proceedings, but whether my rulings and the other actions I took in this case were correct as a matter of law under the facts of this case, as affirmed by the Fifth Circuit Court of Appeals.
The Fifth Circuit has affirmed the rulings I made in this case with the exception of two unrelated and relatively insignificant errors which the Fifth Circuit found to be harmless error. The United States Supreme Court denied petitioners' writ for an application of certiorari. Therefore, I believe it is necessary for me to set forth certain facts for the record considering the allegations petitioners have made against me in their motions.
United States v. Edwards, 303 F.3d 606 (5th Cir. 2002).
537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 (2003).
It is important that I state emphatically and clearly for the record that at all times during the course of this case, I was mentally competent and physically able to preside in this case and in the many other cases I have had the honor to preside in and continue to preside in since sustaining my back injury.
A review of the docket sheet indicates the extraordinary efforts that I took to organize this complex case, to allow the parties to properly prepare for trial, and to ensure that the trial be conducted in a fair and dignified manner.
It is important to note that every conference held by the Court before, during the trial, including bench conferences, and after the trial, were held on the record. The entire trial was also conducted on the record. All motion hearings and other hearings were conducted on the record. Thus, every word that I spoke and every ruling that I made, whether orally or in writing, is available in the transcript and record of this case for anyone to review.
On December 3, 1998, the Court issued an agenda of items to be discussed at the first conference. The Court also included a memorandum with the agenda which set forth the "Courtroom Decorum" expected of counsel during the course of this trial. Paragraph 16 of the "Courtroom Decorum" memorandum provided:
Rec. Doc. No. 12.
Counsel shall admonish all persons at counsel table, that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of a witness, or at any other time, are absolutely prohibited.
Id.
The Edwards case was a very high profile case and of immense interest to both the local and national press. As a result, the Court issued a Credentialing Order on December 11, 1998. This order, among other things, reserved twenty seats in the courtroom to be used for media personnel only, allowed the press to receive credentials for easy access to the courtroom and to the media bullpen set up in a special location outside of the courthouse, and reserved a seat for the press pool sketch artist. The Court also assisted the media pool with getting authorization from the City of Baton Rouge to close a lane of a street outside of the courthouse for the media to park their trucks and other vehicles. Finally, the Court conducted a briefing with members of the press with the parties present to set forth the ground rules for the trial. Considering the number of media representatives present from the first court hearing to the final sentencing date, including the period from January 10, 2000 to May 9, 2000 (the beginning of the trial to the verdict), it must be concluded that there would have been widespread coverage had this judge acted in the manner claimed by petitioners in their motions. There were no media reports which would in any way suggest that the Court was inattentive, sleeping, or acting in any way that suggested I was mentally or physically incompetent to try this case.
Rec. Doc. No. 47.
The petitioners cite one statement from a transcript which consisted of over 18,000 pages in their attempt to falsely portray me as having "erratic, even paranoid, behavior." What petitioners fail to do, however, is to set forth the context in which the statement was made. Petitioners also conveniently left out other important parts of the statement. Additionally, petitioners attached two newspaper articles which quote statements made by the attorneys who represented Metropolitan Insurance Company in the state personal injury case about my medical condition. However, the petitioners failed to attach two more articles written by the same reporter, who also served as press liaison to the Court during the course of the trial.
One of these attorneys represented Edward DeBartolo in the Edwards case, and also attempted to represent Stephen Edwards before he was disqualified.
On February 15, 1999, during the same period the defendants argued that I was mentally and physically incompetent to try this case, John Hill wrote the following article which appeared in Volume 19, Issue 33 of New Orleans City Business:
Make no mistake about it, even with a colorful figure like Edwin Edwards in the courtroom, even with some of the most high-powered legal talent money can buy, there is only one star in the courtroom: U.S. Judge Frank Polozola.
The judge leaves no doubt who is in command of his courtroom. Nor does he leave any doubt about the level of his intelligence, memory and command of the case.
Polozola is the judge presiding over the federal racketeering and conspiracy trial gambling corruption charges against former Gov. Edwin Edwards; his son, Baton Rouge attorney Stephen Edwards; Shreveport Sen. Greg Tarver; and three other Edwards' friends, Andrew Martin of Kenner, Bobby Johnson of Baton Rouge and Cecil Brown of Eunice. They were indicted Nov. 6, but the first court hearings only began at the first of this month.
Those first hearings in the judge's handling of the case of U.S. vs. Edwin Edwards etc. have clearly signaled that the judge, and no one else, is in charge. Not only that, but Polozola has exhibited a razor-sharp mind and an encyclopedic memory.
The first hearings were over disqualification issues.
Polozola has set a priority of issues he believes must be settled first before we can get on to the run-of-the-mill pretrial motions that any criminal case generates. The very first issue he decided was against the [defendants'] motion that he should be recused from hearing the case, that he was somehow disqualified because he had exhibited prejudice along with the other two judges in Baton Rouge's federal Middle District of Louisiana by rebuking the defense's early attack on the grand jury, selection process. It was more complicated than that, of course, but that's it in a nutshell.
The case was legally frozen for several weeks in December and January until Polozola issued his written reasons why he can be an impartial judge and refused to recuse himself. (That will be the flint issue defendants take to a higher court.)
Then once his written decision was in, hearings began Feb. 1 to remove all obstacles of Baton Rouge attorney Hillar Moore to be Shreveport Sen. Greg Tarver's attorney. That perfunctory matter aside, Polozola turned his attention to the prosecution's motions to disqualify New Orleans lawyer Mike Fawer as Edwin Edwards' attorney and the law partners Lewis Unglesby and Karl Koch of Baton Rouge as Stephen Edwards' attorneys.
It was during the five days of hearings on the disqualifying motions that Polozola exhibited a sharp memory, sharper than the lawyers before him.
For example, one prosecutor referred to a matter that was on "page two" of a document. "You meant page 22," Polozola quickly interjected. "You said two."
That was just one of several instances which caused reporters to raise their eyebrows in adoration for the breadth of Polozola's memory and his obvious preparation for oral arguments in his courtroom. There were several others.
The judge not only reads everything lawyers put before him, he commits it to memos. As one defense attorney who practices in Polozola's courtrooms said, he keeps attorneys on their toes. "You'd better be prepared when you go into his courtroom, because he is," said the attorney, Cyrus Greco of Baton Rouge.
John Hill, No Doubt About Who's In Charge In Trial of EWE, NEW ORLEANS CITYBUSINESS, February 15, 1999 at 17. (Emphasis supplied by Court.)
A similar article had been published on February 14, 1999 in The Times by John Hill.
During the course of the Edwards proceedings, there were 182 written motions filed by the defendants, 91 written motions filed by the United States, and 38 written motions filed by third parties, the press, and others. In order to properly rule on these motions, the Court wrote a total of 746 pages of written opinions which contained 1, 459 footnotes. The Court cannot estimate the number of evidentiary and other rulings it made during motion hearings, conferences, the trial, or at the sentencing hearing. Except for "two unrelated and relatively insignificant" rulings which the Fifth Circuit held to be "harmless beyond a reasonable doubt," the Fifth Circuit, on direct appeal, and in a mandamus action, affirmed every opinion rendered by the Court which was the subject of an appeal or mandamus action. As noted earlier, the Supreme Court denied writs in this case.
Edwards, 303 F.3d at 647.
Id. at 622.
303 F.3d 606 (5th Cir. 2002)
Rec. Doc. No. 149 (April 9, 1999).
The record also reveals that three scheduling orders were issued by the Court which set forth a schedule for the parties to follow regarding the production of discovery materials, deadlines for filing discovery and recusal motions, designation of expert witnesses, production of Rule 16 discovery materials, deadlines for filing dispositive motions, motions to suppress and to sever, and the exchange of Brady and Jencks material. The scheduling order also set a deadline for filing proposed juror questionnaires, a summary of the indictment to be read to the jury, proposed jury charges, designation of liaison counsel, and a statement regarding the order of presentation of evidence at the trial. Many pretrial conferences were held by the Court prior to the trial, all of which were conducted on the record. The jury charge was prepared well in advance of the trial and there were only two or three minor objections to the charge which consisted of 72 pages.
Rec. Doc. Nos. 36, 123, 249.
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957).
These minor objections were made on behalf of Senator Tarver and Bobby Johnson.
From 1998 until the end of the Edwards trial, I also terminated 1, 219 civil cases and 167 criminal cases. There was not a single objection made by any party or attorney in any of these cases that I was mentally or physically incompetent to try or preside in those cases.
During the period of 1998 until the end of the Edwards trial, the Court also had a substantial number of other cases pending on its docket. Not a single party in these cases filed an objection that I was mentally or physically unable to try or preside in those cases.
While the defendants seek to connect the order signed by the district judges assigning this case to me to the date I became Chief Judge, the record is clear that I became Chief Judge on September 1, 1998, far in advance of the indictment in this case. It is also a fact that there has never been any action taken by the judicial officers of the Middle District to suspend or terminate my duties as Chief Judge of this district.
From January 1, 2000 until December 31, 2003, I sat as a member of the Fifth Circuit Judicial Council, which would have the authority to suspend my duties as a district judge if that Council found me to be mentally or physically incompetent to perform my duties as a district judge. No such action was taken by the Circuit Council.
The Court spent approximately 600 hours in the courtroom in this case and approximately 150 additional hours in conferences. All of these proceedings were taken down by a court reporter and transcripts of these conferences have been filed in the open record or under seal.
As noted earlier, the defendants rely on a single passage from the voluminous transcript in this case to support its contention that I acted "erratic, even paranoid." This quote came during a very important part of the proceedings when Edwin Edwards was arguing an important issue of self-representation and his desire to cross examine certain witnesses even if Edwin Edwards did not testify at the trial. Despite the suggestion that the remark was directed to the defendants, the transcript reveals it was directed to all parties.
Transcript at 146 (April 19, 1999).
It is important to keep in mind that the Court had previously issued an order on November 18, 1998, regarding courtroom decorum, which is quoted on page 4 of this opinion. All the Court was doing at the time it made the statement complained of was enforcing an order previously issued in an attempt to keep order in the courtroom, control the emotions of the attorneys, the parties, their families and friends, and demand respect for the federal judicial system. The judge has a duty and obligation to maintain order and proper decorum during court proceedings.
This case involved a total of seven defendants who had a total of twenty-one lawyers representing them. The United States Attorney's Office had the United States Attorney and six Assistant United States Attorneys in the courtroom. Each side also had paralegals and the government had a case agent at its table. The Court had to take early and continuous action in this case to make sure the trial proceeded in an orderly manner. Only five days after instructing the parties to behave themselves as set forth above, the Court was again required to restore order in the courtroom. During the incident, the Court advised the parties:
The Court: I thought we had a rule, and apparently it is not being followed and I don't know what to do.
The problem that is coming up in this case is the personality of the lawyers overshadowing their responsibility to their clients, whether it is the United States or the defendants."
Transcript at 42. April 21, 1999.
The Court further warned the parties to "calm down" and the proceedings continued.
This case presented many problems to the Court ranging from jury selection, illnesses of two defendants, recusal of lawyers, complex legal and factual issues, selection of an anonymous jury, juror misconduct, and difficult sentencing issues. The Court's patience is evident from a fair reading of the transcript. The Court's preparation for conferences, hearings and trial, its detailed written and oral rulings, and the organized manner in which the Court presided in this case clearly dispels any suggestion that I was not mentally or physically able to preside in this case. The Court's strictness was required and absolutely necessary to ensure all parties received a fair and impartial trial in a setting befitting a federal courtroom. The Court's actions were in the interest of justice and judicial economy and to ensure that this case would be tried in a fair, professional, and constitutional manner with due regard for the respect that attorneys and the Court owe to each other, the witnesses, the jury, the public, and to the federal criminal justice system in the United States.
While petitioners are quick to condemn the judge for his statement, nothing was said about the many incidents and conflicts which occurred between counsel for the United States and attorneys for Edwin and Stephen Edwards, including a volatile incident which occurred during a chambers conference. Counsel for all parties became so out of control during a conference in chambers that the Court had to have the two Deputy United States Marshals who were in the conference room remove the attorneys through separate doors. The size of the conference room table prevented the parties from having physical contact with each other and thereby placing in jeopardy the personal safety of my staff and myself who were present during the conference.
Transcript (May 3, 2000).
In their zeal to condemn me, the defendants fail to state that the jury in this case not only found them guilty of certain charges, but also totally acquitted two defendants and returned a total of 71 verdicts which either acquitted the remaining defendants or found that the government failed to prove a Racketeering Act. Thereafter, the Court granted a new trial after the jury verdict on Counts 6, 20-22, and 25-27. The Court also granted a new trial on predicate acts 5A, 5B, 5E, 5F, and 5G of Count I.
It is also important for this Court to note the manner in which the petitioners in this case have sought discovery in their Section 2255 motions. In an attempt to circumvent the mandatory requirements of Rule 6 of the rules governing Section 2255 motions, the petitioners filed a motion to intervene in my state court personal injury suit which had been settled, dismissed, and closed on the state court docket. Despite the clear requirements of Rule 6 of the Section 2255 rules and the mandate of Article 1093 of Louisiana Code of Civil Procedure, the petitioners, intentionally or otherwise, failed to send me or the attorney who represented me in the closed state court action a copy of the motion to intervene and did not include us on the notice of filing certificate. Thus, it may be entirely possible that I am not even a named party to the motion to intervene. The motion to intervene was not sent to the United States, although the material sought in the state court action is the subject of a Section 2255 motion and a discovery request under Rule 6 of the Section 2255 Rules. The state trial judge not only set the motion to intervene for a hearing but also immediately signed an order submitted by petitioners which ordered the court reporters to prepare depositions of certain doctors and this judge in advance of the hearing. Not only does the state court order violate the provisions of Rule. 6 of the Section 2255 rules, it is in direct conflict with the provisions of Louisiana Code of Civil Procedure article 1091.
See Gardner v. State Farm Mut. Auto. Ins. Co., 2001-2196 (La.App. 4 Cir. 5/1/02), 817 So.2d 398, 401; Van Lieu v. Winn-Dixie of Louisiana, Inc., 446 So.2d 1362, 1366 (La.App. 1 Cir. 1984) citing Cook v. Matherne, 432 So.2d 1039 (La.App. 1 Cir. 1983), Thibodeaux v. State Farm Mut. Auto. Ins. Co., 285 So.2d 363 (La.App. 3 Cir. 1973), writ refused, 287 So.2d 191 (La. 1974), and Louisiana Power and Light Company v. Charpentier, 165 So.2d 614 (La.App. 1 Cir. 1974) ("An intervention may be filed only while suit is pending and before judgment on the main demand."); Hunter v. Johnson, 434 So.2d 646, 647 (La.App. 3 Cir.), writ denied, 440 So.2d 149 (La. 1983); Pratt v. Livingston Parish Police Jury, 278 So.2d 897, 898 (La.App. 2 Cir. 1973) ("The trial court signed an order allowing the petition in intervention to be filed after judgment. This was in error since the law provides third persons may intervene only in a pending action."); General Motors Acceptance Corp. v. Jordan, 65 So.2d 627, 629 (La.App. 1 Cir. 1953)("[A]n intervention can be filed only while the suit between the original parties is pending, and before judgment has been rendered in the main demand."); Peart v. Rykoski, Inc., et al., 195 So. 30, 31 (La.App.), aff'd, 197 So. 605 (La. 1940).
Because of the attempt by petitioners to secure discovery other than as permitted by the Rules Governing Section 2255 Actions and without notice to the United States or the person whose records were being sought to be used in a Section 2255 proceeding, the Court was justified and required to take the action it did in granting the stay sought by the United States after it removed the case to federal court.
Rec. Doc. Nos. 2023 and 2024.
Several federal circuit courts of appeals have held that a judge is not disqualified merely because a litigant brings a meritless lawsuit against him. The Fifth Circuit has followed this rule in In the Matter of Hipp, Inc.
See U.S. v. Watson, 1 F.3d 733, 734-35 (8th Cir. 1993) (Rejected criminal defendant's argument that the federal district judge should have recused himself after defendant sued him in state court.), Tamburro v. City of East Providence, 981 F.2d 1245, 1992 WL 380019, *1 (1st Cir. 1992) (table) ("In order to guard against `judge-shopping, "courts have refused to disqualify themselves under Section 455(b)(5)(i) unless there is a legitimate basis for suing the judge.'"), U.S. v. Gallo, 898 F.2d 148, 1990 WL 27313, *1(4th Cir. 148)(table) (Fact that criminal defendant was in the process of filing a lawsuit against the federal district court judge presiding in his case did not require recusal.), Rodman v. Misner, 852 F.2d 569, 1988 WL 76545, *l(6th Cir. 1988)(table)("The rule is that a judge is not disqualified from hearing a case merely because a litigant sues or threatens to sue him or her."), cert. denied, 489 U.S. 1087, 109 S.Ct. 1549, 103 L.Ed.2d 853 (1988), U.S. v. Studley, 783 F.2d 934, 939-40(9th Cir. 1986) (Criminal defendant who filed lawsuit against trial judge and engaged in leafletting activities against him was not entitled to recusal because of lawsuit or threatened lawsuit.), U.S. v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978).
5 F.3d 109 (5th Cir. 1993)
Although some might argue that my recusal should not be necessary after reviewing the above information, I firmly believe it is more important that the final decision on the pending motions not be questioned or tainted by my further participation in this case.
Because I recuse myself in this case, I make no decision on the motion to recuse Judge John V. Parker.
Therefore, I hereby recuse myself in this case.
IT IS SO ORDERED.