This week’s question is from Frank via the form. Frank asks:

I was watching The Trial of the Chicago 7 and was wondering. Could you file to have a judge removed from your case?

Hi Frank! This is a great question; thanks for asking. I have not watched this movie, but I am somewhat familiar with the case.

BACKGROUND

To summarize for those of you who haven’t seen the movie or heard of the case – the trial of the Chicago 7 or the Conspiracy 8 (or the Chicago 8… they had a lot of monikers) took place in Chicago from September 1969 to February 1970, following the protests and subsequent riots of the Democratic National Convention. The defendants were charged with conspiracy and crossing state lines to incite a riot.

The judge in the case was named Julius Hoffman. The trial was lengthy, with something like 180 witnesses testifying. One of the eight defendants had the case against him declared a mistrial, so that’s why they’re sometimes referred to as “the Chicago 7.” The judge didn’t declare a mistrial in the case of that defendant right away. First, he had that defendant bound and shackled in the courtroom as well as dragged away and beaten in another room.

After the trial, at which the defendants were acquitted of conspiracy but convicted of inciting a riot, the judge sentenced the defendants and their attorneys to jail time on charges of contempt. Judge Hoffman gave defense attorney Kunstler four years in prison for addressing him as “Mr. Hoffman” instead as “Your Honor.” Defendant Abbie Hoffman (no relation to the judge) received 8 months for laughing in court. Defendant Hayden was sentenced to one year for protesting the treatment of co-defendant Seale (the one who had been shackled). Defendant Weiner received two months for refusing to stand when Judge Hoffman entered the courtroom.

At the time of the trial, Judge Hoffman was 74 years old and had been on the bench for sixteen years, having been appointed by President Eisenhower. He was later part of an expose on the judicial bench where he was accused of “acting erratically and abusively from the bench.” Despite this, he continued to preside over ongoing cases until his death in 1983.

The depiction in the Netflix movie is, by most accounts, not all that different from what happened in real life. Eventually, the contempt convictions were vacated as were the convictions for conspiracy and other charges. The United States Court of Appeals for the Seventh Circuit found that the judge had demonstrated a “deprecatory and often antagonistic attitude toward the defense.” That’s a real flowery way of saying he threw their asses in jail because he had beef with them.

Now, on to your question. I’ll speak in terms of federal judges since the Chicago 7 trial was in federal court. Rules vary by state for state and local judges.

Could you file to have a judge removed from your case?

Under federal law (28 U.S.C. § 455), any federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Sounds super great, right? Wrong. That’s not something that happens every day. People overestimate their own abilities all the time, judges included. Where someone else may believe the judge is biased, the judge could disagree.

When that happens, what do you do? File a motion for recusal. However, be aware that it is difficult to get a judge to recuse on motion unless that judge agrees. This is because the bar for disqualifying a judge is high. Just because a judge has past experiences or political preferences, or even if the judge has interacted with the attorneys or parties before, he or she is still qualified to sit on the bench.

In some states, judges are elected, and their political leanings may be well known. In the cases of federal judges, they are appointed, usually having been sponsored by a senator from their home state. You’ll sometimes hear, “Judge So-and-So, a Clinton appointee” or “Judge Thus-and-Such, a Bush appointee.” The speaker is usually implying some type of political affiliation or likely ruling based on the administration under which each judge was appointed. This political leaning does not disqualify a judge from presiding over a case absent certain behaviors on his or her part.

Those instances where judges “shall” recuse themselves are listed in §455 and include things like having a spouse or family member involved in the case at issue, having served as a lawyer for one of the parties, or having a financial interest in the case. That last one is interesting given the Wall Street Journal report that 131 federal judges “failed to recuse themselves from 685 lawsuits from 2010 to 2018 involving firms in which they or their family held shares.” Yikes.

So what if a judge won’t recuse himself and your motion to recuse is denied? The Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings govern the complaint process. It begins with filing a complaint against the offending judge. The circuit chief judge over the judge at issue then reviews the complaint. If it is determined the complaint has merit, the circuit chief judge would appoint a special committee to review the complaint. The committee then files a report with the judicial counsel, who then issues an order.

Federal judges can also be impeached, a formal process by which a judge could possibly be removed from the bench. According to the Federal Bar Association, 66 federal judges have been investigated for impeachment since 1776, with 15 of those being impeached, and 8 actually being removed from the bench. Some examples of conduct that led to impeached judges being removed include:

• Soliciting and accepting bribes;

• Perjury;

• Sexual assault;

• Conviction of income tax evasion;

• Practicing law while sitting as a judge;

• Improper business relations with litigants; and

• Intoxication on the bench.

As you can see, none of those are really “acting like a dick to the defendant.” Is that conduct bad? Yes. Clearly, Judge Hoffman was not behaving so badly as to be removed from the bench by federal standards, but he exhibited extreme bias against the defense attorneys and defendants that disqualified him from ruling on their contempt charges. That is why his contempt convictions were overturned on appeal.

The Seventh Circuit’s decision vacating the contempt charges essentially said the defense attorneys’ interaction with the judge was so pernicious that Judge Hoffman would have necessarily been biased. The appellate court found “[J]udge [Hoffman] was the recipient of numerous and unprecedented attacks and insults by both trial counsel. These attacks would have affected any judge personally.” Owing to that, it was impossible for Hoffman to be unbiased and should have recused himself. The defense attorneys and defendants should have stood trial for contempt before another judge.

What does this tell us? Judges have great power. Appellate judges have event greater power because they can overturn the actions of out-of-control judges. When a federal judge misbehaves, the processes of complaint and impeachment are available. When a state judge does it (at least in Texas and other jurisdictions where judges are elected), make sure you get to the polls, organize, and when a judge is not upholding the law, get someone to run against him and replace him at the next opportunity.

I hope that answers your question, Frank! Happy Franksgiving!

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.