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Suggesting Voluntary Recusal Of A Judge Under Special Circumstances

The judge assigned to the Oklahoma City Bombing was removed from the case because his court was damaged in the April 19 bombing.  When the explosion ripped through the Alfred P. Murrah Federal Building, Judge Wayne Alley's courtroom and chambers, located one block south of the federal building, were heavily damaged. Glass shattered, parts of the ceiling collapsed, and a member of Judge Alley's staff was injured, along with other court personnel.  "Based on these circumstances, we conclude that a reasonable person could not help but harbor doubts about the impartiality of Judge Alley," federal appeals court judges write in this Dec. 1, 1995 ruling.


WAYNE E. ALLEY, District Judge,

Real Party in Interest.

(D.C. No. CR-95-110-A)

Submitted on the briefs:

Michael B. Tigar, Austin, Texas, Ronald G. Woods, Houston,
Texas, and D. Kate Rubin, Oklahoma City, Oklahoma (Adam
Thruschwell, Of Counsel), for Petitioner.

Patrick M. Ryan, United States Attorney, Jerome A. Holmes,
Assistant U.S. Attorney, Joseph H. Hartzler, Larry A. Mackey, and
Sean Connelly, Special Assistant U.S. Attorneys, Oklahoma City,
Oklahoma, for Real Party in Interest.

Harry F. Tepker, Jr., Norman, Oklahoma for Respondent.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.


On April 19, 1995, a bomb exploded at the Alfred P. Murrah
Federal Building in Oklahoma City.  The explosion destroyed the
Murrah Building, killed 169 people, injured many others, and
caused extensive damage in the surrounding vicinity.  The
explosion inflicted massive damage (upwards of $1,000,000) to the
United States Federal Courthouse, which is located one block
south of the Murrah building.  Over one hundred windows
shattered and were blown out.  The explosion caused substantial
damage to interior ceilings, walls, and fixtures.  The explosion
decimated the glass doors at the entrance to the courthouse.
District court chambers located on the third and fourth floors along
the north side of the courthouse, including Judge Alley's third floor
chambers and courtroom, were heavily damaged.  Flying glass
damaged woodwork and furniture in Judge Alley's courtroom.
Parts of the ceiling collapsed in Judge Alley's chambers.  Plaster
ceiling tiles fell from the office ceilings and light fixtures were
dislodged and left hanging.  The skylight in Judge Alley's
courtroom shattered, covering the courtroom floor in an inch of
broken glass.

Although Judge Alley lost no family or friends in the bombing, the
explosion slightly injured a member of his staff, and injured other
court personnel.  Some court personnel and employees had friends
or relatives who were injured or killed in the Murrah building
explosion.  It is likely that other court personnel and two judges
would have been severely injured had they been at their desks.

Timothy McVeigh and Terry Nichols were charged by grand jury
indictment with the bombing.  The indictment charges defendants
with a total of eleven counts of violating the laws of the United
States:  one count of Conspiracy to Use a Weapon of Mass
Destruction in violation of 18 U.S.C.  2332a; one count of the Use
of a Weapon of Mass Destruction in violation of 18 U.S.C. Section
2332a and 2(a) & (b); one count of Destruction by Explosive in
violation of 18 U.S.C. Sections 844(f) and 2(a) & (b); and eight
counts of First Degree Murder in violation of 18 U.S. C. Sections
1114, 1111 and 2(a) & (b).

Mr. McVeigh filed a motion for recusal of the presiding judge, the
Honorable Wayne E. Alley, who had been randomly assigned to
the case.  Thereafter, Mr. Nichols filed his own recusal motion,
arguing additional bases for recusal not presented by Mr.
McVeigh.  By order dated September 14, 1995, Judge Alley denied
both recusal motions.  Mr. Nichols then filed a petition for writ of
mandamus with this court, seeking disqualification of all judges of
the Western District of Oklahoma (including Judge Alley) or, in
the alternative, an order directing Judge Alley to permit discovery
and hold an evidentiary hearing regarding the factual bases for
disqualification issues raised in the recusal motion.  Thus, this
matter is before us as an original proceeding in the nature of

An order denying a motion to recuse is interlocutory and is,
therefore, not immediately appealable.  Lopez v. Behles (In re
American Ready Mix, Inc.), 14 F.3d 1497, 1499 (10th Cir.), cert.
denied, 115 S. Ct. 77 (1994).  It is established in this circuit,
however, that mandamus is an appropriate vehicle by which to
challenge a district court's denial of a recusal motion.  Id.; United
States v. Cooley, 1 F.3d 985, 996 n.9 (10th Cir. 1993) (collecting
and comparing cases).  Although a district court's denial of a
motion to recuse is reviewed for an abuse of discretion, Maez V.
Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1508 (10th Cir.
1995), because we are reviewing the district court's order by means
of mandamus, the higher standard dictated by that writ governs our
review, In re American Ready Mix, 14 F.3d at 1501.  Mandamus is
available only upon a showing of a clear and indisputable right to
relief.  Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir.
1994).  A petitioner seeking mandamus relief must demonstrate a
clear abuse of discretion, or conduct by the district court
amounting to a usurpation of judicial authority.  Mallard v. United
States District Court, 490 U.S. 296, 309 (1989).  "To ensure that
mandamus remains an extraordinary remedy, petitioners must
show that they lack adequate alternative means to obtain the relief
they seek. . . ." Id.

Mr. Nichols argues that Judge Alley's recusal is mandated by 28
U.S.C. Section 455(a), which states that a judge "shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned."1  In order to "promote public
confidence in the integrity of the judicial process," the statute was
broadened in 1974 by replacing the subjective standard with an
objective test.  Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 858 n.7 (1988).  "[W]hat matters is not the reality of bias
or prejudice but its appearance."  Liteky v. United States, 114 S.
Ct. 1147, 1154 (1994).  Given the statutory parameters, we must
determine "'whether a reasonable person, knowing all the relevant
facts, would harbor doubts about the judge's impartiality.'"
Cooley, 1 F.3d at 993 (quoting United States v. Burger, 964 F.2d
1065, 1070 (10th Cir. 1992)(further quotation omitted)); see also
Maez, 54 F.3d at 1508; United States v. Greenspan 26 F.3d 1001,
1005 (10th Circ. 1994); Hinman v. Rogers, 831 F.2d 937, 939
(10th Cir. 1987).

The goal of section 455(a) is to avoid even the appearance of
partiality.  If it would appear to a reasonable person that a judge
has knowledge of facts that would give him an interest in the
litigation then an appearance of partiality is created even though no
actual partiality exists because the judge does not recall the facts,
because the judge actually has no interest in the case or because the
judge is pure in heart and incorruptible.

Liljeberg, 486 U.S. at 860 (quotation omitted).  In applying this
objective standard, the initial inquiry is whether a reasonable
factual basis exists for questioning the judge's impartiality.
Cooley, 1 F.3d at 993.  We are limited in this regard to outward
manifestations and reasonable inferences drawn therefrom.  Id. "In
applying   455(a), the judge's actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the issue."  Id.

Having stated what Section 455(a) is intended to accomplish and
the standards for analyzing a recusal motion under that statute, we
now note the cautions that must accompany our analysis.  The
statute "'must not be so broadly construed that it becomes, in
effect, presumptive, so that recusal in mandated upon the merest
unsubstantiated suggestion of personal bias or prejudice.'"  Id.
(quoting Franks V. Nimmo, 796 F.2d 1230, 1235 (10th Cir.
1986)(further quotation omitted)).  Neither is the statute intended
to bestow veto power over judges or to be used as a judge shopping
device.  Greenspan, 26 F.3d at 1006; Cooley, 1 F.3d at 993.
Further, we are mindful that a judge has as strong a duty to sit
when there is no legitimate reason to recuse as he does to recuse
when the law and facts require.  Greenspan, 26 F.3d at 1005; In re
American ready Mix, Inc., 14 F.3d at 1501; Hinman, 831 F.2d at

We begin our application of the legal standards to these facts by
recognizing that cases within Section  455(a) are extremely fact
driven "and must be judged on [their] unique facts and
circumstances more than by comparison to situations considered in
prior jurisprudence."  United States v. Jordan, 49 F.3d 152, 157
(5th Cir. 1995).  As a starting point, in Cooley this court supplied a
nonexhaustive list of various matters not ordinarily sufficient to
require Section 455(a) recusal:

(1) Rumor, speculation, beliefs, conclusions, innuendo,  suspicion,
opinion, and similar non-factual matters; (2) the mere fact that a
judge has previously expressed an opinion on a point of law or has
expressed a dedication to upholding the law or a determination to
impose severe punishment within the limits of the law upon those
found guilty of a particular offense; (3) prior rulings in the
proceeding, or another proceeding, solely because they  were
adverse; (4) mere familiarity with the  defendant(s), or the type of
charge, or kind of defense presented; (5) baseless personal attacks
on or suits against the judge by a party; (6) reporters' personal
opinions or characterizations appearing in the media, media
notoriety, and reports in the media purporting to be factual, such as
quotes attributed to the judge or others, but which are in fact false
or materially inaccurate or misleading; and (7) threats or other
attempts to intimidate the judge.

1 F. 3d at 993-94 (citations omitted).  We are faced with none of
those circumstances here. Neither do we have a case in which a
judge is threatened and the judge determines that recusal is at least
one of the movant's objective.  Greenspan, 26 F.3d at 1006.
Further, all of the reasons Mr. Nichols asserts for recusal under
Section 455(a) arise from extra-judicial sources, a consideration
the Supreme Court recently should be a factor in our analysis.  The
Court held, however, that acquisition of alleged bias or prejudice
from extra-judicial sources is neither a necessary nor sufficient
condition for Section 455(a) recusal.  Liteky, 114 S. Ct. at 1157.

Needless to say, there is no case with similar facts to which we can
look for guidance in our application of the law to the facts in this
case.  Both the government and Judge Alley, in his invited
response to the mandamus petition, point to several cases in which
courts have held that the situation was not such that a judge's
impartiality might reasonably be questioned.  Those cases are all
legally sound, strong authority for the general principles for which
they are cited.  Unfortunately, however, they do not particularly aid
our analysis because, as we stated previously, our determination in
this case is extremely fact driven, and all those cases, in addition to
those uncovered by our own research, are factually inapposite.  If
the question of whether Section 455(a) requires disqualification is
a close one, the balance tips in favor of recusal.  United States v.
Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993), cert. denied, 114 S.
Ct. 1188 (1994).

In light of the settled principle that a judge has as strong an
obligation not to recuse when the situation does not require as he
has to recuse when it is necessary, we commend Judge Alley for
his integrity in upholding what he sees as his clear judicial duty.
There is certainly no allegation here of judicial impropriety; Judge
Alley has conducted himself and these proceeding with true
professionalism.  Were the standard by which we must judge this
case a subjective one, we could end our discussion here.  But our
task is to address the objective requirements of Section 455(a).

The government maintains that no reasonable person could have a
basis for questioning the judge's impartiality.  We disagree.  We
conclude based on the extraordinary circumstances of this case that
a "reasonable person, knowing all the relevant facts, would harbor
doubts about the judge's impartiality."  Cooley, 1 F.3d at 993.
Judge Alley's courtroom and chambers were one block away from
the epicenter of a massive explosion that literally rocked
downtown Oklahoma City, heavily damaged the Murrah building,
killed 169 people, and injured many others.  The blast crushed the
courthouse's glass doors, shattered numerous windows, ripped
plaster from ceiling, dislodged light fixtures, showered floors with
glass, damaged Judge Alley's courtroom and chambers, and injured
a member of his staff, as well as other court personnel and their
families.  Based on these circumstances, we conclude that a
reasonable person could not help but harbor doubts about the
impartiality of Judge Alley,  Because Judge Alley's "impartiality
might reasonably be questioned" in the instant case, 28 U.S.C.
Section 455(a) mandates recusal.

Based on the extraordinary facts of this case, we further conclude
that Mr. Nichols has satisfied the demanding standard for
mandamus relief and has established a clear and indisputable right
to relief.  See Mallard, 490 U.S. at 309; In re Weston, 18 F.3d at
864.  Further, Mr. Nichols has no adequate alternative means to
obtain the relief he seeks.  See Mallard, 490 U.S. at 309.
Consequently, we hold that Mr. Nichols has discharged his burden
of proving he is entitled to a writ of mandamus.

As the Fifth Circuit concluded in Jordan, "[p]ublic respect for the
judiciary demands this result."  49 F.3d at 157.  The effect of our
decision today may, indeed, be to "bar trial by [a] judge[] who
ha[s] no actual bias and who would do [his] very best to weigh the
scales of justice equally between contending parties.  But to
perform its high function in the best way justice must satisfy the
appearance of justice."  Id. (quotation omitted).  In reaching this
result, we have considered the totality of the circumstances and
looked to the future of this case.  United States v. Ritter, 540 F.2d
459, 464 (10th Cir.), cert. denied, 429 U.S. 951 (1976).  We have
also balanced the possible questioning of impartiality by a
reasonable person against the relative ease of replacing Judge
Alley with an available judge from a very large pool of judges
outside the State of Oklahoma.

Finally, we have considered and reject as meritless all other
arguments raised.  The petition for writ of mandamus solely as it
pertains to the named respondent is GRANTED, and the matter is
referred to the Chief Judge for the Tenth Circuit for reassignment.
See Texaco v. Chandler, 354 F.2d 655, 657 (10th Cir. 1965), cert.
denied, 383 U.S. 936 (1966).2



*After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
assist the determination of this appeal.  See Fed. R. App. P.
34(a); 10th Cir. R. 34.1.9.  The motion for oral argument is
therefore denied and the case ordered submitted on the briefs.

1 Mr. Nichols also urges recusal based on actual bias and
prejudice under 28 U.S.C. Sections 144 & 455(b)(1).  In light of
disposition under Section 455(a), we do not reach these remaining
statutory arguments.

2 Petitioner's request to file a reply brief is denied.  The
Petitoner's motion to supplement the record is denied.

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