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Mandamus– petitioner satisfies stringent showing to justify removal of trial judge: United States v. Khalid Shaikh Mohammed, _ F.3d _ (D.C. Circuit, No. 17-1156, Aug. 9, 2017).

It’s far from easy to secure a writ of mandamus, especially when it’s a trial judge whose comments are at stake. But in United States v. Mohammed, the D.C. Circuit reversed an order of the United States Court of Military Commission Review (“CMCR:) and directed the removal of a commissioner whose public comments suggested he couldn’t fairly adjudicate a prosecution arising from the 9/11 bombings.

The per curiam decision (Rogers, Tatel & Griffith, JJ) was called to review nearly a dozen speeches, academic articles and presentations that Mr. Mohammed proffered as indicative of the commissioner’s bias against him. Jurisdiction was uncontested.

To secure mandamus, the Circuit explained, “First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires . . . . Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” (Slip Op. at 2-3) (citing Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 380–81 (2004)).

Here, the panel stated, only the second condition—a clear and indisputable entitlement to the writ—was disputed. The first element was satisfied because “‘ordinary appellate review,’ following a final judgment is ‘insufficient to cure ‘the existence of actual or apparent bias’—“[w]ith actual bias . . . because it is too difficult to detect all of the ways that bias can influence a proceeding’ and ‘[w]ith apparent bias’ because it “fails to restore public confidence in the integrity of the judicial process.”” (Slip Op. at 3) (quoting In re al-Nashiri, 791 F.3d 71, 79 (D.C. Cir. 2015)) (emphasis original). And the panel noted that with respect to the third element of “whether issuance of the writ would be ‘appropriate under the circumstances,’ the Government offers no reason, nor can we detect one, why we should withhold issuance of the writ if Petitioner is otherwise entitled to it.” (Slip Op. at 3) (citing Cheney, 542 U.S. at 381).

Turning to the second element, the panel examined Rule 25 of the CMCR’s Rules of Practice, which provides that “[j]udges must disqualify themselves under circumstances set forth in 28 U.S.C. § 455, [Rules for Military Commissions (R.M.C.)] 902, or in accordance with Canon 3C, Code of Conduct for United States Judges.” Mohammed pointed to the commissioner’s comments which allegedly expressed an opinion of Mohammed’s guilt of the very crimes of which he is now accused. These included such unguarded statements as “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” In addition, Mohammed adverted to a comment in an interview that “‘[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.’” (Slip Op. at 3-4) (emphasis added by panel).  Those statements, the appellate court found, “represent the ‘express[ion] [of] an opinion concerning the guilt or innocence’” of Mohammed. (Slip Op. at 4).

The panel next found the Government’s first defense of retaining the commissioner, that he had uttered these statements prior to his appointment as a judge, to be “peculiar.” (Slip Op. at 5). As to its next claim, that his statements “’reflect[ed] information that had been widely reported in the public—including the fact that [P]etitioner had been charged for his alleged role in the attacks, admitted responsibility for his alleged role, and expressed his intent to plead guilty to the charges,” the panel retorted that Mohammed claimed his so-called confession had been wrested by torture at the hands of the CIA. “most importantly for our purposes,” the court summarized, the governing rule’s text “provides no room to conclude that the Rule is unconcerned with the “‘express[ion] [of] an opinion concerning the guilt or innocence of the accused’ so long as that opinion is based on public information.” (Slip Op. at 6).

The Government’s third claim foundered quickly, for the military law analog to the federal recusal statute mandated disqualification where mandatory disqualification under its enumerated circumstances, including where a military judge has “’expressed an opinion concerning the guilt or innocence of the accused.’” (Slip Op. at 6). (Had the case arisen directly from, say, a federal district court, the question would have been framed as whether “a ‘reasonable person, knowing the relevant facts’ would perceive ‘an appearance of partiality.’” (Id.) (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 850 (1988) and citing 28 U.S.C. § 455)).

The Court of Appeals then quickly disposed of the Government’s final defense that the commissioner “‘did not express a personal view in his statements as a law professor that [P]etitioner or his co-defendants were guilty of the charged offenses.’” It rejected that notion in the most pointed of ways, stating that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he ‘did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.’” (Slip Op. at 7) (emphasis original).

David Z. Nevin, argued the cause, supported by Rita J. Radostitz and Derek A. Poteet were on the briefs. An amicus filing by Amy Brown and Samuel Rosenthal for the Ethics Bureau at Yale also was submitted.

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.