Chief Justice Shepard's View On Recusal Should Have Compelled Rosenberg's Recusal In Charlie White Case

Chief Justice Shepard

I'm not sure why the attorneys in the Charlie White case have not asked Judge Louis Rosenberg to recuse himself from hearing the Charlie White election contest case, but I feel the issue warrants further discussion, particularly in light of Chief Justice Randall Shepard's reported explanation several years ago about why he chose to recuse himself in the high profile rape conviction appeal of boxer Mike Tyson that I find highly instructive and on point. As I've previously been alone in reporting, Judge Louis Rosenberg's daughter, Erin, a Democratic Party activist, became one of the first Democrats to publicly make the case that Charlie White was not legally registered to vote and, therefore, should be disqualified from being Indiana's secretary of state. Rosenberg published her legal analysis and partisan views on a partisan Democratic blog, in which she even insisted that then-Hamilton Co. Prosecutor Sonia Leerkamp recuse herself from investigating whether White broke any laws because she was a Republican like White, a move later taken by Leerkamp in requesting the appointment of a special prosecutor.

Chief Justice Randall Shepard turned down a request by prominent Harvard criminal law professor Alan Dershowitz, who was representing Mike Tyson in the appeal of his Indiana rape conviction, that Shepard withdraw his earlier announced recusal in participating in a decision by the Supreme Court over whether to grant Tyson's petition for transfer after the Court of Appeals rejected his client's appeal. Shepard had earlier authored a decision affirming the trial court's denial of Tyson's release on bond while his case was being appealed. In denying Dershowitz's request that he withdraw his recusal from participating in his client's appeal, Shepard explained the circumstance of events where his wife, not the Chief Justice, had discussed with Dershowitz her views about his legal tactics in handling his client's appeal. Shepard wrote:

My wife, Amy W. MacDonell, accompanied me to New Haven, Connecticut, for the twentieth reunion of the Yale Law School Class of 1972, held October 2-4, 1992. During this reunion, the school staged a large luncheon in the University Commons for people from all the classes then observing reunions. During the course of the lunch, my wife made a trip to the ladies' room. Upon her return, she told me that she had just introduced herself to Alan Dershowitz, by then counsel of record for Mr. Tyson. She said she had told Dershowitz that she had seen him argue the bail request before the Indiana Court of Appeals and that he needed to be better attuned to the Indiana way of approaching things as this appeal progressed. In particular, she said she told him his declaration that he would resign as counsel if Tyson skipped bail was not the right approach. The Dershowitz affidavit partly describes this conversation, though it varies in several respects from my wife's description. Obviously, I based my decision on my wife's account, not having seen the Dershowitz version until last month. I think it unnecessary to make any findings of fact concerning the accuracy of the Dershowitz affidavit and can even assume it true for purposes of acting on the present application.

I agree with the suggestion of the Dershowitz affidavit that the conversation was improper. My wife is not a lawyer, and she did not fully appreciate the reasons why such conversations are considered improper. She now understands the principles underlying these rules. She regrets very much having initiated this colloquy and feels a deep sense of embarrassment about it. My own decision not to disclose the reasons for my disqualification was motivated by a desire to protect my wife from the embarrassment she would feel about public disclosure and debate concerning her conduct, innocent as it was. During October and early November 1992, I weighed the possibility of disqualifying. This is obviously an action which ought to be avoided if possible. A judge has a duty to hear and decide matters unless disqualification is required. Ind.Judicial Conduct Canon 3(B)(1). Tyson v. State, 622 N.E.2d 457 (Ind. 1993).

Judge Louis Rosenberg

Like Shepard's wife, Rosenberg's daughter is an immediate relative. It is also true that she was not a lawyer at the time she first made her views known about Charlie White's legal situation, although she was a law student who had worked on the congressional staff of U.S. Rep. Andre Carson and had served as his campaign committee's treasurer. Rosenberg's daughter did not communicate her views privately to White; rather, she published them for the world to read on a partisan Democratic blog published by a Democratic attorney, Chris Worden, who also now works on the staff of U.S. Rep. Andre Carson, a close friend of White's opponent, Vop Osili. Unlike Shepard's wife, Erin expressed particular animus in her stated public views towards White. She opined in her blog post entitled, "Charlie White's Whitewash Effort Defies Logic," that "he intentionally violated the laws." "White’s actions show that he knows the laws and how to abide by them, but chose not to when they suited his ambitions and personal desires," Rosenberg wrote. "Mr. White must suspend his campaign and a special prosecutor must be appointed to conduct a real investigation of these allegations." Erin goes on to state the facts in detail as she saw them and how the law should be applied to disqualify White. She demanded that he "immediately suspend his campaign and address these charges." While not questioning whether Prosecutor Sonia Leerkamp could be impartial, she stated her belief that she should recuse herself. "I do not want to imply that Ms. Leerkamp is not capable of doing a fair and impartial investigation," she wrote. "I have no reason to doubt her on this. However, given the perception issues, I believe an impartial prosecutor should be brought in to investigate."

After the Recount Commission initially rejected a petition filed by the Democratic Party refusing to hear its petition challenging White's case, and the Democrats filed a case appealing the decision in Judge Rosenberg's court, I asked White's then-attorney, respected elections lawyer Jim Bopp, why he had not asked Judge Rosenberg to recuse himself given his daughter's publicly stated views on the case. Bopp reacted to my question as if he was not aware who she was or what she had written about the case. Nonetheless, Bopp said he had never asked a judge to recuse himself in his many years of practicing law. Bopp said he was comfortable with the legal position he was arguing for his client, and that if Judge Rosenberg ruled against his client, he was confident of winning on appeal. Judge Rosenberg went on to rule against his client and ordered the Recount Commission to hear the Democratic Party's complaint based on his novel interpretation of Indiana's election laws, and the Indiana Supreme Court refused to hear an appeal of his decision until White had exhausted his administrative remedies before the Recount Commission. After the Recount Commission unanimously ruled in White's favor, the Democrats again appealed the decision to Judge Rosenberg, who once again sided with the Democrats in a decision that produces a novel approach to deciding where a person is legally registered to vote (See Paul Ogden's reading of Rosenberg's order that White could not have legally been registered at either his ex-wife's home or the new condo he purchased under the untenable interpretation of the voter registration laws set out therein. Also, see fellow attorney and former state representative Jon Elrod's take on why Rosenberg got it wrong.)

Back to Shepard's decision to recuse himself in the Tyson case, he explained the judicial canons that I believe should have also led Judge Rosenberg to the decision he should recuse himself from the White case, even though White's attorneys failed to raise the issue. Chief Justice Shepard recused himself before either side had raised the issue:

It was plain that the circumstances which led to my considering recusal were not initiated by either of the parties to this litigation or by me, a fact which diminished its harm. Still, the communication did involve only one side to the litigation, and I concluded that its nature played a role in the second, and more complex question, namely, whether under Canon 3(C)(1) this was a case in which my impartiality might reasonably be questioned.

Shepard then explains the test for determining whether to invoke recusal under Canon 3(C)(1) and how he applied the test to reach his decision to recuse himself.

The test under Canon 3(C)(1) is whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality. The question is not whether the judge's impartiality is impaired in fact, but whether there exists a reasonable basis for questioning a judge's impartiality. A judge has a duty to promote public confidence in the impartiality of the judiciary. Ind.Judicial Conduct Canon 2. (citations omitted)

Several factors weighed in favor of recusing on grounds relevant to Canon 3(C)(1). First, the conversation as described in the Dershowitz affidavit and as related to me by my wife could fairly be described as one in which my wife undertook to advise Dershowitz about ways to improve his chances on appeal. Had I participated in the case and had I voted in favor of Tyson, many could have supposed that Dershowitz took my wife's advice and that my vote went with it. The harm flowing from such suspicions can easily be imagined by considering what the defense would have said had my wife advised the prosecution while the case was being appealed.

In addition, had I not recused and voted in favor of Tyson, it might have appeared that I favored Mr. Dershowitz's client so that Mr. Dershowitz would have no reason to reveal my wife's action. I would thus have saved my wife the embarrassment of public disclosure and debate by voting for Tyson.

It should be pointed out that Alan Dershowitz has been highly critical of Shepard's decision to recuse himself in the Tyson case. Dershowitz was particularly perturbed that without Shepard's vote, his petition for transfer of his client's appeal was denied after the court deadlocked in a 2-2 vote.  "Our research disclosed that Justice Shepard had written several opinions that, if followed, would probably have led him to rule in our favor," Dershowitz later wrote. Dershowitz then made a big leap to imply that Shepard had deliberately gone out of his way to look for a reason to recuse himself, a view most legal analysts would probably agree is without merit.

I think the case could easily be made that the circumstances in White's case were far more compelling for Judge Rosenberg to recuse himself from hearing the case than those set of facts that led Chief Justice Shepard to recuse himself in the Tyson case. Erin knew when she published her legal analysis and her personal views that her father was the sitting circuit court judge in Marion County who very well could be called upon to decide a case if a challenge to White's election occurred. As Shepard explains, it's not whether Judge Rosenberg's ability to rule impartially is in fact impaired; it's whether there exists a reasonable basis for questioning his impartiality. Personally, I would never agree to let my fate be decided by a judge whose daughter had so publicly expressed her prejudicial views of my guilt as Rosenberg's daughter had done. I would also distinguish my criticism of Rosenberg's participation in this case to those expressed by Abdul Hakim Shabazz, who published a blog post claiming Rosenberg had engaged in ex parte' communications in the case, which clearly would have violated the canons for judicial conduct. That blog post led the Indianapolis Bar Association to publicly rebuke Shabazz. In particular, the bar association was concerned that Shabazz had accused Judge Rosenberg of judicial misconduct without any substantiation other than rumor and innuendo. My criticism is not based on rumor and innuendo. It is based on the undisputed public writings and active participation of Rosenberg's daughter in helping to foment public support for an effort to oust White from office in the anticipated event he won the 2010 general election for secretary of state.

If someone believes my analysis that leads me to conclude that Judge Rosenberg should have recused himself from deciding the White case is flawed and would like to publish a constructive counter view on this blog, please forward it to my attention for consideration. My only request is that it be a constructive analysis based on supporting legal authority.