Plaintiffs' Response to Opposition

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

PLAINTIFFS' RESPONSE TO UNITED STATE'S OPPOSITION TO
THE MOTION TO RECUSE

INTRODUCTION

Plaintiffs respectfully submit that the people of this nation support this Court on the theory that it will provide peaceful and civil resolution to matters of conflict. If this Court, or the United States had cited a case where some court granted a motion to proceed in forma pauperis, and then set a hearing date for five days after whatever temporary relief plaintiffs might have been entitled to would have expired, plaintiffs may have been better able to understand why the Court has characterized the Motion to Recuse as "frivolous."

The functional distinction between Anderson v. Bradford, 1990 WL 161916, #1 (DCDC 1990) and the case at bar is that Anderson dealt with a routine civil case, whereas the case at bar deals with an application for emergency relief which is not subject to appellate review.

Plaintiffs do not suggest that judgment should have been entered in their favor without giving defendants an opportunity to be heard; plaintiffs merely assert that this Court had a duty to conduct an immediate hearing in

this matter, that the reasons the Court has given for setting a hearing date five days after the relief to which they may have been entitled would have expired are inadequate, and raise a reasonable question as to a "degree of favoritism or antogonism as to make fair judgment impossible." Liteky, et. al. v. United States, 92-6921 (Decided March 7, 1994), 54 Crl 2182, 2185.

NATURE OF ALLEGED PREJUDICE OR BIAS

Plaintiffs came to the Court seeking emergency relief. "An emergency remedy of brief duration which may issue only in exceptional circumstances and only until the trial court can hear arguments or evidence, as the circumstances require, on the subject matter of the controversy and otherwise determine what relief is appropriate. Paddington Corp v. Foremost Sales Promoting, Inc, 13 Ill.App.3d 170,300 N.E.2D 484, 487." Black's Law Dictionary.

Plaintiffs' complaint alleged that defendants had engaged in a pattern and practice of impermissible conduct, which culminated in the shooting death of a person similarly situated to plaintiffs, by one of the defendants. It is difficult for plaintiffs to imagine any issues which might be more serious to a Court than life, death and the Constitution.

The problem here is not so much a matter of something the court did (i.e., writing the Order[1]), as what the Court failed to do -- i.e., refusing to conduct an emergency hearing (because of the demands of the holiday season,[2] and the contested and perhaps frivolous[3] grounds of whether service had been made), thereby failing to consider in a timely manner whether plaintiffs were entitled to "the protection of the laws," which is the Court's sole justification for existence.

[1 Strictly speaking, of course, this court's Order setting a hearing on a TRO for fifteen days after the motion was filed might be termed a "judicial proceeding," but only to the extent that the act of writing or signing the Order, prior to any actual judicial proceedings -- i.e., judicial activity resulting in some written record -- took place.]

[2 It is understandable that the Court might find time in short supply around the busy holiday season, but this honorable Court isn't the only Court in the courthouse. If this Court was simply to busy or shorthanded to fulfill its important duty of providing emergency relief from constitutional abuse and abusive violence, another Court could have been found.]

"The very essence of civil liberty certainly consists in the right

of every individual to claim the protection of the laws whenever he

receives an injury." Marbury v. Madison, 1 Cranch 138, 163 (1803).

"Particularly," as the Court correctly notes (Order, January 4th), "in cases involving the Government since they are generally close by," it is very difficult to understand why a simple TRO hearing cannot be conducted in a timely fashion, just because the paperwork didn't arrive at the Court until a couple of days before Jesus' birthday.

"INTRAJUDICIAL" OR "EXTRAJUDICIAL" SOURCE?

We can only assume that the Court's decision to deny plaintiffs a timely hearing and to set a date well beyond the time that a TRO would have extended to, was based on something. Since there is absolutely nothing on the record to suggest there was no need for emergency relief, it appears that the Court's decision was based on one of two factors: (a) the Court acted on some manner of extrajudicial information (e.g., an ex parte representation from defendants that they wouldn't shoot plaintiffs before January 6th), or (b) the Court was so biased in defendants' favor that it felt confident that listening to the facts just wasn't important. Either of those situations would constitute an extrajudicial source.

[3 It seems incredible that the manner of plaintiffs' service of process on defendants might somehow account for a fifteen-day delay in holding a TRO hearing, because (a) 18 USC 1415(c) directs that, in an in forma pauperis action, service of process is the duty of the U.S. Marshall's Service, and (b) Ken Kahn personally served the U.S. Attorney on December 22, 1994.]

"(O)pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks ... even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so i they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antogonism as to make fair judgment impossible." Liteky, at 2185.

In Ex parte American Steel Barrel Co. 230 U.S. 34 at 44 (1913) the Court held "tbe recusal statute 'was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause.'" Liteky at 2184, emphasis added.

Plaintiffs applied for a temporary restraining order, "emergency relief," which is NOT "reviewable otherwise." The incidents underlying the TRO application involved actual matters of life and death. On the face of the application, plaintiffs are similarly situated to Marcelino Corniel, who was shot to death by certain defendants who, plaintiffs alleged, had been engaged in a pattern and practice of abuse of power under color of regulation.

Even assuming that the Court's decision to set an "emergency hearing" so far in the future must be considered to have been based on an intrajudicial source -- if such a thing is possible - - there still remain two factors which strongly indicate "such a high degree of favoritism or antagonism as to make fair judgment impossible."

First, plaintiffs' application was filed in forma pauperis. If plaintiffs' application were frivolous, the efficient administration of justice requires Judge Richey to deny permission to file it. E.g., Sills v. Bureau of Prisons , __F.2d ___ (DCDC 1984).

Since the Court didn't find the application frivolous, 18 USC 1415(c)

provides the U.S. Marshal's Service must serve in forma pauperis process. Unless the Court's decision to deny an emergency hearing under the pretext that "defendants have not yet been served" suggests judicial incompetence, the reason for the Court to mention "service of process" raises a reasonable question as to a prejudicial desire to delay justice.

Second, unless the Court just believes the Park Police can do no wrong, which would be prejudicial, considering the serious nature of the issues involved, and notwithstanding the fact that the Court may have felt the holiday season was more important than hearing the facts before denying an emergency hearing, even "without prejudice," raises a reasonable question as to this Court's regard for lives like Marcelino's and others similarly situated.

CONCLUSION

The judge's decision to delay hearing the facts in a case involving death and constitutional abuse raises reasonable grounds to question whether the court displays "an attitude or state of mind so resistant to fair and dispassionate inquiry" that the court arbitrarily (based either on "intrajudicial" or "extrajudicial" sources, Liteky at 2187) denied emergency relief without any inquiry as to the facts in a life and death, First Amendment case. Certainly,

"(t)he judge who presides at a trial may, upon completion of the evidence, be exceedingly ill-disposed towards the defendant, who has been shown to be a thoroughly reprehensible person." Liteky, at 2185. "Imagine, for example, a lengthy trial in which the presiding judge for the first time learns of an obscure religious sect, and acquires a passionate hatred for all its adherents. This would be 'official' rather than 'personal' bias, and would provide no basis for the judge's recusing himself." Id.

This Court may not have acquired a passionate hatred for plaintiffs

religious beliefs,[4] but even if it had that would not constitute grounds for the Court to apply that "official prejudice, which is perfectly all right" (Liteky, id.) to justify the favoritism for defendants indicated by the court's reluctance to conduct even a prefunctionary factual inquiry, before denying plaintiffs' application "without prejudice."

"If, for instance, a judge presiding over a retrial should state, based upon facts adduced and opinions formed during the original cause, an intent to ensure that one side or the other shall prevail, there can be little doubt that he or she must recuse. Cf. Rugenstein v. Ottenheimer 78 Ore. 371, 372, 152 P. 215, 218."

Liteky, concurring opinion at 2187.

Respectfully submitted this 6th day of January, 1994,

___________________________________

William Thomas, Plaintiff pro se

2817 11th Street N.W.

Washington, D.C. 20001

(202) 462-0757

CERTIFICATE OF SERVICE

I hereby state that, on January 6, 1995, I served copies of the foregoing Plaintiffs' Response to United State's Opposition to the Motion to Recuse upon the office of the United States Attorney for the District of Columbia at 555 4th Street NW, Washington, D.C.

[4 Although Judge Richey has indeed presided at a trial in which two of these plaintiffs were defendants, that trial merely involved an infraction of a C.F.R. regulation, involving no allegations of reprehensibility, and has absolutely no bearing on the instant motion for recusal.]

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