Here’s what it would look like to remove Judge Cannon

Here’s what it would look like to remove Judge Cannon

Philip Rotner writes:

While a motion to remove a judge generally has to be filed initially with the judge herself, the Eleventh Circuit Court of Appeals—the appellate court that has jurisdiction over Judge Cannon’s court—has “the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit”:

If a district judge’s continued participation in a case presents a significant risk of undermining this public confidence, this Court has the authority and the duty to order the case reassigned to a different district judge. Reassignment may be appropriate, for example, if a judge conducts a trial in a manner that creates the appearance that he is or may be unable to perform his role in an unbiased manner. [Emphasis added.]

In U.S. v. Torkington, the 1989 case linked above, the Eleventh Circuit did just that, ordering that the case be reassigned to a different district judge “to preserve in the public mind the image of absolute impartiality and fairness of the judiciary,” citing a pattern of rulings and statements that created “the appearance of a lack of neutrality.”

And while a district judge’s denial of a recusal motion normally can be appealed only after the case is over, if Smith can show that he has no other remedy to address a serious flaw in Judge Cannon’s decision-making process, he can seek a writ of “mandamus” to remove her—or the Eleventh Circuit could remove her on its own, while reviewing some other order issued in the case.

In short, Smith has a path to remove Cannon from the case, albeit not an easy one. If he’s going to take that path, he has to act soon. It’s too risky for him to wait for Judge Cannon’s next oddball order. [Continue reading…]

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