Chambers Bonding Requires Recusal

The United States Court of Appeals for the Ninth Circuit ordered a district court judge’s recusal in light of her friendship with the prosecuting attorney, whose office is accused of misconduct in the case

In this case, we consider Thomas Eugene Creech’s petition for a writ of mandamus. Creech has been on death row for over four decades for the 1981 murder of fellow inmate David Dale Jensen. In January 2024, the Idaho Commission of Pardons and Parole held a hearing to consider whether Creech should be granted clemency. Creech alleges in his underlying § 1983 suit that the prosecutor’s office, including Ada County Prosecutor Jan Bennetts, introduced fabricated or intentionally misleading evidence at the clemency hearing. The mandamus petition seeks to recuse U.S. District Judge Amanda K. Brailsford from presiding over the suit. Creech argues that Judge Brailsford and Bennetts are close friends, and that each has acknowledged that friendship publicly and recently.

Although we are confident that Judge Brailsford would in fact “weigh the scales of justice equally between contending parties,” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009) (citation omitted), it is clear that her “impartiality might reasonably be questioned” under the unique circumstances of this case, 28 U.S.C. § 455(a). Applying the demanding mandamus standard, we grant the petition.

The crime

In 1981, and while serving life sentences without parole for multiple earlier murders, Creech beat to death a fellow inmate—David Dale Jensen—with a sock full of batteries. Creech VII, 94 F.4th at 854; Creech VI, 59 F.4th at 376–77; Creech V, 966 P.2d at 5. In the words of the U.S. Supreme Court, the circumstances of this killing “could not be more chilling.” Creech IV, 507 U.S. at 465. Jensen, who was physically and mentally disabled, Creech VI, 59 F.4th at 376, approached Creech with the sock-turned-weapon, Creech IV, 507 U.S. at 466. Creech disarmed Jensen. Jensen went back to his cell but returned shortly thereafter, armed with a razor blade fastened to a toothbrush. See id.; Creech I, 670 P.2d at 465. “Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock.” Creech I, 670 P.2d at 465. Creech’s assault was brutal; he repeatedly hit Jensen “in the head . . . until the plate embedded in his skull shattered, his skull caved in, and blood was splashed on the floors and walls.” Creech VI, 59 F.4th at 376–77. “Creech took breaks during the beating. After the sock broke and the batteries fell out, Creech kicked Jensen in the throat while Jensen lay sprawled on the floor.” Id. at 377. Jensen was taken to the hospital; he died on the operating table. Id.

Creech sought clemency of life without parole when a death warrrant was issued; Bennetts’s office opposed the petition.

The petition was denied; Creech filed a section 1983 action and sought to preliminarily enjoin his execution.

Among other claims, Creech alleged that [Ada County Prosecutor’s Office] violated his Fourteenth Amendment due process rights by “presenting potentially tampered with evidence in the form of an image of a sock with Mr. Creech’s name written on it.” Creech alleged that “[t]here appear to be discrepancies between the image of the sock in the prosecutor’s slide and the images taken of the sock from the crime scene,” including “the size, and the style of sock.” The complaint included other claims of prosecutorial misconduct, such as allegations that the prosecution misled the Commission into believing that Creech had been definitively identified as the killer of Daniel Walker, whom Creech had previously been suspected of murdering in California.

The friendship

The nature of Judge Brailsford’s friendship with Bennetts weighs in favor of recusal. Judge Brailsford and Bennetts became friends in 1993, during the year they spent together as co-clerks to Judge Thomas Nelson, our former colleague on the U.S. Court of Appeals for the Ninth Circuit. As we consider that relationship, we  may draw on our own experiences as judges and former law clerks. Our clerks represent the best and the brightest from American law schools. Although the selection process is highly competitive, once our clerks begin—typically for a one or two-year period of service—they are no longer competitors but colleagues in service to the courts of the United States. Our clerks work long hours in monastic conditions, bound by duties of confidentiality and loyalty to the judge. Chambers are tight knit environments that depend on constant collaboration between co-clerks. The friendships developed between co-clerks can be especially intimate and enduring, often lasting long beyond the clerkship itself.

It is a testament to the strength of friendship between co-clerks that Bennetts spoke at Judge Brailsford’s investiture to the Idaho Court of Appeals some twentyfive years after they completed their clerkships. At the 2019 investiture, Bennetts recounted her “vivid memories” of spending “nearly 24/7 in the chambers” with Judge Brailsford. She recalled how the two of them “discussed [their] lives, [their] challenges, [their] hopes, [their] dreams for the future.” Bennetts continued, “Amanda and I met by circumstance, but we became friends by choice. Amanda is the kind of friend you feel incredibly fortunate to find. They’re few and far between.”

When Judge Brailsford took the podium, she thanked her “dear friend” Bennetts, and described the two of them as “kindred spirits.” In her order denying Creech’s request that she recuse herself, Judge Brailsford described her time with her co-clerk, Jan Bennetts, in Judge Nelson’s chambers in classic terms: It “had the hallmarks of a clerkship with which many current and former law clerks are familiar, including long hours in chambers, hard work, mutual support, and camaraderie among chambers staff.”

Thus

Creech’s allegations of prosecutorial misconduct are in tension with Judge Brailsford’s laudatory comments on Bennetts’ professionalism. A reasonable observer could question Judge Brailsford’s impartiality in a case that may challenge Bennetts’ professional and ethical reputation.

Not a “run of the mill” claim

In sum, Judge Brailsford’s longstanding friendship with Jan Bennetts is not grounds for recusal because a matter under Bennetts’s supervision has come before Judge Brailsford. It is, rather, because Judge Brailsford may be called upon to make judgments about Bennetts’s personal involvement—and thus her personal and professional reputation—in the clemency hearing. There is no reason for Judge Brailsford to subject herself to the very human pressures that arise out of sitting in judgment in cases involving people we know and value as friends.

Conclusion

Based on the specific facts here, we have a firm conviction that Judge Brailsford abused her discretion in declining to recuse herself. We conclude that Creech has shown that Judge Brailsford’s order was clearly erroneous as a matter of law because her longstanding relationship with Prosecuting Attorney Jan Bennetts might call into question any judgments she would have to make regarding Bennetts’s own professional and ethical obligations. Although that misjudgment might be reviewable on direct appeal, the district court’s power to shape the record on appeal means that the error might not be correctable through an ordinary appeal. We conclude that the first, second, and third Bauman factors have been satisfied here, giving us ample reason to grant the writ here.

(Mike Frisch)