Where External Reality Collides With Trial: Judicial Disqualification Lessons from the Harry Bridges Cold War Trials

• Jurisdiction: California,United States,Federal
• Author: By Peter Afrasiabi
• Citation: Vol. 31 No. 1
• Publication year: 2018

Where External Reality Collides with Trial: Judicial Disqualification Lessons from the Harry Bridges Cold War Trials

By Peter Afrasiabi

The larger ecosystem that envelops a trial is often rancorous and emotional. From terrorism to police-shooting trials, the participants all have a heightened social and political sense of the case and where it stands in the broader climate. Considering this larger context is important today with the ongoing social-activist protests and anti-Trump movements, all of which have funneled into extensive litigation. For trial participants, though, how the emotions tied to those movements are transported into the courtroom is critical to consider.

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This article addresses judicial disqualification and some ethical implications for lawyers and judges by examining one aspect of the trial record of the longest civil deportation battle in American history—the 20-year saga of four serial deportation trials brought against labor leader Harry Bridges alleging he was a Communist Party member. Modern disqualification examples involving race are addressed as a contemporary bookend.

Governing Rules

California law offers a free disqualification challenge to a judge regardless of any actual or perceived bias. (Code Civ. Proc., § 170.6.) The absence of even a good faith belief that the judge is biased is legally irrelevant in most circumstances. (School Dist. of Okaloosa County v. Sup. Ct. (City of Orange) (1997) 58 Cal.App.4th 1126, 1136.) But this tool must be used at the case's outset in direct calendar courts. (Code Civ. Proc., § 170.6, subd. (a)(2).)

California also offers a cause-based challenge, albeit less frequently employed. (Code Civ. Proc., § 170.1, subd. (a)(1)-(9).) Cause-based challenges invoke root ethics and disqualification questions. The standards governing cause-based challenges mirror federal standards under 28 United States Code sections 455 and 144, both of which incorporate the same basic objective test: Is there a basis upon which a reasonable person may conclude a judge's impartiality might be questioned? Section 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

These rules stem from the principle that public confidence in the judicial system is critical. It is not enough that judges be impartial in fact, they must be perceived by the public to be impartial, always. The pivotal question is whether a reasonable member of the public, aware of all the facts, would fairly entertain doubts as to a judge's impartiality. (See, e.g., Flier v. Superior Court (1994) 23 Cal.App.4th 165.)

Ethics rules for lawyers that fold into this inquiry include rules 5-120, 5-200, and 3-200 of California's Rules of Professional Conduct. Rule 5-120 concerns trial publicity and prohibits a lawyer participating in a case from making an extrajudicial statement that "will have a substantial likelihood of materially prejudicing an adjudicative proceeding." Rule...