After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

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6th Circuit: Fieger’s MSC recusal suit moot

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

Fieger still has some big cases swirling around on appeal. See, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question.”

Campaign season is just around the corner.

The next move, if anybody makes one, should be interesting.