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United States v. Farmer

October 2, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DOUGLAS E. FARMER, DEFENDANT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

This matter is before the Court on defendant's motion for disqualification of district judge for bias and prejudice (Doc. 574), which is written in the first person, and therefore, appears to have been prepared by the defendant. It is, however, signed by the defendant and also signed by defense counsel, Daniel Reardon. The government has filed its objection to the defendant's motion (Doc. 575).

The motion for disqualification challenges the impartiality of this judge based on the following assertions: That the defendant has been held in the county jail for some time awaiting trial; that this judge is biased against the defendant; that he did not have a firearm at the time of his arrest in his possession, but he did have a FOID card at that time; that he has only had one prior drug charge, but that charge was dismissed; that he was arrested and charged in state court with assault, but that the charges were dismissed; that by allowing defendant's prior counsel, David O. Fischer, to be removed as counsel he has been denied a fair trial; that he needs to make bail so that he can work and make arrangements to have another attorney; that this judge has failed to act upon pleadings in a timely manner; that this judge has acted toward the defendant in a manner that is contrary to law, arbitrary and capricious and has been an abuse of discretion; and that the defendant has a "well-founded fear" that this judge has already formed an opinion regarding this criminal case which is contrary to the interests of justice.

STANDARDS GOVERNING DISQUALIFICATION

Without being specific, defendant appears to be seeking disqualification under both 28 U.S.C. § 144 and § 455, but has not filed an affidavit in support of the motion for disqualification. Section 144 provides:

§ 144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Section 455 provides in pertinent part:

§ 455. Disqualification of justice, judge, or magistrate.

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .

(5) He or his spouse, or a person within the third degree of relationship to either of them, or ...


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