Metropolitan News-Enterprise


Tuesday, November 8, 2005


Page 1


Ninth Circuit Rejects Disqualification Bid in Judicial Threats Case


By KENNETH OFGANG, Staff Writer/Appellate Courts


A would-be screenwriter accused of threatening three judges of the U.S. District Court for the Central District of California yesterday lost his bid to have all of the district’s judges barred from conducting the trial, which is set to start today.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals denied Jeffrey L. Clemens’ petition for a writ of mandamus that would have required that a judge from outside the district replace S. James Otero, who drew the case.

The panel—made up of Judges Sidney Thomas and Richard Tallman and Senior Judge Thomas G. Nelson—decided the case without oral argument and on an expedited basis rather than delay the trial, and issued a per curiam opinion.

Clemens is charged in a four-count indictment with threatening to extort, assault, murder, or otherwise harm Senior Judges Dickran Tevrizian and William Keller and Judge Christina Snyder.

Clemens is alleged to have mailed threatening letters to Tevrizian, the judge originally assigned to a pro se lawsuit Clemens filed against Creative Artists Agency, on two occasions. Clemens claimed that Tevrizian had conspired with the other judges to torpedo the case, from which Tevrizian recused himself shortly after filing, an FBI agent said in an affidavit.

Text of Letter

One letter allegedly read, in part, “You should not worry or be concerned whatsoever that some guy is going to walk up behind you, wherever you may be, and proceed to ‘lay your brains out on the ground’ although it is my wish.”

Attached to the letter was an except from a screenplay Clemens claimed to be writing. It described a scene in which a homicide detective is confronted by the murders of four judges, all shot in the head, inside their homes.

In an interview with the FBI, according to the agent’s affidavit, Clemens also was asked about letters he had sent in 2003 and 2004 to Keller and Snyder. He insisted that none of the letters were intended as death threats and that his screenplay described a hypothetical situation.

No action was taken against him at the time, but he was admonished to stop writing threatening letters or he would be arrested, the agent said. His arrest came in May of this year, days after Tevrizian allegedly received another threatening letter..

“It seems there is some concern whether I am plotting a sweet revenge,” he allegedly wrote. “This, of course, is true indeed.”

Clemens’ motion to disqualify the entire district bench was heard by U.S. District Judge James Mahan of Nevada, who was specially assigned by Ninth Circuit Chief Judge Mary Schroeder.

Mahan also heard two other motions, granting the defendant’s bid for appointment of new defense counsel—two lawyers from Federal Defenders of San Diego, Inc. were assigned—but rejecting his request that the U.S. Attorney’s Office be disqualified from the case.

Mahan denied the motion to disqualify the judges, based on a statute requiring disqualification when a judge’s “impartiality might reasonably be questioned,” leading to the mandamus action.

Extraordinary Remedy

In denying relief, the panel noted that mandamus is an extraordinary remedy, and that in the Ninth Circuit the court looks to five factors in determining whether to grant it—the availability of direct appeal or other means by which to seek relief, the extent of any harm not correctable on appeal, whether the lower court’s ruling is clearly erroneous, whether there has been a persistent disregard of federal rules or an oft-repeated error by the lower court, and whether the issue raised is of first impression.

The absence of clear error, the panel noted, will be dispositive; only where there is clear error will the court weigh the other factors

The panel went on to say that Mahan’s ruling was not clearly erroneous because disqualification of an entire district bench is not required in every case where a judge is the alleged victim of a crime and Clemens had not shown any particular reason why such relief should be granted in his case.

The court distinguished the case of convicted Oklahoma City bomb plotter Terry Nichols, in which the Tenth Circuit ordered the disqualification of a judge whose chambers had been damaged in the bombing. While the replacement judge was chosen from outside the state, the panel noted yesterday, the Tenth Circuit did not hold that the entire District of Oklahoma bench was subject to mandatory disqualification under the statute.

Also distinguished was a recent Seventh Circuit decision that all of the judges in a particular district had to be disqualified where the defendant was accused of plotting to bomb the building in which all of the district judges had chambers.

Clemens, the judges noted, is not accused of crimes against Otero or against the court, nor can it be inferred from the charges or evidence in the case that he threatened or intended to harm the entire court.

Given the large number of active and senior judges sitting in the district, and the fact that they sit in four different courthouses in three different cities, ‘[n]o reasonable observer could conclude that a threat against three judges based on their handling of the defendant’s pro se cases should be construed as a threat against all the judges of the district,” the panel wrote.

“Furthermore,” the judges continued, “the threats that the defendant allegedly made were in no way related to complaints about the Central District as an entity.”

Attorneys on appeal were Shereen J. Charlick and Steven L. Barth of Federal Defenders of San Diego for the defendant and Assistant U.S. Attorneys Robert J. Keenan and Wayne R. Gross for the prosecution.

The case is Clemens v. United States District Court, 05-75631.


Copyright 2005, Metropolitan News Company