Monday, February 27, 2006
Chicago Sun-Times
by ABDON M. PALLASCH Legal Affairs Reporter

In a rare and risky move, Cook County Sheriff Michael Sheahan has accused a federal judge of bias and asked him to take himself off a case against Sheahan.
Federal judges decide whether to recuse themselves, and almost always rule against recusal. Then the judge holds in his or her hands the fate of someone who has accused him or her of bias.
Judges are often accused of being harder on the attorneys on one side of a long-running case than the other, but experts say that is often because the judge has grown tired of stalling or other alleged antics by that side.
Laying groundwork for appeal?
In this case, Sheahan and 12 jail officials were sued three years ago by two jail guards who say they were harassed after they reported other guards took part in a mass beating of prisoners in 2000.
Judge Ruben Castillo has lost patience with Sheahan's attorneys for, among other things, allegedly failing to keep the sheriff from leaving a six-hour deposition.
Matthew Piers, attorney for the two guards, Roger Fairley and Rich Gackowski, says Sheahan arrived late, took long breaks to confer with his attorneys, and left before the six hours were up. Sheahan said he got there early, answered all Piers' questions, and left after six hours.
Castillo sided with Piers and ordered Sheahan to go back for another two hours.
"This is what happens when competent counsel don't involve themselves in discovery," Castillo said. "I consider what occurred there to be less than professional."
Sheahan's 21-page affidavit and the 20-page submissions of his 12 co-defendant jail officials are full of quotes from Castillo slamming lawyers for their side, asking why they don't settle the case for the good of Cook County taxpayers, who so far have paid nearly $1 million to Sheahan and the officials' lawyers.
"While this is not a public corruption case, anytime taxpayer money is wasted, that to me is the equivalent of corruption," Castillo said, noting that he is a taxpayer.
Quotes like that prove Castillo is biased against them, Sheahan says.
In his response Friday, Piers said Sheahan's lawyers earned Castillo's barbs by filing a lot of bad motions.
"They can't seriously think they're going to get him to recuse himself because of this silly motion saying 'We don't like you and we think you don't like us,'" said defense attorney and former federal prosecutor Patrick Cotter. But Cotter said motions for recusal are often used for other purposes.
To try to get the guards to settle for a lower amount -- $3.8 million is the latest demand county officials balk at -- Sheahan could use Castillo's expected refusal to take himself off the case Wednesday as grounds for an appeal, delaying any payoff for the guards, Cotter said.
"Or it could be what some lawyers refer to as 'the shot across the bow' at the judge -- make him a little self-conscious about doing it, hope he'll back off a little bit," Cotter said.
Favoritism implied
Sheahan and the other men say Castillo was regional counsel for the Mexican-American Legal Defense and Education Fund 15 years ago and Piers -- who took over a year and a half ago as the third lawyer for Gackowski and Fairley -- was on MALDEF's board eight years ago. Castillo also ruled in Piers' favor in a different case nine years ago, Sheahan argues.
That all shows bias, Sheahan says.
The most similar recent case came last year when the federal appellate court took a dispute out of U.S. District Judge James Holderman's court after U.S. Attorney Patrick Fitzgerald said Holderman was acting in a biased way against prosecutors.
But judges and lawyers were hard-pressed to name any case in which a judge recused himself because of an accusation of bias, or in which the appellate court reversed a case because a judge refused to recuse himself or herself.
"The chance of success is remote," said Northwestern University Law professor Steven Lubet. "Winning a case on appeal based on a judge's decision on recusal is even more unusual."