As Bill Cosby’s latest trial gets underway, “the Cos” and his lawyers contend that the presiding judge should recuse himself because the judge’s wife is an advocate for sexual assault victims. Judge Steven O’Neill’s wife, Deborah O’Neill, is a social worker on a University of Pennsylvania special staff that advocates for students who are alleged victims of sexual assault. According to the motion for the judge to recuse, she has donated money to a victims advocacy group that plans an anti-Cosby rally outside the courthouse during Cosby’s trial.
Your Ethics Alarms Ethics Quiz of the Day:
Should the political activities, public statements or occupation of a spouse be considered a sufficient conflict of interest to mandate judge’s recusal?
Legally, it’s not really a question. Only conflicts of interest involving situations in which a spouse has a direct financial interest in a case a judge is deciding, or some other direct benefit, will mandate a recusal. This issue has been battled over many times, especially concerning Clarence Thomas and his wife Ginny, a conservative author and activist. Another case that conservatives made a fuss about was when a judge handling the appeal of California’s Proposition 8 was married to the head of the local ACLU chapter. Ideological views of spouses are not attributed to judges, but the appearance of impropriety is still real and a valid concern. The now-common condition of independent professionals being married to each other is relatively new, and in the interest of not forcing love and livelihood into a clash that would probably impede the professional advancement of women, we have decided to pretend that the threat of being forced to sleep in the garage, or being subjected to the silent treatment for a week, would never sway a judge’s rulings.
“We trust judges to make decisions based on the law, and not because their husbands or wives would like to see a particular result. We trust judges to be independent of the influence of good friends, of parents, of spouses, and decide on the law,” says Stephen Gillers, NYU’s legal ethics rock star. Sure we do, because we have decided that we have to.
The quiz question stands.
Ethics Alarms 
Wouldn’t a better question be, has he ruled for defendants in previous cases when it’s inappropriate? Unless he has been living under a rock and had NO relevant case experience, has he shown bias already? If he had, I would have expected them to lead withthat in their opposition. That they haven’t leads me to suspect there is no evidence of bias, and they are grasping.
I dislike tarring someone with other people’s behavior. Just because my father does X, doesn’t mean I do. I do not inherit his guilt.
I think it’s a plausible argument for the judge’s recusal. In the case of Cosby losing the trial, arguing for a mistrial on grounds of the judge being prejudiced against him from the beginning would be reasonable. To secure the justice system’s integrity and the people’s trust in the system, it would be prudent for the judge to step down, give a statement why it is the right thing to do and reassure the public that this is a court of law, and not a kangaroo court. It’s not like there is a lack of judges without the appearance of impropriety. That is the ideal scenario.
Didn’t Clinton just argue that spouses decisions are made based on partner’s ideological affiliation?
In all seriousness, I think it is reaching. A judge should be expected to make decisions based on the law, not based on who is married to. Without any proof of any wrongdoing, this seems to be judging him based on something that has not happened.
I think it’s a completely avoidable appearance of impropriety. The planned demonstration outside clinches it. Let someone else handle the trial.
I’m not going to argue any one else’s spouse, I’m going to argue my own. After 34 years of marriage, I knew my lady fairly well. If I’d been a judge, there is no possible doubt that I would have considered her opinion in deciding a case. Whether she had expressed it or not. If you’re going to try to tell me that a 40-year judge doesn’t know what his lady thinks about a case, well, I’m going to be laughing for a while. And, if you’re going to try to tell me that her opinion won’t effect his, I would like to refer you for some reality testing.
I would say yes. She has donated to a group that is going to take some sort of position against the defendant. The group isn’t just raising awareness, it isn’t just providing education or counseling, it is taking a stand against the very person who is appearing before him. Money left the judges household to go to a group protesting the defendant standing before him. Easy call.
Of course not. Lots of Judges have spouses who are politically active, belong to think tanks, etc. Off the top of my head, Supreme Court Justice Thomas’s wife founded a conservative think tank that she ran for years before stepping down well into his tenure.
Look, I get it, you get it, the idea of an impartial judiciary is a quickly withering fig leaf. SCOTUS justices in particular wear their biases on their sleeves, the system isn’t set up to, nor particularly willing to deal with that, and the fish rots from the head down.
All that stipulated…. Is the idea of an impartial judiciary a good thing or not? And as a follow up: Do you really think that important life choices of spouses doesn’t at some level signal likely bias on a subject?
Well, I am married to an attorney who, coincidentally, might become a federal Judge. I can tell you that while we agree on many things, we also disagree vehemently on others. Granted, DC is a charged political environment, but I know numerous attorneys here who are married to spouses who share completely different political beliefs.
Do I think Judges can be impartial? Meh — but I don’t think this is because who their spouses are. I think we all are shaped by our personal beliefs. One of the reasons that I engage only on a peripheral level on many topics here is that there really is no point in doing so. Take guns for instance. Deep down, those that are pro Second Amendment really believe that guns are necessary to protect a free society, while those that believe in restrictions to the Second Amendment deep down think that they are unnecessary to protect a free society. It doesn’t matter who is right and who is wrong — all legal analysis will flow from one of those two central premises so, of course, all analysis is biased.
Getting back to your ultimate question, while we have to take it with a grain of salt that Judges can be “impartial” on all issues, I can’t think of a better system, so we have to live with the illusion. For me, this is why SCOTUS is my primary voting factor in presidential elections, and I think it is for a lot of people. I think that explains why legitimate conservative and religious groups held their noses and endorsed Trump.
But, speaking of Trump, do we think that his beliefs have been shaped by any of his numerous wives, mistresses, or girlfriends? I doubt it. Presidents, like Judges, tend to have enormous egos that are unaffected by their love lives.
“Deep down, those that are pro Second Amendment really believe that guns are necessary to protect a free society, while those that believe in restrictions to the Second Amendment deep down think that they are unnecessary to protect a free society.”
Except that progressives (gun control advocates) do not believe in a free society at all, based upon their behavior the past few years. This makes your analogy a bit weak, don’t you think?
Agreed with the central point that all analysis will be biased, though. Human nature does not change.
“Presidents, like Judges, tend to have enormous egos that are unaffected by their love lives.”
This is a defining characteristic of the sort of person willing to go through the rigors of presidential politics. Judges? I am not so sure, but you know more than I do, likely, and ones higher on the totem pole.
“Except that progressives (gun control advocates) do not believe in a free society at all, based upon their behavior the past few years. This makes your analogy a bit weak, don’t you think?”
I don’t agree with that statement at all — you are just cherry picking your news. I don’t make generalizations about conservatives.
Ah yes, Judges have ENORMOUS egos. I know a ton of them. Many still ask to be referred to as Judge ____ even after retirement.
*I* am cherry picking the news? (Stunned silence… profound confusion… astonished disbelief)
Have you been hiding under a rock since the election? Paid any attention AT ALL to the mainstream media?
Sorry to invade your progressive bubble, Sparty, but the spazz out from progressives against the 1st, 2nd, 4th, and many other Constitutional rights since November 9th, 2016 does not make what I wrote a smear, as you implied. It is an objective observation.
It’s all about your point of view, correct? Do you think Fox News is biased or just “mainstream media?” I know a lot of veterans and gun owners who marched this last weekend in DC. Are they part of the progressive attack against the Constitution, or have you just moved further to the right? Or have you stayed the same while many others have moved to the left? The people who I am referring to probably would be shocked if you told them that they were living in a “progressive bubble” given their political views.
I’m not arguing or debating with you on any of this — I just think it’s interesting to sit and think about these things.
In the spirit of thinking about these things 🙂
1. Fox news is biased. They are further left than I, though
2. Washington, DC *IS* a progressive bubble, just like Austin, Texas is; difference is degree only. Most of the Eastern Seaboard and Pacific rim are deep blue progressive states, with rural opposition away from urban areas, no?
3. Living next to the corruption, er, blue areas will move those who marched toward the political left, if one is not grounded in one’s principles and actively fights the indoctrination. This is rare, since one must either shut up around friends and neighbors, or become very unpopular.
4. As per 3 above, they moved left of me over time. The frog has been boiled, and your gun owners and veterans were virtue signalling by marching. They don’t see it that way, but again, the frog would jump out if he realized the water was getting hot.
5. My point is STILL that progressives, in general, do not advocate a free society, as that means freedom of choice. Socialism precludes freedom eventually.
Do you think Fox News is biased or just “mainstream media?”
Fox is biased, AND mainstream media.
I know a lot of veterans and gun owners who marched this last weekend in DC. Are they part of the progressive attack against the Constitution, or have you just moved further to the right?
They are acting on emotion rather than facts and logic, like everyone else “marching.” Reacting to this as the foolishness it is shouldn’t be a matter of party at all. When I see people saying that measures will prevent shootings forever when they won’t, and when I hear them advocating regulations that wouldn’t have even stopped the shooting they are using to justify their screams at the sky, I object. Any fair and rational person should.
Do you agree with my point 5, Jack? In part or the whole thing (I actually make two assertions there)
I assumed you know I do: it was realizing that the Democratic Party was no longer liberal but progressive in the way you describe that cost Hillary my vote at the 11th hour. Indeed, the current progressive movement is increasingly anti-free speech, anti-Constitution, anti-basic core American values, anti-individualism and self determination, and anti-due process and equal protection.
Again with the broad brush! I think we have a definition problem here. Are we talking leftist Progressives, regular old Democrats, or Classical Liberals? I guess I am a liberal as are most of my close lawyer friends. And while a lot of us are for gun reform — not repeal, just reform — but in general we have more in common with the Tea Party as compared to the Republican Party when it comes to the remaining Bill of Rights. We are appalled at notions of warrantless searches, FISA courts, the no fly list (yes, I know some Democrats do want to expand that), the craziness around limiting free speech, etc. But for the hot topic of abortion, I think there could be a coalition between Rand Pauls in DC along with a bunch of Dems, at least when it comes to Constitutional rights.
Spartan, I think we have not heard very many moderating voices from the D side of the aisle, so as far as we can tell they no longer exist. The media has screamed the latest progressive (not classic liberal, not ‘regular old Democrats) screed for almost a decade, and the party itself is moving that direction swiftly.
I think that progressives are moving the needle for your side, and thus are not to be reigned in by more moderate voices. This happens from time to time to the GOP as well: conservatives were purged by establishment GOP members during the late Bush and early Obama years.
Now the inmates are running the party, and moderate voices cannot stop them, lest they be named and targeted as well.
“I know numerous attorneys here who are married to spouses who share completely different political beliefs.”
I mean… I’m sure you do. I’m sure I do. But if that the exception, or the rule, in most cases, do you think? And even then, there’s a difference between disagreements on scale and disagreements on substance. I mean… Even your personal anecdote… You vehemently disagree with your spouse on some issues? I’m sure you do! But I’ll eat my loafers if those issues you disagree with him on are Abortion, Gun Control, or Gay marriage.
“But, speaking of Trump, do we think that his beliefs have been shaped by any of his numerous wives, mistresses, or girlfriends? I doubt it. Presidents, like Judges, tend to have enormous egos that are unaffected by their love lives.”
I think you misunderstand my position…. I’m saying that spouses signal their spouses biases and values. What’s the chance, do you think, that Melania is a pro-choice, anti-second amendment, woman’s march supporting activist? It’s not that one effects the other, it’s that they reflect each other. Look at your own example: Clarence Thomas’ wife created a conservative think tank… Clarence Thomas is a conservative jurist. What a coinkydink! And I think that the more extreme a spouse’s behavior is, the more likely it reflects this bias of the judge… I doubt there are many ACLU presidents married to judges able to be impartial on human rights issues. I have no idea what you do about it…. But the appearance is AWFUL.
What’s the chance, do you think, that Melania is a pro-choice, anti-second amendment, woman’s march supporting activist?
You say this as if Trump is strongly pro-life and pro-second amendment. I don’t see any reason to make an assumption on Melania’s stance on these issues at all, given Trump has never had a firm position on them, and that there is no reason to believe Melania’s opinions on anything would be a disqualifying factor in that particular marriage.
I mean…. That’s fair. Trump is going to be a perpetually bad example for discussions like this, but I was trying to work with what I was offered.
I mean… Legally…. This is as, you pointed out, not even really a question…. Which makes Cosby’s lawyer an idiot, because if the judge may have been biased against him before they took a run at his wife, he’s almost certainly biased against him afterwards, and you don’t get to shop for judges by being an asshole.
Personally though… I think this is close.
I doubt there are many Klansmen who married ACLU presidents, to use an extreme example. Generally, my perception is that it’s likely that married couples share political views… And while it’s impossible to escape bias, it’s also… inappropriate…. to put your biases on display. “But Jeff, this isn’t something the judge did.” Well, obvious counterargument, that’s not really true. The judge married an activist.
If the judge had a history of making large donations to a cause, do you think that shows more or less devotion to/acceptance of/bias towards that cause than marrying a high profile activist in that cause? And if the judge had been making large donations to a cause, would that be enough to push for a recusal? Me, I think that money is cheap, and I don’t have to crawl in under the sheets with it at night.
The rally changes things. She is involved with advocacy directly related to the case before the judge, no minimal appearance of impropriety.
Correct. If the judge doesn’t recuse himself Cosby will have great grounds for a reversal on appeal.
No, he really won’t. There’s too much precedent denying those kinds of claims.
Speaking as an attorney who has tried these types of cases (prosecuted and defended), the wife’s situation hits a little too close to home. I think it’s unreasonable to assume that the judge won’t be affected by his knowledge that his wife’s friends and professional associates won’t express their opinion to her about what he does on the bench, and that his rulings could ultimately affect her standing as a professional and in her personal relationships. This may be one of those rare instances where we should impute the attitudes of the spouse to the judge. This certainly doesn’t seem to be a frivolous motion to me; at the very least it puts the judge on notice that his rulings will be scrutinized for this type of bias (which may be the ultimate purpose of the motion, anyway).
Are you former Air Force? ‘Zoomie’ is a term of (ahem) ‘endearment’ the army had for air force when I was serving, many moons ago.
I agree that Cosby’s lawyer is very bright for raising this issue now, as a set up for an appeal later. This IS the judges fault for taking the case in the first place, IMHO. they are just zealously representing their client using the tool handed to them by the judge.
Ha. “Zoomie” is a term of derision/endearment for Air Force Academy grads. At least among USMA, USNA, USCGA, and USMMA graduates.
Sorry–the sentence should read, “…by his knowledge that his wife’s friends and professional associates WILL express their opinion…” I proofread as badly as anyone.
Can Cosby’s lawyer take an interlocutory appeal if the judge refuses to recuse himself?
I don’t have a good answer for this issue at the moment. Once you start considering judges might rule in particular ways to not alienate people they know, the entire judicial institution and rule of law are gone as far as hot-button issues are concerned, and probably farther. Judging requires honor, but in a sufficiently dishonorable society honor can select against itself under most circumstances. (On a side note, the same is true for compassion, both being good-aligned.)
Judging empirical facts is, I daresay, even more difficult than interpreting the law, because of how difficult it is to prove something happened without some sort of recording. I’m interested to see what ideas for alternative judicial institutions people come up with.