Federal Judge Harold Baer has removed himself from the case that landed him at the center of a national controversy. The judge's decision to throw out $4 million worth of narcotics seized from a defendant's car was criticized by President Clinton and politicans from both parties. The judge later reversed himself, allowing the narcotics evdience to be used at trial. In this opinion and order, he denied a defense motion that he recuse himself, and then recused himself.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v.

CAROL BAYLESS,

Defendant.


Appearances

Mary Jo White, United States Attorney for the Southern District of
New York

Jay Holtmeier
Ira M. Feinberg
One Saint Andrew's Plaza
New York, New York 10007
(212) 791-2210

For the Government.


Ramon Pagan, Esq.
888 Grand Concourse Suite 1-J
Bronx, New York 1045
(718) 993-l598

For the Defendant.



Harold Baer, Jr., District Judge

9S Cr. 533 (HB)
Opinion and Order


The defendant moves for recusal under Title 28 ot tbe United States
Code Section 144 and Section 455. Defendant's major contention is
that the extensive media coverage and comment from political leaders
whicb followed tbe initial decision in this matter created considerable
political pressure wbich, in turn, prompted me to develop a personal
interest and lose my impartiality, thereby necessitating
disqualification. The defendant made a similar oral motion in CourL
on April 12, 1996, wbicb was denied in a ruling from the bench. See
United States v Bayless, 95 Cr. 533, Tr. of Apr. 12, 1996. The
motion now before me, while similar, is on papers and supported by
the defendant's affidavit and counsel's Certificate of Good Faith.

Title 28 Section 144 of the United States Code, one of the two
sections relied on by the movant, became law in 1911 and applies
where a judge harbors a personal bias or prejudice for or against one
party. See, e.g., United States v. El-Gabrowny, 844 F. Supp. 955
(S.D.N.Y. 1994). The other more recent statute, 28 U.S.C. 455
was enacted in 1974. In large measure the grounds for
disqualification are the same in both statutes. See Apple v. Jewish
Hospital & Medical Center, 829 F.2d 326, 333 (2nd Cir. 1987).
Section 455(a), however, is a broader prohibition and mandates
disqualification when the court's "impartiality might reasonably be
questioned." 28 U.S.C. 455(a).

The defendant here has concluded that all she need do is file her
affidavit and the Court must step aside. My interpretation of 28
U.S.C. 144 and the interpretations of this Circuit are quite
different. Disqualification applies only where the requirements of the
statute are met, i.e., only where the affidavit is both timely and
sufficient. See 28 U.S.C. 144. The defendant fails to meet either
test.

As to the timeliness, the press coverage in this matter began the
moment that the Court granted the defendant's suppression motion in
January of 1996. Yet, the defendant waited to move not simply until
the motion for reconsideration was granted, not simply until the
rehearing, not even during the period that the decision following the
rehearing was sub judice but until the defendant was greeted with a
decision she did not like. Since it is expressly required that a motion
for recusal be timely, and that the timeliness factor is determinative,
see Apple, 829 F.2d at 333; In re International Business Machines
Corp., 618 F.2d 923, 932 (2d Cir. 1980), the motion would fail on
that ground alone.

As to sufficiency, the defendant would fair equally poorly under both
U.S.C. 144 and  455. The requisite actual bias is totally unsupported
and no personal bias or prejudice by this Court against the defendant
has been alleged. The defendant's only allegation of conduct
evidencing bias and the Court's position was dealt with in the
previous decision on this motion. The Government in its answering
papers pointedly confronts the defendant's contention with respect to
the motion for reconsideration as well as any "outside pressure"
succinctly;

[m]oreover, defendant's allegations about the absence of new
evidence to support the Court's decision on reconsideration are
patently untrue, and the Court is not required to accept conclusory
allegations which are contradicted by the record before the Court. In
fact, the Government's motion for reconsideration stated powerful
legal and factual reasons for the Court to re-open the hearing, and
significant additional evidence was introduced at the second hearing,
including the testimony of Sergeant Walter Bentley and the incredible
testimony of the defendant herself. The Court's April 1 opinion
explained why that additional evidence justified the Court vacating its
prior order and denying the defendant's suppression motion.

With respect to the only remaining allegation, i.e., that media
coverage and political commentary have created an appearance of
partiality, there is again no grounds whatsoever for any such
allegations and certainly none has been alleged by the defendant. If
judges were to recuse themselves every time they granted a rehearing
and on the basis of new evidence changed their minds, the objective
standard created in 28 U.S.C. 455(a) would turn that statute on its
head.

While this motion is denied, it has now become clear that to try this
case will create several unnecessary and otherwise avoidable
problems and attendant delay. The defendant has been incarcerated
for over a year without a trial and while much of the prospective
delay can be attributed to the defendant, it can and should be avoided.
These delays will begin with jury selection and should there be a
conviction, extend to sentencing. Likely too is even further delay by
trips to the Court of Appeals, much of all this may be obviated by
returning this case to the wheel and consequently, in the interests of
justice, the case is so returned with a new judge to be chosen. In this
fashion the trial will be simplified and perhaps even avoided.

SO ORDERED

NEW YORK, NEW YORK

MAY 16, 1996


/s/Harold Baer
U.S.D.J.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

United States of America,

Plaintiff,

v.

Carol Bayless,

Defendant.

Harold Baer, Jr., District Judge.

95 Civ. 533
Order


Pursuant to Rule 18 of the Rules for the Division of Business Among
District Judges for the Southern District of New York, I hereby
request that this case be transferred to another District Judge. It has
become clear that for me to try this case will create several
unnecessary and otherwise avoidable problems and attendant delay.

SO ORDERED
New York, New York
May 16, 1996


/s/Harold Baer
U.S.D.J.