Hub seeks federal judge's recusal, citing 'favoritism'
Trying a wrongful conviction lawsuit
Lawyers defending the Boston Police Department in a lawsuit filed by a man wrongly convicted of three rapes want a federal judge to recuse herself, saying remarks she made from the bench revealed "deep-seated favoritism and antagonism" that make it impossible for her to be fair in the civil rights case.
John P. Roache, a private attorney defending the city, said in court papers that US District Court Judge Nancy Gertner disparaged his client recently by voicing "wholly unfounded suspicions" that federal immigration authorities might have colluded with the city to try to deport Ulysses Rodriguez Charles before his suit goes to trial in April.
"Whether Judge Gertner actually holds any bias towards the City is irrelevant for purposes of recusal," Roache wrote in a 21-page memorandum, because a "reasonable person fully informed of all the facts would deem her statements to be partial."
Gertner, who was ordered by a federal appeals court in 2001 to recuse herself from a case challenging Boston's race-based student assignment plan after she made comments to a news outlet, has not responded to the motion. She is waiting for Charles's lawyer, Frank C. Corso, to file papers about whether Charles believes she can impartially judge the case. He declined to return calls for comment.
But Charles said last week that Gertner's comments were "extremely intuitive" and that the city is simply "judge shopping."
"I think they want it to be biased, and they see that she's fair," Charles, 58, said from his mother's house in the South End. "They thought they would get a judge who's pro-government because I'm suing the government. But she's extremely familiar with the underhanded tactics of the Boston Police Department."
On Oct. 8, Gertner implored immigration authorities not to deport Charles, who spent 19 years in prison before his convictions were overturned in 2001, until his civil suit goes to trial.
Immigration and Customs Enforcement agents arrested Charles in June on an old deportation order. But Gertner said delaying his return to his native Trinidad until May next year would allow him to pursue his civil case, "and America will be protected."
The timing of the deportation proceedings, added Gertner, a former criminal defense lawyer, made her wonder "whether ICE has been in touch with the defendants in this case."
"The pressure to do it now, assuming it comes, is particularly troubling, particularly troubling," Gertner said of the effort to remove Charles, who was held at the Plymouth County jail until he was released on Nov. 5. She said it appeared that ICE had been sitting on his removal case since 2003 and was only "teeing it up . . . when his civil trial is about to be tried."
Roache noted that the Globe published a story the next day about Gertner's comments and that Charles's 78-year-old mother, Ursula Charles Manzoni, was quoted in the article as saying, "The whole deportation thing is a cooked-up business to deny him his rights to get what's due to him."
"Given that both the Boston Globe and Plaintiff's mother interpreted Judge Gertner's comments to mean that she wondered whether the City had engaged in an unlawful scheme to deprive the Plaintiff of his due process rights," Roache wrote, "it is evident that a reasonable person fully informed of all relevant facts would question Judge Gertner's impartiality."
The Charles civil rights case marks the second time Roache was before Gertner this year defending the city in a lawsuit filed by a wrongly convicted former prisoner.
In the spring, he was on a team of four lawyers who defended the Police Department and two retired detectives sued by Shawn Drumgold, who was wrongfully convicted in the notorious 1988 slaying of 12-year-old Darlene Tiffany Moore.
Charles's civil rights suit has garnered less attention than Drumgold's but is similar. Both men filed their complaints after judges threw out convictions based on evidence that the judges said should have been turned over by authorities. But Suffolk County prosecutors have insisted that both men were not exonerated.
Charles, a former welder who worked for General Dynamics building ships for the Navy, was convicted in 1984 of breaking into a Brighton apartment and raping three women in December 1980. He was sentenced to 80 years in prison.
His conviction was overturned in May 2001 and he was freed after DNA testing revealed that semen found on a robe and bedsheet of one of the victims belonged to two other men and that his DNA wasn't found in the apartment.
Suffolk prosecutors declined to retry the criminal case, saying two decades had passed since the rapes, evidence had been lost, and investigators had died.
But they said the DNA evidence did not clear Charles because jurors had been told the rapist did not ejaculate.
Also, two of the women who were attacked told the Globe after the conviction was set aside that they had no doubts: Charles was the assailant who put a screwdriver to the throat of one of them, forced his way into their apartment, threatened to kill them, and raped them, they said.
After Charles was released, he was immediately taken into custody by immigration authorities who sought to deport him for other convictions, including one in 1989 for trafficking heroin in prison.
But a federal judge freed him in August 2002, pending a ruling by an immigration judge.
In October 2003, an immigration judge ordered Charles's deportation, and it was upheld by both the Board of Immigration Appeals and the First Circuit Court of Appeals. The board and appeals court rejected his argument that he had become a US citizen by filling out a "declaration of intention" with immigration authorities in Boston in 1973.
Deportation proceedings are pending. Charles has been released to live with his mother and is wearing an electronic monitoring bracelet, he said.
In urging Gertner to recuse herself in Charles's civil rights suit, Roache said her remarks from the bench were more biased than those she made to the Boston Herald in 2000 about a case challenging Boston's race-based student school assignment plan. Her comments resulted in an order by the Court of Appeals to relinquish the case to another judge.
Jonathan Saltzman can be reached at jsaltzman@globe.com.
Clarification: A display quote that ran with a Metro story yesterday on Judge Nancy Gertner should have said that Gertner was ordered to recuse herself from a case against the city in 2001 in response to remarks she made to the media. 