US judge rejects call for recusal

A federal district court judge yesterday refused to disqualify herself from the case of a man suing the Boston Police Department for a wrongful conviction in three rapes though the city said remarks she made from the bench betrayed a "deep-seated favoritism and antagonism."

Three weeks ago, the city took the unusual step of asking US District Court Judge Nancy Gertner to recuse herself because she questioned at an Oct. 8 hearing whether plans to deport the plaintiff Ulysses Rodriguez Charles to his native Trinidad soon were "somehow related" to his civil rights suit. His suit is scheduled to go to trial in April, and Gertner urged federal authorities to delay deporting him until May.

John P. Roache, a private lawyer defending the city, said in a Nov. 4 motion that Gertner disparaged his client by voicing "wholly unfounded suspicions" that federal immigration authorities might have colluded with the city to try to deport Charles before his trial. Roache added that a "reasonable person fully informed of all the facts would deem her statements to be partial."

But Gertner said yesterday that she raised legitimate questions about the timing of deportation proceedings and repeatedly "hedged" her comments by noting that she had no reason to believe there had been collusion.

"At no point did the Court accuse the defendants of anything, much less 'collusion' with the immigration authorities," said Gertner in a 22-page response. "The Court raised these issues with words of limitation; they were concerns, factual and legal inquiries about which the Court sought information, briefing, and affidavits to bring clarity to a tremendously confusing situation."

What the city was really challenging, she added, was a Globe report on Oct. 9 noting that she voiced concerns about whether Immigration and Customs Enforcement "has been in touch with the defendants in this case," although the article also said she acknowledged she had no evidence of collusion.

"This Court takes motions to disqualify very seriously," Gertner said yesterday, but she rejected the claim that she could not be fair. Roache did not return phone calls about the ruling, which the city can challenge before the US Court of Appeals for the First Circuit.

In 2001, the appeals court ordered Gertner to disqualify herself from a case challenging Boston's raced-based student assignment plan in the public schools because of comments she made to the Boston Herald the year before.

In Charles's lawsuit, his lawyer, Frank C. Corso, of Boston, had opposed the motion seeking Gertner's disqualification. He said in a recent filing that the timing of his client's impending deportation and the upcoming civil rights trial "was indeed troubling."

Charles, a former welder who worked for General Dynamics building Navy ships, 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 bed sheet of one of the victims belonged to two other men and that his DNA wasn't found in the apartment. Charles's criminal defense lawyers contended that police and prosecutors deliberately withheld evidence that could have cleared him.

Suffolk County 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 insisted that the DNA evidence did not clear Charles because jurors had been told the rapist did not ejaculate.

Jonathan Saltzman can be reached at jsaltzman@globe.com.