Senior Judge Jack Weinstein of the Eastern District of NY recently recused himself sua sponte after engaging in a colloquy with a self-represented litigant about evidnce relating to the possibility that his claim in an employment discrimination complaint was time-bared.

As the New York Law Journal reported:

During a hearing earlier this month on the dismissal motion filed by restaurant chain Cosi in Aikiam Floyd’s racial discrimination case, Weinstein said he asked “leading questions” that prompted Floyd to give testimony showing his claim was not time-barred.

While recusing himself in Floyd v. Cosi, 14-cv-3772, Weinstein denied Cosi summary judgment but gave it permission to renew the motion before another judge, after discovery was conducted “under close supervision of the magistrate judge.”

Weinstein said, “While no partiality could be construed in rejecting defendant’s motion for summary judgment based on timeliness, recusal now is desirable to avoid the appearance of partiality by the undersigned judge in future decisions in the case.”

Some of the more detailed facts, as also reported in the article, are as follows:

At the Jan. 6 proceedings, Weinstein said he posed a “series of leading questions” that caused Floyd to testify the last discriminatory actions took place in July 2013 and were “part of a continuing series of related actions.”

Weinstein observed that July 2013 fell within 300 days of the EEOC complaint filed in September 2013. “As thus construed, plaintiff’s Title VII claims are not time-barred,” said Weinstein.

Noting his repeated intercessions, Weinstein said Floyd was “probably not capable of adequately representing himself.”
Still, the judge said, there were “no satisfactory means, through statute or otherwise” to provide Floyd with counsel.

The Judge then preceded to discuss the need for a counsel in certain circumstances as well as discuss the benefits of pro bono programs:

“If the plaintiff were to proceed pro se, the court would probably be forced to intervene and, in effect, advocate on his behalf, possibly prejudicing the defendant’s case,” Weinstein said, adding, “In many cases, pro se justice is an oxymoron.”

The National Coalition for a Right to Counsel website has more of the text of the opinion, including citation to authorities..

While this case had been used by some to underline the need for a right to counsel, others have offered what may be a more nuanced opinion. Professor Paris Baldacci, of Cardozo is worried that this approach might emphasize the right to counsel argument at the expense of underlining the discretion and flexibility that judges do indeed have to ask appropriate questions to get at the facts:

I am concerned that going down this analytical path will undo so much progress that has been made by those of us who have advocated for an impartial, but more active role for judges in dealing with pro se litigants.  As you all know, protocols have been adopted by many jurisdictions and the ABA has made clear in a comment on the impartiality rule (2.2) that judge’s making reasonable accommodations to ensure that the pro se litigant has the opportunity to have her case fairly heard does not violate impartiality, including asking questions.  There is lots of literature regarding how this can be done without asking leading questions or becoming an advocate.  Have not seen the transcript in this case, but did Judge Weinstein have to resort to leading questions?  And what is the prejudice to the other side that required recusal?  That relevant facts came out through the judge’s questioning?  Ah, truth as prejudicial!  So, I’d be concerned about using this analysis to support RTC, which would have the collateral effect of reinforcing so many judge’s desire to remain passive, which results in the denial of access to justice to pro se litigants.

Linda Rexer, head of the Michigan State Bar Foundation, has commented that:

I agree with Paris’ concerns and hope we can navigate a more nuanced path. Several states, including mine, have developed curricula to help judges learn best practices for handling pro se cases.  California led in developing and requiring this kind of training (and MI followed the CA model) with comprehensive judicial curricula including video practice sessions for judges who can delve into what appropriate questioning, neutrality and reasonable accommodation means in practice; without training, judges may resort to unnecessary passivity, as Paris notes, in the mistaken belief that is the only way to maintain neutrality.

I would like to hope that this debate will result in the following:

• A deeper understanding of how far judges can go in being engaged and asking neutral questions that get to the facts and the constitutional authority for this judicial role (Turner v. Rogers.)
• An understanding of the importance of research and education on these matters
• A realization that much of the current analysis circular — that judges fear being seen as non-neutral when they ask a particular kind of question, when the real reason for that risk is just that it is not usually done.  Were such questions routine when needed, then they would not necessarily be viewed as non-neutral
• Insight into the importance of a nuanced view of when it is in fact — as it indeed can be — impossible even for a careful judge to get the needed facts out without either counsel or the risk of the perception of non-neutrality.  It is at this point, I believe that Turner should be read, at least at certain levels of stake, as requiring counsel in civil cases.

Let the debate begin.