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In what lawyers believe may be a first, the 9th U.S. Circuit Court of Appeals has removed a judge before a trial — in this case, U.S. District Judge Vaughn Walker — for displaying bias in the courtroom. The 9th Circuit has removed judges twice before, but those cases involved events outside the courtroom: In one case, the judge had a financial conflict, and in another, he referred to the defendants as “Commies.” In this case, a three-judge panel was upset that Walker decided to hold a high-profile case over the use of pepper spray against logging protesters in Eureka, Calif., where plaintiffs say they can’t get a fair trial. “On [the] record it appears the district court’s actions reveal an appearance of an absence of impartiality sufficient to warrant reassigning this case,” reads the unsigned order. Judges Harry Pregerson, William Fletcher and 8th Circuit Senior Judge Myron Bright were on the panel. On rare occasions, the 9th Circuit will order that a case be reassigned on remand. But it almost never removes a judge in the middle of proceedings, as it did Tuesday in an unpublished order. In a 1997 Superfund case, plaintiffs had asked the 9th Circuit to disqualify Senior U.S. District Judge Andrew Hauk for, among other things, calling their experts “pointyheads.” But the 9th Circuit declined to remove the irascible judge. Walker was presiding over 6-year-old allegations that officials in Humboldt Country, Calif. unlawfully used cotton-tipped swabs to dab pepper spray into the eyes of logging protesters on three occasions. Plaintiffs’ attorneys have struggled with Walker almost from the beginning of Headwaters Forest Defense v. Humboldt County, 97-3989. He entered judgment for the defense after an earlier jury deadlocked 4-4. The same 9th Circuit panel reversed and sent the case back to Walker, who decided to hold the retrial in Eureka. But as plaintiffs’ lawyers and the 9th Circuit noted, it’s been 30 years since a federal case was tried in the courtroom there. The panel also noted the plaintiffs’ concern that the case could be doomed in that venue since the livelihoods of many in the area are tied to the logging industry. After complaints that he should step aside, Walker’s handling of the case was reviewed by U.S. District Judge Phyllis Hamilton. She found no bias. “The weird thing about this is it’s based on his ruling; it’s not based on anything he said or did outside the courtroom or the case,” said William Mitchell of Eureka’s Mitchell, Brisso, Delaney & Vrieze, who represents the defendants in the case. “The panel’s order is an affront not only to Judge Walker, but to every district court judge sitting in the 9th Circuit,” Mitchell said. Plaintiffs’ lawyers were ecstatic. “We need a unanimous jury, and the jury pool there is contaminated, for lack of a better word, with people who have such strong ties to the logging industry,” said plaintiffs lawyer Benjamin Rosenfeld. Plaintiffs lawyer Tony Serra said he was surprised Walker is off the case. “I expected only half of it, to tell you the truth. I thought we were strong on what I would call the judge’s sua sponte change of venue order,” Serra said. “I kind of reasonably expected that would change, but they went all the way.” University of Pittsburgh law professor Arthur Hellman, who has written a book on the history of the 9th Circuit, said he can’t recall a similar ruling — especially since writs of mandamus are notoriously difficult to win. But, Hellman added, if Walker was going to be booted at all, it is probably best to do it before a second trial. “You really don’t want to do that again and then have to throw it out,” Hellman said. Lawyers for the protesters cited incidents of hostility toward anyone connected to the environmental movement, including lawyers, as one reason the case should not be held in Eureka. “I’m kind of hippified, and you go up there, you see them loggers and man, they want to fucking fight you in the street,” Serra said. Serra said Walker’s intelligence is “off the charts” and called Walker, who supports the legalization of drugs, “one of my heroes.” But he said Walker should have stepped aside graciously. “He followed the wrong star, let’s just say that,” Serra said.

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