U.S. prosecutors were rebuffed today in their efforts to have a controversial Alexandria judge removed from the upcoming trial of Airlie Foundation director Murdock Head despite complaints that the judge had shown himself to be biased.
In what some legal scholars described as a highly unusual move, U.S. Attorney Justin W. Williams had urged the 4th Circuit Court of Appeals to remove District Court Judge Oren R. Lewis from presiding at Head's trial.
But the appeals court today rejected the request in a brief order that may allow the colorful and sometimes cantankerous 77-year-old jurist to handle the head case.
"Judge Lewis' angry attitude toward government counsel might well create an appearance of bias violative of (federal law)," Williams, who heads the federal prosecutors' office in Alexandria, said in a motion filed here this week. Williams said Lewis' actions "strongly suggest" that his "impartiality has been affected."
In a one-page order a three-judge appeals court panel rejected the federal prosecutors' contentions, without commenting on the issue of Judge Lewis' alleged antigovernment bias.
The appellate judges, who temporarily had delayed Head's trial while prosecutors' appeals were under review, said the trial could be set to begin on any date after Sept. 21. It previously was scheduled to start next Monday.
Head, 55, the founder and executive director of the tax-exempt Airlie Foundation near Warrenton, Va., was indicted in July on charges of conspiring to bribe Rep. Daniel J. Flood (D-Pa.) former Flood aide Stephen B. Elko, and former Rep. Otto E. Passman (D-La.) in an attempt to obtain lucrative federal government contracts, grants and favorable tax treatment for his foundation and other enterprises.
Head, who also is a George Washington University physician and department chairman, has pleaded innocent.
The U.S. attorney's request that Judge Lewis be removed from hearing the trial followed a series of increasingly bitter exchanges between the judge and the prosecutors during the past month.
At one acrimonious hearing in August, Lewis told one prosecutor "If you don't know how to try a case it is time to learn." He told another assistant U.S. Attorney, "I am sorry you don't understand English."
Later he warned the same prosecutor, Theodore S. Greenberg, that if he failed to follow his instructions, "I might do something to you -- I am serious." He did not specify what action he might take.
In a letter to the appeals court last week, Lewis criticized the prosecutors and, to a lesser extent, Head's lawyers. He asserted that he did "not believe" that the lawyers had filed appeals because of confusion over his pretrial rulings. "I am satisfied this appeal was filed to delay the trial," Lewis declared.
In addition, he accused the prosecution of telling a court clerk to make "erroneous entries" in the trial docket, the official record summarizing the proceedings.
The prosecutors' request for Lewis' removal as judge at Head's trial was appended as a detailed, 1 1/2-page footnote to a motion for a further delay in the trial.
The prosecutors listed seven indications of Lewis' alleged bias. Among them, they said, was that he had "accused government counsel of hiding the facts from the court of appeals," that he had "questioned the competence of government counsel," and that he was "caustic and curt toward government counsel and repeatedly prevented us from explaining our position."
Despite the appeals court order today, Lewis left open the possibility that he might not preside at Head's trial. In his letter last week, Lewis noted, "Nobody but the judge knows who will try the case until the presiding judge enters the courtroom."
Lewis was unavailable for comment today and U.S. attorney Williams' office said he would have no comment on the appeals court order.
No new date has yet been set for Head's trial.
In its order, the appeals court panel fundamentally upheld Lewis' views on a complex legal issue. The prosecutors had contended that Lewis' previous rulings would severely damage the prosecution's case by barring use of certain evidence.
Lewis asserted that he had issued no such ruling. And he added, "if I did, it is rescinded." The appeals court panel said today that Lewis "did not rule" on the issue.
Several attorneys and legal scholars said today it is extremely unusual for prosecutors to ask for a judge's removal for alleged antigovernment bias. "It is a very rare phenomenon," said Samuel Dash, a Georgetown University law professor and former Senate Watergate committee chief counsel. Such requests are more likely to be made by defense lawyers, attorneys said.