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10/2/2012 7:14:00 AM
Lawyer rebuked after asking for judge recusal in 'similar' case
Kevin MilesPhoto from Arizona Department of Corrections
Kevin Miles

Photo from Arizona Department of Corrections

Howard Fischer
Capitol Media Services

PHOENIX -- Nearly 40 years ago, two teens armed with a sawed-off shotgun carjacked Julius Graber and killed him.

Among his survivors was his daughter, Susan, 25 at the time.

Since 1997 she has been a judge on the 9th Circuit Court of Appeals. And just last month, she and two colleagues upheld the conviction of Kevin Miles in connection with a 1992 carjacking and murder incident in Tucson.

So Miles' attorney, saying he just learned about what happened to Graber's father, demanded a new hearing -- this time without Graber on the panel -- contending that the similarities between the 1974 incident and this case made it legally inappropriate for her to decide Miles's fate.

On Friday, Graber refused. And the other two judges on the panel, in a particularly strong-worded order, rebuked Timothy Gabrielsen, an assistant public defender, for even making such a suggestion.

In their order, Judges Marsha Berzon and Richard Tallman said they recognize that attorneys need to raise every legitimate issue in a death penalty case.

"But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit,' they wrote. And they said reciting the details of the 1974 incident and requiring her to relive them "is, in our opinion, beyond the limits of appropriate representation.'

The underlying case involves a 1992 incident with Patricia Baeuerlen who was stopped at the corner of East 24th Street and South Columbus Avenue.

Levi Jackson pulled a gun and ordered her to move over as he, Miles and Ray Hernandez got into the car. Jackson drove to a desert area east of the city where he shot and killed her.

In a statement to police, Miles said he thought Baeuerlen was still alive when they left her in the desert.

Later that day, according to court records, he used her ATM card and PIN he found in her belongings to take money out of her bank account. And the next day he drove her car to Phoenix where he went shopping and exchanged the presents Baeuerlen had bought for her own children.

Jackson and Miles were convicted and sentenced to death; Hernandez pleaded guilty to second-degree murder in exchange for his testimony.

In a ruling last month, Graber and Tallman upheld the conviction and death penalty; Berzon partially dissented, saying Miles' trial attorney did not properly investigate his background for mitigating evidence that might have resulted in a lesser sentence.

Gabrielsen said there were too many similarities between the incidents to allow Graber to be impartial.

He said both cases involved a carjacking "with a defenseless victims being abducted in proximity to their residence and transported in their own car.'

And the similarities go on.

"Each victim was a parent who left children behind,' Gabrielsen continued.

"Each victim was abducted with the use of a firearm and taken to a secluded spot to be killed,' he said. "Both victims pleaded for their lives.'

And Gabrielsen said the fact that one of the teens had his death sentenced overturned by the U.S. Supreme Court might also weigh on how Graber thinks about the ultimate penalty.

But Berzon and Tallman said just because judges have life experiences does not make them incapable of deciding questions of law.

"Some have experienced discrimination as women or minorities and others have not,' the pair wrote in the unsigned order.

"Some are intensely religious and other are not, and our religions vary,' they continued. "Some have children and other relatives with disabilities and illnesses, physical and mental, while others do not.'

And some, they said have had personal experiences, directly or through family members, as crime victims.

"These life experiences do not disqualify us from serving as judges on cases in which the issues or the fact are in some indirect way related to our personal experiences,' they wrote. And they called the request by Gabrielsen "especially flimsy' given how long ago her father was killed.

In Friday's order, Berzon and Tallman said they found the timing recusal request particularly interesting, given that it came after last month's ruling.

What is pending, though, is Gabrielsen's motion that the court reconsider its ruling -- but without Graber and with someone else.

Gabrielsen said he got the case after it had been argued to the three-judge panel. And he said the former lawyer, had he known about Graber's father, would have asked for recusal back then.

And he said there are too many similarities to ignore.

No one from the federal public defender's office would comment on Friday's order.

While the order was unusual, it reinforces the belief by this court that it will not disqualify judges absent some more concrete connection to the case before it.

It's something the judges said two years ago when they ruled there was no reason for Judge Vaughan Walker to step aside in the case challenging California's Proposition 8, which eliminated the right of gays to marry, simply because he was gay and had been in a relationship for 10 years with another man.

Taylor Waste

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