Judge’s recusal another twist in conspiracy-alleging suit
It’s not often that a judge’s recusal order is almost as interesting as the case he’s recusing from.
But last week, U.S. District Judge Leon Holmes created one of those rare situations in filing a three-page order explaining why he felt he should step aside from presiding over a lawsuit that was randomly assigned to him.
Both the case and the recusal order are full of twists and turns.
The lawsuit, filed Aug. 24, alleges that the federal government — including the Central Intelligence Agency, Drug Enforcement Administration and the U.S. attorney’s office, and state and local authorities including the state police, the Bryant Police Department and the Saline County sheriff’s office, have violated the Freedom of Information Act by withholding details repeatedly requested by Linda Ives, the mother of one of two boys whose bodies were found on Aug. 23, 1987, on a railroad track in Saline County.
The case of the “Boys on the Tracks” has been the subject over the years of a book by that very name, hundreds of newspaper articles, documentaries, lawsuits and general never-ending suspicions.
In the 35-page lawsuit, Ives and attorney R. David Lewis of Little Rock want the agencies to be ordered to provide unredacted documents to provide answers to questions the relentless mother has been asking for 29 years concerning the death of her son, Larry Kevin Ives, 17, and his friend, Don Henry, 16.
The state medical examiner at the time, Dr. Fahmy Malak, declared that the boys died accidentally while in a deep sleep caused by smoking too much marijuana, prompting a swell of public anger and contributing to Malak’s eventual resignation after new autopsies determined both boys were murdered. One of the persevering theories is that the boys had somehow stumbled onto a drug- and gun-smuggling operation that operated out of the Mena airport in Polk County and was tied to the CIA.
The suit alleges that it “will prove that there has been a massive cover-up by federal, state and county officials.”
Holmes’ recusal order
notes that Ives “is a grieving mother. She is also a descendant of John Franklin Raney and Mary Josephine Raney. So is my wife. Which raises the issue of whether I should recuse in this case.”
Holmes then details family tree connections to explain how his wife’s grandmother and Linda Ives’ grandmother were sisters in a group of eight siblings born to the Raneys, who married on Oct. 2, 1887. He describes family reunions that have gone on for 78 years and that are regularly attended by him and his wife, Susan, and Linda Ives.
He gets technical: “Linda Ives and my wife are second cousins, which means that they are related within the sixth degree of consanguinity, not within the third degree of relationship.” He then cites a reason for the technicalities: Title 28 of the U.S. Code, Section 455, which provides, “among other things, that a judge shall disqualify from a case in which he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person, is a party to the proceeding.”
He adds a tongue-in-cheek comment: “Neither the statute, nor the Code of Conduct for United States Judges, addresses the issue of whether a judge should disqualify when he and a party in a case before him regularly attend the same family reunion (which raises the issue of whether any Southerners were included on the committees that drafted those documents).”
Holmes then scrutinizes the part of the statute requiring a judge to disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.” He notes that the 8th U.S. Circuit Court of Appeals in St. Louis, which oversees federal courts in the Eastern District of Arkansas, where he is based, has said it considers whether a judge’s impartiality “might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.”
Holmes solemnly declares, “In applying this test to the present case, it is helpful to assume that ‘the average person on the street’ is a Southerner who knows about family reunions. The relevant facts would include … the fact that the plaintiff, the judge, and the judge’s wife all attend the same family reunion every year, that the plaintiff is on the email list used annually by the judge’s wife to send out reminders of the upcoming reunion, and that among the photographs taken by the judge’s wife at the family reunion is one of the plaintiff with her name tag and the name of her grandmother, Maude, to signify which of John Franklin and Mary Josephine’s children from whom she is descended.”
As another “relevant fact,” Holmes notes that the circumstances of Kevin Ives’ death “have been a topic of conversation within the Raney clan over the years,” and predicts that “it is morally certain that when the case is resolved the resolution will be a topic of conversation at the next Raney reunion.”
Summing it up, Holmes said that if those facts were presented to the hypothetical average person on the street — “assuming this person is a Southerner who knows about family reunions” — and that average person were asked whether the judge could be impartial, “I think I hear this ‘average person on the street’ saying, ‘Ain’t no way.’” “I recuse,” he concluded. In another unusual twist to the unusual case and the unusual recusal order, the case was next randomly transferred to U.S. District Judge Billy Roy Wilson, who is known for often inserting extra flair into his rulings by adding a quixotic quote or observation.
This time, Wilson kept his order simple, saying, “I am recusing because, as a lawyer, I once consulted with the parents of one of the boys.”
The lawsuit was assigned Wednesday to Chief U.S. District Judge Brian Miller.