Panel Takes Judge Off Federal Case

An appeals court Wednesday removed a federal judge in Los Angeles from a wrongful conviction lawsuit, ruling that U.S. District Judge Percy Anderson’s impartiality in handling the case “might be questioned.”

The 9th U.S. Circuit Court of Appeals acted the same day Anderson declared a mistrial after the jury deadlocked over Herman Atkins’ damages claim. The case will be retried before another judge.

Atkins, 40, spent 12 years in California prisons before DNA evidence cleared him of a 1986 Riverside County rape. His lawyers, who alleged misconduct by a Riverside County sheriff’s deputy, had repeatedly complained that Anderson was biased against their client.

Panel chief Judge Mary Schroeder and her colleagues Stephen Reinhardt and Kim Wardlaw said that their review of Anderson’s rulings and the trial transcript “lead us to conclude that in light of [Anderson’s] cumulative actions in this case, which has a long, bitter and controversial history, [his] impartiality might be questioned. It will be in the interests of the district judge as well as the parties, and it will preserve the appearance of justice, if any future trial in this matter is conducted by another judge.”

The appeals court concluded its ruling by urging that any new trial in the case “be expedited and held at the earliest possible date that is mutually convenient to the district court and the parties.”

The ruling came after the court closed for the day; Anderson could not be reached for comment. He was appointed by President Bush in 2002.

Atkins sued Riverside County following his release from prison in 2000. Atkins’ attorneys, Peter Neufeld and Deborah Cornwall, asserted that former Det. Danny C. Miller fabricated evidence and presented facts in a false light when he testified about the rape and robbery, which occurred at a Lake Elsinore shoe store.

The proceedings had been hotly contested. Atkins’ attorneys tried to get Anderson recused before the trial commenced, saying he had taken a hostile attitude toward them and their client in pre-trial rulings. That bid failed.

The Times was unable to reach any of the eight jurors who considered the case.

However, Neufeld and Cornwall said they had talked at length to a juror who told them that the panel voted unanimously that Miller had fabricated evidence and that he had failed to disclose that fact to Riverside county prosecutors. However, the juror told them that the panel could not reach a unanimous verdict on the question of whether the outcome of the trial would have been different if the fabrication had been disclosed, the attorneys said.

Neufeld said the juror told them the panel split 6-2 in Atkins’ favor on that issue.

The outcome “seems particularly tragic given the fact that Herman was wrongly convicted and spent all those years in prison for something he didn’t do,” said Neufeld, co-founder of the Innocence Project at Benjamin Cardozo Law School in New York, which did the legal work that led to Atkins’ exoneration and release. Christopher Lockwood, one of Riverside County’s attorneys, said that he could make no comment because of orders he had received from his client.

Atkins now lives with his wife, Machara Hogue, in Fresno and is pursuing a graduate degree in psychology.

henry.weinstein@latimes.com