United States v. Sampson (148 F. Supp. 3d 75, 2015)

MEMORANDUM AND ORDER ■ REGARDING RECUSAL

WOLF, UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. SUMMARY :.. 79

II. THE APPLICABLE STANDARDS ... 85

III. THE FACTS ... 88

A. The Pretrial Proceedings, Trial, and Sentencing ... -89

B. The § 2255 Proceedings .. 90

C. The Proceedings to Prepare for a Second Sentencing Hearing ... 92

D. The July 27, 2014 Program ... 95

E. The Matters Following the July 27, 2014 Panel ... 101'

IV. ANALYSIS ... 105

A. My Recusal is Not Required ... 105

1. My Role Concerning the DeFriest Panel Could Not Cause a Reasonable Person to Question My Impartiality ... 105

2. The Added Fact that Dr. Gilligan Had Submitted an Affidavit in 2010 Could Not Cause a Reasonable Person to Question My Impartiality ... 112

3. The Added Fact that Dr. Gilligan is a Prospective Witness at the Retrial

. Could Not Cause a Reasonable Person to Question My Impartiality ... 114

B. Comparison with Other Gases ... 116

C. The Interest of Heightened Reliability in a Capital Case Does Not Make Recu-sal Necessary or Appropriate ... 121

D. Recusal Could Encourage the Reasonable Public Perception that the System Can Be Manipulated to Obtain a Preferable Judge ... 122

V. CONCLUSION ... 126

VI. ORDER ... 126

I. SUMMARY

The government has moved for my recu-sal because, on July 27, 2014,1 moderated a panel that included Dr. James Gilligan. In June 2015, I learned that defendant Gary Sampson had recently decided to retain Dr. Gilligan as a potential expert witness at the retrial to determine Sampson’s sentence in this capital case. I immediately began discussing with the parties whether there is a proper basis for my recusal under 28 U.S.C. § 455. The government acknowledges that despite my association with Dr. Gilligan, I remain impartial and that my recusal is not required by § 455(b)(1). The government argues, however, that a reasonable person could question my impartiality and, therefore, my recusal is necessary under § 455(a). It does not wish to waive that alleged ground for recusal as permitted by 28 U.S.C. § 455(e). Sampson opposes the government’s motion for my disqualification.

For the reasons summarized below, and discussed in detail in this Memorandum, I find that a reasonable person aware of all the relevant facts could not question my impartiality. Therefore, the government’s motion is being denied.

As discussed more fully in § II, infra, 28 U.S.C. § 455(a) requires that a judge “disqualify himself in any case in which his impartiality might reasonably be questioned.” Because the issue is only one of an appearance of partiality, a party may waive a ground for recusal under § 455(a). See 28 U.S.C. § 455(e). In contrast, a party may not waive a ground for recusal under § 455(b), which requires disqualification in all eases in which the judge is actually biased or prejudiced. See 28 U.S.C. § 455(e).

Section 455(a) issues must be analyzed from the perspective of an objective, knowledgeable member of the public, rather than from the perspective of a person involved in or directly affected by the case. The test asks whether a reasonable person, fully informed of all of the facts, would doubt the judge’s impartiality. Under § 455(a), recusal is required even when the judge lacks actual knowledge of facts that would cause a reasonable person to question his impartiality if that reasonable person, knowing all of the circumstances, would expect the judge knew those facts.

With regard to § 455(a), the presumption is that a judge will impartially apply the law, as required by his or her oath. Therefore, the First Circuit has explained:

§ 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of' a judge’s rulings or findings____[A] high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.

In re United States, 158 F.3d 26, 34 (1st Cir.1998) (emphasis added) (quoting Liteky v. United States, 510 U.S. 540, 557-58, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy,. J., concurring)).

The “high threshold” for disqualification under § 455(a), id. is necessary because the disqualification decision must reflect both' the need to promote public confidence in judicial proceedings and also the need to prevent even the appearance that parties can too easily obtain the disqualification of an impartial judge to get a preferable judge. See In re Bulger, 710 F.3d 42, 47 (1st Cir.2013). This standard also seeks to assure that judges will not misuse § 455(a) to avoid presiding in difficult or controversial cases, or to avoid possible appellate review.

In this case, a fully informed, reasonable person would know the following. In 2004, I sentenced Sampson to death pursuant to a jury verdict. In affirming that sentence, the First Circuit wrote that I had “handled the case patiently and sensitively.” United States v. Sampson, 486 F.3d 13, 51 (1st Cir.2007). It concluded that I had conducted the sentencing proceedings “fairly and with scrupulous attention to the process required by law.” Id. at 52.

In 2011, I vacated Sampson’s sentence because of juror misconduct. In 2013, the First Circuit affirmed that decision. This case was returned to me for a new proceeding to determine Sampson’s sentence.

In July 2014, while on vacation, I helped organize and moderated a program on a film concerning a prisoner in Florida, The Life and Mind of Mark DeFriest, which had been produced by a young friend, Gabriel London. As discussed in § IV.A.1, infra, my role in the DeFriest program was not a manifestation of a special interest in issues relating to prisons and prisoners. Rather, it was an example of the wide range of programs I have organized or participated in, often with young people.

I arranged for Professor Alan Dershow-itz, with whom I had taught at Harvard Law School, to be a panelist. I also agreed to Mr. London’s request to include Dr. Gilligan on the panel. I did not then realize that Dr. Gilligan had, in 2010, filed an expert affidavit as part of a voluminous Amended Petition for a new sentencing trial for Sampson. However, for the purpose of the motion for my recusal, I assume that a knowledgeable reasonable person could believe I knew that he had done that. However, such a person would also know that, as of July 2014, Dr. Gilligan had not been retained by Sampson to testify as an expert at the retrial.

The DeFriest film is about the experience of a particular prisoner. The film essentially seeks to make a case for DeFri-est’s parole. It depicts him as allegedly having a mental illness, possibly caused by brain damage, exacerbated by prolonged solitary confinement and violence in prison, including by prison guards. The film does not mention Sampson or this case. However, Sampson proposes to introduce at retrial evidence from several experts that he is mentally ill, has brain damage, and has been subject to violence in prison.

I invited Mr, London and Dr. Gilligan to have supper with my wife and me at our rental home before the film and program on July 27, 2014. In the approximately one hour that Dr. Gilligan, Mr. London, and I were together, the talk was almost exclusively social. I did, however, tell Mr. London and Dr. Gilligan about the organization of the panel, and asked Dr. Gilligan how he would like to be introduced. There was no discussion of Sampson, this case, or the death penalty.

On July 27, 2014, not realizing that Dr. Gilligan had filed an affidavit in 2010, I nevertheless wanted to ensure that my role in moderating the panel would not be misunderstood. Therefore, after the film was shown, I began the program by 'explaining that I was a federal judge and my participation should not be construed as an endorsement of the case for DeFriest’s parole, as an expression of my views on any of the issues raised by the film, or as a comment by me on any other case or issue, including the death penalty, as to which DeFriest makes a brief, pejorative reference in the film.

■ Dr, Gilligan spoke about how the United States prison and mental health systems aie “broken.” He expressed the view that violence in prisons, including violence by guards, is out of control and makes inmates more prone to violence. Dr. Gilligan also said that treatment in the right, environment can end the pattern of violence by even prisoners with a long history of violence. He- also criticized politicians for lacking the will to deal with these issues. Professor Dershowitz joined in that criticism, Neither Dr. Gilligan nor anyone else made any reference to Sampson or- this case.

Before taking questions from the audience, I noted that the panelists had expressed “strong views.” I added that I did not “mean to sound timid, but it was not my role as moderator to express my own.” I stated that I did not necessarily agree with everything that Professor Dershowitz or Dr. Gilligan had said, but it was valuable for citizens in our democracy to hear about the issues being discussed.

I concluded the program by asking the audience to applaud Mr. London for .making, the film; the panelists, “Alan” and “Jim,” who were “literally like the two world’s leading experts on this issue”; and the other members of the audience for spending part of the i .r vacation watching a film about a prisoner.

In October 2014, I discovered that Dr. Gilligan had filed an affidavit in 2010. In reviewing Sampson’s budget submissions, I learned that Sampson did not plan to have Dr. Gilligan testify at the retrial. After consulting another judge, I decided that a reasonable person could not possibly question my impartiality because of my limited association with Dr. Gilligan in 2014. Therefore, I did not discuss the De-Friest program with the parties. Instead, after Sampson’s counsel confirmed that they did not intend to call Dr. Gilligan as a witness, I continued to focus on hearing Sampson’s motions to dismiss and addressing the innumerable other matters to be resolved before the retrial, which was then scheduled for February 2015.

I subsequently granted Sampson’s motion for a continuance and rescheduled the retrial for September 16,2015. On June 19, 2015, I learned that Sampson was seeking funding to have Dr. Gilligan testify as an expert in place of another witness who had become unavailable. I immediately disclosed and began discussing the implications of the DeFriest program with the parties. The following week, I obtained and provided to the parties the DeFriest film and a video of the panel that did not include all of my opening remarks, and conducted two hearings. The government agreed that I was not biased or prejudiced and, therefore, that my recusal was not required- under § 455(b). It requested and received- several weeks to investigate whether my recusal was required by § 455(a). The government asserted that it would never waive any such ground for recusal under § 455(e).

The government’s investigation — by the First Assistant United States Attorney, the Federal Bureau of Investigation (“FBI”), the Internal Revenue Service, and the Massachusetts State Police — confirmed the facts that I had disclosed concerning the DeFriest program. On July 16, 2015, the government reiterated that it does not allege that I am actually biased or prejudiced. However, it moved for my re-cusal under § 455(a), arguing that a reasonable person could question my impartiality. Sampson has opposed that motion.

After careful consideration, I find that a reasonable person fully informed of the relevant facts could not question my impartiality in this case based on my participation in the DeFriest program. Judges are encouraged to engage in activities to educate the public on issues relating to the administration of justice as long as those endeavors do not interfere with their duty to be, and reasonably appear to be, impartial. See Code of Conduct for United States - Judges, Canon 4 & cmt. (U.S. Courts Mar. 2014) (“Code of- Conduct ”). The issues concerning prisons that are raised by the DeFriest film in the context of a particular prisoner are of public concern.

As discussed in § IV.A.1, a reasonable, fully informed person could not question my impartiality based on my role in the program concerning the DeFriest film. The film makes no reference to Sampson. The issues discussed in the film and by the panel are related to Sampson’s case only at a high level of generality. I acted only as a moderator of the panel. I repeatedly stated that I was not expressing my own opinions on DeFriest, or any case or subject, and that I did not agree with everything the panelists said. In light of these facts, a reasonable person could not question my impartiality because I organized, promoted, and moderated the panel.

The additional fact that Dr. Gilligan had been previously involved in this case does not alter this conclusion, 'as explained in § IV.A.2. At the time of the program, I did not realize that Dr. Gilligan had filed-an affidavit in connection with Sampson’s Amended Petition for a new trial. However, assuming for present purposes that I was fully informed and knew that Dr. Gilligan had been involved in this case previously, based on the record in July 2014 I also would have known that he had -not been retained to testify at the retrial. During the DeFriest program, Dr. Gilligan made general statements about prison violence that are similar to statements contained in his 2010 affidavit. However, he did not mention Sampson, either at my house or during the panel. Furthermore, I expressly stated during the program that my role was to moderate the discussion, and that my participation should not be construed as an expression of my views on any of the issues raised by the film, or as' a comment on any other case or issue. In July 2014, a knowledgeable, reasonable person could not have questioned my impartiality because I moderated the DeFri-est panel, which included a person who had, four years earlier, filed an affidavit and would have no further involvement in this case.

As explained in § IV.A.3, the fact that Dr. Gilligan has recently become a potential witness also does not alter this conclusion. I am now acquainted with Dr. Gilligan, have participated in the DeFriest program with him, and have characterized him as one of the “two world’s leading experts.” While Dr. Gilligan and I are. merely acquainted and are not friends, ordinarily even a judge’s friendship with a prospective witness (loes not require a judge’s recusal under § 455 (a); See United States v. Salemme, 164 F.Supp.2d 86, 92-93 (D.Mass.1998) (“Salemme II”); United States v. O’Brien, 18 F.Supp.3d 25, 34-35 (D.Mass.2014). Dr. Gilligan discussed some issues that may be of general relevance to mitigating factors on which Safnpson intends to present evidence, but neither he nor anyone else discussed Sampson. Therefore, I did not receive a preview of what would have to be the heart of any admissible testimony that Dr. Gilligan may have — evidence about Sampson himself. Furthermore, during the .program I stated that I did not necessarily agree with everything that Dr. Gilligan had said. A fully informed, reasonable person who is aware of these facts could not believe that, as a result of the DeFriest program, I “harbor [ ] an aversion, hostility, .or disposition of a kind that a .fair-minded person could not set aside” in any decision I must make concerning Dr. Gilligan’s proposed testimony or any other matter. See United States v. Snyder, 235 F.3d 42, 48 (1st Cir.2000) (quoting Liteky, 510 U.S. at 557-58, 114 S.Ct. 1147 (Kennedy, J., concurring)). Rather, such a reasonable person would believe that I wilf continue to obey my oath to apply the law impartially in deciding matters ih this case. Therefore, the “high threshold” for recusal under § 455(a) has not been met. See In re United States, 158 F.3d at 34 (quoting Liteky, 510 U.S. at 557-58, 114 S.Ct. 1147 (Kennedy, J., concurring)).

This conclusion is not altered by the need for heightened reliability in capital cases. As discussed in § IV.C, infra, the First Circuit, among others, has noted that vacating an unbiased judge’s decisions is not likely to be appropriate even if it is later determined that there was a reasonable appearance that he was not impartial. See In re Bulger, 710 F.3d at 49 n. 3; In re Allied-Signal Inc., 891 F.2d 967, 972-73; In re Sch. Asbestos Litigation, 977 F.2d 764, 786-87 (3d Cir.1992). Accordingly, I conclude that my recusal is not required.

Recusal in these circumstances,’ where the government has not shown that a reasonable person could question my impartiality, could encourage the reasonable, and harmful, appearance that a party can successfully convert § 455(a) into a vehicle for judge shopping. As then-judge Stephen Breyer explained:

[In judging a motion’for recusal under § 455(a),] the district court is not to use the standard of “Caesar’s wife,” the standard of mere suspicion. In re United States, 666 F.2d [690,] 695 n.*[ (1st Cir. 1981) ]. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.

In re Allied-Signal, 891 F.2d at 970; see also In re Bulger, 710 F.3d at 47 (“The recusal standard must be more demanding” to prevent parties from judge shopping.).

Several aspects of the history of this ease implicate this interest of not encouraging a reasonable public perception that parties will benefit by too easily obtaining the disqualification under § 455(a) of an admittedly impartial judge.

The government’s inconsistent position regarding recusal issues in this case could suggest strategic motivations. A reasonable, fully informed person would know that my association with the lead prosecutor in this case, Zachary Hafer, is greater than my association with Dr. Gilligan. I attended Mr. Hafer’s wedding, hosted him and his wife in my home, successfully recommended both of them for jobs (including Mr. Hafer’s present position as a federal prosecutor), and publicly praised Mr. Hafer as having experience and qualities comparable to some of the finest prosecutors with whom I had worked. In 2010, when Mr. Hafer first appeared in this case, the government represented that my recusal was not required under § 455(a) because no reasonable person could question my impartiality and, in any event, waived any ground for my recusal under § 455(e).

It was not until I vacated Sampson’s death sentence and the First Circuit affirmed that the government suggested I should recuse myself because of my association with Mr. Hafer. See United States v. Sampson, 12 F.Supp.3d 203, 212 (D.Mass, 2014). I declined to disqualify myself in part because recusal could encourage the reasonable perception that § 455(a) can be abused to have an impartial judge replaced for strategic reasons. Id.

The government’s present motion also implicates the interest of not encouraging a reasonable public perception that parties can succeed in using § 455(a) to engage in strategic judge-shopping. As described earlier, in finding that the 2003 trial to determine Sampson’s sentence was fair, the First Circuit wrote that I “handled the case patiently and sensitively.” Sampson, 486 F.3d at 51. It concluded that “the sentencing proceedings in this case were conducted fairly and with scrupulous attention to the process required by law.” Id. at 52. As I said when I sentenced Sampson to death in 2003, providing that fair trial “required making decisions that I understand were painful to the victims’ families, but .which were legally necessary and appropriate.” United States, v. Sampson, 300 F.Supp.2d 275, 277 (D.Mass.2004).

Nevertheless, at Sampson’s sentencing in 2003, the father of one of Sampson’s victims expressed “outrage” at my conduct of the trial. See Jan. 29, 2004 Tr. at 7 (D.N. 775). This outrage was reported to have been expressed again when I vacated Sampson’s sentence because misconduct by a juror had violated Sampson’s constitutional right to a fair trial. See O’Ryan Johnson and John Zaremba, Judge blasted for killer flip, Boston Herald, Oct. 21, 2011 (D.N. 2046-3 at 18-19). In 2014, after I discussed the possibility of ordering that Sampson’s competency to stand trial be evaluated, the media reported that the same individual called my “actions ‘infuriating’ and said he was trying to take steps to have the judge removed from the Sampson case.” See Chris Burrell, Families of murderer Gary Sampson’s victims distressed by latest ruling from judge, The Milford Daily News, Mar. 19, 2014 (D.N. 2046-6 at 1-2). This desire for my disqualification has recently been reiterated. See Milton Valencia, Recusal call clouds Gary Sampson case, Boston Globe, August 31, 2015, at Al.

; For the reasons described in detail in this Memorandum, after careful consideration I have concluded that no reasonable person could believe that as a result of my participation in the DeFriest panel I now have a “disposition of a kind that a fair-minded person could not put aside fwhen judging” in this case. Snyder, 235 F.3d at 48 (quoting Liteky, 510 U.S. at 557-58,114 S.Ct. 1147 (Kennedy, J., concurring)). Re-cusal in the current circumstances would be incompatible with my duty to be sensitive to the “need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.” In re Allied-Signal, 891 F.2d at 970. It would also be inconsistent with my duty not to misuse § 455(a) to avoid presiding in a difficult and controversial case.

The parties and I have devoted much of the past two years to preparing for what Sampson represents would have been’the fastest retrial of a federal capital case in history. I had established an intensive schedule for submissions, hearings, and decisions in August and September 2015 to prepare for a September 16, 2015 retrial. More than two months have now been devoted to the government’s investigation, the parties’ briefing, and my deciding the government’s motion for my recusal, rather. than to resolving the many other pretrial issues that were on the agenda. Therefore, it will not be possible to begin the retrial as scheduled before a judge the parties each acknowledge is actually impartial.

While -I have been obligated to decide the government’s motion, I may not be the ultimate arbiter of its merit. I am providing the government until October 13, 2015, to state whether it intends to- seek review of my decision by the First Circuit. It- will not be possible to establish a new schedule for the retrial until the motion for my recusal is finally resolved.

II. THE APPLICABLE STANDARDS

As explained earlier, the government has repeatedly stated that it does not assert that I am actually biased or prejudiced as a result of my role in the program concerning The Life and Mind of Mark DeFriest. See, e.g., D.N. 2025 at 28 (“The government wishes to emphasize once again that it is not suggesting that the Court actually harbors any bias or prejudice based on the events of July 2014.”). The government also does not contend that I have any personal knowledge of disputed evidentiary facts relating to Sampson as a result of my role in that program. Therefore, it has not moved for my disqualification under 28 U.S.C. § 455(b)(1), which prohibits a judge from presiding in a case if “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding.”

Rather, the sole basis for the .government’s motion is 28 U.S.C. § 4 55 (a), which states that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(a) is based on the premise that in some circumstances “a reasonable person may question impartiality without the presence of any evidence that a judge is subjectively biased.” In re Bulger, 710 F.3d at 46.

It is the duty of the .presiding judge, rather than another judge, to decide whether his disqualification is required by § 455(a). See In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir.1997). As the First Circuit has explained:

It might seem odd that recusal issues should be decided by the very judge whose recusal is in. question. But there are other considerations at work, including a desire for expedition and a concern to discourage judge shopping.

Id.; see also Salemme II, 164 F.Supp.2d at 92-93.

In 1989, then-judge Stephen Breyer wrote with regard to a motion to disqualify under § 455(a) that:

We draw our legal standards for review of a district judge’s decision not to disqualify himself from [ ]In re United States, 666 F.2d [690]. We there held’(l) that “a charge of partiality must be supported by a factual basis,” (2) that “disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality,” and (3) that this court of appeals will allow the district judge “a range of discretion” in making these determinations. Id. at 695 (emphasis in original). Only if the district court’s decision to sit “cannot be defended as a rational conclusion supported by reasonable reading of the record” will we insist upon disqualification. Id. (emphasis added).

In re Allied-Signal, 891 F.2d 967, 970 (1st Cir.1989).

The standard for determining a motion for disqualification under § 455(a) is “[w]hether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself or even necessarily in the mind Of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man.” United States v. Voccola, 99 F.3d 37, 42 (1st Cir.1996) (quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976)). Therefore, the disqualification-issues must be analyzed from the perspective of “an objective, knowledgeable member of the public,” rather than from the perspective of a person involved in, or directly affected by, the case. El Fenix de Puerto Rico v. M/Y JOHANNY, 36 F.3d 136, 141 (1st Cir.1994) (quoting In re United States, 666 F.2d at 695).

This test asks “whether a reasonable person, fully informed of all the facts, would.doubt [the judge’s] impartiality.” In re United States, 158 F.3d at 31 (emphasis added); see also United States v. Vazquez-Botet, 532 F.3d 37, 48 (1st Cir.2008); El Fenix de Puerto Rico, 36 F.3d at 141; Home Placement Service, Inc, v. Providence Journal Co., 739 F.2d 671, 676 (1st Cir.1984). The proper perspective has been described as that of “the reasonable man on the street ... who knows the full facts even if those facts are. not known on the street. ” Ricci v. Key Bancshares of Maine, Inc., 111 F.R.D. 369, 374 (D.Me.1986) (Aldrich, J., sitting by designation).

In deciding a § 455(a) motion, a judge’s actual lack of knowledge of potentially, disqualifying facts is not the end of the inquiry. Rather," [u]nder. section 455(a) [ ], recusal is required even when a judge lacks actual knowledge of the facts indicating his ... bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (quoting Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir.1986)).

The conduct that has prompted the motion for recusal is not to be considered in isolation. Rather, the record as a whole must be considered. See In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir.1995) (reviewing recusal in light of “careful per-scrutation of the'record”); In re Allied-Signal, 891 F.2d at 972 (noting role of clerks whose brothers were plaintiffs’ counsel “in bringing Phase One to trial”); cf. United States v. Ayala-Vazquez, 751 F.3d 1, 23 (1st Cir.2014) (“[W]hen a defendant claims he has been prejudiced through a trial judge’s interventions, at trial, ‘[cjharges of partiality should be judged not on an isolated comment or two, but on the 'record as a whole[.]’ ” (quoting United States v. Polito, 856 F.2d 414, 418 (1st Cir.1998))).

In addition, when, as here, the issue involves the judge’s participation in an educational program, “matters that provide important context for the challenged aspects of the Judge’s remarks” must also be considered. United States v. Pitera, 5 F.3d 624, 626-27 (2d Cir.1993); cf. In re Charges of Judicial Misconduct, 404 F.3d 688, 694 (2d Cir.2005) (discussing allegations of judicial misconduct against Circuit Judge). That context includes everything the judge said during the program. See Pitera, 5 F.3d at 626-27. The judge’s role in other programs with other perspectives is also among the facts that should be considered in determining whether a reasonable person would question his impartiality. Id.; cf. In re Charges of Judicial Misconduct, 404 F.3d at 694; Judicial Conference of the United States, Committee on Codes of Conduct, Adv. Op. No. 105: Participation in Private Law-Related Training Programs (September 2010) (“When speaking to an audience that predominantly includes attorneys or clients on one side of litigation, a judge ,.. must be equally available to address the other litigation constituency.”).

In deciding a motion to recusé under § 455(a), “the district court is not to use the standard of ‘Caesar’s wife,’ the standard of mere suspicion,” In re Allied-Signal, 891 F.2d at 970; see also In re Bulger, 710 F.3d at 47 (same); Cigna Fire Underwriters Co. v. MacDonald & Johnson, Inc., 86 F.3d 1260, 1271 (1st Cir.1996) (same). Rather, as Justice Anthony Kennedy has written, and the First Circuit has reiterated:

[Section] 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge’s rulings or findings. I think all would agree that a high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute,

Liteky, 510 U.S. at 557-58, 114 S.Ct. 1147 (Kennedy, J., concurring in the judgment); see also Snyder, 235 F.3d at 48 (quoting Liteky, 510 U.S. at 557-58, 114 S.Ct. 1147 (Kennedy, J., concurring in the judgment)); In re United States, 158 F.3d at 34 (same). In essence, “the presumption is that a judge will put personal beliefs aside and rule according to the laws as enacted, as required by his or her oath.” In re Aguinda, 241 F.3d 194, 204 (2d Cir.2001). However, the First Circuit has explained that “doubts ordinarily should be resolved in favor of recusal.” In re United States, 158 F.3d at 30.

The “high threshold” required for recu-sal under § 455(a) recognizes certain realities. Id. at 34 (quoting Liteky, 510 U.S. at 557-58, 114 S.Ct. 1147 (Kennedy, J., concurring)), As the First Circuit has stated, “[i]n the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns. [CJourts cannot afford to spawn a public perception that lawyers and litigants will benefit by undertaking such machinations.” In re Cargill, 66 F.3d at 1262-63. Therefore, as then-Judge Breyer wrote:

[W]hen considering disqualification, the district court is not to use the standard of Caesar’s wife, the standard of mere suspicion. This is because “the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear to be impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.

In re Allied-Signal, 891 F.2d at 967; see also In re Bulger, 710 F.3d at 47 (quoting In re Allied-Signal, 891 F.2d at 970)); In re United States, 441 F.3d 44, 67 (1st Cir.2006) (same); Cigna Fire Underwriters Co., 86 F.3d at 1270 (same).

In addition, because “litigants have an incentive to judge-shop, [ ] a judge should not grant a recusal motion simply because a claim of partiality has been given wide-spread publicity.” In re Aguinda, 241 F.3d at 206; see also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1309 (2d Cir.1988). Because it is important not to allow, or appear to allow:

litigants or third parties [the power] to exercise a negative veto over the assignment of judges ... [the] inquiry cannot stop with the questions: have a number of people thought or said that a judge should not preside over a given case? has the judge’s failure to recuse himself been a subject of unfavorable comment in the media? or, would the judge have avoided controversy and- the need for appellate review if he had stepped aside?

In re United States, 666 F.2d at 694-95.

Moreover, § 4 55 (a) “should not be used by judges to avoid sitting on difficult or controversial cases.” Snyder, 235 F.3d at 45 (quoting H.R. Rep. No. 1453, 93d Cong., 2d Sess., 1974 U.S. Code Congo & Admin. News 6351, 6355); see also Salemme II, 164 F.Supp.2d at 94.

Where, as here, the only basis for a mot ion for disqualification is § 455(a), the parties agree that the judge is actually impartial and the only issue is one of perception. Therefore, after full disclosure of the facts by the judge, on the record, the parties are permitted to waive a § 455(a) ground for recusal under 28 U.S.C. § 455(e), but not a ground under § 455(b), which addresses actual impediments to the judge’s ability to preside, impartially. See, e.g., In re Cargill, 66 F.3d at 1261 (“The relevant statute, 28 U.S.C. § 4 55 (e), plainly contemplates that a party may waive an appearance-of-impropriety ground for disqualification.”); Salemme II, 164 F.Supp.2d at 93-94. Such waivers permit a case to proceed without interruption or delay.

III. THE FACTS

The facts and other relevant matters that a fully informed, reasonable person would know include, but are not limited to, the following.

A The Pretrial Proceedings, Trial, and Sentencing

An indictment charging Sampson with two counts of carjacking resulting in the murders of Phillip McCloskey and Jonathan Rizzo, in violation of 18 U.S.C. § 2119, was returned on October 24, 2001. After he murdered Mr. McCloskey' and Mr. Rizzo, Sampson also murdered Robert Whitney in New Hampshire. The case was randomly assigned to me. The Attorney General subsequently authorized the, United States Attorney, Michael Sullivan, to seek the death penalty for each alleged offense.

Prior to trial, I denied Sampson’s challenges to the constitutionality of the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. See United States v. Sampson,. 245 F.Supp.2d 327 (D.Mass.2003); United States v. Sampson, 275 F.Supp,2d 49 (D.Mass.2003).

Sampson pled guilty on September 9, 2003. Jury selection as to sentencing began September 18, 2003, with potential jurors answering 77 questions in writing under oath. Individual questioning of jurors not excused based oh their written responses was conducted over 16 days.

The trial to determine Sampson’s sentence began on November 5, 2003. “The government was represented by Assistant United States Attorneys Frank Gaziano, George Vien, and John Wortmann, Jr. The trial took six weeks. I made numerous rulings on issues not addressed by First Circuit precedent or, in some instances, by any other jurisprudence. See United States v. Sampson, 335 F.Supp.2d 166 (D.Mass.2004).

After deliberating for three days, the jury returned special findings and.jury verdicts on December 23, 2003. As required under 18 U.S.C. § 3593(e) for a death sentence to be imposed, it unanimously found that Sampson should be executed.

I subsequently denied Sampson’s motions for a new trial, among other things. See United States v. Sampson, 332 F.Supp.2d 325 (D.Mass.2004). The law concerning the motion for a new trial required me to consider the credibility of the witnesses and to express my evaluation of their testimony on certain matters. See, United States v, Wilkerson, 251 F.3d 273, 278 (1st Cir.2001). Based in part on a juror’s post-verdict statement to the media, Sampson had argued that the jury evidently misunderstood my instructions in unanimously finding that Sampson did not have a mental illness when he murdered Mr. McCloskey and Mr. Rizzo. See Sampson, 332 F.Supp.2d at 330-31. With regard to that claim, I wrote:

Where, as here, the court is deciding a Rule 33 motion for a new trial, it may, and indeed must, consider its own evaluation of the credibility-of the evidence and it may, in certain limited circumstances, grant a new trial if it disagrees with the jury’s judgment. In this case, if the decision were to be made by the court rather than the jury, the court would have found that Sampson at least had a mental illness, bipolar disorder.

Id. (citations omitted). Nevertheless, concluding that reasonable people could differ on this issue, I denied the motion for a new trial. Id. at 330-32.

. On January 29, 2004,1 sentenced Sampson to be executed. Before imposing sentence, I said, among other things, to Sampson that: ,

I have made my best effort to give you a fair trial. That required making decisions that were painful to the victims’ families, but which were legally necessary and appropriate.

Id. at 277.

Sampson appealed his sentence. On May 7, 2007, the First Circuit affirmed the decision that he be executed. See Sampson, 486 F.3d at 52. Among other things, the First Circuit stated that, “[a]lthough this was an emotion-laden trial, the district court appears to' have gone the extra mile to ensure the jury remained focused on the evidence and free from extraneous influences.” Id. at 47. It also wrote that “[t]he district court handled the case patiently and sensitively.” Id. at 51. The First Circuit concluded that: “We are persuaded that the sentencing proceedings in this case were conducted fairly and with scrupulous attention to the process required by law.” Id. at 52.

B. The § 2255 Proceedings

On June 25, 2008, ■ as required by 28 U.S.C. § 2255 and 18 U.S.C. § 3599, I appointed new counsel to represent Sampson in the post-conviction proceedings. Sampson filed a lengthy petition for a new trial under § 2255 oh May 11, 2009. That petition was amended on March 29, 2010 (the “Amended Petition”).

The Amended Petition was 252 pages. It was supported by about 200 exhibits, totaling more than 1100 pages. The exhibits included at least 43 affidavits from fact witnesses and seven affidavits, from six expert witnesses.-An affidavit of. Dr. Gilligan was, in effeet, the 194th exhibit, preceded by 863 pages of other exhibits. See D;N. 1035-200 (Dr. Gilligan’s affidavit) (Under Seal); D.N. 1035-201 (appendices to the affidavit) (Under Seal).

Thé Aménded Petition asserted approximately 21 grounds for a new trial. Dr. Gilligan’s affidavit was filed in support of Claim III(E), which alleged that Sampson’s original counsel were ineffective by failing to adequately investigate and present evidence that Sampson had been' abused while in prison before committing the crimes at issue in this case. See D.N. 1040 at 103-36, Dr. Gilligan was mentioned or cited on some 15 of the 250 pages of the Amended Petition. See D.N. 1040 at 105, 106, 113, 115-117 & n.27, 119-22 & n.28, 125, 128-31. He was mentioned and cited in the affidavits of two,other experts as well. See D.N. 1035-206 at 3 (Lebowitz Decl. part I) (Under Seal); D.N.-1035-207 at 32, 33, 45 (Lebowitz Declo -part II) (Under Seal);, D.N., 1035208 at 7, 15, 16, 18, 23 (Woods Declo) (Under Seal); D.N. 1035209, app. B at 1 (records reviewed by Dr. Woods) (Under Seal).

The government filed a 273-page motion for summary dismissal of the Amended Petition. See D.N. 1055 (Under Seal). -Dr. Gilligan’s name was included on 8 pages of that submission. See id. at 90-91 n. 44, 106, 114, 116-19 & n.54, 56, 121. The government stated that “[t]here is no indication that Dr. Gilligan ever treated Sampson, had any professional dealings with, him wh&tsoever (the government is aware of no records mentioning Gilligan), or even knew who he was before Sampson was arrested for his 2001 killing spree.” Id. at 90-91 n.44.

Sampson filed a 72-page opposition to the government’s motion for summary dismissal of the request for a new trial. Dr. Gilligan was mentioned twice. See D.N. 1060 at 2, 44-45 n. 32. In a footnote, Sampson stated that “Dr. Gilligan is an expert witness, not a fact witness.” Id. at 44-45 n.32.

The government filed a 50-page reply to Sampson’s opposition. See D.N. 1066 (Under Seal). Dr. Gilligan was mentioned'once. See id. at 3.

I held hearings on the motion to summarily dismiss the Amended Petition on August 30 and 31, and September 1, 2010; Dr. Gilligan was not mentioned in those hearings and, therefore, his name does not appear in the nearly 500 pages of transcripts of them.

On August 31, 2010, I denied the government’s request to dismiss summarily Sampson’s request for a new trial based on the alleged failure of three jurors to- answer questions truthfully during the jury selection process. See United States v. Sampson, 820 F.Supp.2d 151, 160-61 (D.Mass.2011). The litigation then focúsed almost exclusively on the claim of juror .misconduct, which was Claim IV of'the Amended Petition. Id. I heard testimony on this claim on November 18, 2010, March 18, 2011, and August 8, 2011. Id. at 161.

I subsequently found that one juror had repeatedly lied, under oath, in response to important questions concerning her ability to be impartial in this case, and would have been d is qualified from serving if she had been honest or if her dishonesty had been discovered before the verdict in 2003. See id. at 181-97. Therefore, I vacated the death sentence. Id. at 202. In summarizing the reasons for this decision; I wrote:

In essence, despite dedicated efforts by the parties and the court to assure the trial would be fair and the verdict final, it has now been proven that perjury by a juror resultéd in á violation of Sampson’s constitutional right to have the issue of whether he should live or die decided by 12 womén".and men who were each capable of deciding that most consequential question impartially.

$ Í

It has now been proven that Sampson did not receive the fair process that the Constitution guarantees every man no matter how despicable his conduct.

Id. at 159-60.

On October 20, 2011, I also issued a second lengthy decision, granting the government’s motion to summarily dismiss some of Sampson’s claims for a new trial and denying it with regard to others. See United States v. Sampson, 820 F.Supp.2d 202 (D.Mass.2011). Among the claims I did not dismiss were the assertions that Sampson’s original counsel were ineffective because they failed to adequately investigate possible brain damage, id. at 242-45, and failed to request an evaluation of whether Sampson was competent to stand trial, id. at 245-47. Dr. Gilligan was not mentioned in that decision.

On May 10, 2012, over Sampson’s objection, I exercised my discretion to authorize an immediate appeal of my decision vacating Sampson’s death sentence. See United States v. Sampson, 58 F.Supp.3d 136 (D.Mass.2012).

On July 12, 2013, the First Circuit affirmed that decision. See United States v. Sampson, 724 F.3d 150 (1st Cir.2013). It wrote that, “[t]he district court’s meticulous fact finding brought to light a litany of lies told by [the juror] during voir dire.” Id. at 161. The First Circuit characterized this case as “a stark reminder of the consequences of juror dishonesty.” Id. at 169. It held that “we conclude — as did the district court — that the death sentence must be vacated and a new penalty phase hearing undertaken.” Id.

C.The Proceedings to Prepare for a Second Sentencing Hearing

On November 15, 2013, the First Circuit returned this case to the district court. On November 29, 2013, I ordered the parties to confer and report on various issues before a scheduling conference was held. See D.N. 1255. I explained that, in view of Sampson’s claim that his original counsel were ineffective because they did not move to have his competency to stand trial evaluated in 2003, I intended to address whether it was appropriate to have his competency evaluated before the retrial. Id. at 3-4.

By 2013, two of the three prosecutors who had tried this case in 2003 had left the United States Attorney’s office. On December 2, 2013, the government filed an assented-to motion to withdraw of the third, Mr. Wortmann, because of family health issues. See D.N. 1257. Mr. Wort-mann had, in effect, been serving as lead counsel for the government in the § 2255 proceedings. As more fully described in § IV.A, infra, Mr. Wortmann and I had both spoken at a December 7, 2010 training program at the Boston Police Academy. See September 8, 2015 Order Concerning Evidence Referenced in Memorandum and Order Regarding Re-cusal, Ex. F (“Add’l Evid. Order”). Mr. Wortmann had also served on a committee that I chaired to develop a June 15, 2010 program, which I moderated, at the courthouse on “Rwanda, Darfur, . and Youth Violence in Boston.” See id. Ex. E.

The motion concerning Mr. Wortmann stated that “the government [would] continue to be represented by [Assistant United States Attorneys] Zachary Hafer and other members of [the United States Attorney’s Office].” See D.N. 1257 at 1.

Mr. Hafer had filed an appearance in this case in 2010. On August 23, 2010, I issued a Memorandum and Order: describing my relationship with him; expressing the tentative view that my recusal was not required by 28 U.S.C. § 455(a), as interpreted in In re Allied-Signal; and requesting the advice of the parties on this issue. See Sampson, 12 F.Supp.3d 203 (D.Mass. 2014); D.N. 1070, 1075-1. As I wrote in 2010:

Mr. Hafer is married to [NAME REDACTED], [HIS WIFE’S] father, [NAME REDACTED], and I practiced law together in the firm of Sullivan and Worcester from 1977 to 1981. We have remained friends. I met Mr. Hafer in 2002, when I spoke at a class at the University of Virginia Law School in which [HIS WIFE] and he were enrolled. In about 2003 or 2004, at the invitation of the [WIFE’S] family, I attended Mr. Hafer’s wedding, and my wife and I undoubtedly gave the couple a gift. I have also occasionally given [HIS WIFE] and Mr. Hafer, among 'many others, career advice, including concerning their respective interests in becoming prosecutors, In response to a •question from the United States Attorney and/or one of his Assistants, *1 rec- ■ ommended Mr. Hafer’s appointment as an Assistant United States Attorney. . Pursuant to my usual practice as Chief Judge, I presided at the ceremony at which Mr. Hafer was sworn-in as an Assistant United States Attorney. I may have also supported [HIS WIFE’S] appointment as an Assistant District Attorney [IN MASSACHUSETTS],' following her service as a prosecutor in Manhattan. In addition, in about June, 2010, I recommended [MR. HAFER’S WIFE] for a part-time teaching position at [A LOCAL LAW SCHOOL] and am .informed that she has been given that position.

D.N. 1075-1 at 1-2 (redactions in original); Sampson, 12 F.Supp.3d at 209-10.

When I swore Mr. Hafer in as an Assistant United States Attorney, I said, in part, that he had “qualities that characterize^] some of the fíne prosecutors I worked with, like Bob Mueller, the present Director of the Federal Bureau of Investigation, Bob Cordy, now a distinguished judge of the Massachusetts Supreme. Judicial Court ..,, and John Pappalardo, a former acting United States Attorney:...” See Add’l Evid. Order, Ex. G at 8-9. In January 2014, Mr. Hafer reminded me that he and his wife had also come to my home in about 2008 to discuss career opportunities for his wife. See Sampson, 12 F.Supp.3d at 210 n. 4.

On August 23, 2010, the day I issued, my Memorandum and Order concerning Mr. Hafer, the government filed a written response, stating that: it did not believe that my recusal for actual bias or prejudice was required under 28 U.S.C. § 455(b); it did not believe that a reasonable person could question my impartiality, and, therefore, it did not believe that recusal was justified under § 455(a); and, in any event, it waived any objection under § 455(e). See D.N. 1073. On August 25, 2010, Sampson responded by agreeing with the views stated by the government and also waiving any objection to my participation under § 455(e). See D.N. 1077.

Nevertheless, on December 7, 2013, the government suggested that I should re-cuse myself, in part because Mr. Hafer had become the lead prosecutor and in part because it interpreted In re Bulger as substantially expanding the circumstances in' which recusal is required under § 455(a). See D.N. 1263 at 7-9; see also Sampson, 12 F.Supp.3d at 204-05.

On January 21, 2014, after discussion with counsel, I explained my view that In re Bulger did not alter the jurisprudence concerning § 455 (a), a reasonable person would not question my impartiality based on my association with Mr. Hafer, and my recusal was hot justified. See Sampson, 12 F.Supp.3d at 205-13. However, because these views were developed without the benefit of briefing by the parties, I offered them an opportunity to file a motion seeking my recusal.’ Id. at 212-13. Neither party did so. See id. at 213 n. 7.

As requested by the government, pursuant to § 455(e), Sampson, through counsel and personally, waived any objection to my continued participation in this case based on my relationship with Mr. Hafer. See D.N. 1077; D.N. 1268 at 2-4; D.N. 1345-1; D.N. 1758 at 9-12.

After deciding that my recusal was not justified, and receiving an affidavit from Mr. Wortmann, I allowed him to withdraw his appearance. See D.N. 1293.

On January 15, 2014, Sampson’s counsel filed, ex parte and under seal, a 54-page Proposed Pretrial Litigation Budget, with more than 40 pages of exhibits. See D.N. 1271 (Under Seal). The proposed budget requested authority to pay about 12 experts, and mitigation specialists and attorneys as well. On page 46, the proposed budget requested five hours of funding for Dr. Gilligan to consult with another expert Sampson intended to use at trial instead of Dr. Gilligan. See D.N. 2001-1 at 4. As explained earlier, in 2010 Sampson had stated that Dr. .Gilligan was solely an expert witness and, therefore, it was necessary for the court to approve funding for his services pursuant, to 18 U.S.C. § 3599(f) and (g). In the January 15, 2014 submission, he was also characterized as a fact witness. Id. Dr. Gilligan was mentioned on three other pages of the proposed budget. See D.N. 1271 at 44 (stating that “Dr. Gilligan is a prison trauma expert [from] the 2255 proceeding who gave a supporting declaration”), 45 (stating that another doctor will “build upon” Dr. Gilligan’s work”), 52 (including, in a chart, the number of hours requested for Dr. Gilligan, his hourly rate, and the total cost to retain him). -

At a January 21, 2014 conference with Sampson’s counsel, I declined to approve the proposed budget because, it was too general. See D.N. 1295, at 11 (Ex Parte and Under Seal); see also D.N. 1275, Instead, I ordered that proposed budgets be provided for the case fin phases. Dr. Gilligan was not mentioned at that conference.

In early 2014, the government requested a February 17, 2015 date for the commencement of the retrial to determine Sampson’s sentence. Sampson’s counsel argued that it would be impossible for them to be prepared for trial by that' date. They asserted that it was premature -to set any trial- date and requested, in any event, that the retrial not begin before the fall of 2015. On March 18, 2014, I scheduled the retrial to begin on February 17, 2015, and stated that I would extend that date if despite industrious efforts it would not be fair or feasible to begin then. See United States v. Sampson, 68 F.Supp.3d 233, 236-37 (D.Mass.2014); D.N. 1329 at 89.

At the March 18, 2014 hearing, I also discussed the possibility of ordering that Sampson’s competency to stand trial be evaluated promptly in order to get the issue, which had been raised in the Amended Petition for a new trial, resolved far in advance of the February 2015 trial date.

In 2014, -I issued many orders, received many submissions, and conducted many hearings with a view toward preparing the case for a retrial to determine Sampson’s sentence as soon as reasonably .possible.

Sampson made so many lengthy filings that the government in November 2014 movéd to deny his counsel fees for “the unnecessary and meritless motions ahd pleadings they have filed since the commencement of this retrial.” See’ D.N. 1633 át 1. More specifically, the government wrote:

To date, Sampson’s unreasonable filings have included, but are not limited to: (i) over 25,000 pages of “constitutional” motions, memoranda, and attachments, comprising over 850 entries on the docket, in which Sampson has comprehensively briefed settled issues of law and filled the docket with irrelevant documents; (ii) over 400 pages of legal memo-randa, accompanied by many hundreds more pages in attachments, in which Sampson has claimed he does not have enough time to meet court-imposed -deadlines; and (iii) motions unsupported by any factual or legal basis, often characterized by extensive “cutting and pasting” from prior filings, such as Sampson’s motion to disqualify government team members.

Id. at .2. On June 23, 2015, Mr. Hafer correctly characterized the record of this case as “beyond voluminous.” See D.N. 1984 at 13.

Among Sampson’s lengthy submissions was an April 11, 2014 52’ page proposed budget, with about 30 pages of exhibits, which, on page 50, mentioned Dr. Gilligan once. See D.N. 2001-1 at 4. The proposal indicated that Dr, Gilligan would, not be a witness at the retrial, stating that, “Dr. [A] will require some time to consult with Dr. Gilligan to build upon his work____Id.

On May 28, 2014, Sampson filed a motion to disqualify the government trial team, arguing, in part, that the prosecutors'were impermissibly aware of information presented in the Amended Petition for a new trial, which, as explained earlier, was 250 pages and supported by more than 1100 pages of exhibits. Many investigators and experts were referenced in Sampson’s 19-page memorandum, which was=-supported by approximately 14 pages of exhibits. See D.N. 1357 and 1357-1. Dr. Gilligan was mentioned once in the Memorandum, see D.N. 1357 at 4, and once in the exhibits attached to it, see D.N. 1357-1 at 7.

On June 6, 2014, I issued four orders memorializing decisions I made orally at a June 4, 2014 hearing. See D.N. 1362, 1363, 1364, 1365. Three of them related to my decision to direct the Bureau of Prisons to evaluate Sampson’s competency to stand trial. See D.N. 1362 1364, 1365. In one Order I directed that testimony, reports, and/or affidavits of eight experts in the 2003 trial and § 2255 proceedings, and other information, be provided to the Bureau of Prisons Examiner. See D.N. 1365. Dr. Gilligan’s affidavit was among those referenced. Id. at 3.

A review of all >of the criminal and civil cases assigned to me indicates that from May 1 to Juñe 30, 2014,1 issued-about 304 orders. Fifteen of them were orders in this case.

D. The July 27, 2014 Program

On. June 12, 2014, I went to Los Angeles, California for the birth of my grandson. While there, my wife and I met with good friends from Washington, D.C., who we rarely saw, Paul London and Paula Stern. They were with their son Gabriel London and his family. Mr. London’s mother had by email invited us, among many others, to the Los Angeles premiere of Mr. London’s film about a state prisoner in Florida,- The Life- and Mind of Mark DeFriest. In response to a mass e-mail sent by Mr. London’s parents, on December 26, 2011, I had contributed $50 to a “Kickstarter” campaign for the film.1 did not, however, attend the premier.

Mr. London was excited about the premier and told me that he was trying to find additional venues to show his film; I-said that if he could arrange a showing at the non-profit Martha’s Vineyard Film Society in July, while I would be there on vacation, I would ask my friends Harvard Law School Professors Alan Dershowitz and Charles Ogletree to participate in a discussion I would moderate after the film.

Mr. London wrote to the head of the Film Society, Richard Paradise. I successfully encouraged him to show the film on July 27, 2014. I also arranged for Professor Dershowitz to participate on the panel following it. In addition, I contacted the local newspaper, The Vineyard Gazette, which interviewed Mr. London and published an article describing the panel that would follow the film, including a reference to me as Judge Mark Wolf. See D. N. 2026-6. I also permitted the Film Society to use my picture and biography to publicize the July 27, 2014 event. See D.N. 2026-5.

When Professor Ogletree proved to be unavailable,. Mr. London asked me if he could invite another family friend, Dr. Gilligan, to participate in the program following the film. I did not realize that Dr. Gilligan had filed an affidavit in this case. After consulting Professor Dershowitz, I agreed to Mr. London’s request.

I invited Mr. London and Dr. Gilligan to join my wife and me for a light supper at our rental house before the July 27, 2014 program. We were together there for about an hour. The conversation was primarily social. We also briefly discussed the organization of the panel and I asked Dr. Gilligan how he would, like to be introduced.

Dr. Gilligan was interviewed by the government on July 13, 2015. He reported the following, among other things. On July 27, 2014, .he recalled he had filed an affidavit on behalf of Sampson in about 2010, and knew that I was then the presiding judge. D.N. 2026-2 at 26-28. He had not been retained to do any further work in this case and did not know he would become involved in it again. Id. at 26, 34. Dr. Gilligan did not tell Mr. London or me of his prior involvement. Id. at 28; D.N. 2026-1 at 65-66. He did not know if I was still involved in this case. D.N. 2026-2 at 28.

Dr. Gilligan stated this case was not discussed by us at supper or at any other time. Id. at 28, 52-53. Mr. London confirmed this in his interview with the government'on July 8, 2015. See D.N. 2026-1 at 69, 86, 99-100. It is correct that I did not discuss this case with Dr. Gilligan at supper or at any other time. Nor did we discuss the death penalty, which is not the subject of Mr. London’s film.

The Life and Mind of Mark DeFriest is about an inmate in the Florida State prison system. It was described on the Film Society website, in pertinent part, as follow;

The Life and Mind of Mark DeFriest is a hybrid of documentary film and animation. The film [] chronicle[s] Mark’s life — from his childhood through a modern day parole story — while the animation reveal[s] the hyperactive world of h is mind — from planning ingenious escapes to the sci-fi prison universe he in habits.

Mark DeFriest’s life is living history. At age 19, his original sentence was for a nonviolent property crime, but because of additional punishment for escapes, he has spent his entire adult life behind bars. DeFriest has survived 31 years in prison, most of it in l