|Fifth Circuit Petition for Mandamus
Reply to Judge's Response
Supreme Court Petition for Mandamus
Judge Berrigan's Response to the Fifth Circuit Petition for Writ of Mandamus
(Docket No. 99-30614 In Re: Bernofsky)
June 21, 1999
Hon. Charles Fulbruge, III
Clerk of Court
Fifth Circuit Court of Appeals
600 Camp Street
New Orleans, Louisiana 70130
Re: Case No. 99cv30614 In Re: Bernofsky
Dear Mr. Fulbruge:
This is in reply to your letter of June 16th, inviting a response to the above petition.
In a previous filing by Dr. Bernofsky, I did respond and provide some information regarding my connections with Tulane University which was the focus of that pleading, as well as this one.
I have no additional information regarding Tulane but I thought it might be useful to provide some more information generally. After Dr. Bernofsky's prior counsel resigned, Dr. Bernofsky did advertise in various outlets, including the Internet, seeking new counsel. In those various advertisements, he did continue his criticism of my remaining in the case, in varying detail. Copies of some of these critiques have been sent to me by various lawyers in town although I have not sought them out myself. I didn't keep the copies but I imagine they can be re-accessed if the Court thinks they're pertinent. I was concerned to the extent that I felt Dr. Bernofsky's continuing insistence that the trial judge be recused was hindering his ability to obtain new counsel. Fortunately, he did locate an attorney in the New Orleans area who agreed to represent him. I was hopeful at that point that the recusal issue would be laid to rest. The counsel he retained is someone who had litigated several employment discrimination cases in our section of Court.
I was very surprised therefore to see the latest filing by Dr. Bernofsky. I convened a status conference by telephone with his counsel and opposing counsel this past Thursday. I expressed my concern that Dr. Bernofsky was apparently continuing to focus upon me as his problem and that this would continue to cause an undue distraction and disruption to the case. At that point, I felt it would be in the interest of judicial efficiency if I did step down, not because I felt I was biased or because of any appearance of partiality, but to eliminate the distraction.
We subsequently researched the issue some more and it appears to me that the only basis for recusal, self-triggered or otherwise, is either actual impartiality or the appearance of impartiality [sic]. I honestly believe that neither of those apply in this situation, so I don't feel I can or should step down.
I say all the above to tell you that I do not harbor any ill will toward Dr. Bernofsky. If anything, I feel empathy. He has gone through some very difficult life transitions in recent years, some of which he genuinely perceives to [be] caused by the bias and fault of others, including myself. I regret that he continues to have that perception. And while I don't wish to be part of the problem, it doesn't seem that recusal is the viable solution - rather it may perpetuate the problem by reinforcing the perception.
Sincerely,s/ Ginger Berrigan
Victor R. Farrugia
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