Judge whose dad was killed refuses to step aside

PHOENIX - Defense lawyers crossed the line by asking a judge to step aside from an Arizona death penalty case involving a carjacking murder because her own father was killed in a similar crime, a federal appeals court said Friday.

Judge Susan Graber of the San Francisco-based U.S. 9th Circuit Court of Appeals denied the request by federal public defenders for death row inmate Kevin Miles that she excuse herself from his case.

Graber's father was killed in a 1974 carjacking in Cincinnati. Miles was convicted of participating in the 1992 murder of Patricia Baeuerlen in a Tucson carjacking.

Two other 9th Circuit judges rejected the assertion by federal public defenders that the impartiality of Graber, who has served as a judge for 25 years in Oregon and federal courts, can reasonably be questioned because of similarities between the crimes.

The judges, Marsha Berzon and Richard Tallman, acknowledged that death penalty lawyers are expected to raise every plausible issue that could benefit their clients.

But the request for Graber to excuse herself from Miles' case was unmerited and needlessly forced her to relive a long-ago tragic event, going "beyond the limits of appropriate representation," their order said.

Timothy Gabrielsen, the assistant public defender who signed the request on behalf of himself and Federal Public Defender Jon Sands, declined to comment on the order.