Before he declared a mistrial in Michael Avenatti's wire fraud trial, the federal judge presiding over the nearly three-year-old case was at the forefront of another high-profile issue unique to the Central District of California: the review of his own colleagues' work.

For decades, the Los Angeles-based district where Judge James Selna presides required recusal motions against trial judges to be decided by a bench colleague, which put jurists in the unusual situation of reviewing each other in sometimes controversial cases.

The judges rarely ordered their colleagues to recuse—court watchers can recall only one occasion—but Selna's reputation as a straight shooter made at least one of the jurists whose motion went before him nervous.

"The highest compliment I can give to my good friend Jim Selna is I was worried," said retired U.S. District Judge Andrew J. Guilford, now a mediator with Judicate West in Santa Ana, California.

Selna didn't grant the recusal motion against Guilford over an alleged ethics violation, "but he would have if I had screwed up, and that is Selna," Guilford said.

Last year, the Central District's rules committee changed the process so that recusal motions stay with the case judge, unless that judge believes unusual circumstances warrant outside review.

"The Central District was really an outlier in how it handled recusals," Chief Judge Philip Gutierrez said in an interview. "What the rule change does is make the district in compliance with the statute related to recusals."

Now the multi-case prosecution of Avenatti has put Selna's work before another trial judge in the Southern District of New York, with U.S. District Judge Paul Gardephe requesting full transcripts from key days in Avenatti's wire fraud trial and Selna's post-mistrial hearings.

It's far from a recusal motion, and a law professor who knows Gardephe well cautioned against inferring the transcript requests as some kind of bid to scrutinize another trial judge. But a trial court record going before another trial court still is unusual, and Avenatti's initial success in trying to pit his dual prosecutions against each other means Gardephe will read Selna's work before the U.S. Ninth Circuit Court of Appeals scrutinizes it in an appeal that's set for oral argument in March.

"The fact that he asked to see some materials is just, I think, part and parcel of the care in which he approaches any decision that he makes," said Gardephe's friend Daniel Richman, a professor at Columbia Law School.

It also highlights the complexity of the U.S. Department of Justice's cross-country pursuit of Avenatti, whose current legal arguments involve the idea that federal prosecutors in California and New York are essentially the same team, so evidence used in one case should lawfully be disclosed to him in another if it could be exculpatory.

Unusual Post-Trial Request

Gardephe requested the transcripts as part of his review of Avenatti's request that the judge issue an indicative ruling telling the Second Circuit Court of Appeals he'd vacate Avenatti's Nike extortion convictions and grant a new trial if he had jurisdiction. 

The request is based on the newly discovered financial information on Avenatti's seized law firm servers that prompted Selna to declare the mistrial in California. It puts before Gardephe an unusual post-conviction evidentiary issue under Brady v. Maryland that asks him to consider the relationship between prosecutors who work in separate districts but were after the same defendant.

When does evidence in one case become relevant to another? 

A Dec. 2 letter from Avenatti's current lawyer in the Nike case, Benjamin Silverman, says the California case is clearly related to the Nike case, as California prosecutors were in New York "working on witness prep during the trial in this case and seated at times in the courtroom."

That means information prosecutors used in the California case to try to show how Avenatti misappropriated client money should have been provided to Avenatti in the Nike case as possible exculpatory evidence, Silverman argues, because it contradicts the theory that Avenatti was desperate for money when he was negotiating with Nike's lawyers.

Selna said prosecutors in his case committed no misconduct by failing to locate financial information about Avenatti's firm stored through the Tabs3 billing software program, rather, the judge said it was a case of not fully appreciating what was there. That lack of misconduct solidified his decision not to dismiss the case on double jeopardy grounds, which Avenatti is appealing to the Ninth Circuit.