We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WE’VE GOT THE SHORTS

COVID Numbers: The BOP reported 31 inmates and 137 staff sick with COVID as of yesterday. The virus was still in 64 institutions. As of last FridaY, the agency said 51.9% of its staff and 53.1% of inmates have been vaccinated.

As I have previously reported, no one trusts the BOP numbers.

BOP, COVID-19 Coronavirus

Judge Goes After Marshals: US District Judge Charles Kornmann (DSD) levied criminal contempt charges against three senior US Marshal officials last week arising from his demand to know whether Marshals in his courtroom have been vaccinated against COVID-19.

The charges stemmed from an incident last month in which the Judge asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom. The Marshals responded by removing three defendants awaiting a hearing from the courthouse, in what Judge Kornmann described as a “kidnapping” that disrupted the court’s work.

The US Attorney for South Dakota has refused to prosecute the criminal contempt citations. As of Wednesday, Judge Kornmann had appointed a Rapid City, South Dakota, private attorney to try the case, and the Judge had recused himself. The Judge described the contretemps as follows:

The Department of Justice, acting through the Marshal Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in the Volokh Conspiracy blog that

recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

As for me, I really don’t know who to cheer against in this one. But I am pretty sure I can identify the losers: those federal pretrial defendants sitting in local jails waiting for hearings that will be delayed by this kerfuffle.

Washington Post, Federal judge accuses three senior law enforcement officials of criminal obstruction (June 14, 2021)

Jamestown Sun, South Dakota’s acting US Attorney won’t participate in contempt of court case against US marshals (June 25, 2021)

The Volokh Conspiracy, Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt (June 30, 2021)

– Thomas L. Root