Tag Archives: ex parte

WE AIN’T TELLIN’ – UPDATE FOR JANUARY 28, 2021

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

DOUBLE SECRET PROBATION

doublesecret210128From the Second Circuit comes a remarkable decision, one that should cause any number of Second Circuit defendants to wonder whether as well might have been victims of a Star Chamber process that brings to mind Dean Wormer’s “double secret probation.”

Three defendants were convicted of murder-for-hire and related drug crimes in the Southern District of New York. Long after they filed their appeals, the Narcotic and Dangerous Drug Section (“NDDS”) of the US Dept of Justice filed a notice with the 2nd Circuit advising it that the District Court had entered a sealed protective order – based upon the NDDS’s secret request that it do so – which barred both the US Attorney’s Office and the defendants from reviewing documents containing some pretty juicy but super-secret stuff. Exactly what it was we don’t know, because it was (did I tell you this?) it was super-secret.

The District Court had issued the sealed protective order pursuant to the Classified Information Procedures Act (18 USC Appx. 3 §§ 1 et seq. and F.R.Crim.P. 16(d), granting an ex parte motion by an NDDS attorney (which means that no notice was given to the US Attorney or defense counsel).

secret210128After the Court of Appeals panel learned of the sealed document, it ordered NDDS to demonstrate why at least the motion and memorandum of law, the exhibits that support the motion, and the protective order should not be disclosed to the US Attorney for his review. NDDS predictably told the Court the US Attorney should not be trusted to even know the legal basis for the sealing, let alone with what it was that was sealed. That did not go over well with the 2nd Circuit, which vacated the District Court’s protective order, not only telling the NDDS to turn everything over to the US Attorney, but ordering the US Attorney to justify not turning it over to the defense.

The US Attorney claimed for several reasons that the protected material and the sealed proceedings should not be disclosed to the defense. The Circuit nevertheless ordered the US Attorney to turn over any Brady material to the defense while the panel considered arguments on whether the rest should be disclosed as well.

In light of the materials disclosed pursuant to the Brady order, the Defendants raised an additional Brady challenge to their convictions, specifically, that the prosecution withheld exculpatory information in violation of Brady v. Maryland.

On Wednesday, the Circuit declined to consider the Brady argument, sending the whole mess back to the district court. First, the 2nd held, there was no record below on the Brady claims. True, the Circuit said, the defendants could not have raised it before because it was kept secret, but still, an appellate court is a court of review, and it needs a record to review.

There was a second, practical reason, the Court said. Under F.R.Crim.P. 33(b), a defendant has three years from the verdict to file a motion for a new trial. That deadline is only three months away. It makes more sense to send it back to the trial court, where the “Defendants’ allegations concerning the previously undisclosed material, if true, are relevant to the establishment of cause for a new trial.”

topsecret210128Ominously, the 2nd Circuit suggested in a footnote that this may not be NDDS’s first rodeo. “To the extent the NDDS or similar entities may have obtained similar ex parte sealed protective orders against all parties in other criminal cases in this Circuit, district courts may wish to consider whether such orders should be maintained in light of this decision. In order to permit effective review, any decision to enter or maintain such an ex parte sealed protective order against all parties should be supported by a clear statement of reasons, including specific reasons why disclosure cannot be permitted even as to the pertinent U.S. Attorney in the first instance.”

United States v. Stillwell, Case Nos. 18-3074-cr et al., 2021 U.S. App. LEXIS 2206 (2d Cir. Jan. 27, 2021)

– Thomas L. Root

Judge Is Too Close to US Attorney; Defendant Wins Resentencing – Update for November 4, 2019

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

THE JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

If you remember “The Night The Lights Went Out in Georgia,” you’re too old. But old or not, you have probably run into a federal judge who once was a government attorney. They account for something like 71% of all federal judges.


roybean191105Most all judges can check their prejudices at the door, but there are always exceptions. One is Judge Colin S. Bruce of the Central District of Illinois, who last year was unmasked by a local newspaper’s revelation that he was holding “extensive” private (called “ex parte”) communications with the U.S. Attorney’s Office about pending cases. An example: the newspaper published emails between Judge Bruce and a paralegal in the USAO about a criminal trial over which Judge Bruce presided, in which he complained that a novice prosecutor’s weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant…”

After the story broke last year, the Chief District Judge removed Bruce from federal criminal cases. The 7th Circuit Judicial Council heard several complaints about the Judge, and admonished him for his misconduct. Only in the last two months ago has the Bruce resumed hearing criminal cases.

Jim Atwood, to whom Judge Bruce had already handed a 210-month sentence in a drug case, was on appeal when the story came out. Although the Judge had not communicated with the US Attorney about Jim’s case, he had communicated during the time about many others. Jim argued that in light of Judge Bruce’s conduct, the federal recusal statute entitles him to resentencing by a different judge. Last week the 7th Circuit agreed.

Title 28 USC, Sec 455(a), requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” The Circuit considered three factors: (1) the risk of injustice to the parties in this case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process.

Under the first factor, the Circuit considered “the potential unfairness to Atwood of upholding his sentence. Judge Bruce calculated the sentence based on the factors outlined in 18 USC 3553(a). As we have said before, the open-endedness of the 3553(a) factors leaves ample room for the court’s discretion. That discretion invites the risk that a judge’s personal biases will influence or appear to influence the sentence he imposes… Upholding Atwood’s sentence, then, creates a real risk of unfairness to him.” Conversely, a resentencing would impose very little cost on the government.

As for the second factor, the Circuit said, enforcing § 455(a) in this case “may prevent a substantive injustice in some future case” by encouraging judges to exercise caution in their communications.

badjudge160502Finally, the appellate court said, “we consider the risk of harm to the public’s confidence in the impartiality of the judiciary. In sentencing, the most significant restriction on a judge’s ample discretion is the judge’s own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence.”

As a consequence of his email experience, Judge Bruce no longer entertains unofficial inquiries from either prosecution or defense lawyers. He requires all communication to be through written motions. He also has terminated his in-court contacts with a number of parties to the email dispute, including federal prosecutors and federal public defenders. His response may seem petulant, but it would seem he’s already shown his stripes. Woe betide any federal criminal defendant in his courtroom: there would appear to be two prosecutors, one defense attorney, and no judge.

Champaign, Illinois, News-Gazette, Urbana federal judge’s email transgression still making waves (Oct. 29)

United States v. Atwood, 2019 U.S. App. LEXIS 31826 (7th Cir. Oct. 24, 2019)

– Thomas L. Root