Tag Archives: judge

Just a Uniform Change Away – Update for October 6, 2021

Leave a comment

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

YOU’RE A LAWBREAKER… AND PRETTY INCONSISTENT, TOO, YOUR HONOR

Inmates often say of the correctional officers – whose conduct is often eminently indictable but for the fact that the COs have badges – that they’re “just a uniform change away” from being inmates themselves. The COs are not alone.

istamendment211006Last week, a Wall Street Journal investigation found that more than 130 federal judges failed to recuse themselves from civil cases that involve companies that they or their family members invest in, in clear violation of federal law. These judges ruled in favor of the companies in two-thirds of the cases, and one judge in Texas had 138 cases where he had a conflict of interest.

“I dropped the ball,” one judge told the Journal when asked about his conflict of interests. Try that excuse at your next sentencing.

Speaking of sentencing, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur.

“While special circumstances might account for some of these differences,” the report concludes, “half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.” This means that depending on which judge a defendant draws, his or her sentence on the same facts would vary by over a year and half, on the average.

judge160222Seven courthouses showed perfect agreement among judges on sentencing, those at Lincoln, NE; Providence, RI; Albany, GA; Ft. Myers, FL; Las Cruces, NM; and El Paso and Del Rio, TX. On the other end, five courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench, those at Tampa, FL; Benton, IL; Orlando, FL; Greenbelt, MD; and Philadelphia, PA.

Wall Street Journal, 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest (September 28, 2021)

TRAC, Equal Justice and Sentencing Practices Among Federal District Court Judges (September 30, 2021)

– Thomas L. Root

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

Leave a comment

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