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You Look Like a Criminal – Update for August 7, 2023

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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.

DISTRICT JUDGE KICKED OFF CASE FOR PROCEDURAL TIRADE

Maybe it’s climate change or Donald Trump. Perhaps the Supermoon. Blame whatever you want, but I haven’t seen two judicial bias decisions in seven years. Now I’m writing about the second one in seven days.

judge160222Leron Liggins was charged with drug distribution in the Eastern District of Michigan. Using Federal Rule of Criminal Procedure 20, he had brought in a similar pending charge from the Eastern District of Kentucky so he could resolve both at once. On the eve of trial, Leron’s lawyer told the court he wanted to plead guilty, but when he appeared for the change of plea hearing, Leron demanded a new lawyer (for the second time).

US District Judge Stephen Murphy was not amused. He said, “Most defendants don’t get my attention or stand out, but Mr. Liggins does.” After reviewing the tortured procedural history of the case, the Judge said:

I’m tired of this case. I’m tired of this defendant. I’m tired of getting the runaround. This has been going on since February 6, 2018. We’ve got a case out of Kentucky that came here under Rule 20. Rule 20 says the reason for the transfer was the defendant has agreed to plead guilty. I feel as if the Court has been misled. I’ve been told in an official pleading and informally the defendant was going to plead guilty. We canceled jurors. We got a trial date. Now we got this.

Leron tried to talk, but the Judge shut him down, saying, “If you speak anymore, I’ll have you hauled out of here.” Then, turning to Leron’s lawyer, the Judge exploded:

This guy has got my attention. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn’t what innocent people, who want a fair trial do. He’s indicted in Kentucky. He’s indicted here. He’s alleged to be dealing heroin, which addicts, hurts and kills people, and he’s playing games with the Court.

The pandemic and Leron’s demands for other counsel ended up delaying things for a couple more years. Right before the trial was to begin, Leron’s new lawyer moved to have the Judge recuse himself for bias under 28 USC § 455(a).

murphy230807The next day, Judge Murphy denied the motion while saying he appreciated the “opportunity to clear up a few things that ha[d] been bothering [him] for a few months.” The Judge incorrectly recounted that Leron had “engaged in a personal colloquy” with the court that had caused the district judge to become “upset.” He had not, unless “STFU” passes for a friendly exchange of views. Nevertheless, for his conduct, the district judge delivered a faux apology:

And I want to say right now directly to Mr. Liggins I’m sorry, I apologize for getting upset. I did that because, A, I thought we were going to have a guilty plea; B, I thought that the colloquy was getting out of hand; and C, I lost my head… Now, having said that, I would say two things. Number one, [Leron’s lawyer] in that transcript agreed with my underlying concerns, and number two, just because I got mad does not mean I’m biased against Mr.—Mr. Liggins… I was mad, I was hostile, I was disapproving, and I regret it. I made a mistake by yelling like that, but I wasn’t upset or concluding that Mr. Liggins was—was guilty of an offense or hostile or partial toward him. I concluded he was acting in a manner which was frankly obstructionist and making me mad.

Leron, the Judge is sorry that you behaved so badly that you made him mad. Can you tell how sorry the Judge is?  

Neither can I.

The Judge then asserted, “I’m not, trust me. I give Mr. Liggins the same rights and opportunities here to demonstrate his innocence or lack of guilt as any other litigant.”

guiltyproveninnocent230807(Parenthetical:  You have to love the Judge’s standard of proof.  All this time we thought the government had to prove a defendant’s guilt. Turns out, at least practicing MurphyLaw, that a defendant has to prove his innocence.)

Leron was unable to prove his lack of guilt. He was convicted. After that, he appealed. Last week, the 6th Circuit threw Judge Murphy off the case.

A judge’s misconduct at trial may be “characterized as bias or prejudice” if “it is so extreme as to display clear inability to render fair judgment.” But this takes more than just judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases. “Expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display,” the 6th held, “do not establish such bias or partiality… Only if the remarks reveal such a high degree of favoritism or antagonism as to make fair judgment impossible” does a judge cross the line.

But Judge Murphy found that line, and he crossed it. The appellate court said:

Difficult as the recusal standard may be to reach, we find that the district judge’s unacceptable remarks at the January 30, 2020 hearing satisfy it. Among the many disparaging remarks about Liggins that the district judge made, the most troubling is that Liggins ‘looks like a criminal to me.’ We are highly concerned by this remark, especially when directed toward Liggins, an African American man… These remarks served no purpose for courtroom administration, but rather constituted gratuitous commentary by the district judge about his opinion of Liggins and his feelings about Liggins’ case.

blamevictim230807In classic victim-blaming, the government conceded that Judge Murphy should not have lost his temper, but argues that his frustration was “understandable” based on Leron’s conduct during pretrial proceedings. The 6th shut that argument down flat: “To the contrary, we do not find the district judge’s conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant’s guilt or otherwise dispose of the case in any manner except through fair proceedings:

Finally, the Circuit ruled, the Judge’s apology – which, even if it should have counted for anything, was two years too late – didn’t matter. “In considering the denial of a motion for recusal pursuant to 28 USC § 455, we do not look to whether the district court made a sufficiently curative apology to the defendant in ruling on the motion; rather, we consider whether recusal was warranted at the time that the defendant made the motion.” Judge Murphy’s “looks like a criminal” comments “demonstrated a deep-seated . . . antagonism that would make fair judgment impossible.”

That was enough to warrant recusal.

United States v. Liggins, Case No. 22-1236, 2023 U.S. App. LEXIS 20040 (6th Cir. Aug. 3, 2023)

– Thomas L. Root

A Little Bias Never Hurt Anyone – Update for July 14, 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.

HIT THE ROAD, JUDGE


I would retire today if I only had a dime for every defendant who ever asked how to get his or her judge thrown off the case for bias. Or even just a nickel for everyone who has filed an unsuccessful motion to do just that.

Dick and Judy Brocato owned a lawn care company. Over a three-year period, they concealed about $1.7 million of business income from the IRS.

Oh, the calumny! Working hard, earning an honest buck, and then not telling your Uncle Sam so that he can lop off his share! Well, whatever… they were charged with tax fraud.

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At trial, Judy tried to explain where she had come up with a $9,000 down payment for a Maserati. She said she had gotten it from her dead mother’s estate. The government did not pursue the explanation, but the judge did. During a sidebar before closing arguments, the judge told the Brocatos’ attorney not to argue in closing that the $9,000 came from Judy’s mom, because the judge’s staff had conducted an “Internet search” and found mom’s obituary. “The transaction with the Maserati occurred in 2013 and it appears from the obituary of her mother that she died in 2015,” the judge said, “so, I don’t think she would have gotten money in 2013 from her mother’s estate. The Court takes a very dim view of perjury in proceedings; so, you need to keep that in mind.”

The jury found them guilty.

bias210714That was in February. Months later, as sentencing approached, the sleuthy district judge acted on her own to order up a certified copy of mom’s death certificate. At that point, the Brocatos had had enough of a courtroom that seemed to have two prosecutors but zero judges. They filed a motion to recuse the judge.

The judge, of course, denied the motion, determining that detailing her staff to help the prosecutor attack the Brocatos’ case was perfectly fine. She later sentenced both Dick and Judy to 33 months, the low end of their Guidelines sentencing range.

A recusal motion is a tough sell. Remember, defendants may come and go, but the judges all belong to the same club, and have long-standing professional and personal relationships. It is simply an acknowledgment of reality to recognize that there is a strong judicial predisposition against recusing a colleague.

So it was here. Last week, the 5th Circuit agreed the judge’s actions were improper, but that she had not shown bias.

Not everything can be described as bias or partiality within the meaning of the recusal statutes, 28 USC § 144 and § 455(a), the 5th said. “Rather, the concept of bias connotes a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate… because it rests upon knowledge that the subject ought not to possess…” A judge is not generally required to recuse herself for bias – even if the judge may think the defendant is pond scum – when the judge’s “knowledge and the opinion it produced were properly and necessarily acquired in the course of the trial.”

nancydrew210714Of course, the bias in this case, such as it might be, came from information acquired outside of the trial. “We do not in any way condone Internet searches concerning a witness’s credibility, or any type of similar investigation by court staff into factual matters.” the Circuit said. “This sort of ex parte fact-gathering is improper. Such activity has the potential to raise reasonable questions concerning impartiality, and it should not occur. We also find the district judge’s use of the term ‘perjury’ regrettable in light of the context in which the inconsistent testimony was identified.”

So was the 5th about to lay out Judge Nancy Drew? Hardly. “With that said, however, we think that a review of all of the facts and circumstances in this case dispels any reasonable doubts created by staff’s improper Internet search or the judge’s use of the word ‘perjury’.”

The Circuit found it significant that the Brocatos did not move to recuse the Judge until six months after she first raised the perjury matter, and that they both got 33 months, the bottom of the Guidelines advisory 33-41 sentencing range, with no obstruction-of-justice enhancement. The defendants’ only argument was that they might have gotten a below-Guidelines sentence but for the bias, and the 5th said that reason wasn’t enough to show they had been prejudiced.

Both of these excuses are perilously close to make-weight arguments. Make no mistake: filing a motion to recuse is a nuclear option. The Brocatos showed commendable discretion in letting the judge’s charge conference “perjury” revelation slide, and only decided that they had to push the button when the judge started assembling her own sentencing evidence. And as for the bottom of the Guidelines sentences without any enhancement for perjury, Judy hardly got any break.

taxreturn200401Unfair or not, there is often a sentencing discount for the wife, if for no other reason than she’s a girl, and old habits die hard. Likewise, for tax offenses, the likelihood that a defendant will get a sentence below the Guidelines range is more than a mere hope: the Sentencing Commission’s 2020 Sourcebook reports that over 70% of tax fraud sentences (Guideline § 2T1.1) vary downward from the sentencing range, making it more likely than not that the Brocatos would have gotten a break but for the judge’s bias.

That she stayed within the Guidelines is hardly surprising: the Judge knew by sentencing that her investigative frolic was bound to be raised on appeal, and that within-Guidelines sentences and no whisper of the “p” word at sentencing were all that might save her decision on recusal.  But it is utterly disingenuous for the appellate court to dismiss the likelihood of a downward variance as not a significant reason for recusal.

United States v. Brocato, Case No 20-40624, 2021 U.S. App. LEXIS 20449 (5th Cir., July 9, 2021) (per curiam)

– Thomas L. Root

Necktie Justice in the 7th Circuit – Update for February 21, 2020

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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 WASN’T UNFAIR ENOUGH

badjudge171016Randy Williams was convicted of Hobbs Act robbery after a summer 2018 jury trial presided over by U.S. District Judge Colin Bruce. While it certainly must have been a significant event to Randy (as it is to most defendants), it was a pretty commonplace occurrence in the annals of federal criminal law. Happens every day…

Except that the presiding judge was Judge Bruce. You remember the good Judge, don’t you? He spent 24 years in the United States Attorney’s office, and somehow – after he put on his robe – His Honor (and I use that term as an honorific, not because it is deserved) could not quite leave the prosecutor’s office behind.

The scandal started about a month after Randy was convicted, when the Springfield, Illinois Times reported that Judge Bruce had been engaged in ex parte contacts with the US Attorney’s Office during a criminal trial (but not Randy’s).

colinbruce200221The 7th Circuit Judicial Council yanked Judge Bruce from all criminal cases and investigated him, finding the Judge had sent or received over 1,200 communications with people in the USAO. About 100 of the messages were potential prohibited ex parte communications about cases pending before him, concerning warrant approvals, appeals, scheduling matters or defendant’s conduct on bond.

In others, Judge Bruce addressed former colleagues by nicknames and congratulated them on favorable outcomes. In one email, Judge Bruce complained that an AUSA was “entirely unexperienced” and had turned a “slam dunk” case into a “60‐40” for the defendant. In others, Judge Bruce reassured former colleagues after they made filing mistakes. In one instance, he stated “My bad. You’re doing fine. Let’s get this thing done.” In another, he suggested that an Assistant United States Attorney (the line prosecutors in the USAO) call his boss “and advise” him of an adverse development, while noting that luckily “they have an understanding judge who doesn’t get angry.”

A Judicial Council special committee ultimately found “no evidence” that Judge Bruce’s conduct or ex parte communications affected any of his rulings or favored either party in cases before him. Except for the Nixon case, the Special Committee said, it saw “no evidence of Judge Bruce discussing the merits of pending cases with the U.S. Attorney’s Office ex parte.” Nevertheless, the Judge was ordered not to handle any criminal case for a year.

Randy’s case was assigned to another judge for sentencing. But nevertheless, on appeal, Randy demanded that his conviction be set aside because Judge Bruce’s ex parte communications with the US Attorney’s office violated both Rick’s due process rights and the federal recusal statute. While none of the emails concerned Randy’s case, some of them did concern the AUSA and paralegal who represented the government in Randy’s case.

Last week, the 7th Circuit turned Randy down. It noted that judges are disqualified for bias only in limited circumstances. First, actual bias is disqualifying. Second, “an impermissible risk of actual bias” exists when a judge earlier had significant personal involvement as a prosecutor in the case. Third, a judge is disqualified when he or she has a financial incentive in the case’s outcome. Finally, a judge should recuse himself when he or she becomes “personally embroiled” with a litigant.

“This case does not fit into these buckets,” the Circuit held. Instead, the Special Committee found no evidence that Judge Bruce’s conduct or ex parte communications affected the case, or that he had a financial interest in the outcome, had previously worked on the case as a AUSA, or became “personally embroiled” with the parties.

roybean200221The plain fact is that Randy was convicted in a courtroom that contained two prosecutors, one defendant and no judge. If Judge Bruce possessed a moral compass that pointed to true north instead of to the gallows, he would have resigned. Ah, well… O tempora, O mores! Nevertheless, it takes a special kind of myopia to pretend that a judge that maintained a back-channel to the U.S. Attorney’s office, using it to serve as the USAO’s biggest cheerleader, would nevertheless be perceived by the public to be fair and impartial.

United States v. Williams, 2020 U.S. App. LEXIS 4167 (7th Cir., February 11, 2020)

– Thomas L. Root

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

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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

Rogue Agents, Impaired Judges: A Friday Collection – Update for April 14, 2017

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CRIMINAL JUSTICE BEHAVING BADLY

Two reports the past several days caught our attention, and neither speaks well for the federal criminal justice system.

atf170414ATF Agents Running Amok: First, the New York Times reported Wednesday that ATF agents in Bristol, Virginia, set up a secret bank account, which they funded with millions gained in illegally peddling cigarettes. The agents directed their informants to buy untaxed cigarettes, mark them up and sell them for a profit.

The Times said “the operation, not authorized under Justice Department rules, gave agents an off-the-books way to finance undercover investigations and pay informants without the usual cumbersome paperwork and close oversight, according to court records and people close to the operation.”

The account came to light in a civil suit claiming the agents broke federal racketeering law, brought in the Eastern District of North Carolina by a collective of tobacco farmers, who claim they were defrauded of $24 million. Two ATF informants received at least $1 million each from that sum, according to records produced in the suit. Most of the filings in the case are sealed.

The Times reported that “the scheme relied on phony shipments of snack food disguised as tobacco. The agents were experts: Their job was to catch cigarette smugglers, so they knew exactly how it was done.”

Money from the operations was used for a number of activities, including the renting of a $21,000 hotel suite at a NASCAR race, a trip to Las Vegas and a monetary donation to one agent’s daughter’s high school volleyball team.

ATFA170414What is not being said, of course, is that the agents’ misconduct – and the involvement of informants who took off-the-record payments – could have substantial repercussions in any criminal prosecutions where testimony of those agents or CIs played a role. The Department of Justice Inspector General began investigating the allegations after the Times contacted DOJ about the story.

Guardianship Sought for Federal Judge: A federal judge whose bizarre behavior on the bench preceded her mysterious removal from a number of cases was previously ordered to get treatment for alcoholism so severe a colleague believes she cannot take care of herself, according to court records released Thursday.

U.S. District Judge Patricia Minaldi’s alcoholism don’t answer whether it was a factor in the secretive interruptions in her Louisiana courtroom. But the documents show she moved into an assisted living facility specializing in “memory care.”

Minaldi170414In February 2016, during voir dire in a criminal trial, Judge Minaldi failed to determine if jurors were U.S. citizens and delivered no preliminary instructions. After the public defender made a motion for curative measures, the Judge ordered the prosecutor to deliver preliminary instructions to the jury, stopping to complain to the prosecutor, “I have no idea what’s going on here. Get your act together.” After the prosecutor and public defender jointly moved for a mistrial, the chief district judge removed Judge Minaldi from the case and assigned it to Judge Donald Ellsworth Walter, who then declared a mistrial.

The chief judge of the 5th U.S. Circuit Court of Appeals ordered Judge Minaldi to complete at least 90 days of substance abuse treatment, due to the severity of her alcoholism and “legal consequences she had attained.”

Judge Minaldi, 58, has been on medical leave since the end of 2016. Newly released records showing that she is in a long-term care facility are part of a lawsuit filed by Judge Minaldi’s Magistrate Judge, Kathleen Kay. The lawsuit challenges Judge Minaldi’s physical and mental capacity to manage her personal and financial affairs.

That lawsuit was filed under seal, but portions made public report at as of March 2017, Judge Minaldi’s condition was so severe that she was “unable to take care of her daily activities” and “unable to safely take care of her personal needs, financial matters, or her property matters,” the filing says.

Unlike the ATF situation, Judge Minaldi’s condition is medical, not a breach of trust. But like the ATF situation, the effects of recent revelations could reverberate across any number of criminal cases that appeared in front of the Judge over the past several years.

– Thomas L. Root

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Recuse Me – Update For March 9, 2017

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

We confess to a lack of creativity. This is the second time in less than a month that we’ve pinned our theme to lyrics from Vicki Lawrence’s 1973 hit, The Night the Lights Went Out in Georgia. What compounds our intellectual felons is that the judge in today’s report had hands stained green, not red.

The big Supreme Court news Monday was the unsurprising (to us, at least) Pena-Rodriguez v. Colorado decision, in which the Court held that the sanctity of the jury room could be invaded where a juror showed racial bias. The decision of importance to our readers, Beckles v. United States, ran a distant second in the news. And the case we’re looking at today, a summary disposition in Rippo v. Baker, was almost completely ignored.

bribeB160627Mike Rippo is a Nevada death-row inmate who alleged that the judge in his state trial was biased. Mike was tried for two murders in 1992. Shortly after his trial started, newspaper stories revealed the judge, Gerard Bongiovanni, was under investigation by a federal grand jury for allegedly taking bribes. Mike moved for the judge’s recusal as a matter of due process, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Mike argued the judge had a motive to favor the prosecution in his case, in order to curry favor.

The DA falsely denied that his office was part of the bribery probe, and the judge himself said he did not know about any state law enforcement involvement in the fed’s investigation. The trial went on, and Mike was convicted. But after the trial ended, the judge was indicted by a federal grand jury for bribery unrelated to Mike’s case.

vegas170309In a later state post-conviction proceeding, Mike advanced his bias claim again, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the bribery investigation. The state court denied the motion, and the Nevada Supreme Court affirmed. It reasoned that Mike was not entitled to discovery or an evidentiary hearing because his allegations “did not support the assertion that the trial judge was actually biased in this case.”

The U.S. Supreme Court dithered over Mike’s petition for certiorari, re-listing it for conference five times. Finally, last Monday the Court summarily reversed the Nevada courts and sent the case back.

The Nevada courts’ error, last Monday’s short opinion said, was in applying the wrong legal standard. The due process clause “may sometimes demand recusal even when a judge has no actual bias,” the Court ruled. “Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”

The Rippo decision may save some people from writing pleadings on the sides of their cars…
The Rippo decision may save some people from writing pleadings on the sides of their cars…

The test is not “whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” To make out a bias complaint, a litigant need not “show as a matter of course that a judge was actually biased in the litigant’s case.” Such a standard would be nearly impossible to meet. Instead, it is enough if “the circumstances alleged” are such that “the risk of bias” is too high to be constitutionally tolerable.

And how high is too high? We’ll have to wait for further opinions to resolve that.

Rippo v. Baker, Case No. 16-6316 (March 6, 2017) per curiam

– Thomas L. Root

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