Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

Myron Gordon I did not know, but the Chief’s remarks certainly gave me a strong sense of the man and the times. Gordon attended college at the University of Wisconsin and graduated from Harvard Law School in 1942. In his academic successes, the Chief—with some perspective on the matter—stated, “Myron Gordon lived the dream of Eastern European Jewish immigrant parents.” He became a Milwaukee County Civil Court judge in 1950, holding a seat on the state trial bench for eleven years; was a justice of the Wisconsin Supreme Court from 1961 to 1967; and served as a judge of the United States District Court for the Eastern District of Wisconsin from 1967 until his retirement several decades later.

Gordon seems not to have forgotten his forbears. The Chief recalled one incident to make a large point: “When Myron Gordon was on the Supreme Court, several prominent Madisonians wanted to nominate him for membership in a private eating club that discriminated against Jews. They wanted to eliminate religious discrimination and selected Myron Gordon and Gordon Sinykin as their nominees because Myron and Gordon were above reproach. Myron understood the publicity that would ensue (which was not pleasant) and ill will that might follow (and it did). Neither he nor Gordon needed to be a member of the club—it added little if anything to their lives. But discrimination should be battled wherever it raises its head. And if Myron and Gordon were asked to lead the battle, they would do so. A small win, but every little win makes a difference.”

I asked Chief Justice Abrahamson for a copy of her 2010 remarks, and I have made them available here.

Terry Evans I knew, though scarcely so well as did Judge Sykes, who was both his law clerk and, for some seven years, his colleague on the Seventh Circuit. Judge Evans attended Marquette University for both college and law school and was of Milwaukee in just about every other respect as well. He, too, became a trial judge in Milwaukee County at a young age (34 years old), before also being appointed to the federal district court here in Milwaukee (in 1979). Judge Evans joined the Seventh Circuit in 1995 and passed away quite unexpectedly this past year.

It is perhaps natural that Judge Sykes would especially remember Judge Evans as a trial judge, where he spent the majority of his time on the bench and she served as his law clerk for a year: “He was steeped in everything that is Milwaukee—its people, its traditions, and its institutions. Add to that his legendary sense of humor and his considerable powers of perspective and intuition and you’ve got a truly masterful trial judge. He could read the courtroom, size up each case really quickly, cut through the clutter, pull the story line from mountains of evidence, identify the real clash of interests, and articulate a concise and well‐reasoned decision that everyone could grasp. He did all this with a clarity of expression and wit rarely found in the world that we lawyers and judges inhabit.”

Judge Sykes has been kind enough to share her remembrance of Judge Evans.

Judges are a mixed lot—as is the case for any large category of individuals. Some are good, others less so. Some work hard; others are unwilling to do all the work that is the premise of an efficient litigation system (e.g., superintending discovery disputes), and the practice (along with the society) suffers for it. But, in all events, the role of the judge is at the heart of the legal system, and so it is a contribution to our continuing education that Chief Justice Abrahamson and Judge Sykes would spend, no doubt, a considerable amount of time preparing their remembrances of Judges Gordon and Evans and permit us to share these in written form. These writings may, indeed, teach us some of “the lessons of the law (and life).”

I learned a lot from Judge Ihlenfeldt over the years, but one of the most valuable lessons he taught me came very early in my legal career, and I see this story as making an important point for law students and new lawyers. The practice of law requires constant learning; you’ve barely begun to know what you need to know when you leave law school. And you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.

Back in the mid ’70s, as an associate at Foley & Lardner, I first appeared in bankruptcy court for banks and other creditors, often seeking to recover collateral or to oppose the discharge of a debt. I had appeared before Judge Ihlenfeldt a few times, and on this particular occasion he had ruled against me. I don’t remember the details, but the decision may well have involved the judge’s exercising some discretion, and he exercised it against my client. The case was over, and (as often happened in his court) the lawyers had lingered in chambers to talk. He could tell that I was upset at losing (not then having much experience at it—a condition that time has healed), and he turned to me, in his gentle way, and said, “Oh, Tom, you have to understand that we’re the bankruptcy court. Bankruptcy law is intended to benefit debtors, and you shouldn’t expect to win all the time when you represent creditors.”

This comment struck me at the time and many times since as one of the best lessons that a judge could teach a young lawyer. And it has implications beyond bankruptcy law. Good judges like Judge Ihlenfeldt call them as they see them and follow the law as they understand it. But a lawyer should never lose sight of the fact that much of the law (understood as being what judges do) is not black and white, but gray, and a judge’s instincts in the gray area—whether to afford a debtor relief, to let a plaintiff try to prove her case, or to cut a lawyer some slack—are every bit as much a part of the law as the stuff in the books. I’m glad that I learned that lesson early from a great judge.

But down the road and even now in places other than eastern Wisconsin? Cutbacks in federal spending could and sometimes are translating into decisions not to prosecute cases, Santelle said. 

Speaking Tuesday at an “On the Issues” session at Eckstein Hall, Santelle told Mike Gousha, the Law School’s distinguished fellow in law and public policy, that the staff he oversees in offices in Milwaukee and Green Bay, has been reduced from about 80 several years ago to about 70 now. More cuts may lie ahead, he said.

But so far, the reduction has been accomplished without affecting decisions on who to prosecute, Santelle said. That hasn’t been true in offices of US Attorneys in some places around the country, where decisions on matters such as “smaller” drug cases or white collar financial crimes are being shaped by whether the office has adequate resources. He said a $1 million bank fraud in some instances may be below the threshold a prosecutor has set for bringing a case to court, given practical limits on how much can get done.

Santelle said the annual budget of his office is about $8 million – and prosecutions generate about 10 times that each year in penalties, fines, or repayment to the government for improper spending. Santelle said that while politicians understand that the US Attorney’s Office is actually a money-maker for the government, it is hard to expect prosecutors will be spared from across the board cuts.

Santelle’s hour-long session before about 75 people touched on a wide-range of issues, from the high priority put on national security work, even in eastern Wisconsin, where there have, fortunately, been no terrorism episodes, to the positive sides of a legal career in federal service. Santelle has worked for the Justice Department since1985 and has been US Attorney for eastern Wisconsin since 2010.

Santelle was appointed by President Barack Obama, a Democrat, and, in an era of strong political partisanship, he agreed that there have been more matters brought to his office by political activists on either side of the spectrum who think people on the other side have done something wrong. But he had no hesitation in labeling the way prosecutors do their work as “apolitical.” He said he had never been involved in something such as a decision on a prosecution where partisan politics was a factor in how to proceed.

He said, though, that changes in the presidency can have an effect on priorities of the Justice Department, such as how much attention is given to enforcement of environmental regulations. 

Santelle said that a tighter supply of cocaine was driving up prices on the street. For prosecutors, that means more crimes being committed where the drugs involved are pills or other controlled substances. Gousha asked him his thoughts on public opinion polls that show wide support for decriminalizing marijuana use. Santelle said he should be counted on the side of those who oppose that. Marijuana is, in his view, not just a recreational drug. He said marijuana that is being sold today is often far more potent than what was available a generation ago and has more serious effects on users.

Overall, Santelle said, the level of cooperation among law enforcement officials has improved significantly from the past, when different federal agencies kept information from each other and there was limited cooperation between federal and local prosecutors or officers. He said there is generally good communication between law enforcement representatives working in the Milwaukee area, and he talks frequently to people such as Milwaukee County District Attorney John Chisholm. “You benefit tremendously from the fact that law enforcement talks to each other,” Santelle said.

The session with Santelle can be viewed by clicking here.

According to the complaint (which can be viewed here), on March 10, 2010, MSP submitted a development application to construct 180 units of affordable housing in what is known as New Berlin’s “City Center.”  The proposal stated that the development would include 100 elderly units and 80 workforce housing units.  The development was intended to be financed in part by the Low-Income Housing Tax Credit program, a program that allows a developer to sell tax credits to investors in exchange for the promise that the developer will rent the apartments for below-market rates to tenants who qualify.  For this specific development, MSP was going to rent to individuals who made 40 to 60 percent of the median household income in New Berlin.  In New Berlin, the median income as of 2000 was approximately $70,000, which means the proposed development would rent to individuals who made $28,000 to $42,000 a year.

On May 3, 2010, the New Berlin plan commission voted 4-3 to approve MSP’s application.  The next day, the local media reported the approval, and residents of New Berlin began to voice their disapproval, with protests culminating at a local town hall meeting.  (Some examples of the local opinions voiced at that meeting are here.)  According to the complaint, Mayor Chiovatero also received threatening phone calls at his home, and had a sign that read “n—-r lover” placed in his front yard.

The complaint alleges that these events eventually led the Mayor to move for reconsideration of the approval, and the plan commission unanimously approved the Mayor’s motion to reconsider on June 7, 2010.  This vote eventually led to a 90-day moratorium on any new development proposals, and effectively denied the MSP application.  Now, the government alleges that New Berlin’s action violated § 3604(a) insofar as the City denied housing to individuals on the basis of their race when it voted against the MSP project.

Although it may seem like the complaint is based on income level, a class that is not protected by the Fair Housing Act, the complaint points out that minority households make less income annually, on average, than white households do.  Further, minority households are more likely to be below the poverty line.  Thus, these statistics, taken together with the allegations of racially based comments, will lay the groundwork for the theory that citizens of New Berlin opposed the project based on the belief that it would attract more minority residents.  Liability might then extend to the City through the theory that the City denied the project to appease the citizens’ racially-based opposition.

Like the proposed development, the filing of this complaint has provoked feelings of strong opposition.  These feelings come with good measure.  The filing of the complaint implicitly calls New Berlin residents racist, and brings national attention to the City that is not favorable.  To be sure, this post is not endorsing the belief that all residents of New Berlin are racists, or that the government is trying to make that allegation; however, these are inferences that the public will make upon learning about this complaint.

Nonetheless, the fact remains that Milwaukee is the third-most segregated city, and the Milwaukee metro area is the most segregated metropolitan area, in the Country.  Census data show that Milwaukee County is only 54 percent white, whereas Waukesha County is approximately 90 percent white, Ozaukee is 93 percent white, Washington is 94.2 percent white, Racine is 74 percent white, and Kenosha is 78 percent white.

As problems of racial discrimination and separation continue on into 2011, perhaps the main question becomes whether integration will ever be an achievable goal for this country.  It may be possible that the legal fight against racial discrimination has grown similar to the legal fight against drugs; no matter how hard one tries, people will always engage in the illegal practice.  And no matter how hard one tries, perhaps racial integration is something that cannot be forced upon various communities in our society.

Housing discrimination and segregationist practices are problems that still plague the City of Milwaukee, the Milwaukee metropolitan area, and the United States as a whole.  Although there are many individuals who either applaud or bemoan this lawsuit, most do so for incorrect, politically charged reasons.  Segregation and racial discrimination are both issues that need to be addressed in Southeastern Wisconsin.  At the very least, perhaps this complaint can bring attention to these problems and provide an impetus for people to work toward a solution to fix them.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do.

In both settings I greatly benefited from my participation on a panel just a week earlier on April 7, 2011 at the annual meeting of the Eastern District of Wisconsin Bar Association in Milwaukee. The panel was entitled “Daubert Today: A Standard for All Wisconsin Courts.”  Organized by Matthew W. O’Neill (of Friebert Finerty & St. John) and moderated by Dean Joseph D. Kearney of Marquette Law School, the panel also consisted of two seasoned federal civil litigators and two federal judges (and me). Let me briefly summarize some of their more salient points.

Ralph A. Weber, a Marquette adjunct professor and partner in Gass Weber Mullins LLC, sees the new rules as a substantial improvement over the “trial-friendly” rules that preceded them precisely because they empower trial judges to exclude unreliable expert testimony. Ralph hopes that trial lawyers and trial judges take the new rules seriously, suggesting that evidentiary hearings and even expert witnesses on reliable methodologies may be in order. One problem, though, is that the state legislature did not mandate that expert witnesses submit reports that conform with Fed. R. Civ. Pro. 26, which is designed to foster Daubert scrutiny.

My Marquette colleague Rick Esenberg (formerly of Foley & Lardner), also an experienced civil litigator, thoughtfully underscored the contingency of the new rules.  Rick noted that their effect on litigation is dependent (“it depends”) on a variety of factors, including especially Wisconsin’s “trial friendly” legal culture. Old habits are hard to break. Moreover, state judges simply do not have the resources available to federal courts when closely scrutinizing expert opinion testimony. Rick also brought up the proscription against ipse dixit (“because he said so”) testimony, the bane of the Seventh Circuit, whereby parties offer well-credentialed witnesses who rely more on inflated (my word) resumes than tested methodologies or proven protocols.

We then turned from the panel’s lawyers to the judges. Judge Rudolph T. Randa, a federal district judge with substantial state judicial experience as well, also addressed the ipse dixit problem, noting the Seventh Circuit’s close scrutiny of such testimony and that some lawyers blur relevancy concerns (the “4s” in the FREs) with the assistance standard (the “7s”). Acknowledging that much of Daubert lore is caught up in how to establish reliable methods, etc., Judge Randa emphasized the equally significant problems that arise when expert witnesses are ignorant of the underlying facts of the case.

Finally, federal magistrate judge William E. Callahan, Jr., spoke of the numerous Daubert challenges he has confronted over the years. Judge Callahan emphasized that nothing in the Daubert case law, or the rules themselves, require an evidentiary hearing. Nonetheless, they are difficult motions that require study by the judge, so counsel should consider pretrial motions, which may be based on “paper” (e.g., dueling affidavits, depositions, expert reports). Judge Callahan forecasts that Wisconsin trial judges will conduct more pretrial hearings on experts than they did under prior practice, especially in connection with summary judgment motions and in the absence of a Rule 26-type reporting requirement.  Finally, he cautioned against the overuse of expert witnesses, reminding those in attendance that not all such witnesses provide meaningful assistance to the court.

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

For instance, both federal districts in Missouri display the racial demographics that are of interest to Cohen and Smith (racially diverse urban county surrounded by heavily white suburban counties), and Missouri has returned more federal death sentences than New York, California, and Florida combined (p. 436).  In fact, Cohen and Smith contend that all eight of the districts that have returned more than two federal death sentences exhibit pronounced county-district racial disparities.

By contrast, the three districts in which it has been hardest for the feds to get a death sentence are all majority-minority: District of Columbia, Puerto Rico, and the Southern District of New York.  ”These three federal districts account for 55 of the 460 death-authorized cases but are not responsible for a single death sentence” (465).  Expanding the view to the ten districts in which it has been hardest to get a death sentence, eight have “similar demographic profiles between the federal district and the most populous county.”

Cohen and Smith have uncovered a fascinating pattern, although it surely does not tell the whole story.  What about the Eastern District of Wisconsin, for instance?  While the largest city in the District, Milwaukee, is 37 percent black, the District as a whole is only nine percent black.  This disparity would seem to put the District at considerable risk for the racial dynamics that are of concern to Cohen and Smith, but we have no death sentences.  In fact, the numbers for Milwaukee and the Eastern District of Wisconsin are almost identical to the numbers for Kansas City and the Western District of Missouri, which leads the nation in federal death sentences.

Indeed, while I haven’t cranked the numbers, I strongly suspect there are a great many other death-free districts with similar profiles to these two.  High county-district racial disparities may be necessary for federal death sentences, but I doubt they are sufficient.

Even at that, what Cohen and Smith have uncovered should heighten concerns about the role of racial bias in the administration of the federal death penalty.  For that reason, their reform proposals (especially drawing the venire for federal capital trials from the county of the offense, as federal law mandated prior to the Civil War) deserve attention.

I wonder, too, if the race-geography dynamics they have uncovered are apparent more broadly in federal criminal trials.  If racial bias is a problem in capital trials in some districts, why would it not also be a problem in noncapital trials?  As federal law enforcement has become more oriented to responding to street crime, which is really a local problem, it makes sense for federal juries to be drawn on a more local basis, too.

Cross posted at Life Sentences Blog.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.

I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

Judge Adelman rejected the motion, stating that “the fact that a judge has expressed views on a legal subject is not a ground for disqualification.” (Burton Order at 6.) He quoted a Ninth Circuit decision stating that a “judge’s view on legal issues may not serve as the basis for a motion to disqualify.” Id. The Seventh Circuit panel, in a per curiam opinion, upheld his decision.

The panel said that S-W argued that “a reasonable person would suspect that Judge Adelman has an unusual interest in assisting [lead paint] plaintiffs – i.e., that he has an ax to grind” (7). The Court dismissed this argument, saying that “judges may speak, write, and participate in other activities concerning the legal issues of the day” (Id.).

This discussion is interesting when juxtaposed next to the murky matter of State v. Allen, pending in the Wisconsin Supreme Court (2007AP000795). Counsel for Allen contended that Justice Michael Gableman must recuse himself from that criminal case, and by implication all criminal cases, because a reasonable person would suspect that Justice Gableman has an unusual interest in assisting law enforcement, an ax to grind against criminal defendants.

This is based on various statements he made during the 2008 campaign when he publicly criticized the court’s decisions, particularly from the 2004-05 term. A number of “Allen motions” were filed in other cases, urged on by the State Public Defender’s Office.

Just as Judge Adelman should not recuse himself from all lead paint cases because he publicly defended the court’s 04-05 lead paint case, so Justice Gableman should not recuse himself from all criminal cases because he publicly criticized the court’s 04-05 criminal cases.

In a unanimous opinion by Justice Breyer, the Court held that “the phrase ‘principal place of business’ refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities.” That is, the Court authoritatively and explicitly identified a corporation’s “nerve center” as its principal place of business and further elaborated that “the ‘nerve center’ will typically be found at a corporation’s headquarters.” As one would expect of a unanimous Supreme Court opinion, the interpretation has much to recommend it, in terms of both textual analysis and administrability: in the latter regard, the Court cited with approval Justice Scalia’s observation in an earlier case that vague boundaries are “to be avoided in the area of subject-matter jurisdiction wherever possible.”

The decision will nonetheless not be warmly greeted across the country. I refer not so much to law professors, although it is true that they will have one less ambiguity with which to becloud—I mean, introduce—the study of law. Rather, many judges of the lower federal courts—which unlike the Supreme Court do not have discretion over their dockets—have long been the most vocal opponents of diversity jurisdiction. After all, one does not become a federal district judge out of an interest to decide state-law suits (such as wage-and-hour claims here) that happen to be in the federal system only because of the fortuity of diversity of citizenship (and the satisfaction of the amount in controversy), does he (or, in places outside of the Eastern District of Wisconsin, she)? Indeed, one can see this reality even in the Ninth Circuit, where Hertz arose: not exactly known for eschewing federal jurisdiction, the court’s failure previously to apply the “nerve center” test had meant that it could deem to be citizens of California many corporations—such as Hertz—with executive offices located elsewhere but with more employees in California than anywhere else (simply because of California’s size). More California “citizen[s],” less diversity jurisdiction, fewer state-law wage-and-hour claims for the federal courts in the Ninth Circuit to decide—but no longer will this be so.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed, but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I’d like to think that events — subsequent successes by black candidates on a county wide basis — have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn’t — on the bench — a warm person.

He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.

Yet he wasn’t unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.

I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.

R.I.P.

Cross posted at Shark and Shepherd.

In January 2003, Milwaukee police officers found two guns in the home of the estranged wife of Rashid Salahuddin.  Salahuddin himself was arrested shortly afterwards.  Now, more than six years later, after many rounds of legal proceedings in state and federal court, Salahuddin still awaits final resolution of criminal charges stemming from the discovery of the guns.   

In October 2008, Judge J.P. Stadtmueller of the Eastern District of Wisconsin summoned the United States Attorney and the Federal Defender to his office for an off-the record conversation about the case, which he characterized as “a total breakdown of justice.”  Following this conversation, the government asked Stadtmueller to recuse himself from the case.  When Stadtmueller refused, the government initiated proceedings in the Seventh Circuit to compel the district judge’s removal. 

The Seventh Circuit has now agreed with the government that Stadtmueller’s statements at the October 2008 meeting required his recusal.  In re United States of America (No. 09-2264) (Ripple, J.). 

The case raises two questions in my mind.  First, was  there indeed a “total breakdown of justice” in Salahuddin?  And, second, what is the broader significance of the Seventh Circuit’s decision for the way judges and prosecutors interact?

“Breakdown” may not be much of an exaggeration.  Not only has there been an extraordinary lapse of time from the initial arrest without any resolution of the charge (felon in possession of a firearm), but the case’s history has also included some other troubling features.  For instance, prosecutors only initiated federal proceedings after the same charge (felon in possession) was dismissed in state court for lack of probable cause.  It is always questionable for the feds to take over a case following a failed state prosecution; such recharging smacks of forum-shopping and raises the same fundamental fairness concerns that animate the Double Jeopardy Clause (although the Clause has – unfortunately, in my view – been interpreted so as to give very wide latitude for successive state-federal prosecutions).  To be sure, there are some unusual circumstances where reprosecution seems justified, as when sham prosecutions of crimes against African-Americans and civil rights workers were conducted in state courts in the South of an earlier era.  Perhaps there were comparable special circumstances in Salahuddin, but it is not clear what they were.

Another troubling feature of the case is the government’s attempt to have Salahuddin sentenced under the Armed Career Criminal Act, which would result in a mandatory minimum sentence of fifteen years.  To be sure, Salahuddin does have a long rap sheet.  But a fifteen-year mandatory minimum seems at least questionable for what appears to be a marginal felon-in-possession charge (remember, the guns were found in the estranged wife’s house, not on or near Salahuddin’s person and not during the commission of a crime).  Indeed, after federal charges were filed, the assistant United States attorney on the case sent a letter to Salahuddin’s attorney indicating that Salahuddin did not qualify as an armed career criminal.  It was only after Salahuddin pled guilty and was awaiting sentencing that the government changed its position and informed Salahuddin that it was seeking the ACCA fifteen-year minimum.  Given that crucial change in his sentencing exposure, Salahuddin was properly permitted to withdraw his guilty plea.  Thus was lost an opportunity to resolve the case more than three years ago.

Since then, the case has bounced around the chambers of practically every judge and magistrate judge in the Eastern District and made two trips to the Seventh Circuit. 

In fairness to the government, I know nothing about the case beyond the information that is contained in the (unusually long) fact section of the Seventh Circuit’s latest opinion.  It is entirely possible that there are compelling circumstances in this case that warrant federal reprosecution following a state court’s finding of no probable cause, the imposition of a fifteen-year mandatory minimum prison term, and the extraordinary investment of prosecutorial and judicial resources required by four years of federal litigation (and counting).  But it does not strike me as unfair for citizens (and taxpayers) to question whether the case has been handled appropriately.

May the presiding judge, however, raise this question?  The Seventh Circuit said no, at least in the specific context of the October 2008 meeting in chambers: “We must conclude that the Judge’s actions, assessed in their totality, are such that a reasonable, well-informed observer would question his partiality” (24).  The court took care, though, to emphasize it was not finding that Judge Stadtmueller was biased, only that a hypothetical reasonable observer would question his partiality.

With the holding presented this way, it is hard to know what to make of it.  There is no bright-line rule – just one panel’s conclusion about how an imaginary “reasonable, well-informed observer” would react to one rather unusual and convoluted fact pattern.

But I do have some misgivings about the potential chilling of judicial commentary on the charging and plea-bargaining practices of prosecutors. 

Yes, Federal Rule of Criminal Procedure 11(c)(1) prohibits judges from “participat[ing] in [plea] discussions.”  And, yes, the Seventh Circuit seemed to base its holding, in part, on a conclusion that Judge Stadtmueller violated Rule 11 by recommending a particular plea deal at the October meeting.  But it is hardly self-evident that the judge was “participat[ing] in [plea] discussions” when he was having a private conversation with supervisory personnel, not the line attorneys assigned to the case, and when, to all appearances, the case was headed for trial.

And, in any event, it is clear that the Seventh Circuit’s concerns were not limited to Rule 11 and the recommendation of a plea deal:

Here we must conclude that the Judge did more than simply participate in a plea bargain.  He questioned the Government’s decision to prosecute the matter as a federal case in terms that a reasonable observer might well interpret as critical of the Government’s position in the case.  (21)

 The Seventh Circuit characterized the judge’s criticism as tantamount to a violation of separation of powers:

[T]he Judge questioned why this case was accepted for federal prosecution, expressed concern abut the time that had passed between Mr. Salahuddin’s initial arrest and the commencement of federal proceedings, and suggested that this case was an embarrassment to the justice system and an inefficient allocation of taxpayer resources. . . .

In expressing these views and insisting that action be taken to conform the future course of litigation to those views, the Judge misapprehended the limits of his authority as the presiding judicial officer and undertook to participate in determinations that are in the proper domain of the Department of Justice. . . . Judges do not possess, and should not attempt to exercise, prosecutorial discretion.  (22-24)

It is surely an overstatement to equate the mere articulation of views by a judge “that are critical of the Government’s position in the case” with an “attempt to exercise prosecutorial discretion,” but there is a risk that the Seventh Circuit’s opinion will be understood along those lines.  And I do think it would be unfortunate if judges felt precluded from commenting critically on the way that prosecutors exercise discretion. 

Properly understood, separation of powers does not involve hermetically sealed branches of government, but a dynamic system of interbranch checks and balances that helps to protect individuals from arbitary government action and assures that elected and unelected officials face some measure of public accountability for their decisions.  In recent years, much critical scholarly attention has been focused on the high levels of discretionary power and low levels of transparency and accountability enjoyed by unelected federal prosecutors.  It is very difficult for members of the lay public to understand the full range of charging and plea-bargaining options available to federal prosecutors and to evaluate the quality of the decisions they make.  To be sure, if prosecutors occasionally abuse their power, defense lawyers can call them on it, but defense lawyers have limited credibility with the public and, in any event, must always think carefully about the effect of public criticism on their ability to deal in favorable ways with prosecutors in the future.  District judges are thus uniquely well situated to deliver well-informed, independent, credible criticism when prosecutors exercise their awesome discretionary power in ways that are unfair or arbitrary.  And district judges around the country do make headlines from time to time by delivering just such criticism, for instance, when rejecting proposed plea deals. 

Moreover, while I think about these things primarily in terms of public accountability, even private admonishment (like that delivered by Judge Stadtmueller) has a potentially helpful role to play.  Jury trials are often said to provide a feedback mechanism for prosecutors: if prosecutors charge a case that should not be charged (even if the defendant did technically break the law), the jury can signal its disapproval through acquittal.  But criminal jury trials have become a rare occurence in federal court.  In the absence of jury feedback, judicial feedback may perform a similar function.

With all that in mind, I hope that In re United States will be understood, not as a general discouragement of judicial commentary on prosecutorial performance, but as a narrowly focused response to a specific, highly unusual set of facts. 

Other new criminal cases this past week were:

United States v. Calabrese (No. 08-2861) (Evans, J.) (affirming gangster’s conviction and sentence, with generous sprinkling of references to “the 1990 movie classic Goodfellas”).

United States v. York (No. 07-2032) (Tinder, J.) (holding that improper admission of “dual” testimony was harmless error).

United States v. Quintero (No. 08-4033) (Bauer, J.) (holding that addition of forfeiture order to sentence was merely correction of clerical error, which could be done at any time).

United States v. Terry (No. 08-3411) (Kanne, J.) (affirming denial of motion to suppress over defendant’s objection that his phone number was illegally obtained and monitored).

As everyone living in the Milwaukee area knows, Bartlett and his codefendants were police officers convicted of civil rights violations for the savage beating suffered by Jude, a biracial man.  For many, the Jude case, which received intense local media coverage, was emblematic of the state of police-community relations in inner-city Milwaukee. 

Bartlett’s “win” on appeal resulted from a discrepancy in his sentencing. 

The federal sentencing guidelines recommended a sentence within the range of 151-188 months for Bartlett.  The sentencing judge announced that Barrtlett’s sentence would be at the top of the range, but then imposed a sentence of 208 months.  The Seventh Circuit appropriately decided that Bartlett’s sentence could not stand when there was a risk it resulted from a misreading of the guidelines:

A 208-month sentence is reasonable substantively, but no one, not even a Bartlett, should lose 20 months of freedom because a district judge read across the wrong line in a table.  (The range 168 to 210 months is the next highest in the Guidelines’ sentencing table.)

Of course, by stating that the 208-month was “reasonable substantively,” the Seventh Circuit has cleared the way for the lower court simply to reimpose the same sentence.  Bartlett’s victory may be short-lived.

Aside from the bottom-line result, a couple of other aspects of the opinion deserve note.  First, the Seventh Circuit upheld the lower court’s decision to exclude the defendant’s proposed expert testimony on the high error rates in eyewitness identification.  Along the way, though, the Seventh Circuit acknowledged the compelling social scientific evidence demonstrating the problems with eyewitness identification of strangers.  The court also indicated that expert testimony on these problems might be appropriate in some cases: “Expert evidence can help jurors evaluate whether their beliefs about the reliability of eyewitness testimony are correct.”  However, in the Jude case, such expert evidence was not improperly excluded because the convictions did not rest on a single eyewitness identification of a stranger, but on multiple identifications, some of which were made by witnesses who knew the defendant.   

Second, the court tried to sort out the messy case law on when a defendant must object to a sentence in the lower court in order to preserve the right to raise a sentencing issue on appeal.  (The government argued that Bartlett had forfeited his sentencing claim.)  The need to raise an issue in the lower court is governed by Rule 51:

Rule 51(b) . . . requires a protest immediately after the ruling if the litigant did not have an opportunity to argue the point earlier. . . . But when an issue is argued before the judicial ruling, counsel need not take exception once the court’s decision has been announced.  That’s what Rule 51(a) says.  Bartlett’s sentence was the subject of extensive argument and evidence; his lawyer did not need to argue with the judge once the sentence had been pronounced.

Other criminal cases with new opinions last week were:

United States v. Longstreet (Nos. 07-1657, 07-2685, 07-3083) (Kanne, J.) (affirming conviction and sentences arising from drug conspiracy, with limited remand for possible resentencing in light of Kimbrough).

United States v. Kincannon (No. 08-2891) (Evans, J.) (affirming conviction and sentence in drug case).

United States v. Lacey (No. 08-2515) (Manion, J.) (affirming conviction and sentence in child pornography possession case).

At the same ceremony, the Eastern District presented its Judge Myron L. Gordon Lifetime Achievement Award to Foley & Lardner’s Thomas L. Shriner, Jr., an Indiana University law graduate and well-known Milwaukee litigator (and adjunct professor of law here at Marquette). The citation accompanying the award, written by Bill Mulligan, L’60, and Dean Joseph D. Kearney, concluded with the observation that Tom is “respected and admired for his prodigious knowledge of the law, great wit, smile, and willingness to help others.”  Congratulations as well to Tom.

The full citations can be found here concerning Michael and here concerning Tom.

In reviewing the questionnaire, I am glad that I myself am not an applicant — we are asking applicants to gather and present a large quantity of information about themselves in a short period of time.  I hope that well-qualified attorneys will not be deterred by this process.  There is, of course, a delicate balance to strike: on the one hand, we do not wish to deter applicants through an unduly onerous process; but, on the other hand, it is critical for the Commission to have adequate information to assess the competence and integrity of all of the candidates for such an important position of public trust.  I hope that we have struck the balance appropriately.

Rather, I wish to make an observation concerning leadership of the Federal Nominating Commission: Where there is a vacancy, the charter calls for the dean of the law school in the federal judicial district (Marquette in the Eastern District and the UW-Madison in the Western District) or his designee to chair the commission. I have thus chaired the commission on occasions in the past.

With respect to the current vacancy in the U.S. Attorney’s position in the Eastern District, occasioned by the departure of Steve Biskupic, L’87, for private practice, I this week exercised my option to delegate my responsibilities. This occurs from time to time (e.g., the late Dean Howard B. Eisenberg tapped our colleague, Professor Peter K. Rofes, on one occasion in the 1990s, and a similar thing has occurred on occasion in the Western District).

Specifically, I have turned to my colleague, Michael M. O’Hear, Professor of Law, Associate Dean for Research, and (least relevantly) managing editor of this blog. My principal reason, besides other demands on my attention, is my belief that Professor O’Hear — a leading legal academic in the area of criminal sentencing — is unusually well qualified to help guide this search.

I hope that Professor O’Hear will consider using this blog as one of the means of disseminating information about the Federal Nominating Commission’s important undertakings. In all events, the commission’s recommendation of four to six individuals to serve as the U.S. Attorney in Milwaukee is due to the senators under the charter near the end of March.

Steve’s counterpart in the Western District, Erik Peterson (who is also a Marquette alum), has not yet announced his plans.

This instruction was based on an extraordinarily broad village ordinance which prohibited the distribution of “any printed matter on literature on public or private property” or the placement of such literature on motor vehicles. The ordinance had an exception for the distribution of literature to persons “willing to accept” it.

Foht apparently attempted to clarify the matter with the village attorney, who failed to return his calls. That turned out to be expensive.

Foht filed suit and the village, finally obtaining the proper legal advice, repealed the ordinance. The consent decree declares that the ordinance was facially unconstitutional and should not have been applied to Foht and awards him $11,000 in attorneys fees and costs.

The result is unexceptional, but the fact of the case may be instructive. What the law requires and whether it is complied with are two different matters. I doubt that this type of ordinance was only to be found in Kewaskum, Wisconsin.

District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”

As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose.

To exclude religious perspectives on content that the forum otherwise permits is impermissable viewpoint discrimination. In a forthcoming piece in the Mississippi Law Journal, I argue that there is no epistemological basis for distinguishing worship from other forms of discourse.

Judge Adelman may not agree. Although he held that the Regents had not shown that the specific activities of the RCF were outside the purpose of the forum, he suggested that the University could choose to exclude at least certain types of worship because “while worship may technically be within the forum’s broad purposes” the University might conclude that “its value to the forum is less than other forms of expression.” The UW, in his view, could “decline to fund activities involving nothing more than mechanical praise, provided that it does not simultaneously fund secular activities that lack a discussion component.”

This is where we part ways. I argue in the Mississippi piece that worship is unlikely to be devoid of assertions about temporal matters and claims about how our individual and communal lives ought to be lived. While a forum could be defined to require, as Judge Adelman would have it, “back and forth discussion of an idea,” it is unlikely to be. It seems implausible that segregated fees in the UW system are made available only to expressive activities in which all sides participate and each idea expressed is subject to critical examination.

If the point is that worship or sectarian speech is inherently less valuable or may be excluded from the “purpose” of a forum, my view is that, to exclude such speech on that basis, would be prohibited viewpoint discrimination. Judge Adelman disagrees, seeing it as content discrimination–something that the government is permitted to do in limited purpose public forums.

I don’t think so. If worship or sectarian speech provides a perspective on something on which secular perspectives are permitted, then excluding the latter is viewpoint discrimination. Judge Adelman’s suggestion that the University can decide that the latter approach is less valuable is precisely what the Constitution forbids.

The right result but some troubling dicta. It’ll be interesting to see what the next round brings and, given what seems to be ongoing tension between the UW and the RCF, there is likely to be another round.