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.