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).