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In January 2003, Milwaukee police officers found two guns in the home of the estranged wife of Rashid Salahuddin.\u00a0 Salahuddin himself was arrested shortly afterwards.\u00a0 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\u00a0guns.\u00a0\u00a0\u00a0<\/p>\n
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.”\u00a0 Following this conversation, the\u00a0government asked Stadtmueller to recuse himself from the case.\u00a0 When Stadtmueller refused, the government initiated proceedings in the Seventh Circuit to compel the district judge’s removal.\u00a0<\/p>\n
The Seventh Circuit has now agreed with the government that Stadtmueller’s statements at the October 2008 meeting required his recusal. \u00a0In re United States of America <\/em><\/a>(No. 09-2264) (Ripple, J.).\u00a0 <\/p>\n The case raises two questions in my mind.\u00a0 First, was \u00a0there indeed a “total breakdown of justice” in Salahuddin<\/em>?\u00a0 And, second, what is the\u00a0broader significance\u00a0of the Seventh Circuit’s decision for the way judges and prosecutors interact?<\/p>\n “Breakdown” may not be\u00a0much of an exaggeration.\u00a0 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\u00a0has also included some\u00a0other troubling features.\u00a0 For instance, prosecutors only initiated federal proceedings after\u00a0the same\u00a0charge (felon in possession) was dismissed in state court for lack of probable cause.\u00a0 It is always questionable for the feds to take over a case\u00a0following\u00a0a 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 —\u00a0unfortunately, in my view —\u00a0been interpreted so as to give very wide latitude for\u00a0successive state-federal prosecutions).\u00a0 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\u00a0of an earlier era.\u00a0 Perhaps there were comparable special circumstances in Salahuddin<\/em>, but it is not clear what they were.<\/p>\n 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.\u00a0 To be sure, Salahuddin does have\u00a0a long rap sheet.\u00a0 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\u00a0near\u00a0Salahuddin’s person and not during the commission of a crime).\u00a0 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<\/em> qualify as an armed career criminal.\u00a0 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.\u00a0 Given that crucial change in his sentencing exposure, Salahuddin was properly permitted to withdraw his guilty plea.\u00a0 Thus was lost an opportunity to resolve the case more than three years ago<\/em>.<\/p>\n 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.\u00a0<\/p>\n In fairness to the government, I know nothing about the case beyond\u00a0the information that\u00a0is contained in the (unusually long) fact section of the Seventh Circuit’s latest opinion.\u00a0 It\u00a0is entirely possible that\u00a0there 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).\u00a0 But it does not\u00a0strike me as unfair for citizens (and taxpayers) to\u00a0question whether the case has been handled appropriately.<\/p>\n May the presiding judge<\/em>, however, raise this question?\u00a0 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).\u00a0 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.<\/p>\n With the holding presented this way, it is hard to know what to make of it.\u00a0 There is no bright-line rule —\u00a0just one panel’s conclusion about how an imaginary “reasonable, well-informed observer” would react to one rather unusual and convoluted fact pattern.<\/p>\n But I do have some misgivings about the potential chilling of judicial commentary on\u00a0the charging and plea-bargaining practices of prosecutors.\u00a0<\/p>\n Yes, Federal Rule of Criminal Procedure 11(c)(1) prohibits judges from “participat[ing] in [plea] discussions.”\u00a0 And, yes, the Seventh Circuit seemed to base its holding, in part, on a conclusion that Judge Stadtmueller violated Rule 11 by\u00a0recommending a particular plea deal at the October meeting.\u00a0 But it is\u00a0hardly\u00a0self-evident that the\u00a0judge was “participat[ing] in [plea] discussions” when\u00a0he was having\u00a0a\u00a0private conversation with supervisory personnel, not the line attorneys assigned to the case, and when, to all appearances, the case was headed for trial.<\/p>\n And, in any event,\u00a0it is clear that the Seventh Circuit’s\u00a0concerns were\u00a0not limited to\u00a0Rule 11 and the recommendation of a plea deal:<\/p>\n Here we must conclude that the Judge did more than simply participate in a plea bargain.\u00a0 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.\u00a0 (21)<\/p><\/blockquote>\n \u00a0The Seventh Circuit characterized the judge’s criticism as tantamount to a violation of separation of powers:<\/p>\n [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. . . .<\/p>\n In expressing these views\u00a0and insisting that action be taken to conform the future course of litigation to those views,\u00a0the 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.\u00a0 (22-24)<\/p><\/blockquote>\n 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,”\u00a0but there is a risk that the Seventh Circuit’s opinion will be understood along those lines.\u00a0 And I do think it would be unfortunate if judges felt precluded from commenting critically on the way that prosecutors exercise discretion.\u00a0<\/p>\n 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\u00a0assures that elected and unelected officials face some\u00a0measure of public accountability for\u00a0their decisions.\u00a0 In recent years, much critical scholarly attention has been focused on the\u00a0high levels of discretionary power and low levels of transparency and accountability\u00a0enjoyed by\u00a0unelected federal prosecutors.\u00a0 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\u00a0and to evaluate the quality of the decisions they\u00a0make.\u00a0 To be sure, if\u00a0prosecutors 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.\u00a0 District judges are thus uniquely well situated to deliver well-informed, independent,\u00a0credible criticism when prosecutors exercise their awesome discretionary power in ways that are unfair or arbitrary.\u00a0 And district judges around the country\u00a0do make headlines from time to time by delivering just such criticism, for instance, when rejecting proposed plea deals.\u00a0<\/p>\n Moreover, while I think about these things primarily in terms of public <\/em>accountability, even private admonishment (like that delivered by Judge Stadtmueller) has a potentially helpful role to play.\u00a0 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.\u00a0 But criminal jury trials have become a rare occurence in federal court.\u00a0 In the absence\u00a0of jury feedback, judicial feedback may\u00a0perform a similar function.<\/p>\n With all that in mind, I hope that In re United States<\/em> will be understood, not as a general discouragement of judicial commentary on prosecutorial performance, but as a\u00a0narrowly focused\u00a0response to a specific, highly unusual set of facts.\u00a0<\/p>\n Other new criminal cases this past week were:<\/p>\n United States v. Calabrese <\/a><\/em>(No. 08-2861) (Evans, J.) (affirming gangster’s conviction and sentence, with generous sprinkling of references to “the 1990 movie classic Goodfellas”<\/em>).<\/p>\n United States v. York <\/a><\/em>(No. 07-2032) (Tinder, J.) (holding that improper admission of “dual” testimony was harmless error).<\/p>\n