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Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it might be OK for a judge to be an advocate for a party, at least in a case where he has "a strong vision of legal justice and then acts in service to that vision."

That's the answer I believe is suggested by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.


Assigning Judges to Cases

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In most courts below the level of the Supreme Court (state or federal), most cases are heard by something less than all the judges of the court.  How do judges get assigned to cases?  Can assignments be manipulated?  Are they?

Presently, there is a big controversy in the Ninth Circuit regarding assignments to the same-sex marriage cases.  Josh Blackman has this post at his eponymous blog.  It seems Judges Reinhardt and Berzon get assigned to these panels at rates far beyond what can plausibly be explained by chance.  CJLF takes no position on the underlying issue in these cases, but the fairness of judicial assignments is something that does concern us.

In civil litigation affecting the criminal justice system, we have seen manipulations of the "related case" rules to funnel the prisoner rights cases and the cases blocking implementation of an important reform of capital habeas corpus to the most prisoner-friendly judges.  The three-judge panel that heard the California overcrowding case was the prisoners' dream team.  If I were representing the prisoners and could choose any three judges from the entire federal judiciary, those are the three I would have chosen.

The next Congress should take a good, hard look at judicial assignment policies.  This is too important to leave to local rules of court.
It's generally good manners to say nice things about people on such occasions as their retirements, their funerals, or their advanced-years birthdays.  Just let the bad things slide for the occasion.  It is possible to go too far with that, however.  Mississippi Senator Trent Lott found that out when he said, at Strom Thurmond's 100th birthday party, that America would have had fewer problems if Thurmond had been elected president in 1948.  Although he later saw the error of his ways, Thurmond was a fire-breathing segregationist in 1948, and, no, it would not have been better.  Lott was ousted as Senate Majority Leader.

We saw something similar in the Sacramento Bee over the weekend.  Denny Walsh has this unintentionally hilarious whitewash of the career of one of the worst judicial imperialists on the federal bench, U.S. District Judge Lawrence Karlton, who has finally retired for real (as opposed to the semiretired "senior status").

For example, there is this knee-slapper, attempting to refute the charges of activism with affirmance rate:  "The 9th U.S. Circuit Court of Appeals usually affirmed his decisions, though it was well stocked with appointees of Presidents Richard Nixon, Ronald Reagan, and George H.W. and George W. Bush."

Well stocked?  This should be in The Onion, not a real newspaper.  The Ninth was packed during the Carter Administration.  Anyone who knows anything about the federal courts knows that the Ninth Circuit is nationally notorious as the most left-wing appellate court in the nation, and it is generally the court most reversed by the Supreme Court (although the Sixth is sometimes competitive for the latter dishonor).  A high affirmance rate in the Ninth means nothing with regard to refuting a charge of left-wing judicial activism, and every journalist worth his salt covering the courts knows that.

Walsh says, "To the end, every time Lawrence Karlton interpreted and applied the Constitution, that enduring blueprint of our democracy was in very good hands."  Quite the contrary, democracy was in peril every time Karlton disagreed with its results.   See, e.g., CJLF's and Crime Victims United's brief in Valdivia v. Schwarzenegger.

Walsh also says, "There is little chance we shall see his like again."  On this point, I hope to God he is right.

Time and Again

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Opening its new term, the U.S. Supreme Court has once again unanimously chastised the notorious Ninth Circuit for once again ignoring the limits placed by Congress on its authority to second-guess reasonable decisions on debatable questions of law by the state courts with primary jurisdiction over a case.  The opinion begins (emphasis added):

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is "clearly established." See, e.g., Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam) (slip op. at 6). Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.
The case is Lopez v. Smith, No. 13-346.

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954).  Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

John Gleeson, Defense Lawyer in a Robe

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A long time ago, in a galaxy far, far away, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson.  Gleeson is young enough to know better, and I'm sure he does.  The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected  to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers).  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?




John Conyers of Detroit, who will be 85 tomorrow, is the top Democrat on the House Judiciary Committee.  Although the Democrats are in the minority in that chamber, being the Ranking Member is an influential position (as Chuck Grassley proves daily in his counterpart position on the Senate Judiciary Committee).

But Rep. Conyers might not be there for long.  Amazingly, he did not submit enough legal signatures to qualify for the ballot.  He will probably conduct a write-in campaign, but the chances there are problematic.  He could also decide that, at 85, enough of Washington is enough.

If Conyers ever failed to vote for a bad piece of legislation, I can't remember what it was.  But I have three nice things to say about him.  He's focused and energetic for his age; he's a gentleman, having always been gracious to me when I testified (inevitably against his position) before his Committee; and, as Chairman in the late 1980's, he instigated and presided over the impeachment of corrupt then-federal district judge Alcee Hastings, who, like Conyers, is African-American. 

Of course, there were charges that Hastings was on the hook only because of racism.  Conyers rose to disagree, in words we would do well to remember today: "The principle of equality requires that a black public official be held to the same standard that other public officials are held to....Just as race should never disqualify a person from office, race should never insulate a person from the consequences of wrongful conduct."

Nominee for USCA 6?

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Andrew Wolfson reports for the Louisville Courier-Journal:

Kentucky Supreme Court Justice Lisabeth Hughes Abramson of Louisville is being vetted by the FBI for a seat on the U.S. Court of Appeals' 6th Circuit.
I have it on solid local authority that she would be a vast improvement over the departed Judge Boyce Martin.
Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.

A Decision on Younger Abstention

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This morning the US Supreme Court decided the Sprint case, having to do with Younger abstention, previously discussed in this post in October. The decision was unanimous in favor of the federal court going ahead and not abstaining.

No criminal cases were decided today, and none will be argued.

Streaming USCA9 En Banc

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The US Court of Appeals for the Ninth Circuit (covering nine Far Western states) announced today that video of its "en banc" oral arguments will be available live on the Internet.

Federal courts of appeals normally hear cases in 3-judge panels, but cases are sometimes heard or reheard by the full court to resolve conflicts between panels or in cases of exceptional importance.  Because of its size, the Ninth Circuit rarely sits truly "en banc" but instead hears cases as an 11-judge court consisting of the chief judge and 10 judges chosen at random.

Follow-up on Vacating the Franklin Stay

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Several posts in the last two days have noted the case of Joseph Franklin in Missouri:  the stays of execution, the Eighth Circuit's action vacating the stays, and the Supreme Court's refusal to reinstate them.  I have found the Eighth Circuit's orders in the case.  Here is the order vacating the one of the stays:

Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden under 28 U.S.C. § 2254(d) to present sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Panetti v.  Quarterman, 551 U.S. 930, 946-47, 956-57, 961 (2007). Determining the district court abused its discretion, we reverse the district court's stay of execution.

Well that's pretty short and sweet, probably due to the time pressures.
In August, Federal District Judge Shira Scheindlin issued an injunction in the stop-and-frisk case.  AP described the ruling as "a stinging rebuke to a policy [Mayor Bloomberg] and the New York Police Department have defended as a life-saving, crime-fighting tool that helped lead the city to historic crime lows."

Judge Scheindlin came in for a rebuke of her own today.  Not only did the Court of Appeals stay her order, it went on to say:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Whack!  The footnotes follow the break.
Tuesday, November 5, is federalism day at the high court.  One case on the docket is Bond v. United States, No. 12-158, a rare criminal case where the defendant is right.  As I noted last January, Carol Bond deserves to be severely punished for her use of poison to get revenge on her former best friend for having an affair with her husband.  But that punishment should be meted out by the Commonwealth of Pennsylvania, not the United States.

The other case is a civil case that concerns a doctrine that often comes up in criminal cases.  That is the Younger doctrine, named for Evelle Younger, District Attorney of Los Angeles back in the turbulent 60s.  A criminal defendant filed suit in federal district court to halt an ongoing prosecution in state court.  The Supreme Court quashed that in Younger v. Harris (1971).  Younger had taken office as AG by the time the case was decided, but it bears his name anyway.

The case before the Supreme Court on November 5 is Sprint Communications Co. v. Jacobs, No. 12-815.  As you might guess from the title, it involves telecommunications regulation.  (Yawn.)  But wait, is the Supreme Court inclined to expand Younger or narrow it?  That might matter the next time a criminal defendant tries to go judge-shopping in federal court when the case belongs in state court. 

Scott Dodson has this preview at SCOTUSblog.  Sprint's main argument seems to be that because the case involves a federal question it should be decided in federal court.  But state courts have been competent to decide questions of federal law from the dawn of the republic.  Congress did not even vest the lower federal courts with "federal question" jurisdiction, as we now know it, until after the Civil War, and the exigencies of Reconstruction are now a fading speck in the rear-view mirror.  I will be rooting for the State of Iowa on this one.

Barring Out-of-State Prisoner Placements

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When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?

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