It’s described in the Chicago Sun-Times as “unusual”, but that’s nonsense. It’s unheard of. Until now. The Tribune does a better job, calling the hostility between Chief Judge James Holderman and United States Attorney Patrick Fitzgerald “extraordinary”, though even that fails to capture the situation.
The “relationship” between the two is described as hostile. Since when do U.S. Attorneys and federal judges have relationships?
Fitzgerald has had issues with Holderman’s temperament. In 2005, the judge ordered a misconduct investigation of the U.S. attorney’s office by the U.S. Department of Justice’s Office of Professional Responsibility. In response, Fitzgerald countered that Holderman had been openly hostile to prosecutors.
At that time, the federal appeals court ordered a halt to the judge’s inquiry and noted respectful relations between the bench and prosecutor were vital.
Apparently, respectful relations involving others in the courtroom, say, oh, criminal defense lawyers, don’t merit a mention. But that’s all in the past. This time, the mid-trial blow up caused Fitzgerald to stop the trial of an accused Columbian drug dealer to go cry to Judge Richard Posner at the 7th Circuit that Holderman was being too mean to the government.
Before the trial started July 6, Holderman excluded evidence of two fingerprints on drug packaging because the prosecutor had violated a court deadline for evidence gathering. The federal appeals court reversed the ruling, saying the exclusion was too harsh a penalty for missing a deadline.
Yet during the trial, Holderman found problems with the reliability of the same fingerprint evidence. He notified the prosecutors, prompting them to file an appeal with the appeals court July 14. Holderman responded in court papers that he had not made a final decision.
On July 22, the judge definitively excluded the evidence, leading to another trial stoppage. In the petition, Fitzgerald said Holderman had accused multiple prosecutors of lying and threatened to hold misconduct hearings. The judge fired back in court papers filed Tuesday that the government’s petition contained “several deficiencies” and “false factual statements.”
The Circuit, sua sponte, did the unthinkable. It removed Judge Holderman from the case. Fitzgerald only wanted his evidence to come in. That wasn’t enough for the panel, apparently, and it decided that the judge presiding over the trial was out on his butt. The court offered no explanation for its action, though a decision will supposedly issue eventually.
When news of this action broke, the initial reaction was utter amazement. No one had ever heard of anything like this occurring before, and certainly no one could even fathom a court considering, no less acting, upon a complaint of hostility coming from the defense.
Short of Judge Holderman being on the take, which no one suggests, his removal from the trial is nothing short of amazing and incredible. Even the notion of the emergency order by the government, because it didn’t like the judge’s decision, borders on the inexplicable. What’s the message?
When a judge refuses to suppress evidence that the defense contends was seized in violation of the Fourth Amendment, the case goes to trial and the evidence is admitted. Assuming, as is usually the case, that the defendant is convicted, he may be imprisoned pending appeal. Chances are slim that the defendant will be allowed bond pending appeal.
Once the appeal is perfected, the matter argued and a decision is penned, and should the denial of suppression be reversed, the defendant may be released. Understand, this process can take years, and the defendant remains in prison throughout the process. None of this matters to the court. It’s hardly an emergency situation, demanding immediate action to prevent the wrongful imprisonment of a human being. This is just the way the process works.
Yet when the U.S. Attorney complains that the mean judge, the hostile judge, might preclude the prosecution from introducing a piece of evidence that they want to use to prove guilt, the circuit judges come a’running to prevent the grave injustice that someone may not be convicted as readily as the government demands.
Until a decision issues, we won’t have a clear understanding of what it was that Judge Holderman did here that so aggrieved the government that it commanded the Circuit’s immediate attention and caused the judges to take the extreme action of removing a judge in the middle of a case. As of now, it certainly smells as if it’s all because of an adverse ruling.
So what? Judges make adverse rulings against one side all the time. All the time. And it doesn’t raise an eyebrow, no less give rise to relief of any sort. No court has ever gotten this bent out of shape because a defendant might be wrongfully convicted. That’s a big yawner around the courthouse. It’s worthy of a platitude in a decision, and nothing more. The fact that a guy was convicted on unlawfully seized evidence wouldn’t give rise to a blink.
The message from Judge Holderman’s removal isn’t that the judge was making an erroneous ruling. If it wasn’t for erroneous rulings, there wouldn’t be any need for appellate courts at all. Whether reversed or not, they’re a dime a dozen. No, the message here is that the criminal justice system can tolerate errors that affect defendants all day long, but it will not tolerate a mistake that might result in a defendant not being convicted. It will not tolerate the judge who rules for the defense.
But the Chicago Tribune speculates as to the point of this extreme action by the 7th Circuit.
The uneasy history between Fitzgerald and Holderman may have inspired the appellate court to rebuke Holderman. [Lawprof and former defense lawyer Len] Cavise said, “This could be Posner’s way of saying, ‘I’ve had enough of the hostility between you and the U.S. attorney’s office. I want you to cool off.'”
If so, this could be the most dreaded message of all, that federal judges, upon pain of removal, must maintain cordial relations with one side of the adversarial system of justice, the government.
If a judge has a reason to get hot at the government, then he should be hostile. Same with the defense, which is notably missing from all of this as if it’s not even worthy of mention, no less recognition. Since there’s no explanation for any of this as yet, we can only hope that Judge Posner’s message isn’t that the judge and prosecution need to play nice with each other. They aren’t on the same team. At least, they aren’t supposed to be.
Update: The 7th Circuit decision (they keep changing links, so if the link dies, let me know) is out (h/t Another Chicago Lawyer below), and here’s the beef:
The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record. He repeatedly accused the government lawyers of lying. He said, for example: “I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.” He said: “I am going to bring the jury out, and I am going to tell them the government has failed, once again, to have witnesses ready to proceed. The government is delaying this case. Members of the jury, this case is being delayed by the government. It has been delayed by the government.
Your time has been wasted by the government.” He said: “I would like you [the government lawyers] to go back to the Court of Appeals and tell them, gee, we would like to mandamus Judge Holderman because he won’t allow us to call more witnesses or prove our chain of custody that we asked you, the Court of Appeals, last week to order him to present in the evidence in the case, to admit the document, to admit the exhibit into evidence. We now want to call more witnesses to lay the foundation, witnesses that Judge Holderman has pointed out we need. We now agree with Judge Holderman, and we were wrong last week when we tried to mandamus him. I would like you to go to the Court of Appeals and you tell them that. Will you do that?… Will you do that? Will you go to the Court of Appeals and admit that you lied to them….” He threatened to conduct hearings concerning misconduct by the prosecutors (shades of the conduct that led to the issuance of the writ of mandamus in In re United States, supra).
It’s an outrage! An outrage I say. No judge would ever talk to the defense like that. No wonder Judge Posner had no choice but to remove Judge Holderman from the case.
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Not inexplicable. Not pro-G prejudice. If you look up past evaluations by the Chicago Council of Lawyers and the decision by the 7th Circuit 5 years ago, you’ll see more of the story. Holderman has great difficulty controlling his emotion, and has a horrible temperament. His face bulges, his veins pop, and he expresses rage at people who cross him. He’s had a very log history of prejudice with the U.S. Attorney’s office, as well as other parties. But that’s not why he was bounced here — though it was why the court was prepared to take the step. He was likely bounced for disobeying the court’s prior order to admit the evidence, on top of his tempermament. Even appellate courts want their orders entered.
While the delay for appellate justice for criminal defendants is (usually) awful, the prosection will get no chance to get its evidence in if the defendant walks because of an abuse of discretion ruling. Double jeopardy and all. That’s why this procedure exists.
Hey, maybe Sam Adams should try to get Judge Zagel removed for not letting him mention the obvious gaps in the prosecution’s case against Blagojevich. Think that would work?
Not that I doubt you, but imagine how much more meaningful your assessment would be if you had used a real name. But your explanation leaves me perplexed. If Judge Holderman is so biased and utterly lacking in temperament, and disinclined to follow the Circuit’s “suggestions”, and this has been going on for years, why here and now?
As for the government’s double jeopardy concerns, which is certainly true, I’m going to have to express my decided lack of concern that a criminal go free because of an adverse ruling while innocent people rot in jail awaiting their opportunity to correct the error.
He’d do better to offer Judge Zagel a beer.
I have to say this is ridiculous. The prosecution will get “no chance” to “get its evidence in” if the defendant walks?
If they really want the guy they’ll prosecute him for something else. Then of course there’s the “separate sovereign” exception to double jeopardy, so effectively even DJ isn’t an absolute bar.
I don’t know who the “other parties” you are referring to are, but the only parties that matter to the powers that be when a judge is hostile to them are establishment litigants: the government, insurance companies, banks. Judges are hostile to criminal defendants and individual plaintiffs all the time and no one gives a rat’s behind.
“If they really want the guy they’ll prosecute him for something else. Then of course there’s the “separate sovereign” exception to double jeopardy, so effectively even DJ isn’t an absolute bar.”
I dunno, I find it preferable for the government to attempt to get a conviction with competent evidence admissible under the rules rather than just make up charges until something sticks in prosecutorial free for all.
http://www.ca7.uscourts.gov/tmp/ZT1FG1PC.pdf
Explanation issued today. Looks like Holderman attempted to poison the jury.
Thanks. Reading.
This is just the culmination of YEARS of putting up with Holderman, who by all accounts, is an absolute tyrant. He used to be an AUSA & he’s had it out for the ND-IL office since he took the bench. He is openly biased & hostile to these hard-working prosecutors, and has been for way too long. And he has a lifetime appointment ladies and gentleman. He cannot be removed from the bench unless he’s impeached (not going to happen). This man manages to impugn the integrity of ethical and zealous prosecutors simply because he can. He has well-earned his horrible reputation and the 7th Circuit has (once again) recognized this and has shot him down again. Lawyers have to report when they’ve even been accused of wrong-doing, but this reckless judge actually stated that he found “beyond a reasonable doubt” that the AUSAs were “liars” and had “lied to the court.” These baseless statements are reprehensible and this judge NEEDS to be sanctioned; if only through the terse words and rebukes of the Circuit Court. If any lawyer – defense attorney or prosecutor – had ever said the things this judge said (in front of a sitting jury), they would be immediately held in contempt and severely sanctioned by the ARDC. The US Attorney’s Office has earned a reputation for honesty and zealous prosecution of very, very dangerous criminals (some of them even former governors), including despicable drug traffickers such as this defendant. Why on earth Judge Holderman would go out of his way to flaunt the 7th Circuit and ignore their multiple prior orders is beyond me. For some reason, Holderman has embraced this particular defendant. There certainly is no evidence thus far that Holderman is actually “on the take” but there little else to explain why he has taken such an interest in this particular drug dealer at the expense of the prosecuting attorneys and their stellar reputations. Holderman should be ashamed of himself and he is an embarrasment to the bar, including judges and attorneys. He brings disrepute on the judiciary – something that is hard to do for a federal judge. I was heartened to see the 7th Circuit order his disqualification from presiding over this jury, but I would have expected the Court also to declare a mistrial and discharge this poor jury that has unfortunately seen an unpleasant and unusual display. It is often forgotten that the government and the state are just as entitled to a fair trial as are criminal defendants.
This judge has, for no reason other than his utter disdain for the US Attorney’s Office, caused observers to lose confidence in their federal courts. This judge, afterall, is the Chief Judge of the Northern Dist. of Illinois. Ours is one of the most prestigious of all the Circuits and Districts. Holderman should apologize, but he will not because such is not his character. Hopefully, this jury has not been so tainted by Holderman’s conduct. I trust that the jury will NOT “blame” the government for the delay, but review the evidence.
This is just the culmination of YEARS of putting up with Holderman, who by all accounts, is an absolute tyrant. He used to be an AUSA & he’s had it out for the ND-IL office since he took the bench. He is openly biased & hostile to these hard-working prosecutors, and has been for way too long. And he has a lifetime appointment ladies and gentleman. He cannot be removed from the bench unless he’s impeached (not going to happen). This man manages to impugn the integrity of ethical and zealous prosecutors simply because he can. He has well-earned his horrible reputation and the 7th Circuit has (once again) recognized this and has shot him down again. Lawyers have to report when they’ve even been accused of wrong-doing, but this reckless judge actually stated that he found “beyond a reasonable doubt” that the AUSAs were “liars” and had “lied to the court.” These baseless statements are reprehensible and this judge NEEDS to be sanctioned; if only through the terse words and rebukes of the Circuit Court. If any lawyer – defense attorney or prosecutor – had ever said the things this judge said (in front of a sitting jury), they would be immediately held in contempt and severely sanctioned by the ARDC. The US Attorney’s Office has earned a reputation for honesty and zealous prosecution of very, very dangerous criminals (some of them even former governors), including despicable drug traffickers such as this defendant. Why on earth Judge Holderman would go out of his way to flaunt the 7th Circuit and ignore their multiple prior orders is beyond me. For some reason, Holderman has embraced this particular defendant. There certainly is no evidence that Holderman is “on the take” but there little else to explain why he has taken such an interest in this particular drug dealer at the expense of the prosecuting attorneys and their stellar reputations. Holderman should be ashamed of himself and he is an embarrassment to the bar, including judges and attorneys. He brings disrepute on the judiciary – something that is hard to do for a federal judge. I was heartened to see the 7th Circuit order his disqualification from presiding over this jury, but I would have expected the Court also to declare a mistrial and discharge this poor jury that has unfortunately seen an unpleasant and unusual display. It is often forgotten that the government and the state are just as entitled to a fair trial as are criminal defendants.
This judge has, for no reason other than his utter disdain for the US Attorney’s Office, caused observers to lose confidence in their federal courts. This judge, after all, is the Chief Judge of the Northern Dist. of Illinois. Ours is one of the most prestigious of all the Circuits and Districts. Holderman should apologize, but he will not because such is not his character. Hopefully, this jury has not been so tainted by Holderman’s conduct. I trust that the jury will NOT “blame” the government for the delay, but review the evidence and decide acrdngly.
Link to opinion in last Chicago lawyer comment busted. I have it working at:
http://www.ca7.uscourts.gov/tmp/ZT1FG479.pdf at 5:23 EDT. Sir Greenfield will have to edit/remove this as it violates link in comment policy and is best used to update original link.
Thanks Jonathon. This is an exception to the rule.
I love it when impatient people write extremely long apolgias for the the government under different names.
I love it when extremely long comments lack paragraph breaks making them unreadable.
But most of all, I love the good ol’ US of A. No really, I do.
Hey, Louis, do you know Theodore (right below you)? You two have a lot in common.
I just tried to read that and the link yielded a page not found. Is it still up?
As an aside, last year or the year before the U.S. Supreme Court stated: “a warrantless search is per se unreasonable.” I bookmarked that link, savoring the quote. I don’t remember anything other about the case than that quote. Unbelievably, the page was taken down.
That line is from Katz v. United States. As for the link, it was working, then it wasn’t, then it was, now it’s not. Hopefully it will be again.
Is the USAO’s HR person name Louis or Theodore? I’m confused.
Often forgotten that the government and the state are just as entitled to a fair trial as are criminal defendants?
I’m amazed at this statement. I’ll agree that the rules of evidence should be applied even-handedly, but that’s it. The defendant is entitled to a fair trial, but the government isn’t. The government doesn’t have “rights”; it has power. Rights belong to individuals, not abstractions.
A judge could be horrendously unfair to the government in a trial – not that that ever happens – but that would violate no one’s rights.
What is so extraordinary about the 7th circuit’s action here is that it reveals just how lopsided the perspective of judges is. An appellate court never intervenes in a trial on behalf of a criminal defendant, no matter how egregiously his rights (which actually exist) are being violated. But it will intervene on behalf of the government, which has no rights, to prevent – let us stipulate – a wrongful acquittal. Wrongful convictions don’t generate anything like the same level of concern.
It’s very revealing. The double standard is so blatant.
Maybe they’re embarrassed about it. I notice that link isn’t working.
Is this post a parody?
Nope. I’m afraid this is a real comment.
Then my response to Louis-Theodore is: (eye roll)
(I still think that it might be parody)
Also, explain to me how the 7th circuit can give a blanket order regarding admitting evidence if a new and particular objection was not raised prior to their ruling (assuming that was the case). Is that legitimate?
Sorry not to use my name, but it would be too recognizable. The judge is irascible and erratic towards many parties, with a special antipathy towards the U.S. Attorney’s Office.
Here’s a report from 1991, when he was relatively new to the bench, from the Chicago Council of Lawyer:
James F. Holderman, Jr. (from the October, 1991 evaluation)
Judge Holderman, 45, was appointed by President Reagan in 1985, on the recommendation of Senator Percy. He graduated from the University of Illinois Law School in 1971. From 1972 to 1978, he was an Assistant U.S. Attorney in Chicago, where he was a supervisory prosecutor. From 1978 until his appointment to the bench, he was with the law firm then known as Sonnenschein, Carlin, Nath & Rosenthal.
Although Judge Holderman arrived on the bench at a young age, his substantial criminal litigation experience, along with his exposure to civil litigation, allowed him to handle all matters competently from the start.
Judge Holderman is reported to have good legal ability. He understands the issues presented. He conducts trials well, and is able to cut through to the heart of the matter. His written opinions are good. He knows the rules of evidence well, and rules quickly and very capably on evidentiary issues.
Lawyers report that Judge Holderman is a fair-minded, reasonable jurist with high integrity. Although he is not particularly aggressive in pursuing the settlement of cases pending before him, he is reported to be capable of facilitating settlement when called upon to do so.
The Council has received several reports, however, that Judge Holderman has exhibited very poor temperament over the past few years. There have been periods where he has been reported to exhibit extreme and inappropriate anger towards attorneys. Although Judge Holderman appeared to have brought his temper under control for a period of time, attorneys report that the problem appears to be re-emerging. Judge Holderman’s temper does not appear to affect the disposition of the cases before him.
The Council hopes that Judge Holderman will control his temperament. If his temperament were more even, he has the potential to be a very good judge.
I can’t copy the 2006 evaluation into this box, but it is well-documented, and much more negative. You can find it at this link.
Finally,remember that the defendant is not the only party entitled to a fair trial in a criminal case. The public and the victims of crime are also entitled to a functioning criminal justice system, where cases are decided on the merits.
“John R.” writes: “The defendant is entitled to a fair trial, but the government isn’t. The government doesn’t have ‘rights’; it has power. Rights belong to individuals, not abstractions…A judge could be horrendously unfair to the government in a trial – not that that ever happens – but that would violate no one’s rights.”
John R. undoubtedly has never been the victim of a crime. He must believe victims of crime have no rights. John R. also confuses an individual’s constitutional “right” to something, and the State’s procedural “right” to a fair trial (that is equal to a defendant’s).
John R. also writes: “An appellate court never intervenes in a trial on behalf of a criminal defendant, no matter how egregiously his rights (which actually exist) are being violated. But it will intervene on behalf of the government, which has no rights, to prevent – let us stipulate – a wrongful acquittal.”
John R. would do well to remeember (perhaps he learned it in law school), that once acquitted (rightly or wrongly), double jeopardy prohibits his retrial (even in the even that a trial court goofed). This is elementary. Thus, the interloquitory appeal. This mechanism is a necessary component of our system of justice within its constitutional framework. So don’t blather on about how the government somehow gets a “right” that a defendant does not enjoy. Remember the invironment in which you are blogging, (counselor?).
The last poster hit it on the money. Jg. Holderman has been known for his inappropriate outbursts and unprofessional demeanor on the bench for nearly 20 years. Worse, the rebuke in 1991 was not only echoed in 2006, but it was even more scathing. Holderman needs to be reigned in.
Weak argument, Theodore (by the way, I prefer Theodore. It makes you sound like a chipmunk.). And work on spelling “interlocutory”. It’s not that you get graded down for spelling here, but if you’re going to use big words, it makes you look smarter when you spell the correctly.
Now, do you argue so vociferously about the judge with antipathy toward the defense? Do they need to be reined (not “reigned”, but I’m not being critical) in as well? And finally, given your very strong views and clear point as to Judge Holderman, why not use your real name and put your reputation behind it. You know, be man enough to stand behind your opinions? Judge Holderman is.
Wow, SHG brought the maturity level down quite a bit with that nasty retort. Theodore makes some valid points, yet all you can muster is an attack on his spelling? That really does not advance the discussion. It’s very juvenile. Even in your own by-line (did I spell that correctly, Scott?) for this blog you ask that posters “please keep it civil and respectful.” You should heed your own advice. Keep it above board.
My advice to all, read all of the filings associated with this judge (as well as the published articles on his vitriolic temperament); then make your judgments.
Frankie (yes, it’s my real name, & no you don’t get to know my last name simply because you think it would add “authenticity” to my posting)
Yup, some days I’m such a child. Not today, however.
Today, I wonder why the assistants in Chicago are such gutless wonders who attack a judge while hiding from sight. What a bunch of pussies, you crime fighters turn out to be.
Frankie say gutless?
Do victims of crime have “rights”? Sure. But they don’t have a “right” to have the perpetrator criminally convicted. This is supposedly a basic part of the social compact: we surrender our prerogative to punish our enemies to the state. From there, and in that context, all the rights belong to the accused. Until they are convicted, which is what usually happens.
As to interlocutory appeals and the double jeopardy problem, that is not a justification for the disparity in treatment, unless you equate the state’s interest in obtaining a conviction with the defendant’s interest in avoiding one. There is supposed to be a presumption of innocence which continues until the conviction. So an interlocutory appeal for the prosecution, when that is denied to the defense, plainly favors the government’s position at trial over their innocent target. There is no other possible interpretation.
This is aside from the practical realities: my own informal survey indicates that the government’s interlocutory appeals succeed roughly 50% of the time, which doesn’t sound too bad until you consider that a defendant’s chances on appeal are about 1%.
In other words, the government prevails 50 times more often on appeal than its opponents. That’s one succinct measure of how stacked the deck really is.