Former EDNY Judge John Gleeson was an enigma. A hard-nosed federal prosecutor who did the undoable, took down the Teflon Don, he was rewarded by a bench and robe. But then, Judge Gleeson became one of the foremost critics of the United States Sentencing Guidelines, a voice of compassion and understanding toward defendants in a system that was as callous as society demanded it be. What happened?
In a letter to the editor, Judge Gleeson explains how the tough federal prosecutor became the voice of reason.
But at the time I took the bench, my perspective on the criminal justice system was based almost entirely on those experiences. That changed for me in 1999, when U.S. Supreme Court Chief Justice William Rehnquist asked me to serve on the Judiciary’s Defender Services Committee, which oversees the public defenders and other court-appointed lawyers in the federal system.
Over the next decade, I spent a great deal of time with those defenders, and learned about the challenges they and their clients face. I had not appreciated what it was like on their side when, for example, the government insists that a client face an excessive mandatory sentence no one could possibly defend, not because the client deserves it but solely because he refused to plead guilty, or to cooperate with the government.
Nor had I understood that the difference between a sentence of two years as opposed to three, which seems minor to a prosecutor, can mean the world to a defendant whose parents are aging, or whose daughter will graduate high school in 30 months. It was only in retrospect that I realized how much I gained from that experience. It didn’t just make me a better-informed and better-rounded person and lawyer. It made me a better judge. Judges vindicate interests different from those of prosecutors.
That his experience as a prosecutor left him without the depth and breadth of experience to be a good judge is unsurprising. This would seem too obvious a point to make, and yet it bore making over and over, that lawyers who only knew one side of the well lacked the appreciation of the other, even if they believed they knew it all, or at least knew what really mattered. As he calls it, “professional diversity” matters.
But Judge Gleeson tells his story for the purpose of supporting President Biden’s appointment of public defenders to the bench.
President Joseph Biden has nominated thirteen judges for positions on federal courts of appeals. Four have had experience as public defenders, including Eunice Lee, a former Assistant Federal Defender in New York who now occupies a seat on the U.S. Court of Appeals for the Second Circuit.
Our president has also nominated more than three dozen men and women for positions on the federal district courts around the country, and a handful of them also have prior experience as public defenders. This trend, long overdue, is a positive one.
And, indeed, it is a positive trend in the sense that decades of putting former prosecutors on the bench, but not public defenders, has taken its toll. But is this where the concern ends?
On the one hand, it’s notable that Judge Gleeson accurately notes that these are public defenders, not criminal defense lawyers. These are people who got a government paycheck every two weeks, not lawyers who had to earn their keep to get retained or they starved. These are people whose clientele had no other option. These are people for whom defense was more an abstraction than personal dedication. The cost of investigators didn’t come out of their pocket. A loss didn’t mean a client who would never refer another case. An officemate who could show up whenever a judge commanded, even when you were on trial in some other state.
But just as Judge Gleeson recognized in himself, they are judges whose breadth of experience spanned the side of the courtroom farthest away from the jury box. Just as his experience was inadequate to prepare him to be a good judge. Do they not suffer from the same one-sided experience?
And then there is the question no one wants to face: If the bench is split between judges who are defense-sided and prosecution-sided, what happens to the defendant who gets wheeled out to the “wrong” judge? What sort of wild disparities will arise when we turn the judiciary into advocates for one side or the other rather than neutral arbiters for whom impartiality was the goal, even if we too often fell far short of that goal?
*Tuesday talk rules apply
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I always think of the paradox that you have mentioned in the past that defenders also can see the worst of people. They don’t always translate into reform advocates when they get to the bench.
And anyways this is all fun and games until an ex-PD is too lenient on the “wrong” defendant and the lot of them get condemned by the zealots.
Empathy doesn’t always mean compassion. Some of us hate the parts of ourselves we see in others. Empathy is like justice in a way. You can wish for more of either, but you might not like what you get in return. Portia understands. It’s no paradox. It all lines up, just not how you expect.
Not that they should be “advocating” or anything like that. I was just annoyed that you could think every CDL would magically become a crusader for your kind of justice, however simple it might be.
Can’t say I’ve ever thought that since I’ve never really cared in the past about a judges background. However, reading many of the posts at this blog has illuminated a lot of aspects of the criminal Justice system that one doesn’t think about unless one is involved deeply in it. Defense attorney judges being lenient to defenders is one idea, albeit simplistic, that gets tossed around a lot.
Similar idea to having more minorities as police officers. Sounds great in practice until you pay attention and realize the simplistic notions are usually the ones that disappoint.
SHG,
Gleeson is a bright guy. Years ago in New York City, I served on a law school panel with the judge and a few other judges. He joked that he was glad I was there since he didn’t have to be seen as the most conservative. In any event, I am glad he raised this issue.
We need more public defenders like Jane Kelly on the bench. Here is a bit about this Circuit Judge from the Eighth Circuit:
Jane L. Kelly was born in 1964 in Greencastle, Indiana. She received her B.A. summa cum laude from Duke University in 1987 before graduating cum laude with a J.D. from Harvard Law School in 1991. After receiving her law degree, Ms. Kelly clerked for Judge Daniel Porter of the U.S. District Court for the District of South Dakota and Judge David Hansen of the Eighth Circuit Court of Appeals. Upon completing her clerkships, she served for a year as Visiting Instructor at the University of Illinois College of Law, before joining the Federal Public Defender’s Office for the Northern District of Iowa in 1994.
Judge Kelly’s personal history is also one of courage and perseverance. Despite being the victim of a violent mugging, she has devoted her career to defending those charged with federal crimes. The ABA vetting committee unanimously found Ms. Kelly qualified to serve as a federal appellate judge. Once, she was on the short list for the Supreme Court.
But, and I think this may the most important part of my missive, we also need many more private criminal lawyers. They often see far more than federal public defenders. It is long past time that these men and women be actively sought out by the President.
All the best.
RGK
Judge, much as I enjoy the Jane Kelly story every time you tell it, to what end if some poor schmuck gets wheeled out to you rather than a district judge like Judge Kelly? Even on the circuit, if Judge Kelly isn’t on your panel, who cares if she’s on the court?
And even with her heroic background, does that mean the defense wins? Should it mean the defense wins? Are we now at the point where the judges are now our tribal advocates rather than, you know, judges?
Maybe it’s time to retire the Jane Kelly story, unless the president nominates her to the Supremes?
Miles,
You end this way: “Maybe it’s time to retire the Jane Kelly story, unless the president nominates her to the Supremes?” Old age, mine at least, is a problem. Perhaps you are correct.
All the best.
RGK
I had lots of questions for the Judge too, but you did it more respectfully than I ever could. I thought we were all lectured the other day about how judges set aside personal belief to judge on the facts and law of each case. And now I’m hearing that that same judiciary “needs” judges with diverse backgrounds and experiences. I need help integrating those ideas if it’s possible.
PK,
Yes, most “judges [try hard to] set aside personal belief[s] to judge on the facts and law of each case.” The caveat, of course, is that judges are human beings and cannot be expected to wholly ignore their prior work. Many don’t even know that they are impacted intellectually by their prior work and those that do understand try hard to immunize themselves from their prior work when trying a particular case. But, in the end, all judges that I know are impacted directly or indirectly by our prior experiences even when we know that the rules of the road require concentration on the law and fact of each particular case.
The foregoing said, I am simple. The more experience that the same bench possesses the merrier, so to speak. Thus, private criminal defense lawyers would be a welcome addition to the cadre of judges in the federal district courts.
All the best.
RGK
Thanks Judge. For what it’s worth, I agree, but I don’t know why. A broader range of experience seems as though it would be beneficial to a court, especially when we know the makeup is as skewed as it is. Not that I find your answer wanting, I’m suspicious of anything I agree with.
The cure for nearsightedness isn’t farsightedness.
I can’t speak to the experiences of prosecutors and CDLs. But in labor and employment law cases representing labor organizations and individuals in federal court, all I hoped for open minded judges and magistrate judges. Most were; some weren’t. But ultimately it’s the luck of the draw. Random justice. Maybe a good name for a blog. Enough musings. Time for more coffee.
I doubt the non-lawyers will have any appreciation of why you included the distinction between PDs and private CDLs. While we have much in common, there is a huge distinction between the demands of private practice and the experience of public defenders. This has become increasingly problematic as PDs perceive private CDLs as the enemy, money-grubbing whores for wealthy evil defendants undeserving of due process or the presumption of innocence.
This is one of those huge issues that few, other than you, are willing to talk about.
“PDs perceive private CDLs as . . . money-grubbing whores for wealthy evil defendants . . .”
They make it sound like that’s a bad thing.
Let’s try someone who has been both a prosecutor and a CDL (private or public).
Stupid suggestion from a non-lawyer:
We need more non-lawyers on the bench.
The one thing I learned reading law blogs is that no one, even lawyers and judges know what the law is. How am I supposed to not violate a law when no one knows what the law really says?
We need someone with the depth of ignorance to appreciate the depth of OUR ignorance.
One of the toughest state judges I knew (both before and after he got the black nightie) was a former PD and CDL. He put in long hours, had no kids, and understood the significance of the hustle, as well as the various excuses the defense sometimes used. That meant he would eat your lunch if he thought an attorney was full of shit, or worse, unprepared. But he was no shrinking violent when it came time to make tough, discretionary decisions that had the potential of getting him Perskey’d.
While he never served as a “white hat” (DA), his mixed experience as a PD and CDL set him apart from, say, the lifetime DA who softens up on the bench versus the lifetime PD who largely knows one setting: robe rage.
This is an experiment that I would like for one of the woke jurisdictions try. Combine the DA’s office and the public defenders office and have the lawyers be prosecutors on one case and defense attorneys on another. I’m sure the ethics rules can be adjusted to allow for that. If not, have the lawyers defend for a year and then prosecute for a year. Try it in several jurisdictions for five years and see if it makes things better.
It kinda seems that “put more people with on the bench” solves the wrong problem. Our host even alluded to it: “what happens to the defendant who gets wheeled out to the “wrong” judge?”
Isn’t what you want for all judges – and prosecutors, PDs and CDLs – to have experience, or at least knowledge of, what the other parts of the system go through? That is, would you prefer if the points of view were shared rather than hoarded?
Sentence-o-matic aside, judges will never be uniform. But is “put this person on the bench” the only way to diffuse experience into the collective? Is it the most effective way?