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December 27, 2006

Sixth Circuit rejects discovery for selective prosecution claim

Though not quite a sentencing issue, the Sixth Circuit's ruling today in US v. Thorpe, No. 05-2220 (6th Cir. Dec. 27, 2006) (available here), should interest anyone concerned about the intersection of federal criminal law and race.  Here is the introduction from the ruling:

A federal grand jury in the Eastern District of Michigan indicted James Thorpe for being a felon in possession of a firearm, in violation of 18 U.S.C. ยง 922(g).  Thorpe, an African-American, moved to dismiss the indictment on the ground that he was being selectively prosecuted because of his race.  After conducting a preliminary investigation in support of his claim, Thorpe formally moved the district court for discovery of all of the government's files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted.

The court granted Thorpe's motion, reasoning that Thorpe could not support his selective-prosecution claim without the requested materials and that the harm to the government, which had already disclosed some of the requested materials to another judge in a different case, would be minimal.  When the government refused to fully comply with the district court's discovery order, the court dismissed with prejudice the indictment against Thorpe.  For the reasons set forth below, we REVERSE the judgment of the district court granting Thorpe's discovery motion, REINSTATE the government's indictment against Thorpe, and REMAND the case to the district court for further proceedings consistent with this opinion.

December 27, 2006 at 09:47 AM | Permalink


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Denise Hood was the District Judge who botched the law in this case. Yet again, another Clinton "moderate" botching up a case.

Posted by: federalist | Dec 27, 2006 10:18:41 AM

And yet again, another "federalist" epithet hurled in ignorance.

Posted by: | Dec 27, 2006 10:50:34 AM

federalist, please elaborate. The author of the majority opinion is also a Clinton appointee, for whatever that's worth. Some of us are proud of our membership in the Federalist Society and more than a little embarrassed by your knee-jerk comments.

Though I haven't seen the district court's order, the court apparently missed a footnote in the CA6's Jones opinion and the Supreme Court's Armstrong opinion. What probably happened is that the parties never pointed these authorities out to her, and focused instead on the defendant's need for the information and the harm to the government.

If you would care to explain why we should assume that the district judge ruled as she did because she was an anti-government ideologue rather than a typical district judge confronted with time pressures and parties who failed to frame the issue properly, please supply some additional information.

Posted by: James Madison | Dec 27, 2006 11:01:45 AM

A couple of things:

1) I don't think I argued by epithet. Bottom line is that this judge was reversed. So, ipso facto, she botched it here.

2) The judge's decision, to toss an indictment, is pretty serious, and one would think, given the recency and the summary nature of a case like United States v. Bass, Sixth Circuit judges would tread lightly.

3) Clinton "moderates" have made/written/joined a lot of loopy decisions/opinions: Paez, Berzon, Thomas, Chatigny, Henderson and others whose names escape me (e.g., the SDNY judge who claimed reasonable to run from cops or the judge that declared DP unconstitutional.) Tossing an indictment on the basis of charges of racial bias in the charging decision, after Bass, is going out on a limb. Therefore, the District Court's decision, in my view, falls in the category of loopy decisions.

Posted by: federalist | Dec 27, 2006 2:07:46 PM

As I read the CA6's opinion, the district court tossed the indictment as a sanction against the government for stonewalling discovery, not "on the basis of charges of racial bias in the charging decision." On the very last page of the CA6's opinion, the court quotes the Supreme Court as saying that it has never addressed whether it such a sanction is proper or not.

The dispositive question was whether the district court had the authority in the first place to order discovery as she did. Assuming that the CA6's analysis is correct, it looks like the district court made an honest mistake at the outset by ordering the discovery she did. Everything that followed afterward seems to have been correct, but based on a mistaken view of the court's authority to order discovery.

Whatever you think of the work of other judges you put in the category of "Clinton moderates," I don't think that Judge Hood deserves your scorn here. The tone of your initial comment strongly implies that you view her mistake as less than honest.

Posted by: James Madison | Dec 27, 2006 2:22:58 PM

JM, you are right about the tone of my initial comment. I do think that the judge was less than honest here. United States v. Bass, a per curiam decision arising out of a Sixth Circuit case, should have caused the judge to have a good deal of caution, and, to be blunt, should have been a case with which the judge had familiarity (or is it too much to expect that judges who deal with criminal cases all the time should have working knowledge of recent Supreme Court caselaw?). Instead, on some pretty thin gruel, she subjected the government to an intrusive order. Ordering discovery against the government in criminal cases is, as all agree, problematic for any number of reasons.

Bottom line, she got it wrong in the type of case where a judge should have been cautious. So I have zero problem heaping scorn upon her. My guess is that this judge got ticked that the government didn't comply with her precious order and, instead of rethinking it (which she clearly should have done, as it was wrong), decided to toss an indictment, a pretty stiff remedy. Most likely this judge could use a little humility.

I do agree that it would be interesting to see her reasoning for the discovery order.

Posted by: federalist | Dec 27, 2006 2:52:12 PM

You know "federalist" it would save you a lot of time if you did not bother to write your responses. We know that every decision in favor of a defendant is by a "Clinton appointee judge" who does not know the law. And, every decision for the government is by a brilliant Republican appointee. Rather than your constant "knee jerk" response to every single decision that questions the Justice Dep't perhaps you should stop and think and do some research. If you are a private practitioner you do your clients an injustice if you wear your heart on your sleeve and operate from that mode.

Posted by: Bernie Kleinman | Dec 28, 2006 8:49:16 AM

Mr. Kleinman:

I think it unfair to characterize my responses as "knee jerk". Sharp, no doubt about it, but certainly not "knee jerk". You can look at my posts on the Genarlow Wilson case--I defy you to find one that is knee jerk or you can look at my posts on co-defendant sentencing or any others.

With respect to this particular decision, the judge does deserve criticism. Sixth Circuit judges, I would think, would be well aware of Bass and the clear limitations it imposes. Do you dispute that?

As for Clinton judges, let's face facts here. There have been a lot of issues with his crop of judges. And I don't think it unfair at all to look at this decision, wrong that it was, as part of a pattern. You may think it unfair, but that's a matter of opinion, and there are plenty of examples I can point to, or do you dispute that Judge Paez, for example, is a judge who is biased? You may think that I am overly harsh on this judge--that's fine too, but the bottom line is that she is paid to get it right, and she did not.

As for my ability to represent clients, spare me your advice.

Posted by: federalist | Dec 28, 2006 10:43:55 AM

Well, "federalist", I can only speak from experience. I practice in the SDNY and EDNY. The "crop" of Clinton appointees are all experienced, reasoned jurists who do not let their personal politics get in the way of making difficult and hard [and in many cases unpopular] decisions. Thank god that the Framers recognized that life tenure with no diminution in pay was an essential element of an independent judiciary. Perhaps if my bell weather was the NY Post I would agree with you, but my legal reasoning goes beyond that of Rupert Murdoch. Oh, and regarding your comments on Genarlow Wilson, is that like Lester Maddox telling the press some of his best friends are black? [Sorry, I apologize for the last comment, it was knee kerk, or sharp.]

Posted by: Bernie Kleinman | Dec 28, 2006 1:00:10 PM

Whatever, Bernie. I'll let my comments on Genarlow Wilson speak for themselves--your resort to ad hominem probably means that you are unable to level reasoned criticism at them. Your argument in favor of him probably boils down to "those meanie racists should just do the right thing and free Genarlow".

As for the SDNY/EDNY, wasn't the "reasonable to run from cops" judge in the SDNY? And I am pretty sure that the Lynne Stewart apologist (er, judge) was a Clinton appointee as well.

Posted by: federalist | Dec 28, 2006 1:13:55 PM

federalist, if you're going to cast aspersions at judges, you should support it. If you have a specific case in mind--which it appears you do--give us a citation instead of asserting as if it were uncontroversial that "[t]here have been a lot of issues with his crop of judges." If you'd like people to "face facts," you should round up some of the facts that you'd like people to face. So far we have only your opinion and your faulty memory.

The alternative, of course, is to stop polluting Prof. Berman's blog with your epithets.

Posted by: James Madison | Dec 28, 2006 3:53:53 PM


US v. Quinones--Clinton appointee Rakoff (SDNY) declares Federal DP unconstitutional.

US v. Bayless--Clinton appointee Baer (SDNY) rules that it's reasonable to run from cops.

Middleton v. McNeil--US Supreme Court summarily reverses Clinton appointee Paez on AEDPA.

Rice v. Collins--US Supreme Court unanimously reverses AEDPA case authored by Paez.

Dougan v. State--Clinton appointee Barkett joins dissent labelling vicious racially-motivated torture-killing a "social awareness case".

I could go on and on.

Posted by: federalist | Dec 28, 2006 4:27:40 PM

Federalist: you write out of ignorance. If you knew Washington Heights, in Manhattan, you would understand Judge Baer's decision. And, Judge Rakoff's opinion on the DP is one of the best written and well researched opinions on the matter. It is a recognition that the Constitution is a living, beathing, evolutionary document, not something to be analyzed with 18th cent. philosophy. You forget Judge Koeltl who sentenced Lynn Stewart. Having represnted individuals incarcerated under the SAMs and in ADX, I agree that she merited a stiffer penalty. But, Judge Koeltl is one of the fairest, most well balanced judges in the SDNY. Unlike many Bush appointees he does not "knee jerk" agree with whatever the US Atty says; similarly he does not the same with defense counsel. Would that the bench were filled with more like these jurists, then the Framers, including Mr. Madison, would appreciate their foresight. As I said earlier, you need to do your research not from Fox News or the NY Post, but try using Westlaw or Lexis; a little more reliable.

Posted by: Bernie Kleinman | Dec 28, 2006 8:00:41 PM


Having lived a good portion of my formative years in Laurelton Queens (you know, the part of Queens zoned for Andrew Jackson HS), I think I am well aware of the realities of Washington Heights. Which is one of the reasons why I think Baer's ruling stunk.

As for Rakoff's opinion--I guess you missed that part of law school when they taught that the Constitution itself refers to capital crimes. I actually read Quinones when it came out. It had the typical turgidity of legal writing in which a position contrary to the law and common sense is advanced. Boiled down to its essence, Rakoff's argument was simple: Mistakes in death cases are constitutionally intolerable--mistakes have happened, ergo, the death penalty is unconstitutional. By that rationale, we would ban the use of deadly force by cops (other than when they are defending themselves or others--a bow to natural law), because mistakes can be made, and gee whiz, the people on the receiving end of such a mistake wouldn't even get a trial. More to the point, to accept Rakoff's view, you'd have to think that the Constitution accepted capital punishment in theory, yet banned it in practice, hardly something to be expected in such a document. Rakoff is a hack, and upping the page count in a weak opinion doesn't make him less of one.

As for Judge Koeltl, his solicitousness towards someone who helped an absolute beast of a man spread his poison is nothing short of repulsive (now that's an epithet, Mr. Madison). Paraphrasing George Orwell, only a judge could come up with something that obtuse. Like some little twerp who shows the world how enlightened he is by sporting a Che T-shirt, Koeltl slapped Stewart on the wrist. A fair judge? Nay, a star-struck judge seduced by radical chic. In its own way, pathetic.

As for JM, am I being specific enough for you--or do I need to elaborate more so that my attacks on your precious judges will pass muster? And by the way, the Federalist Society has no monopoly on the word "federalist".

Posted by: federalist | Dec 28, 2006 9:02:45 PM

"Federalist", growing up in Laurelton, ain't like growing up in Washington Hgts. They are world's apart socio-economically and ethnically. Please drive down 181st and Bdway and then drive down Merrick Blvd - they are not the same.
As to Judge Rakoff - even the Supremes have said "death is different". Exacting the most severe and irreversible of penalities requires an exactitude that the members of Congress are hardly able to rise to. Yes, I know, Congress is filled with great minds like Frist and Brownback, but, please I hardly want to commit due process to these dolts. As to the Stewart case - as I said, I believe a more severe sentence was merited. But, it certainly should not hinge on the blind shiek. It should hinge on her violation of the SAMs and the law. If you ever had practiced in the SDNY you would know that neither of these jurists is looking to pander to the liberal media or the liberal establishment. They are reasoned, thinking gentlemen. BTW: in Prof. Berman's note to those who comment he asks people to indicate what their avocation is. May I inquire as to yours?

Posted by: Bernie Kleinman | Dec 28, 2006 10:38:02 PM

Bernie, Laurelton was pretty rough when I was there. Merrick & Springfield was no picnic, at least when I was there--80s.

In any event, I am a corporate lawyer.

Posted by: federalist | Dec 28, 2006 10:49:42 PM

JM, while I am on the subject of truly awful Clinton nominees, care to defend the record of the execrable Ronnie White or the abominable Frederica Massiah-Jackson?

There are a couple more epithets for you.

Posted by: federalist | Dec 29, 2006 12:07:42 AM

federalist: a corporate lawyer. What a surprise! Rather than defending corporate CEOs who earn obscene amounts of money for destroying shareholder value, you might want to try a little courtroom experience. You remember the courtroom, that room where you had moot court. You criticize judge's rulings and likely have not been withon 500 yards of a courtroom except to wiggle out of jury duty. I am sorry, but to me being a lawyer means representing people and solving their problems. It involves a knowledge of civil and criminal procedure and the rules of evidence. Not, deciding which over priced restaurant to have a three hour lunch at and then figure that the shareholders or corporate client will pay.

Posted by: Bernie Kleinman | Dec 29, 2006 7:23:17 AM

Oh, and one more thing: I noticed how you selected two nominees who are African-American. I guess they are not on your list of "some of my best friends are blck". See reference to Gov. Maddox, supra.

Posted by: Bernie Kleinman | Dec 29, 2006 7:32:21 AM

federalist, thanks for the additional information. This thread is far enough away from the original topic that I'm done contributing. Two New Yorkers disputing each other's NYC cred on a law blog is more than I can stomach.

Bill Clinton nominated 367 judges during his tenure (not including those who weren't confirmed). Some are better than others. While your point about the Constitution and capital punishment is well-taken, it is not so uncontroversial that anyone who rules otherwise is a bad judge. The Supreme Court had agreed with Judge Rakoff's views in the past and may do so again (though I hope they don't).

Mr. Kleinman, there's no need to descend into stereotypes.

With apologies to Prof. Berman for instigating this detour, I'm going to get back to work now.

Posted by: James Madison | Dec 29, 2006 7:57:15 AM

JM: You are right. I apologize to all those who read this blog. And, now back to work. As to the stereotyping: here is ther Wikipedia definition; I hope I fit into ther latter and not the former:
Stereotypes are ideas held about members of particular groups, based solely on membership in that group. They are often used in a negative or prejudicial sense and are frequently used to justify certain discriminatory behaviors. More benignly, they may express sometimes-accurate folk wisdom about social reality.

Posted by: Bernie Kleinman | Dec 29, 2006 8:34:03 AM

Well, Bernie, perhaps you could defend the record of those two esteemed judges instead of the ad hominem attacks.

Posted by: federalist | Dec 29, 2006 12:05:20 PM

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