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January 29, 2010

Split Seventh Circuit rejects probation sentence for Chicago alderman's fraud

This post from last month noted a notable Seventh Circuit argument in which Judge Richard Posner extensively questioned the lenient sentence given to former Chicago Alderman Ed Vrdolyak.  As detailed in this local story, which is headlined "Vrdolyak's probation-only sentence overturned," the Seventh Circuit has now reversed that sentence:

Former Chicago Ald. Ed Vrdolyak’s probation-only sentence for fraud has been overturned by an appellate panel, meaning he could face prison time when he is re-sentenced.

Vrdolyak had pleaded guilty to charges stemming from the $15 million sale of a Gold Coast building belonging to the former Chicago Medical School, now called the Rosalind Franklin University of Medicine and Science.  Vrdolyak schemed with school board member Stuart Levine to split a $1.5 million kickback from the sale of the building to Smithfield Properties Development.

U.S. District Judge Milton Shadur sentenced Vrdolyak to probation last year — leading to headlines of “Fast Eddie Walks” that played off the former alderman’s nickname. But the sentence was kicked back — and assigned to a new judge — today when the 7th U.S. Circuit Court of Appeals ruled 2-1 to reverse Shadur’s sentence. Federal prosecutors had asked the appeals court to overturn the light sentence.

Judge Posner wrote the opinion for the majority in US v. Vrdolyak, No. 09-1891 (7th Cir. Jan. 29, 2010) (available here), wherein he concludes that a "cascade of errors and omissions that we have identified cannot be dismissed as harmless, and so requires that the defendant be resentenced." 

Notably, Judge Hamilton writes a lengthy dissent, which starts this way: "I agree that the district court erred in the guideline loss calculation, but I respectfully dissent because that error was harmless." 

January 29, 2010 at 02:49 PM | Permalink


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I don't understand this ruling. Judge Shadur properly gave Vrdolyak the unwritten six-point reduction under the Guidelines for being wealthy, which puts probation well within the guidelines range.

Posted by: Res ipsa | Jan 29, 2010 4:04:14 PM

If Judge Hamilton is going routinely write this kind of opinion, it could shake the normally unified 7th up quite a bit.

Posted by: Jay | Jan 29, 2010 5:35:10 PM

Jay --

Bad news: Elections have consequences, and Hamilton, most unfortunately, is one of them.

Good news: The next election will also have consequences.

Posted by: Bill Otis | Jan 29, 2010 5:46:38 PM

Sigh. Biil, I have no idea what breeds your hostility towards Hamilton. I know next to nothing about the man myself. But his opinion in this case is clearly correct. I used to think the Posner was merely stupid. Now I'm beginning to think he's a shyster.

Posted by: Daniel | Jan 29, 2010 5:56:03 PM

Oh Bill Otis, did you forget that Hamilton had the fierce backing of Lugar, R-IN? Or did you expect him to get teabagged?

Posted by: . | Jan 29, 2010 6:42:55 PM

Anyone who can call Judge Posner stupid has no credibility.

Posted by: mjs | Jan 29, 2010 6:54:41 PM

Daniel --

Posner is generally regarded as brilliant. No less than Susan Estrich, former campaign manager for Michael Dukakis, said that Posner, like Alex Kozinski, "is widely considered one of the smartest and most articulate members of the federal bench. I share that opinion." http://www.foxnews.com/story/0,2933,368864,00.html.

As to Hamilton, my reasons for being skeptical of him were summarized by Sen. Hatch here: http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=045561ce-1b78-be3e-e042-443ff7b07993&Month=11&Year=2009.

I would also note that Hamilton was confirmed on almost a straight party-line vote, 59-39. His homestate Senator, Richard Lugar, was the only Republican to vote for him. When McCain, Snowe, Collins and Voinovich are all voting against you, this is not a good sign. They're all moderates and have usually voted to confirm Democratic appointees. Hamilton is just too ideological.

Posted by: Bill Otis | Jan 29, 2010 7:10:33 PM

Jan 29, 2010 6:42:55 PM --

Do you have a name?

"Or did you expect him to get teabagged?"

What are you talking about?

Posted by: Bill Otis | Jan 29, 2010 7:28:33 PM

Bill. Appealing to a person's public reputation is always the wrong move with me. And appealing to someone's political reputation is going to make me laugh.

I don't know if Hamilton is "too ideological". But his opinion in this case is sober and well reasoned and it is Posner who comes across as the ideological hack. Now maybe that's unusual for Hamilton; IDK. But I've read Posner opinions before, read his blog, and read his book. He's a hack. And I don't care who thinks he's brilliant.

Posted by: Daniel | Jan 29, 2010 8:22:09 PM

Daniel --

Citing other people's views strikes me as the most productive way to avoid the barren form of argument that goes: "Well is think he's smart" "No, he's not." "Is too." "Is not." Etcetera.

P.S. Assuming arguendo that Hamilton's opinion in this case is, as you assert, "sober and well reasoned," that would not per se come anywhere close to qualifying him as a federal circuit judge. You acknowledge that you don't know that much about him, and, as they say, every blind pig finds an eggcorn.

I'm not saying that Hamiltion is a blind pig. But I am saying, as before, that he's too ideological. A party line vote in the Senate is extremely rare on a judicial nomination, and something that should give you pause.

Posted by: Bill Otis | Jan 29, 2010 8:40:29 PM

Bill. There is an alternative. One could have a substantive discussion regarding the merits of the opinions at hand. Part of the reason I started abusing Posner was because you can in here denigrating Hamilton without any attempt to engage the material at all.

Given the Hamilton just is a federal judge, it's rather a moot point as to whether he should or should not be one. That decision is water under the bridge.

Posted by: Daniel | Jan 29, 2010 10:35:56 PM

Bill Otis,

I've got to agree here with Daniel. Perhaps Posner once deserved his reputation, I don't know. But I have seen too many articles where he is willing to make shit up rather than look in the record or be corrected about what is in the record to give him such credit now. Stupid? Perhaps not, but he may well have let the praise and life tenured position go to his head, along with the certain knowledge that he is going no further in his career as a judge.

Posted by: Soronel Haetir | Jan 29, 2010 11:59:33 PM

I think Posner is, from a IQ point of view, very intelligent, and he has a great deal of self-confidence and skill at expressing his views. Unfortunately, it does seem like he's often either lazy or comes to cases with strong preconceived notions about the outcome, which seldom change based on the particular facts or law in a given case. As a law school prof of mine put it (about one of his famous torts cases), "it's remarkable how the laws of Illinois, Wisconsin, and Indiana embody economic efficiency to a degree no one realized before Posner took the bench." I suppose the imposition of one's own views might come naturally to an academic such as Posner, but I wonder if the laziness/sloppy facts side of things has come more recently as he's gotten tired of the bench?

Posted by: Jay | Jan 30, 2010 12:13:52 AM

I think Dan and Jay are onto something. I know of one case where Posner simply decided on the outcome he preferred and joined an opinion to fit the outcome, damn the record and the law cited in the briefs. I suspect there are others. Unquestionably, Posner is brilliant and does not suffer fools gladly, but he never engaged in the practice of law to any great extent and his ivory tower background is well reflected in the body of his decisions and opinions. One trial lawyer I know had him as a trial judge, on one of the cases Posner elected to preside over presumably to see what it is like to be a trial judge, and the lawyer thought Posner was incompetent and error-prone in that role.

As to laziness, who knows. However one pithy letter to the editor in a Chicago paper aptly noted that Posner has long complained about work load of a court of appeals judge, while at the same time he has written and published a book practically every year over the last 15 years or so. The implicit point was that Posner might be shortchanging his case work in favor of his moonlighting as a writer. I think that's a possibility.

I am a trial lawyer in private practice.

Posted by: John | Jan 30, 2010 2:37:33 PM

He more than satisfies the Rule of 80, so I'm not sure why he doesn't take senior status, other than just wanting to stay in the game.

Posted by: Jay | Jan 30, 2010 11:20:51 PM

Jay --

Staying in the game is important to these guys. Posner is a mere 71. I had the honor of arguing many cases before Judge Donald S. Russell of the Fourth Circuit. Judge Russell knew he was dying of cancer but never retired or even took senior status. He died in regular active service at 92, still sharp as a tack.

Posted by: Bill Otis | Jan 31, 2010 12:47:38 PM

bill: "Posner is generally regarded as brilliant"

me: he's brilliant all right, but its possible to be too brilliant for your own good - and I think that Posner qualifies. Anyone who suggests there should be a free market for the sale of babies and body parts really seems to have a disconnect from real life. Even suggesting in passing that the rapist's pleasure in forcing sex should be taken into account by a rational legal system only to reject it as being basically insane to give sadists free reign to prey on women but not acknowledging that as a general flaw in his theory. The flaw in Posner's brilliance is that he considers people too rational when anyone who pays attention knows that people are almost entirely irrational.

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Posted by: Roger | Sep 8, 2010 1:43:58 AM

As to laziness, who knows. However one pithy letter to the editor in a Chicago paper aptly noted that Posner has long complained about work load of a court of appeals judge

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