« "Sex Offender Begs For More Jail Time" | Main | Creative sentencing term for blogger who leaked GNR creativity »

July 15, 2009

The "appearance of partiality" or just a true Reaganite concerned about federal overreaching and costs to taxpayers?

I just got a chance to read closely this mandamus ruling issued late last week by the Seventh Circuit in which a panel granted the federal prosecutor's motion to have a district judge disqualified because, according to the Seventh Circuit, the "Government has established that a reasonable, well-informed observer might question the impartiality of the district judge."  There are many interesting aspects of the Seventh Circuit's ruling, but I was struck most by the fact that what seemed to make the district judge appear partial was his commitment to limiting the power and costs of the federal government -- arguably in the tradition of the president who appointed the judge, Ronald Reagan.

Though the procedural history is complicated, the case got started when local officials found two guns in a bedroom closet of the defendant's estranged wife.  After state felon-in-possession charges were dismissed, federal prosecutors went after the defendant and threatened a 15-year mandatory minimum sentencing term.  After the case got shifted twice to different judges, the matter landed in the lap of Reagan appointee J.P. Stadtmueller.  Judge Stadtmueller was clearly troubled by the case's history, and the Seventh Circuit panel explains how these troubles found expression:

The [judge] called a meeting in chambers on October 9, 2008, with then-United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller ... and [after noting the parties previously came close to a plea deal, the judge] recommended that they consult with the assigned attorneys to explore the possibility of resolving the case without additional litigation. The Government submits that the Judge suggested in the alternative that the case be sent back to state court.  Finally, the Government suggests that, although the Judge recognized that he should not be involved in plea negotiations, he opined that this was an “extremely rare” case that needed to be addressed “at the top”; that he was disturbed that there were 100 docket entries in a one‐count gun case; that if the case were to go forward there may be another appeal; that the case was “an embarrassment to the justice system;” and that he would recuse himself if requested.

Explaining his behavior in a subsequent ruling, Judge Stadtmueller gave this account of his actions and concerns:

As part of its review, the court took note of the troubling procedural history of this case and the ever-mounting commitment of limited prosecution, defense, and judicial resources that, when taken together, have become prohibitively expensive and certainly less cost effective to taxpayer interests.  Thus, the confluence of these factors together with the interests of justice more than suggest that the court and counsel for the parties make a good faith effort toward resolution of the case without the necessity of further litigation.

As I reflect on the facts of the case, I see Judge Stadtmueller principally trying to give judicial expression to the values espoused by the President who appointed him.  Perhaps he did so in an improper way, but I wish the Seventh Circuit's ruling at least gave the judge a bit more credit for being motivated by legitimate interests in the course of concluding that he appears partial in this case. 

July 15, 2009 at 10:11 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The "appearance of partiality" or just a true Reaganite concerned about federal overreaching and costs to taxpayers?:


The prosecution is the body empowered to make those cost analysis. Taking a judge who trys to use such considerations against the government's choice should be removed from a case, possibly from the bench.

Posted by: Soronel Haetir | Jul 15, 2009 11:57:21 AM

It's not an impeachable offense, but he deserves to be removed from the case. However, he did a valuable public service by highlighting the government's incompetence.

Posted by: Marc Shepherd | Jul 15, 2009 12:19:37 PM


Usurping the prosecution role comes very close to the line of "good behavior" imo, which is the standard for judges, not that it has been enforced all that strictly.

Posted by: Soronel Haetir | Jul 15, 2009 12:40:23 PM

Soronel: are you asserting that a judge has no authority to question how the prosecution seeks to exercise its role? Should federal prosecutors have blanket authority to waste taxpayer money without any supervision or review by other branches?

You seem to suggest that the behavior of the judge here is contrary to what the Framers had in mind for "good behavior." In sharp contrast, I think the judge here was being far more attentive to the Framers commitment to limited federal government than most other federal officials. I suppose "good behavior" is in the eye of the beholder.

Posted by: Doug B. | Jul 15, 2009 12:51:54 PM

A couple points:

1) Mandamus should not have even been sought here--if the judge said that he would have recused himself, then that should have been the route taken.

2) "As I reflect on the facts of the case, I see Judge Stadtmueller principally trying to give judicial expression to the values espoused by the President who appointed him. Perhaps he did so in an improper way, but I wish the Seventh Circuit's ruling at least gave the judge a bit more credit for being motivated by legitimate interests in the course of concluding that he appears partial in this case."

All I can say is wow. Since when should a judge be given credit for expressing such views in such a manner. Yeah, we're all for limited govenment, fair prosecutions etc. etc., but we're also for impartial judges and judges who recognize the limits of their power. What this judge should have done is simply recuse himself voluntarily and written a letter to the AG for the district or even the AG himself.

Posted by: federalist | Jul 15, 2009 12:54:56 PM

"Should federal prosecutors have blanket authority to waste taxpayer money without any supervision or review by other branches?"

There is, you know, Congress.

Posted by: federalist | Jul 15, 2009 1:05:00 PM

I was going to bring up Congress as well, also higher ups in the administration. Those choices are entirely vested in the President's agent so long as the choices are not made from improper animus. So yes, I would fault any judge who questioned the prosecutorial priorities of the executive.

Perhaps if the Drew prosecution had succeeded we would have seen a DA who chose to focus entirely on violations of ToS cases, ignoring all other crimes. So long as the DoJ and President went along with it and Congress didn't interfere I would say the the courts have no business questioning that choise, silly as it would be.

Posted by: Soronel Haetir | Jul 15, 2009 1:51:14 PM

You seem to acknowledge, Soronel, that a judge should have authority to police prosecutorial choices that are "made from improper animus." The hard question concerns what qualifies as "improper" and what should be the nature of the judicial oversight.

I assume you (and federalist and Bill Otis) would say that a decision to prosecute based principally on the race of the offender would qualify as "improper animus" based on the 5th and 14th Amendments. Of course, because a prosecutor would never candidly admit such racial animus, the challenging issue here concerns how a judge is to go about investigating/assessing such a concern or racial animus.

But how about if the judge thought the decision to prosecute here was principally driven by (1) extreme hostility to gun rights and/or (2) aggravation that state judges prevented a state gun prosecution from going forward. In light of the 2d Amendment and/or structural constitutional principles, could a judge reasonably consider either or both motivations a type of "improper animus"? And, as with the race concern, how should a judge explore his concerns on these front?

I understand fully all the political and practical reasons that judges should not be too involved in reviewing prosecutorial choices. But, in light of the Constitution's many inter-branch checks and balances, I often wonder what the Framers would have thought about the judiciary's extreme "don't ask, don't tell" deference to prosecutorial discretion in modern jurisprudence.

Posted by: Doug B. | Jul 15, 2009 2:36:24 PM

Hasn’t prosecution has always been at the executive’s (or the sovereign’s) discretion? It doesn’t strike me as a new or a particularly modern concept. As a matter of policy, I agree with the judge: the government seems to have spent an inordinate amount of time on a relatively minor prosecution that the state hadn’t bothered with. But I don’t see how the judge in a particular case can take it upon himself to tell the parties how they ought to resolve the matter, without implicating all of the concerns that the Seventh Circuit raised in its opinion.

Posted by: Marc Shepherd | Jul 15, 2009 2:50:33 PM

"In light of the 2d Amendment and/or structural constitutional principles, could a judge reasonably consider either or both motivations a type of "improper animus"? And, as with the race concern, how should a judge explore his concerns on these front?"
Leading with your chin again, Doug. The Supreme Court has said that Heller shouldn't be read to undermine laws which bar criminals from possessing a gun. Race-based prosecution is illegal (see US v. Bass). So the two things are not remotely the same. As for what a judge should do, remember, judges need to not only be impartial, but act in such a manner so as not to have their partiality questioned. The judge crossed a line here.

The solution is for a judge to recuse himself and write a letter.

Posted by: federalist | Jul 15, 2009 3:19:51 PM

federalist, read the opinion. The judge denied the government's recusal motion. See pp. 7-8.

I'm puzzled by Prof. Berman's suggestion that the Seventh Circuit should have given Judge Stadtmuller a pat on the back for caring about wasted resources.

I also disagree with this statement and wonder if it's meant seriously: "what seemed to make the district judge appear partial was his commitment to limiting the power and costs of the federal government" I read the Seventh Circuit's discussion at pp. 15-20, what seemed to make the district judge partial was his clear overstepping of his authority, the procedural irregularities, and what were arguably threats to rule against the government based on something other than the law.

The judge called an off-the-record meeting with the US Attorney and the Federal Defender, which is weird, and which the judge recognized was weird. (slip op. at 15-16)

FRCrP 11(c) makes clear that judges can't participate in plea negotiations. (slip op. at 16), yet the judge clearly did.

As the Seventh Circuit panel saw it, the judge also moade some statements that might suggest "that he was ill-disposed toward the Government's position and might rule based not on the merits, but on his distaste for its prosecutorial discretion." (slip op. at 18).

I don't see why the district judge should get a pat on the back at the end of all this for caring about "limited government." The post caricatures Reagan's values. As a post at Concurring Opinions notes, one of Reagan's priorities was controlling crime, and he kept that priority in mind when selecting judges.


Another of his priorities was judicial restraint--i.e., judges who knew their place and didn't cast all sorts of laws aside because they had certain (laudable or not) personal views about how the case should end.

If the judge is concerned about a waste of taxpayer money, he should work hard at his life-tenured job, keep a spartan chambers, minimize travel expenses, and make efficient use of office supplies.

Posted by: anonymous | Jul 15, 2009 3:22:10 PM

didn't read the opinion, just relied on the blurb in here that the Judge offered to recuse . . . .

Posted by: federalist | Jul 15, 2009 5:18:53 PM

Maybe the judge overstepped here, but to me the bigger story is how prickly US/State's attorneys and their minions get whenever folks suggest that there ought to be even a smidgen of accountability or transparency applied to the manner in which they use the massive power at their disposal.

Posted by: anon | Jul 15, 2009 5:50:01 PM

I confess to knowing all of the people involved in this case, but venture to comment all the same.

The context is different, of course, but in a general sense, Judge Stadtmueller only acted upon the injunction in Leviticus 19:16 that "thou shalt not stand idly by" as a neighbor's blood is shed. I would have hoped that a federal judge need not watch powerlessly over his or her own courtroom as public money is wasted, unfairness is done an individual defendant, and bad judgment is on sustained and gaudy display from a prosecutor or any other lawyer.

Were this a civil case, no one could have raised any solid objection had a federal judge done all that this judge did and more. He could have ordered both parties to bring a principal for explicit settlement discussions. The fact that in criminal cases, where liberty is at stake, we forbid judges from an active role in urging common sense and conciliation is indefensible. This ethos in criminal cases helps to preserve a segmentation of felt responsibility for unjust outcomes that results in neither judge nor prosecutor ever being pushed to take ownership of the damage and disparities they cause.

More narrowly, since when is telling supervisors of both the prosecutor's office and the defender's office that neither side will be happy with an impending judicial decision indicative of bias against the government? One, it seems a statement of objective fact. Two, it as easily suggests bias against the defendant. That is to say, it seems neutral on its face. And suggesting that parties talk and try to reach a resolution of a case is not participating in plea negotiations. Encouraging them, yes; participating in them, no.

The government's unstated, but I think true, objection here was the opposite of its stated concern. It was not a judge's bias against the government that the United States Attorney's office feared; it was a judge's failure to act with an expected bias in the government's favor.

I think the Seventh Circuit reached a low point in this case. The executive branch reached a lower one.

Posted by: Dean Strang | Jul 15, 2009 7:23:08 PM

Dean, would you mind if I cut-and-pasted your comments into a new post to allow a new thread of comments in reactions to your potent remarks?

Posted by: Doug B. | Jul 15, 2009 7:38:09 PM

Doug -- Sure. There are not insignificant issues concerning the intersection of the powers of two branches of government that this case presents. I don't suggest that they are easy. Indeed, in my view, both the Justice Department and the Court of Appeals missed their difficulty.

Posted by: Dean Strang | Jul 16, 2009 11:21:12 AM

The CCE hierarchy yanks the chain on one of its own. The public is oppressed by this vile criminal elite. The lawyer doubly so. The judge triply so. When we are rid of these cult criminal cappos, the lawyer and judge will be far more liberated than the public.

Posted by: Supremacy Claus | Jul 16, 2009 10:23:50 PM

I disagree with Dean.

I practice both civil and criminal law, and, on the civil side, judges' involvement in settlement discussions is detrimental to the entire process. Good judges make magistrates available as a tool for the lawyers for settlement and don't get involved in settlement discussions at all. Parties need -- and are entitled to -- judges who decide cases based on the situation that brought the parties to court, NOT on the judge's view of the parties' actions regarding settlement. Parties need -- and are entitled to -- judges who will make each decision based on the facts and argument presented at the time. Too often, judges form opinions about cases well in advance of the hearing or trial -- before they've even seen witnesses; this alone destroys the proper role of the judge.

We need judges who will apply the law to the facts presented to them by the parties. That's their role. Their role specifically does NOT include the following: worrying about the federal budget (Congress' role), worrying about prosecutorial decisions (DoJ's role), worrying about defense strategy (defense counsel's role). Their role requires that they not worry about whether a case settles or not.

Regardless of whether one supports or opposes judges' involvement in settlement discussions, there's a fundamental principle at stake here. Judges are bound by the law. And in this case, the law specifically requires the judge to not participate in settlement negotiation. That "law" (the Federal Rules of Criminal Procedure) was established by the Supreme Court, transmitted through the Attorney General, and submitted to Congress all pursuant to an Act of Congress. This lone judge simply has no business deciding that he knows better how our system of justice should be run. And this judge knew it. He specifically kept a court reporter out of the room so that documentary proof of his disregard for the law would not be established. If judges don't respect the law sufficiently to follow it when it is pointed directly at them, the Rule of Law is dead.

In this case, the district judge arrogated to himself power that the law denies him. He took steps to hide his unlawful conduct. The U.S. Attorney had the gumption to stand up to the judge and stop his unlawful activity. The Seventh Circuit applied the law correctly. The parties will, hopefully, get a judge willing to perform the job that society demands from judges. Feel free to criticize the lawyers' decisions. But more important issues were implicated here. I'm glad that the DoJ had the guts to raise the issue and that the Seventh Circuit was willing to follow the law and remove this judge from this case.


Posted by: Mark Pickrell | Jul 17, 2009 11:10:51 AM

Mark --


Posted by: Bill Otis | Jul 18, 2009 8:06:22 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB