Saturday, June 16, 2007


It is a toss-up for me as to whether the nation's perception of our judicial system is injured more by the judge who is suing for $54 million over his lost trousers or by the Supreme Court's decision dismissing an appeal that was filed within the time period specifically allowed by a federal judge----on the grounds that it was filed too late!

In Bowles v. Russell the petitioner moved to extend the period for filing a notice of appeal. The District Court granted the motion and granted him 17 days to file, rather than the 14 days authorized by the applicable Federal Rule of Appellate Procedure. He filed within the time period prescribed by the District Court order. The Sixth Circuit dismissed the appeal on the grounds that the notice was untimely, and the Supreme Court affirmed, agreeing that, as a result of the untimely filing and despite the petitioner's reliance upon the District Court's order, the Sixth Circuit had no jurisdiction to hear the appeal.

The basis for the ruling was that the time period prescribed by Congress was "mandatory and jurisdictional". In doing so the majority chose to ignore that line of cases holding that time prescriptions are not jurisdictional, unless Congress has specifically designated them so. But even if the majority's analysis is correct, it not only failed to create an exception based upon the petitioner's reliance upon the District Court's order, but rather chose to overrule existing decisions which would have saved the appeal. I suppose that one cannot argue with the logic that if the time period is "jurisdictional" that a court cannot confer jurisdiction after it ceases to exist, and that neither"unique" nor any other kind of circumstances can confer jurisdiction that has already expired. But this case does not involve a delineation of the kinds of cases that federal courts may hear but rather a rule for processing claims in those matters over which the courts have jurisdiction.

But consider these circumstances: The error was brought about solely by the court. The petitioner neither contributed to nor caused it. Actually it is inaccurate to say that the District Court extended the time to 17 days. The Court actually fixed the date by which the appeal was to be filed, and it turned out be 17 days. The mere date would not have put the petitioner or his counsel on notice unless they calculated the elapsed time. There is nothing to indicate that the notice of appeal could not or would not have been filed within the 14 day period, if the order had required it, nor is there any evidence that any party was prejudiced by the 2 day delay. No objection was made by the respondent to the extension, presumably because neither counsel noticed it.

The bottom line is we have an appeal dismissed in a murder case (notwithstanding that petitioner filed his notice of appeal in accordance with the time specifically granted him by a United States District Court) on the grounds that the Court exceeded its authority in fixing the time through no fault of the petitioner. Has strict construction replaced all sense of fairness?

Monday, June 11, 2007


I cannot believe that I am writing about the Paris Hilton case, but I find that it has some significance. The Sheriff in the Paris Hilton case insists that he did not "re-assign" her to home-confinement because of her celebrity status, but rather that it motivated the severity of the sentence imposed by the court. The Sheriff contends that Paris Hilton received a much stiffer sentence than someone else would have received with the same history and charges. And my question: is there anything wrong with that? Would it be appropriate for a court to impose a lengthier sentence upon a person solely because of his or her public persona or position compared to a lesser known person guilty of the same offense, all other things being equal?

I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.

Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?

The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.

I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?

Saturday, June 9, 2007


My thanks to the Volokh Conspiracy for fulfilling my purpose in starting a blog. I did so in the hope that I could engage and encourage reasonable and rational discourse on a number of topics in which I had an interest. Responses to my posts were rather meager until this week when the Volokh Conspiracy at the instigation of my former law clerk, Eric Muller, referred to my post on X-Judge: Interrogatories for Prosecutor Fitzgerald. Frankly, I had hoped that prior posts would have created the same kind of activity, but I have learned as a neophyte in the blogoshphere that they need a boost from such respected and recognized sources as The Volokh Conspiracy or Is That Legal?. I thank you both for launching me. I hope that it is only the beginning.

The irony is that it was a comment to the Volokh Conspiracy on the day that Prof. Orin Kerr was kind enough to announce the launching of my blog, that caused me to consider ending it the moment it began. Apropos of nothing James Fulford referred readers to Jonathan R. to learn how wrong my decision was in granting habeas corpus to Rubin "Hurricane" Carter. I do not know Mr. Fulford or the mysterious Jonathan R or their credentials, but the clear suggestion is that there is where the truth can be found.

The article is entitled: WHAT'S WRONG WITH JUDGE SAROKIN'S DECISION? PLENTY! The "truth" is placed side-by-side with a column entitled: What Sarokin Says. I have no intention nor the time to go back and review my decision (incidentally written almost 25 years ago) to determine whether or not the quotes attributed to me are accurate. But to take just a few for example, I cannot visualize my saying in an opinion:

"Lieutenant DeSimone's testimony on Carter's account of his whereabouts cannot be believed for some reason." or
"Anna Brown perjured herself to help her daughter marry a policeman."

I know a little bit about my own writing style, and those sure don't sound like me. But even if accurate, virtually none of the "inaccuracies and misstatements" have anything to do with the basis for my decision. I found that the prosecutor made an improper appeal to racism in his closing, and that a false report regarding a lie detector test was used to manipulate a witness (Bello) to return to his original testimony at the first trial that he was outside the bar when the shootings took place and not inside as he was prepared to testify at the second trial (and if my recollection is wrong here---the opinion speaks for itself.)

There, indeed, may be factual inaccuracies in my opinion. (The record was over 140,000 pages.)There also are others who disagree with the conclusion, but what astonished and disheartened me was the source of Jonathan R.'s "truth". He did not refer to the lengthy record, the petitioner's briefs and submissions, the unanimous affirmance of my decision by the United States Court of Appeals, nor the denial of cert. by The United States Supreme Court. No, his sole source to conclude that my decision was wrong was the brief of the prosecutor!----the losing party! If that is the test, then I am certain one would conclude that all of my decisions denying habeas corpus relief were also wrong, if one simply compared them against the petitioner's brief.

I do not want to spend my time sticking my thumb in the dike of every criticism that flows out against me, but sometimes when someone else's finger pokes me in the eye, I feel the need to respond. (As I did with the National Review- see X-Judge THE NATIONAL REVIEW RE-TRASHES ME). I know that being out here in space makes me vulnerable, but I hope I can spend the time discussing the issues rather than defending my past---- of which, incidentally I am very proud.

My thanks again to Eugene Volokh, Orin Kerr and Eric Muller for giving me the opportunity to be heard, even though I have found that in blogging ---- it is better to give than receive.

Wednesday, June 6, 2007


I. Lewis "Scooter" Libby, Jr. has been convicted and sentenced. The debate rages over the propriety of the prosecution, the severity of the sentence and the probability of a pardon. I wince at those who belittle the charges of perjury and obstruction of justice. But I do agree that the failure to indict as to the underlying charge of "outing" Valerie Plame as a CIA operative requires some explanation.

Federal grand jury presentments are no longer in favor for reasons too complicated to discuss here, but in view of the length and expense of this investigation and the public interest involved, it would seem that the special prosecutor should issue some statement or report as to the result of that investigation, unless there is some prohibition against his doing so. In view of the obvious thoroughness of Mr. Fitzgerald's investigation, he, more than anyone else, has the knowledge of what actually transpired. Here are some of the questions that should be answered:

1. Was a crime committed in the outing of Valerie Plame Wilson? If so, why was no one indicted?

2. If not, what elements were missing?

a. Is it because she was not "covert" as many have claimed?

b. Is it because of the geographic location of her station?

c. Is it because of some time period?

d. What other reasons were there for not prosecuting?

3. Who were the persons responsible for the disclosure of the information regarding her?

4. Was an agreement reached between the prosecution and Robert Novak? If so, what were the terms?

5. Did the prosecutor make any recommendations or referrals for actions (other than criminal) such as disciplinary, to be taken against any individuals other than Mr. Libby, and if so who and what? Would he recommend any now?

Some of these matters were or may have been presented during the course of the Libby trial and reported in the media. However, the country deserves the details in a formal presentation from the official in charge, when it appears that the power of the administration was utilized and abused for the sole purpose of discrediting a critic on an issue relevant to our going to war against another country.