LOST PANTS SUIT v THE SUPREME COURT

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?

IS CELEBRITY JUSTICE UNEQUAL?

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?

AN OPEN LETTER TO THE VOLOKH CONSPIRACY

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.

INTERROGATORIES FOR PROSECUTOR FITZGERALD

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.

THE DISCRIMINATION HISTORY DEFENSE

Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!

WHAT A DIFFERENCE A DAY MAKES

In a previous post (Punitive Damages v. The Death Penalty 3/22/07) I discussed the difficulty I thought the Supreme Court would have reconciling its decision that a jury in awarding punitive damages could not consider prior harm to identifiable victims, while a jury in a death penalty case could consider the possible (and unlikely) effect upon unknown persons. The prosecutor in the Weaver case, in urging the death penalty, had argued to the jury in emotional terms that they should "send a message" to deter others. I think such an argument is totally inappropriate and agree with the Eighth Circuit that it is "unfairly inflammatory" and should warrant reversal.

The dissent from the per curiam opinion which dismissed the writ of certiorari on the grounds that it was improvidently granted, is more interesting in what it says about the Antiterrorism and Death Penalty Act of 1996 (AEDPA) than what it says about the propriety of the prosecutor's closing. Although the history of the matter is somewhat convoluted, apparently everyone agrees that the District Court improperly dismissed the defendant's habeas petition on the ground that he failed to exhaust his remedies, because he expressed his intention to apply for certiorari from the Supreme Court. His original petition was filed pre-ADEPA, but he re-filed after its adoption.

Not without considerable justification, the dissent argues that the matter should have been decided on the merits as to whether or not the Eighth Circuit had exceeded its authority under the Act in setting aside the capital sentence. However, what caught my attention was the following question posed by the dissent: "Is what happened here any less rational, any less fair****than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after?" What a difference a day makes! The logic is compelling, but the consequences of the statute are chilling.

Further logic suggests that what would have been grounds to reverse the imposition of the death penalty on one day might be gone the next. The dissent suggests that the Court's failure to deal with the matter on the merits causes harm by requiring the State of Missouri to try the defendant again after two decades, and "The greatest harm is done to the AEDPA, since dismissing the writ of certiorari leaves the grossly erroneous precedent on the books".

But could it be that the greater harm comes from the Act itself which may serve to deprive a person sentenced to death of grounds for reversal which otherwise would be recognized, but for the more stringent standard of review mandated by AEDPA. Many, who heretofore would have avoided the death penalty, will now face it ----solely by act of Congress. Here today; gone tomorrow.

WHAT DO ALBERTO GONZALEZ AND A CHICAGO DIVORCE LAWYER HAVE IN COMMON?

They both have demeaned the legal profession. A huge billboard in Chicago's nightclub district proclaims: "Life's short. Get a divorce" It features photographs of "a sexy, scantily clad woman on one side and a buff, bare-chested man on the other". (NYTimes 5/13/07) No matter what the message or the motive of the messenger, no one can dispute the right of the lawyer to offer her wares in this fashion. It has met with considerable success. As with the Attorney General, apparently all things are to be judged by whether or not they are working, not whether they are right or wrong. Illegal wiretapping, secret prisons, torture, unlawful detentions, political firings of U.S. attorneys, suspension of habeas corpus, rejection of the Geneva Convention, and undoubtedly a host of other conduct yet to be revealed (such as a coercive hospital visit to the previous Attorney General seeking approval of an illegal wiretapping scheme) are all justified on the basis that no further attacks have occured since 9/11. Ergo, these tactics, like the billboard poster, are working, The only difference being that encouraging divorce is not illegal or unconstitutional, although in this administration it might be one day.

As to the firings of the U.S. attorneys, nothing infuriates me more than the party line that these are political appointments, and the President, as did President Clinton, can replace them all. Yes, these appointments are political as are those to the courts, but once appointed, U.S. Attorneys, Judges and Justices cease to be political agents. To do otherwise violates their oath of office. Prosecutors should not be dismissed for pursuing criminal conduct by members of the party in power or failing to pursue actions for the sole purpose of embarrassing the opposition and affecting the outcome of elections. Justice is not meant to be used as a political weapon.

So look for a billboard with that infamous picture of the hooded prisoner at Abu Ghraib on one side and a smiling picture of the Attorney General on the other saying: "Stop Terror. Torture Works", because there is little that the current Attorney General does not have in common with the sleazy divorce lawyer.

A JUDGE STRIKES BACK

I have followed with some interest the libel suit instituted by a Massachusetts judge against the Boston Herald, which resulted in a $2 million verdict against the newspaper and was recently upheld. (NYTimes 5/8/07) I remember being outraged when I read that the judge, among other reported misconduct, had said about a rape victim: "She's 14. She got raped. Tell her to get over it." If true, it was inconceivable to me that such a person could be permitted to continue serving on the court. Apparently the jury found that it was not true and rendered its verdict accordingly.

What makes this case unusual, is that judges who are criticized rarely have the opportunity to respond in any fashion. Usually, they must remain silent no matter how unfair, unjust or untrue the accusations. I am totally in favor of robust analysis and criticism of judicial opinions and conduct, but the judge's inability to respond should place an enhanced burden on the critic to be accurate and fair.

I strongly believe this, not so much to protect the judge's sensibilities, but to maintain the public's confidence in the judiciary. I have spoken out for years about my concern that this constant barrage against judges, the mantra of "activist", "liberal", "soft-on-crime" and "legislating from the bench", all serve to erode the public's perception of and confidence in the judiciary. These labels which may produce some immediate political gain, in the long run will harm our judicial system if it causes the people to cease to believe in it.

SUSPECTED TERRORISTS CAN BE IMPRISONED BUT NOT DENIED GUNS

I find it ironic, but not surprising, that the NRA opposes a bill that would prohibit suspected terrorists from buying firearms. (AP 5/5/07) I should disclose that I have never seen a gun control bill that I didn't like. I agree with the slogan that: "Guns Don't Kill People; People Kill People", but call me crazy, I think a person who did not have a gun would have difficulty shooting anybody.

But the tens of thousands of deaths every year and the slaughter of innocents by guns doesn't seem to deter the trend of having every American citizen packin'. "A Gun in Every Pocket" is reminiscent of the old slogan: "A Chicken in Every Pot", except there the goal was to feed all people, rather than improve their chances of killing others or being killed.

Having disclosed my bias, the irony that I see is the supposition (maybe incorrect) that many, if not most, of the members of the NRA have no difficulty with the unfettered discretion of the President in detaining "suspected terrorists" indefinitely and denying them many traditional rights. Apparently it is acceptable to incarcerate them on suspicion, but not deprive them of their right to bear arms.

Of course, the ultimate irony may occur when one of those "activist, liberal, soft-on-crime, legislating judges" that conservatives are always complaining about, comes along and agrees with them and declares the statute unconstitutional on the same grounds that they oppose it.

BLINDING JUSTICE

The Ohio Supreme Court (NYTimes 5/3/07) "overturned a law that required a prosecutor's consent to allow felons who had pleaded guilty to seek DNA tests that could prove their innocence". The Times reports that other states have similar legislation. We know that innocent persons are convicted of crimes, and there is probably an even larger number of those who plead guilty to crimes that they did not commit----many in fear of going to trial and receiving a much longer sentence than the plea bargain provides. (Which may explain the reduction in criminal trials reported by Adam Liptak NYTimes 4/30/07.) There is no way to calculate how many such cases exist because the same fear precludes subsequent challenges.

But what is difficult to understand is why a state legislature would enact such a statute even if only one innocent person entered a guilty plea. The proffered justification for the denial is that it interferes with the peace of mind of the victim "if a convict sought a hearing on DNA tests". It is difficult to envision how a DNA test would involve the victim, but even if it did, one would think that a victim would prefer to be inconvenienced rather than run the risk of having an innocent person remain in prison while the real criminal roamed free.

The Ohio Supreme Court wisely overturned the legislation on the ground that it violated the separation of powers and declared that the legislature"may not impede the judiciary in its province to determine guilt in a criminal matter". We should be searching for ways to ease the plight of innocent persons confined for crimes they did not commit, no matter how small the number may be, rather than impose barriers to their exoneration.