Federal Judge Removed During Trial After Exclusion of Evidence

By Jeralyn, Section Crime in the News
Posted on Thu Jul 29, 2010 at 11:55:27 AM EST
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The 7th Circuit Court of Appeals has ordered the Chief Judge from the Northern District of Illinois, removed from a drug case in the middle of trial.

The Judge had excluded fingerprint evidence. U.S. Attorney Patrick Fitzgerald took an immediate appeal and the 7th Circuit ordered Judge James Holderman removed and directed the Judges to assign someone else and keep the trial going.

The 7th Circuit gave no reason for the extraordinary action and said an opinion will be forthcoming. Here's what the order, called a "Final Order in Original Proceeding" says: [More...]

ORDER: the Government’s Renewed Petition for a Writ of Mandamus, filed on July 26, 2010, by counsel for the petitioner is GRANTED. The district court shall admit G.Ex. Roberson Seizure 2, allow the government to recall Stephen Koop to testify regarding the recovery of latent fingerprints from that exhibit, and also allow testimony regarding comparison of the latent prints with known fingerprints of the defendant.

Circuit Rule 36 shall apply on remand. The case shall be reassigned to a district judge who is immediately available to preside, and the trial shall resume as soon as possible. An explanatory opinion will follow. Richard A. Posner, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [3] [6239238] [10-2766]

The Chicago Tribune says:

A three-judge appellate panel ruled in Fitzgerald's favor and allowed the evidence and testimony related to the fingerprints. However, the additional sanction of Holderman by U.S. Circuit Judges Richard Posner, Diane Sykes and Ilana Rovner stunned court watchers. The appellate court overturns rulings of Chicago federal judges all the time, but few could remember the last time a judge was removed in the middle of a trial.

"This is an extraordinary situation; it really is," said Len Cavise, a law professor at DePaul University who is a former criminal defense attorney. "Posner is one of those judges that if something happens procedurally that he doesn't like, he will take action immediately."

Fitzgeralds' office and Judge Holderman apparently have a history of disagreements. The evidence excluded was a piece of adhesive tape with Herrera's fingerprints on it as well as any testimony about that potentially damaging item.

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Federal Judge Removed During Trial After Exclusion of Evidence | 12 comments (12 topical)

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That's incredible (none / 0) (#1)
by Big Tent Democrat on Thu Jul 29, 2010 at 12:03:37 PM EST

Have you ever heard of such a thing before J?

This has mistrial written all over it.

Do you park the jury in (none / 0) (#2)
by MKS on Thu Jul 29, 2010 at 12:14:38 PM EST

a holding pattern while the new judge gets assigned and up to speed?

Very odd.

Mistrial would be the obvious procedural answer here. Just start over with the evidence to be admitted in the second trial.


BTD, never (none / 0) (#3)
by Jeralyn on Thu Jul 29, 2010 at 12:21:37 PM EST

We had a federal judge resign during a drug trial last year and the trial was transferred to another judge, but never an order of removal during trial that I can recall. Especially over an evidentiary ruling.


What is the authority for (none / 0) (#9)
by KeysDan on Thu Jul 29, 2010 at 02:32:27 PM EST

a Court of Appeals to remove a District Judge (the chief, in this case) from a trial? I was unaware that this could be done, sort of a mini-impeachment by appellate judges, albeit from a case in progress, not the bench.


: It does not seem like the (none / 0) (#11)
by KeysDan on Thu Jul 29, 2010 at 02:46:40 PM EST

Appellate Court is following its cited Circuit Rule 36, which seems to relate to remand for a new trial, in which case it is to be reassigned by the district court for trial before a judge other than the judge who heard the prior trial, unless all parties agree to the same judge.

Sounds to me like (none / 0) (#4)
by scribe on Thu Jul 29, 2010 at 12:21:39 PM EST

Fitz has something on some of the judges on the Circuit, and they know it.

I've never heard of a judge being removed by an appel;late court in the middle of the trial. I've neer heard of an appellate court reversing a trial judge's decision to exclude evidence; the standard for reversal opn evidentiary rulings is usually "abuse of discretion", i.e., that the judge got the law wrong or appliedthe right law and came to the wrong result. One almost never wins a normal appeal on the improper introduction of evidence and only slightly more frequently wins for the improper exclusion of evidence.

It's a whole new bootleg around Double Jeopardy, I guess.

Andthat whole "here's our decision, an explanation will follow" is eerily reminiscent of the same kind of decisionmaking in Ex Parte Quirin. There the S.Ct. decided that executing the German saboteurs was OK before they reasoned out their opinions and published them.

Should read: (none / 0) (#6)
by scribe on Thu Jul 29, 2010 at 12:27:13 PM EST

I've never heard of an appellate court reversing, mid-trial, a trial judge's decision to exclude evidence;

And that "never heard of" is in both the civil and criminal contexts.

I suspect the Circuit was convinced of the defendant's guilt and recognized that without the excluded evidence that "right" result would not obtain. Given that doule jeopardy would bar retrial, they reshaped the trial to make sure there would be a conviction. In the civil context, there's no double jeopardy problem precluding a retrial.


so move for mistrial (none / 0) (#7)
by diogenes on Thu Jul 29, 2010 at 12:59:34 PM EST

If the defendent is so obviously innocent, then he should move for mistrial immediately and will undoubtedly win an appeal for a new trial during which when his innocence will be clear.
It's up to the defense to pursue a mistrial.


I have little doubt the defendant will so move (none / 0) (#8)
by scribe on Thu Jul 29, 2010 at 02:02:47 PM EST

the instant the trial resumes.

I have equally little doubt the motion will be denied and, since the case will have a good chance of being assigned to the same panel of the Circuit on his inevitable appeal, said panel will see absolutely nothing wrong with what they decided and their predetermined result and will therefore afirm the result below.


I think that panel (none / 0) (#10)
by Big Tent Democrat on Thu Jul 29, 2010 at 02:44:46 PM EST

will have to recuse itself.


: Curious, has that ever happened before? n/t (none / 0) (#12)
by BTAL on Thu Jul 29, 2010 at 04:22:38 PM EST

Sounds like there might be a personal dispute (none / 0) (#13)
by robotalk on Thu Jul 29, 2010 at 07:54:16 PM EST

between Fitzgerald and Judge.