Mimesis Law
21 September 2019

Federal Judicial Tempers and the Trial of Criminal Cases

Jan. 27, 2016 (Mimesis Law) — Although it seems like yesterday to me, few of you are old enough to remember the Chicago Seven (or Eight) trial in a windy city federal courtroom following the violent events surrounding the 1968 Democratic National Convention. Essentially, the feds prosecuted a bunch of left wingers for allegedly stirring up a riot and violating federal law as a result. But, there is also no doubt that Chicago’s Mayor Dick Daley was itching for a fight, and communicated that desire to the police. He got his wish and then some.*

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No federal judge was harmed in the making of this image.

The federal trial judge was Julius Hoffman. He was a small man and generally regarded as an experienced trial judge. One of his cases, involving the purported cancer cure Krebiozen, was at the time the longest-running trial ever held in a Federal District Court. In another, he became the first federal judge from a northern state to hand down a school desegregation order. He taught at Northwestern University’s Law School. He was an “urbane and witty man.”

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Judge Julius Hoffman

This is what one historian has written about Judge Hoffman and his behavior during the Chicago Seven trial which lasted five months:

Judge Julius Hoffman, a seventy-four-year-old former law partner of Richard J. Daley, presided over the conspiracy trial of the Chicago Seven. His courtroom became a “ruckus of insults, disrespect and obscenities.”

Hoffman did not hide his distaste for the defendants or their defense attorneys. Judge Hoffman seemed “determined to do everything in his power to guarantee convictions on every count of the indictment.” Rarely could he pass up an opportunity to lecture a defense witness or criticize a defense tactic or motion.  “When this otherwise rather urbane and witty man stooped to conquer, his forehead frequently touched the ground.”  Another observer noted, “the Judge used every Machiavellian tactic at his disposal to undermine [the defense’s] case.”  In addition to insults, the judge refused to allow unoccupied defense lawyers to leave the courtroom to interview witnesses, prohibited many defense witnesses from taking the stand and, after the prosecution rested, insisted on Saturday sessions.  Judge Hoffman’s efforts were in vain, however, as he was later scolded by the Seventh Circuit Court of Appeals, which reversed all of the convictions.

Judge Hoffman began the trial by having four of the defense’s pretrial lawyers arrested and thrown in jail for a night for not appearing in court. He insisted that William Kunstler was Bobby Seale’s attorney despite Kunstler’s having filed a formal withdrawal and Seale having fired him for good measure. (Hoffman had refused to delay the trial to allow Seale’s counsel of choice to recover from gallbladder surgery).  After the Judge repeatedly prevented Seale from acting as his own counsel, Seale called the Judge “a pig, an fascist and a racist.”  Hoffman had Seale bound, gagged, and chained to a chair for the duration of Seale’s connection with the trial.

Judge Hoffman became the favorite courtroom target of the Chicago Seven defendants, who frequently would insult the judge to his face. Abbie Hoffman told Hoffman “you are a disgrace to the Jews.  You would have served Hitler better.”  He later added that “your idea of justice is the only obscenity in the room.”  Both Davis and Rubin told the Judge “this court is bullshit.”  After the Judge had read him his thirty two counts of contempt, Dellinger responded, “it is a travesty of justice and if you had any sense at all you would know that the record you read condemns you and not us.” Hayden described the Judge as “a perfect representative of a class of dinosaurs that is vengefully striking out against the future.”

Douglas O. Linder, “The Chicago Eight” (or “Chicago Seven”) Trial, University of Missouri-Kansas City (UMKC) School of Law (2016). See also United States v. Dellinger, 472 F.2d 340, 387-388 (7th Cir. 1972) (reversing conviction because of Judge Hoffman’s comments and behavior).

Contrast the “Chicago Seven Trial” with the unpublished decision in United States v. Ramos-Pineiro, No. 14-1462 (1st Cir., January 13, 2016).** That case was tried before another experienced federal trial judge, José Antonio Fusté. The case was a nasty drug case involving murders and guns. After the jury found him guilty, the defendant was sentenced to several life sentences. Seeking plain error review, the defendant asked the First Circuit to turn Judge Fusté around because of his comments and behavior at trial.

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Judge Fusté

The panel was an interesting one. It consisted of Circuit Judges Lynch and Selya (he of obscure words) and David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.  The panel issued a per curiam decision giving short shrift to the defendant’s claims, even though it was true that on “a few occasions, the judge acted “brusquely” and “on a few other occasions, he used questionable language or showed signs of impatience.”

The panel took pains to set out the rules very clearly:

We begin our discussion of the appellant’s claim of error with bedrock: “[a] fair trial in a fair tribunal is a basic requirement of due process.” United States v. de la Cruz-Paulino, 61 F.3d 986, 997 (1st Cir. 1995) (quoting United States v. Nueva, 979 F.2d 880, 885 (1st Cir. 1992)). Accordingly, a “judge’s participation [in the trial] must be balanced; he cannot become an advocate or otherwise use his judicial powers to advantage or disadvantage a party unfairly.” Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997).

This does not mean that the role of a trial judge should be confined to that of a passive spectator. To the contrary, the judge is “the governor of the trial for the purpose of assuring its proper conduct.” Id. (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). Thus, a trial judge “has a perfect right— albeit a right that should be exercised with care — to participate actively in the trial proper.” United States v. Ofray-Campos, 534 F.3d 1, 33 (1st Cir. 2008) (quoting Logue, 103 F.3d at1045). In the bargain, the trial judge must be afforded considerable leeway in determining what should be done to keep the trial on track and to ensure acceptable courtroom behavior. See Liteky v. United States, 510 U.S. 540, 556 (1994). This leeway encompasses, among other things, the “power to question witnesses and to analyze, dissect, explain, summarize, and comment on the evidence.” Logue, 103 F.3d at 1045.

In exercising these powers, a trial judge is not bound to conform to an artificially antiseptic standard. A judge may couch his comments in blunt language — and “[b]lunt language, without more, does not translate into a showing of judicial bias.” United States v. Caramadre, 807 F.3d 359, 374-75 (1st Cir. 2015). Even “remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases” are usually insufficient to prove bias. Liteky, 510 U.S. at 555.

In this case, we have carefully examined the record and paid particular attention to the district judge’s interactions with defense counsel and with witnesses. The trial was hardfought, and it was waged against an ugly factual backdrop. On a few occasions, the judge acted brusquely; on a few other occasions, he used questionable language or showed signs of impatience. But defense counsel was no model of civility; and nothing about either the judge’s statements or his behavior came close to crossing the due process line. We conclude, without serious question, that the appellant’s trial was fundamentally fair . . ..

So, what is the takeaway from these two cases? It is pretty simple. Unless the trial judge really goes off the reservation, lawyers appearing in federal criminal cases have no legal basis to complain about harsh treatment. That is, federal practitioners must “put on their big boy (girl) pants” when they try federal criminal cases.

I now want to shut up. I want to hear from you. That is, I would be very interested in knowing what your experiences have been in the trial of federal criminal cases. Feel free to comment anonymously, but tell us if you have had particularly bad or particularly good experiences. We can never have enough war stories, and, besides, all of us might learn something from your experience.

Richard G. Kopf
Senior United States District Judge (Nebraska)

* For a wonderfully written and fascinating book from a first hand observer and great writer regarding the 1968 political conventions, see Norman Mailer, Miami and the siege of Chicago; an informal history of the Republican and Democratic Conventions of 1968, New York Review Books Classics (Paperback) (republished July 15, 2008). As an aside, my boss in 1972 and mentor thereafter until his death was Judge Donald R. Ross of the United States Court of Appeals for the Eighth Circuit. He was in charge of the 1968 Republican convention in Miami.

**H/T Elaine Mittleman, an experienced appellate criminal defense lawyer.

17 Comments on this post.

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  • Bryan Gates
    27 January 2016 at 9:37 am - Reply

    I had a federal sentencing where it was plainly obvious that the judge was put out by the fact that I was objecting to some testimony and told me that if I continued to object he would (on his own initiative) continue the sentencing and summon a co-defendant to testify against my client. I folded. A criminal defense attorney cannot win a pissing match with the judge.

    So while a fair trial in a fair tribunal as a bedrock of due process sounds nice, the real rule is “unless you prove that your trial was grossly unfair, you are SOL.”

    • Richard G. Kopf
      27 January 2016 at 10:07 am - Reply

      Bryan,

      Thanks for your comment.

      The “real rule” that you cite is accurate. And, your example could be a good one to illustrate that rule.

      That said, if you were in federal court at a sentencing hearing, my guess is that you continued to object on hearsay grounds to a summary of what the co-defendant said. Since the rules of evidence generally don’t apply to hearsay statements at sentencing, my guess is that the judge told you that if you really wanted the testimony straight from the horse’s mouth, he/she would “accommodate” you.

      Am I correct on these assumptions? If so, I am not sure you were treated either unfairly or harshly.Tough, yes. Impatient, sure.

      Anyway, I truly appreciate your comment. All the best.

      RGK

      • Bryan Gates
        27 January 2016 at 11:22 am - Reply

        Your assumptions are partly correct. The issue at sentencing was the number of guns that my client had trafficked as part of a multi-person gun stealing/selling operation. The prosecutor had evidence of nearly enough guns to trigger an increase. A co-defendant (the leader of the group) had pled guilty but he had not cooperated once it became clear that his likely sentence would keep him locked up until he was pretty old.

        The government was using an agent to read other agents reports into the record. The testifying agent did not participate in the events he was testifying about. Just relying on the report of someone else. That struck me as fundamentally unfair even in the Wild West of sentencing. There was also a lot of rank speculation. I was pretty sure the co-defendant would take the Fifth if called. When the prosecution bears the burden of proving the number of guns, I don’t see how it is the judge’s role to summon witnesses.

        All I can say is at the end of that process, I had a firm feeling that the judge wanted to see my client get the extra time. Intent is a hard thing to concretely prove. I don’t get that feeling every time, or even every time with that judge.

        • Richard G. Kopf
          27 January 2016 at 12:27 pm - Reply

          Bryan,

          Thanks for the clarification. For what it is worth, I probably would have required the government to put on the agents who did the interviews rather than merely have another agent summarize their reports. This is not to suggest your judge was legally wrong, but I get itchy when summarized reports are provided by someone without first-hand knowledge and that testimony is critical to me about how hard I am going to pound someone.

          Thanks for your clarification and comments. All the best.

          RGK

  • Cornflake S. Pecially
    27 January 2016 at 3:09 pm - Reply

    You do know that this post would probably have a few hundred comments by now if you were footing the bill for the open bar at this here war stories convention you are soliciting.

    But then again it could have something to do with the greater economy. I reckon at least half of the lawyers that read this publication have been able to cut their therapy sessions down to once a week and only have nightmares about federal judges a few times a year if they stick to their medication regiment.

    The other half are probably still cool with shouting and or making faces at the photo of a federal judge taped to their bathroom vanity mirror or still snuggling with a teddy bear wearing a federal judge’s mug on a t-shirt, and let’s face it letting either of those slip inadvertently in a comment thread is risky.

    P.S. You know you want to do it. Stop beating around the bush and clear your conscious once and all before you are faced with pondering the risk benifit reward of the athiest repentance conundrum on your death bed and whether or not you should take an oath beforehand.

    • Richard G. Kopf
      27 January 2016 at 5:56 pm - Reply

      Cornflake S. Pecially,

      Regarding the conundrum you speak of in your “PS,” I hope I have the presence of mind at the end to utter the words of Karl Marx on his deathbed: ” “Go on, get out. Last words are for fools who haven’t said enough.”

      All the best.

      RGK

  • Sir Arthur
    28 January 2016 at 5:28 pm - Reply

    My only experience is in the civil courts, but whenever a judge displays obvious bias in those fora, it is generally due to political leanings or connections, or outright bribery. Happily, this is a fairly rare occurrence, but anything short of scrupulous neutrality from the judge violates the litigants’ right to due process.

    Unfortunately, in close cases, when they even bother to examine the appeal, appellate judges will always side with the trial judge, and in those cases, due process is more of an ideal than a reality. However, when you take your sworn duty of loyalty to your client too seriously, it will be a career-threatening moment. One of my compatriots from Stanford Law learned this the hard way: http://www.westword.com/news/blackburned-5096662. He got a year’s suspension, but in his state, the Bar routinely harasses dissenters by demanding psychiatric evaluations of them as a condition of reinstatement. He refused as a matter of principle, and left practice.

    The lesson: Principle and law don’t mix.

    • Richard G. Kopf
      29 January 2016 at 5:30 am - Reply

      Dear Sir Arthur,

      I will give the fact that the practice of law can strain one’s commitment to principle. But, I disagree that the principled practice of law is uncommon. I see principled lawyers too frequently to buy into that broad condemnation. The same thing is true for judges.

      As an aside, when folks used to come to our little law office and said they wanted to fight for principle, we had a standard response. It was essentially this: While it may be the principle of the thing to you, it is the money to us. We said it in more gentle ways, but you get the picture.

      All the best.

      RGK

      • SPM
        10 June 2016 at 12:05 pm - Reply

        Or, to quote an attorney I know, “People’s principles rarely survive contact with the first bill from their attorney.’

  • Mouseketeer
    30 January 2016 at 2:37 pm - Reply

    “federal practitioners must “put on their big boy (girl) pants” when they try federal criminal cases.”

    I might say the same to the arrogant and bloviating petty dictators we euphemistically describe as judges. You are hired to do a job, and we have a right to expect you to do it. You are umpires, not Earl Weaver.

    • Richard Kopf
      30 January 2016 at 7:32 pm - Reply

      Mouseketeer

      If you want to get into my clubhouse, you must say the three magic words. ” Meeska, Mooska, Mickey Mouse!

      All the best.

      RGK

  • Raymond Rigat
    30 January 2016 at 4:28 pm - Reply

    My experiences handling criminal trials in the federal system mainly involved military courts-martial. I can honestly say that I never experienced any of the military judges ever losing their tempers. Doesn’t mean it never happened, but I never experienced it, or observed it. Maybe it’s a more controlled environment? Not sure.

    As an attorney who has handled over seventy five federal criminal appeals, I can say that there were two examples of the trial judge losing their temper. Both cases involved the same judge. Both instances became the basis for the appeal. In United States v. Browne, (1st Cir. 2004?), the defendant was sentenced to 24 years for money laundering. On his way out of the courtroom he blurted out “son of a b—-, d—–“. He was walking out the door in the back of the courtroom, the judge overheard the remarks and ordered the defendant back before him. The judge put on the record “on his way out of the courtroom the defendant called this court a son of a b—-, I don’t have to take that from anyone, let alone you” (or words to that effect). The defense attorney attempted to explain the remark but was peremptorily told to sit down and be quiet. The defendant was given an additional six months for contempt. My recollection of the transcript is that the judge had been getting more and more irritated by the defense attorney’s repeated argument on some issue. It went on and on, and you feel the judge’s growing irritation. The Circuit ordered a remand on the contempt, in order to give the defendant an opportunity to explain his remarks and/or apologize. The circuit court opinion found that while minimal there are some due process protection in a summary contempt hearing. The opinion had a great quote about how it was unclear if the defendant had directed his remarks to the court, or to an otherwise “hostile universe.” It struck me when I read the transcript that it was the latter. Sort of like blurting out after you stub your toe. I never understood why the judge didn’t just let the defendant go out the door and ignore it I any event. The defendant just got whacked with twenty four years, and was on his way out.

    In the Ofray-Campos matter cited in the above quote, I represented the defendant who raised the issue of the trial judge’s conduct throughout the trial. The judge, (same judge as in the Browne case) was growing increasingly irritated with the trial attorney. At several points the judge lost his temper at one point telling the attorney to just “shut up.” He proceeded to continue to mock the attorney and would make snide comments peppered throughout the transcript. While the argument that such conduct did not deny the defendant a fair trial, the circuit did demand for a new sentencing hearing for other reasons. I had the impression, that reading the decision between the lines, the circuit was not pleased with the trial judge’s actions. Stuff happens, I get that, and district judge are people too. But what concerned me in this case was first the trial attorney was not disrespectful, or being a jerk. It was a difficult case on the merits. There were multiple defendants all of whom were accused of very serious and very violent crimes. I thought th judge could have handled it a lot better. Mocking and ridiculing an attorneys performance throughout a trial like that can put the lawyers safety in jeopardy. This occurred over several weeks, so it wasn’t just a one time blow up. I thought it could have been handled a lot better, but in fairness I wasn’t there.

    I would like to observe however the following. When we get angry and lose our temper (regardless of our station in life) we lose control of our reason and make mistakes. In both of the above cases cited, the circuit court remanded for error.

    Finally, I would call attention to the actions of judge Mary Lisi (district of Rhode Island, circa 2001). The case involved the criminal trial of King Animal. I believe the case was styled US. V. Perry (1st Cir.). Here, the defendant sent a written note to the judge during the prosecutors closing argument asking for a break so he could go to the bathroom. Judge Lisi sent back the reply that the prosecutor was almost done with his argument, please wait, and she would take a break right before the defense made its argument. The defendant stood up, dropped his pants and , well you know what happens next right I front of the jury. The judge excused the jury, had the defendant removed, and took a recess. She sent word back to the defendant that if he promised to behave, he could return to the court for his attorneys closing argument and that she would deal with the contempt at the end of the trial. The defendant came back in, behaved, was sentenced to life in prison and given. 90 days solitary for relieving himself in the courtroom. The point is, the judge took a recess, collected her thoughts and didn’t act in anger. I think there’s a life lesson here for all of us.

    • Richard Kopf
      30 January 2016 at 7:37 pm - Reply

      Raymond,

      Thank you for your detailed comment, and the very educational context it provides.

      As for the Rhode Island judge, good for her. I once had a lawyer do essentially the same thing. He said he need a recess, and seeing his physical anguish, I said fine, go. Well, he did, in his pants before he could get out of the courtroom. Sad actually.

      All the best.

      RGK

  • Eliot clingman
    30 January 2016 at 4:57 pm - Reply

    Hoffman, step away from the gavel!

    • Richard Kopf
      30 January 2016 at 7:38 pm - Reply

      Eliot,

      In his later years, they stopped assigning new cases to him. All the best.

      RGK

  • repenting lawyer
    9 February 2016 at 12:08 am - Reply

    One small objection, Abbie told the Judge he was a scandal before the gentiles in Yiddish or that is my recollection from the transcript.

  • How Antagonistic? Federal Judge Crosses The Line
    12 May 2016 at 3:24 pm - Reply

    […] up your gloves and step into the proverbial federal criminal ring, you’d better have your big boy (girl) pants on. Protect yourself, and your client, at all […]