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.*
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.”
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.
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.