It is often an illusion that all lawyers and clients get the same treatment when standing before the bench in a court of law. The fact is that for a variety of reasons in criminal cases, there is a cozy relationship between the bench and the prosecutors appearing before them. Now before I go any further I need to say that I know that my son and daughter-in-law who are prosecutors in NYC – him in Brooklyn and her in Manhattan – will laugh out loud as they read this since many judges in those counties give DAs a very hard time and are generally considered pro-defendant. But those counties, along with the Bronx, are exceptions and in the other counties of NY – Queens and Staten Island – the coziness exists. Nationally, it is by far the rule.
A recent extreme and disturbing example arose out a Federal District Court in Illinois. US District Court Judge Colin Bruce was caught exchanging emails with prosecutors on trial before him – giving them advice on cross-examination and making other ex parte communications about their work. Bruce was removed from hearing any criminal matters after the Illinois Times reported on emails exchanged between Bruce and Lisa Hopps, a paralegal in the U.S. attorney’s office, during Sarah Nixon’s trial for kidnapping. In the emails, Bruce criticized the performance of prosecutors, made suggestions on how to question the defendant and assessed the odds of acquittal. “The content of Judge Bruce’s emails to Ms. Hopps regarding Ms. Nixon’s trial reveals a judge who has determined the defendant is guilty and should be convicted, is frustrated and angry that Ms. Nixon might not be convicted, and is willing to share with the prosecutor’s office how the prosecutors handling the case could improve their cross-examination to help ensure a conviction,” Nixon’s lawyers wrote in an Oct. 25 motion for a new trial. “It is impossible to overstate how improper Judge Bruce’s actions were.” Here’s a few examples of emails he said during Ms. Nixon’s trial:
“This trial went from slam-dunk for the prosecution to about 60-40 for the defendant.”
“I really cringed when the inexperienced DOJ attorney started (cross-examining) the defendant.”
The public defender’s office that represented Ms Nixon found many other examples of improper communications between the US Attorney’s Office and Judge Bruce. Attorneys for Jason Gmoser, who was convicted of child pornography charges in Bruce’s court and sentenced to life last year, requested a new trial based on emails between the judge and assistant U.S. attorney Elly Peirson, the prosecutor in the case. “You’re doing fine,” the judge wrote in one of the emails that wasn’t shared with defense attorneys. “Let’s get this thing done.” So much for fair and impartial. In other examples, the tone was sometimes jovial, as when Bruce referred to an approaching corruption trial of former U.S. Rep. Aaron Schock as “Schock-a-palooza” in a 2017 email to Staci Klayer, a paralegal in the federal prosecutor’s office. Of greater significance, when referring to four criminal cases before him, the judge also wrote in an email exchange with Klayer that he would grant no further continuances. In their motion for a new trial in the Nixon case, lawyers say that message shows that the judge had already decided the merits of any motion for postponement that might come before him and, further, the heads-up to prosecutors would have allowed them to prepare for trials with information that wasn’t available to defense lawyers. “That is bias,” Nixon’s lawyers wrote. Yeah, you think?
What’s the reason for the relationship? Particularly in suburban and rural counties and districts, judges are almost universally selected from ranks of former prosecutors. They are often presiding over prosecutors they trained or supervised or who are working in bureaus whose chiefs and assistant chiefs were the judge’s comrades. Judge Bruce, for example, was the First Assistant United States Attorney in the very District where he now sits. He worked with these various email buddies and the content of some of the messages reflect judge how cozy they are:
In a 2015 email exchange with Klayer about a scheduling matter, Bruce tells the paralegal that a hearing date already set would work for him. “I’m good,” Bruce wrote. “Whatever. (easy-going judge…. Love my job….)” Klayer responded with praise. “Yeah dude – you’re rocking it,” the paralegal wrote. “You were made for that position.” She ended her message with a smiley-face emoticon.
Another reason for the comfy relationship is logistics. Many prosecutor’s offices are located right in the same courthouse where the judge sits. They bump into each other on the street, in restaurants and in the halls of the courthouses. Often prosecutors are assigned to a particular judge or courtroom, so they appear before the same judge every day, day in and day out. Conferences are held in the judge’s chambers many times, so prosecutors sit there all day with their boxes of the files on that day while defense lawyers come in and out to discuss one or two particular cases. It is only natural that during the down time, they would have conversations about their personal life, vacations etc and even perhaps upcoming cases. Many is the time, in Nassau and Suffolk Counties, where I have gone to conference a case and already found the assistant DA and the judge and/or the judge’s law clerk engaged in a friendly conversation about golf, fishing, their kids or courtroom issues. Its so routine no one thinks twice about it.
Currently on the Federal bench nationally, only 15% of judges have criminal defense experience. About 63% had prosecutorial experience. The last judge of the Supreme Court to have criminal defense experience was Thurgood Marshall. Yet Alito, Roberts, Sotomayor, Gorsuch, Kavanaugh were all assistant US Attorneys. And Kagan and Thomas also worked for the government at a high level, Thomas as head of the EEOC and Kagan as Solicitor General. Even left-leaning President Obama, had 85% of his Federal appointees come from prosecutorial backgrounds.
So it has to start with State Court and Federal Courts being filled with a balance of folks who have significant criminal defense experience. But it is also important that when abuses like Judge Bruce’s warm and fuzzy relationship with his former office become evident, that the consequences be swift and severe. He should be removed form the bench and those that failed to report the misconduct should lose their jobs.
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