The Importance Of An Independent Judiciary

 

Study urges Congress to act to ensure independence of federal judges

Thu, 01/21/2021

LAWRENCE — Former President Donald Trump's removal of prominent officials not willing to do his bidding grabbed headlines throughout his tenure, but he also took less well-publicized steps to bring the federal bureaucracy under his control by dismantling key parts of the civil service. A University of Kansas law professor argues in a new study that these efforts, coupled with recent Supreme Court rulings, threaten the independence of a key group of agency adjudicators. The study urges Congress to take action to prevent cronyism and political bias in agency adjudications.

Richard Levy, J.B. Smith Distinguished Professor of Constitutional Law at the KU School of Law, and Robert Glicksman of George Washington University have published a study in the Minnesota Law Review examining the independence of administrative law judges, or ALJs. In the study, the authors outline the attacks on the independence of ALJs in federal agencies that threaten to politicize the appointment and removal of officers intended to be impartial decision-makers. They recommend a legislative solution to ensure independence that would benefit both major political parties.

The basic separation of powers between the executive, judicial and legislative branches in American government is well understood. However, there is overlap when implementing law and determining how the law applies in given situations, the authors wrote. These situations arise frequently in federal agencies such as the Securities and Exchange Commission and Social Security Administration. The agencies appoint adjudicators, including ALJs, who make rulings, but conflicts of interest can arise when agencies or employers prefer one policy but the law requires another.

“The question is, how do you properly balance the idea that the president is at the head of the executive branch and has responsibility to ensure that the laws are faithfully executed with the idea that due process and fundamental fairness in agency adjudications requires an impartial decision-maker?” Levy said.

Levy and Glicksman described recent Supreme Court decisions that have supported a strong unitary executive theory that gives the president greater control over the appointment and removal of officers in the executive branch, as well as executive actions by Trump that exempt ALJs from civil service merit selection requirements and weaken the statutory against removal for reasons other than good cause. Civil service protections for federal officers and employees have consistently expanded to prevent political patronage or a spoils system rewarding cronyism. As applied to ALJs, these protections were essential to ensure presidents and political appointees could not appoint unqualified or biased adjudicators or take disciplinary action against ALJs who refused to toe the line in their decisions.

“When we talk about a ‘war,’ we’re essentially talking about a war on the civil service,” Levy said. “The Trump administration’s argument is those protections led to the creation of the so-called deep state.”

The authors present an in-depth examination of the executive order removing ALJs from the established appointment system in which the most highly qualified judges as determined by civil service testing were presented as candidates for judicial openings. They determine the move was legally valid, yet opens the door to cronyism and the appointment of unqualified loyalists to such positions. They also discuss a recent Justice Department memo indicating that the department would only defend good cause removal protections for ALJs if those provisions allow for removal those who fail “to follow instructions” or in essence, make rulings favorable to the position of the executive branch.

“At the very least we have a looming constitutional crisis for ALJs, and a lack of protections for them for appointment and removals,” Levy said. “It seems to us a substantial threat to ALJ independence and judicial integrity.”

Given that threat, the authors argue a statutory response is required. They call for the creation of an independent ALJ corps using the “central panel” model that is already in place in numerous states’ laws. The approach would allow for independence of ALJs that adjudicate federal agency questions, while allowing for final review from the agencies. That would restore judicial independence and retain the agency’s ultimate policy authority and expertise, Levy said.

Congress could enact a law achieving those ends in a nonpartisan fashion, the authors said. Doing so would be mutually beneficial as it could prevent cronyism from whatever party is in power, retaliation upon changes of administration or unforeseen abuses of policy enacted by a preceding party.

“I think we have to start restoring safeguards that have been dismantled by partisanship,” Levy said.

While the hyperpartisan nature of American politics may make such an event difficult, it is not impossible, the authors wrote. Levy and Glicksman have already presented their arguments in a webinar sponsored by the Administrative Conference of the United States and been contacted by the National Conference of the Administrative Law Judiciary and helped draft a report in support of a resolution by the American Bar Association in support of a central panel of federal ALJs.

“Ultimately, the independence of administrative adjudication is a critical protection for the rule of law. Although other recent threats to the rule of law may deservedly garner the headlines, we should not lose sight of the critical role that impartial agency adjudication plays,” the authors wrote. “Taking reasonable steps toward securing independent and impartial adjudication by agencies is a nonpartisan issue that Congress can and should address.”

Judge John Roll Shot And Killed At Safeway In Tuscon, Arizona.

Chief Judge John M. Roll of the U.S. District Court of Arizona was shot and killed on January 8, 2011 in front of a Tucson, Arizona Safeway grocery store. He was 63.

The judge lived just a few blocks away from the supermarket. He had gone to mass and decided to stop at the store on his way home, according to Pima County Sheriff Clarence Dupnik.

The shooter has been identified as Jared Loughner, 22. He is in custody.

The gun used in the shooting was purchased legally at a Sportman's Warehouse.

FBI Director Robert Mueller is in Arizona to help coordinate the investigation, U.S. Attorney General Eric Holder announced. “We will hold accountable anyone responsible for these heinous acts,” he said.

President Obama praised the judge for having "served America’s legal system for almost 40 years." Authorities do not yet know "what provoked this unspeakable act," the President said in remarks this afternoon.

U.S. Chief Justice John Roberts said in a written statement that "Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it."

Arizona Chief Justice Rebecca White Berch remembered Judge Roll as "a kind man, a wise and fair jurist, and a friend to many within the legal community".

ABA President Stephen N. Zack called the shootings "a direct attack on our American way of life and the rule of law" and said Judge Roll was "a respected and admired jurist."

"This shocking and frightening event emphasizes the importance of protecting and respecting our civic life, and all those who participate in it," Zack said.

Judge Roll was nominated to the bench in 1991 by President George H.W. Bush. He had served as chief judge since 2006.

Judge Roll received his J.D. from University of Arizona College of Law in 1972 and a LL.M. from University of Virginia School of Law in 1990. He had served as a prosecutor for Tucson, Pima County and the U.S. Department of Justice in Arizona. He was a judge on Arizona’s Court of Appeals from 1987 to 1991, including serving as its presiding judge from 1988 to 1991.

Roll himself had been the subject of death threats in 2009, when he presided over a $32 million civil-rights lawsuit filed by illegal immigrants against an Arizona rancher.

When Roll ruled the case could go forward, he received more than 200 calls from members of the public in a single afternoon, U.S. Marshal for Arizona David Gonzales said.

Roll and his wife were given protection for about a month. "It was unnerving and invasive...By its nature it has to be," Roll said at the time.

Law enforcement officials identified four individuals responsible for the threats, but recommended the judge not seek prosecution. The judge took the Marshals advice.

"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," Roll said. "But when it comes to threats, that is an entirely different matter."

According to federal courts spokesman David Sellers, the last federal judge to have been assassinated while in office was U.S. District Judge Robert Smith Vance, who was killed on December 16, 1989 by a mail bomb at his home in Alabama. Last year, Judge Roll’s colleague Judge Susan Bolton was threatened both before and after she issued a ruling on Arizona's controversial new immigration measure. The threats prompted U.S. Marshals to increase security at federal courthouses in the state, reports Politics Daily columnist Andrew Cohen.

Previous coverage:

ABAJournal.com reported in May 2009 that "Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards"

John M. Roll, the chief federal judge in Arizona, was fatally wounded in the attack that killed five others and wounded at least 18 people.

“We’re all in kind of a state of shock here,” said Richard H. Weare, the clerk of the Federal District Court for Arizona, after hearing from the Federal Marshals Service, which confirmed the death.
President Obama praised Judge Roll as a jurist “who has served America’s legal system for almost 40 years.”

Judge Roll was appointed by the first President George Bush in 1991 and has been chief judge since 2006. His district is part of the sprawling Ninth Circuit, which covers federal courts throughout the West. He served as a state judge and as an assistant United States attorney for Arizona before he was appointed to the federal bench.

The chief judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, described Judge Roll as a tireless advocate for his district: “Of all the chief judges of the circuit, I must say he was always the hardest working — always looking out for his district. He’ll be a great loss to his family, but he’ll also be a great loss to the federal judiciary.”

He said Judge Roll was a good friend who sought increased federal resources for his district, which had seen a surge in felony cases related to drugs and crime along the border with Mexico.

Judge Roll was no stranger to the risks of public service. He and his wife were provided protection by the Federal Marshals Service in 2009 in connection with a case in which a group of Mexicans sued an Arizona rancher for $32 million. They accused the rancher of civil right abuses for stopping people at gunpoint as they crossed his land and then turning them over to the Border Patrol.

After Judge Roll ruled that the case could go forward, he received death threats. Judge Roll told The Arizona Republic that the situation was “unnerving and invasive.”

When several of those making the threats were identified, he declined to press charges at the recommendation of the Marshals Service.

“I have a very strong belief that there is nothing wrong with criticizing a judicial decision,” he said. “But when it comes to threats, that is an entirely different matter.”

John McCarthy Roll was born in Pittsburgh and graduated from the University of Arizona in 1969 and the university’s law school in 1972. He is survived by his wife, Maureen, three sons and five grandchildren.

Killings of federal judges are rare. The last to be murdered in office was Judge Robert Vance, who was killed by a mail bomb at his home in Mountain Brook, Ala., in 1989.

On Dec. 21, Judge Roll sent an e-mail to Judge Kozinski with an attached letter from Ms. Giffords and another member of Congress from Arizona, Ed Pastor, a Democrat. The two members of Congress encouraged the Ninth Circuit to “declare a judicial emergency” to help cope with the increased workload by extending deadlines under the speedy trial act. In the e-mail, Judge Roll wrote that the Congressional letter was “unsolicited but very much appreciated.”

Judge Kozinski speculated — “just a guess,” he said — that Judge Roll might have gone to the event on Saturday to thank Ms. Giffords for the letter. “And he gets killed for it.”

Judge Kozinski added, “If it can happen to him, it can happen to any of us.”

In a statement, John G. Roberts Jr., the chief justice of the United States, said: ”We in the judiciary have suffered the terrible loss of one of our own. Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction.”

Former Justice Sandra Day O’Connor, who lives in Arizona, said she was devastated by the news. “It is a horrible event, and heartbreaking,” she said. “The judge was just wonderful.”

“It sounds like something that might happen in some place like Afghanistan,” she said. “It shouldn’t happen in Tucson, Ariz., or anyplace else in the United States.”

Judges Are Fading Away; The Bench Has Lost Its Appeal.

PITTSBURGH (AP) - U.S. District Judge Robert Cindrich has a lifetime job and could have retired in less than six years with full pay - though not a pension - of more than $155,000 a year.
But on Feb. 2, the 60-year-old jurist launched a new career as chief legal counsel with a hospital network, joining a record number of federal judges who observers say are retiring or resigning because of lagging pay and stringent guidelines that take away most of their discretion in criminal sentencings.
"We're losing more every year. (Those are) two principal reasons as I see it - and they apply to me, too," Cindrich said.
There are 877 federal judge positions that are lifetime appointments, from the Supreme Court on down to district courts, and 45 of those seats are vacant, according to the Administrative Office of U.S. Courts. Although a Senate logjam that has kept President Bush from getting his judicial appointees confirmed gets the headlines, observers say a more pressing long-term concern is the rate at which judges are leaving.
From 1991 through February 2002, more than 60 judges either retired or resigned to go into private practice, said Karen Redmond, spokeswoman for the U.S. Courts office, which studied the matter two years ago. Since then, another 10 federal judges have left the bench - compared to just five judges who resigned or retired during the entire decade of the 1960s, Redmond said.
A commission chaired by former Federal Reserve Chairman Paul Volcker two years ago strongly urged Congress to boost the pay of federal judges, but a resulting bill that would have raised those salaries by 16.5 percent was defeated last session.
The two largest groups of federal judges - district and circuit court judges - annually make $154,700 and $164,000, respectively. The deans at top U.S. law schools earn more than $300,000, while law professors at those schools make more than $209,000, according to a study cited by the Volcker Commission.
Joe Kendall left his U.S. District Court job in Texas when he was 47 after 10 years on bench. He told The Third Branch, the newsletter for the federal courts system, that with two soon-to-be college-aged children, he couldn't afford not to sell his skills to the private sector.
"If federal judges were paid what an average partner in an average law firm in an average city was paid," Kendall said, "I'd still be on the bench."
Cindrich earned $133,600 when he was appointed in 1994. His $154,700 salary - which has been adjusted for cost of living just five out of his nine years on the bench - is worth about $11,000 less in real dollars today.
"Judges are supposed to be relatively smart people so it doesn't take us long to figure out, 'I'm going backward,'" Cindrich said. Added to that are hidden costs.
Federal judges don't get a pension. They can retire after age 65 once they have at least 15 years' service or take senior status and continue to work as long as they carry a caseload equal to 25 percent of those carried by judges on their court. Either way, they continue to receive full pay - but because it's not a pension, their dependents lose that income when the judge dies.
"That's one of the reasons a lot of us leave the bench," Cindrich said. "You compensate for it by buying a lot of life insurance."
Although Cindrich says the job is deeply satisfying, the changing face of federal law is taking its toll on that, too.
Developed in 1986, federal sentencing guidelines were designed so defendants in different areas of the country received similar sentences for similar crimes. But, combined with mandatory minimum sentences heralded as the solution to the "war on drugs," the guidelines too often result in lengthy sentences for what Cindrich calls "street criminals ... not the big drug runner flying in on jets from South America."
"When the law provides a result that is repugnant, we must still follow the law," Cindrich said. "And you can only do that so many times before you start to wonder, 'How many more times am I going to put my name on this sentence that I don't believe in?'

Judge London Steverson
London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.

Early Life and Education
Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.
A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.
In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.

USCG Assignments.
Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.
He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]
Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaska Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]
Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back

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Federal Judges Are Appointed For Life.

WASHINGTON –U.S. District Judge Samuel Kent sexually assaulted two of his female employees over a period of several years. Members of Congress are moving quickly to force him out of office so they can avoid paying his annual salary while he serves time in prison.

A task force formed by the House Judiciary Committee scheduled a meeting for 9 June 2009 to begin considering what articles of impeachment — essentially charges — they want to recommend against Judge Kent.

Judge Kent, the first sitting judge to face sex crime charges, is headed to federal prison in a week to serve a 33-month sentence for lying to prosecutors about sexually abusing two female employees. Both women told their stories to the task force last week, saying they were cornered and forced to engage in sexual acts against their will.

Judge Kent pleaded guilty to obstruction of justice charges last month. As part of the plea deal, he admitted he tried to force Cathy McBroom, his former case manager, into unwanted sex acts in 2003 and 2007, and did the same with Donna Wilkerson, his secretary, from 2004 through at least 2005.

Ms McBroom's attorney and her family have used her name in public discussing the case. Ms Wilkerson knew her lawyer gave her name to reporters during Judge Kent's trial.

Judge Kent had hoped to retire on disability to continue collecting his $174,000 annual salary and benefits. But that request was rejected by the 5th U.S. Circuit Court of Appeals. He told President Barack Obama in a letter that he would resign in June 2010.

Members of the House have balked at that offer, rejecting the notion that Judge Kent would be paid his federal salary for a year while he is behind bars.

Federal judges are appointed for life. Impeachment is the only way to remove them. In a letter to the task force, led by Rep. Adam Schiff, D-Calif., Kent said if he is forced out, he would be penniless.

Should the task force recommend Judge Kent's impeachment to the full Judiciary Committee, it could meet and vote to send the charges to the House. The House then would vote whether to impeach Kent, which would trigger a trial in the Senate.

Judge Kent's attorney is Dick DeGuerin.

The House on Friday 19 June impeached Federal Judge Samuel Kent who is imprisoned for lying about sexual assaults of two women, in the first such vote since impeaching former President Bill Clinton a decade ago. The impeachment of U.S. District Judge Samuel Kent of Texas sets up a trial in the Senate. Kent is the first federal judge impeached in 20 years.

The House approved four articles of impeachment against Kent accusing him of sexually assaulting two female employees and lying to judicial investigators and Justice Department officials. All four articles passed unanimously.

"The conduct at issue here is both shocking and shameful," Michigan Democratic Rep. John Conyers, chairman of the House Judiciary Committee, said at the start of the debate.

Kent, 59, entered a federal prison in Massachusetts on Monday to serve a 33-month sentence. He pleaded guilty last month to lying to judicial investigators about sexual assaults of two female employees.

Kent is refusing to resign until next year so he can continue to draw his $174,000 a year salary. If he is convicted of the impeachment charges in the Senate, he will be forced off the bench.

When contacted for comment, Kent's lawyer, Dick DeGuerin, cited an earlier statement in which he said Kent's troubles might be enough for impeachment in the House but would not produce conviction in the Senate.

Texas Rep. Lamar Smith, the top Republican on the House Judiciary Committee, said he was not unsympathetic to Kent, who has said he has suffered depression since his first wife's death and had problems with alcohol abuse. But Smith said Kent does not have the right to continue as a federal judge and collect his salary.

"It is now time for justice: justice for the American people who have been exploited by a judge who violated his oath of office," Smith said.

Rep. Alcee Hastings, D-Florida, sat in the chamber early in the debate. Hastings was acquitted of bribery charges as a federal judge, but later impeached by the House in 1988. The Senate convicted him on similar impeachment charges.

The Senate found Clinton not guilty on his impeachment charges.

As part of his plea bargain, Kent admitted that he tried to force Cathy McBroom, his former case manager, into unwanted sex acts in 2003 and 2007, and did the same with Donna Wilkerson, his secretary, from 2004 through at least 2005.

He must participate alcohol-abuse program while in prison. He also was fined $1,000 and ordered to pay $6,550 in restitution to the secretary and case manager whose complaints resulted in the first sex abuse case ever against a sitting federal judge.

Kent was nominated to the bench by President George H.W. Bush and has served since 1990.
26 June 2009. An imprisoned federal judge facing an impeachment trial in the Senate in a sexual-misconduct case says he will resign from the bench effective June 30.
U.S. District Judge Samuel Kent produced the resignation letter when he was served with a subpoena for his trial, Terrance Gainer, the Senate sergeant-at-arms, said yesterday. Kent's attorney, Dick DeGuerin, could not be reached for comment.

Kent, 60, last week began serving a 33-month sentence in a Massachusetts federal prison for lying to judicial investigators about sexually assaulting two women who worked for him. He was impeached by the House last Friday, and the Senate began work to bring him to trial.

Kent had previously said he would resign in June 2010. But several in Congress, angry that Kent would draw his $174,000 salary plus benefits while in prison, pushed for his impeachment.




Thurgood Marshall did more to improve the life of the damned, the dispossessed, and the downtroddened tha any other attorney in the 20th century. He fought for the underdog in American society as an attorney and as a justice of the U. S. Supreme Court. As chief counsel for the NAACP Legal Defense and Education Fund for over 25 years, he fought Jim Crow segregation in the snake pits and hell holes of the solid South. He won 29 of 32 cases he argued before the Supreme Court; and, he should have won all of them. In a perfect and just world, he would have. His record of successful cases before the high court stands today unparalleled in American judicial history. President Lyndon baines Johnson appointed him to the Supreme Court in 1967 where he served for 34 years. Once he was asked by a newspaper reporter when did he plan to retire. Justice Marshal's reply was "I have a lifetime appointment and I intend to serve it; I expect to die at 110, shot by a jealous husband ".
(Thurgood Marshall, Justice For All, R. Goldman and D. Gallen, 1992; p. 159)

Judge Dismisses Case Against Stevens.

Judge Emmet G. Sullivan dismissed the ethics conviction of former Senator Ted Stevens of Alaska on Tuesday, 7 April, after taking the extraordinary step of naming a special prosecutor to investigate whether the government lawyers who ran the Stevens case should themselves be prosecuted for criminal wrongdoing.
Judge Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.
Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

Only days after a jury last October found Mr. Stevens guilty on seven felony counts, he was narrowly defeated in his bid for re-election. Mr. Stevens had been the longest-serving Republican in the history of the Senate.

In a brief statement, Mr. Stevens told the court that he had long maintained an unwavering faith in the judicial system. “But what some members of the prosecution team did nearly destroyed my faith,” he said. “Their conduct had consequences for me that they will never realize and can never be reversed.”

Mr. Stevens was charged with failing to list on Senate disclosure forms some $250,000 worth of goods and services he received, mostly to transform a modest chalet he owned in Girdwood, Alaska, into a more splendid residence.

During the five-week trial, prosecutors were repeatedly forced to acknowledge that they had failed to turn over information to defense lawyers as required. “Again and again, both during and after the trial in this case, the government was caught making false representations and not meeting its discovery obligations,” Judge Sullivan said.

A 1963 Supreme Court ruling, Brady v. Maryland, requires prosecutors to give a defendant all information they hold that might materially help the defense.

The Stevens case finally collapsed last Wednesday, more than five months after the verdict, when Eric H. Holder Jr., the nation's first Black Attorney General, the recently installed attorney general, asked that all charges be dismissed because the new lawyers whom he had put in charge of the case had discovered yet another example of concealment.

During the trial, defense lawyers argued that Mr. Stevens had written a letter to Bill Allen, a onetime friend and the owner of a huge oil services company, asking for a bill for all the goods and services that Mr. Allen had provided. Mr. Allen, the chief prosecution witness, discredited that letter, testifying that he had been told by Bob Persons, an emissary from Mr. Stevens, to ignore the letter because the senator was just seeking to provide a false record to protect himself.

But recently discovered notes showed that prosecutors who interviewed Mr. Allen on April 15, 2008, heard him say that he did not remember any such conversation with Mr. Persons.

Mr. Stevens’s defense lawyer, Brendan Sullivan, told the court that he had been blindsided by Mr. Allen’s testimony about the letter. “It was the most explosive testimony in the case,” Mr. Sullivan said.

Mr. Sullivan said that had he known of the prosecutors’ notes, he would have been able to argue that Mr. Allen’s account of the conversation with Mr. Persons was fabricated.

Paul O’Brien, chief of the new prosecution team that discovered the latest impropriety by the original prosecutors, said in court that “we deeply regret that this has occurred.”

Judge Sullivan named six prosecutors as the subject of Mr. Schuelke’s investigation, including William M. Welch II, who heads the public integrity unit, and his deputy, Brenda K. Morris. Justice Department officials said the prosecutors remained at work on Tuesday.

The other lawyers are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan. None of them were in the courtroom Tuesday except as presences to be repeatedly flayed by the judge and Brendan Sullivan.

Judge Sullivan also criticized Michael B. Mukasey, the last attorney general in the Bush administration, saying it was shocking that he had failed to respond to letters from the defense team complaining about the Stevens prosecution. Mr. Mukasey’s office would not comment.

Judge Sullivan previously served on the District of Columbia Superior Court, the equivalent of a state court, to which he was appointed by President Ronald Reagan.

Like other judges on the Federal District Court in the nation’s capital, he has ruled on cases involving the rights of detainees at Guantánamo Bay, Cuba, and other issues of federal policy. He is now hearing a case that he will decide without a jury: the contention of animal rights advocates that the Ringling Brothers and Barnum & Bailey Circus mistreats its elephants.

Michael Madigan, an experienced former prosecutor with the Orrick law firm in Washington, said Judge Sullivan’s decision to name his own prosecutor was highly unusual but was explicitly provided for in the rules of federal procedure. Under the rules, Mr. Madigan said, a judge may choose his own prosecutor for contempt investigations.

Mr. Madigan said Mr. Schuelke would “operate under the authority of the court.”

“He will then recommend to the court whether to seek criminal contempt charges,” Mr. Madigan said.

From Reporter Sean Cockerham in Juneau ---

The Alaska State House just passed a resolution asking the federal government to apologize to Ted Stevens and let him sue the Department of Justice.

It's a nonbinding resolution and carries only symbolic weight but passed with bipartisan support. (UPDATE -- The vote was 34 to 1. Anchorage Democratic Rep. Mike Doogan was the only member of the House to vote against it, saying that he felt the resolution assumes it was a political prosecution.)

Here's the resolution as passed:

HOUSE RESOLUTION NO. 10:

Expressing support for Senator Ted Stevens and severe displeasure and indignation with the federal government's deplorable investigation and prosecution of the Senator.

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES:

WHEREAS United States Senator Ted Stevens' public service began with his military service during World War II; and

WHEREAS Senator Stevens served the State of Alaska for over 50 years as a United States Attorney, member of the Alaska House of Representatives and United States Senator; and
WHEREAS Senator Stevens was the longest serving Republican and seventh longest serving senator in the history of the United States; and

WHEREAS Alaska and its communities owe a debt of gratitude to Senator Stevens for his tireless efforts on behalf of the state; and

WHEREAS the United States Department of Justice has moved "to set aside the verdict and dismiss the indictment [against Senator Stevens] with prejudice"; and

WHEREAS the prosecutors in the case withheld information that should have been provided to the defense during the trial; and

WHEREAS the Department of Justice's prosecution team was found in contempt of court for wilfully failing to abide by the laws and procedures of the federal court; and

WHEREAS, under 5 U.S.C. 1502(a)(1) (Hatch Act), a federal "employee may not use his official authority or influence for the purpose of interfering with or affecting the result of an election"; and

WHEREAS questions have arisen as to whether provisions of the Hatch Act have been violated; and

WHEREAS the dismissal of these charges does not restore Senator Stevens' reputation and legacy or compensate Senator Stevens for his legal expenses and loss of future income; and
WHEREAS the federal government cannot be sued without its permission, except as
15 provided under 28 U.S.C. 1348 (Federal Tort Claims Act);

BE IT RESOLVED that the Alaska House of Representatives demands that the federal government grant Senator Stevens permission to sue the United States Department of Justice for redress; and be it

FURTHER RESOLVED that federal employees involved with Senator Stevens' prosecution be investigated for violations of the Hatch Act and, if found guilty, be subject to penalty under the Act; and be it

FURTHER RESOLVED that the United States Government should issue a formal apology to Senator Stevens and the People of Alaska for this heinous miscarriage of justice.

COPIES of this resolution shall be sent to the Honorable Barack Obama, President of the United States; the Honorable Joseph R. Biden, Jr., Vice-President of the United States and President of the U.S. Senate; the Honorable Eric H. Holder, Jr., Attorney General of the United States; and the Honorable Lisa Murkowski and the Honorable Mark Begich, U.S. Senators, and the Honorable Don Young, U.S. Representative, members of the Alaska delegation in Congress.

Federal Judge Reverses Conviction Of Terrorist Supporter.

NEW HAVEN, Conn. – U.S. District Judge Mark Kravitz threw out one conviction against a former Navy sailor accused of passing along information about ship movements, dealing a post-mortem blow to a Bush administration that had praised the case as a success.

On 4 March Judge Mark Kravitz overturned last year's conviction of Hassan Abu-Jihaad, of Phoenix, on a charge of providing material support to terrorists, citing the language of the law. He upheld his conviction for disclosing classified national defense information.

Abu-Jihaad was a Naval signalman aboard the USS Benfold. He was accused of passing along information including the makeup of his Navy battle group and a drawing of the formation the group would use to pass through the dangerous Strait of Hormuz in the Persian Gulf in April 2001.

The ship was not attacked.

Judge Kravitz said that Abu-Jihaad received a fair trial and denied a motion for a new trial. But he said he was overturning one of the convictions "for reasons largely related to the language" of the law.

To convict Abu-Jihaad of providing material support to terrorists, the jury had to find that he provided personnel or physical assets. But Judge Kravitz said there was no evidence that would allow the jury to conclude Abu-Jihaad provided personnel or willfully caused the battle group document to be placed on a computer floppy disc, which could be considered a physical asset.

But in upholding the other charge, the judge said Abu-Jihaad had motive, citing his praise of the attack on the USS Cole as a "martrydom operation," that he had access to the secret information and that he was in frequent communication with the suspected terrorism supporters.

"This was not an open and shut case," Judge Kravitz wrote. "In many ways, it was a difficult case for the government to prove."

Dan LaBelle, Abu-Jihaad's attorney, said the ruling pleased him. "It's very thorough and thoughtful," he said.

Abu-Jihaad's conviction was hailed last year by top national security officials and federal investigators as a model of cooperation among government agencies. Prosecutors say they are reviewing the latest ruling.

Abu-Jihaad, who was honorably discharged in 2002, faced up to 10 years in prison on each count. He sought a new trial in October, saying prosecutors lacked evidence and inflamed the jury by playing videos he bought that promoted violent jihad, or holy war.

Prosecutors say investigators discovered files on a computer disk recovered from a suspected terrorist supporter's home in London that included the ship movements, as well as the number and type of personnel on each ship and the ships' capabilities.

Abu-Jihaad was charged in the same case that led to the 2004 arrest of Babar Ahmad, a British computer specialist accused of running Web sites to raise money, appeal for fighters and provide equipment such as gas masks and night vision goggles to terrorists.

Ahmad, who lived with his parents, where the computer file was allegedly found, and was arrested in London, is to be extradited to the U.S.

Man Killed After Attacking Judge In Court

FRESNO, Calif. – David Paradiso, 28, accused of killing his girlfriend was shot to death in a Stockton courtroom 4 March after he attacked Judge Cinda Fox, the judge presiding over his murder trial.

Paradiso was shot by a police detective after he left the witness stand and began attacking San Joaquin County Superior Court Judge Cinda Fox during a break in proceedings, said Dave Konecny, a spokesman for the sheriff's department.

Paradiso took the stand to testify around 2 p.m. and was quickly asked by prosecutors why he killed his girlfriend Eileen Pelt.

He responded: "Cause she deserved to die."

Paradiso's mother, Debra, stood up and started yelling, leading the judge to call a recess. As jurors filed out, Paradiso left the stand and approached the judge from behind "with an unknown cutting instrument," Konecny said.

Karen McConnell, a county spokeswoman, said witnesses reported seeing Paradiso lift the judge and begin punching and possibly stabbing her when bailiffs ran to her aid and shots rang out. Lodi Police Det. Eric Bradley has been placed on administrative leave while the shooting is being investigated, city spokesman Jeff Hood said.

"He was going after her jugular, just as he did to the victim in this case," his attorney, Chuck Pacheco, told the Lodi News-Sentinel. "He was not stopping stabbing her, going for her neck. Bradley did the right thing."

Fox, who had a bandage on her left arm as she was carried out of the courthouse on a stretcher, told reporters, "I'm OK," before being taken to a hospital. She was released later Wednesday. Calls to her home were not immediately returned.

The courthouse immediately went on lockdown, although people were allowed to leave after the building was secured, McConnell said.

Konecny said he did not know how Paradiso obtained a weapon. He said at least two bailiffs were on duty in the courtroom at the time of the attack.

Paradiso was on trial for allegedly stabbing his girlfriend, Eileen Pelt, in the neck as his mother drove them in her car. Debra Paradiso told police her son forced her to drive to Amador County, where he dumped the body.

Paradiso's attorney, Charles Pacheco, said in opening arguments last week that his client was high on methamphetamine at the time. Pacheco did not immediately return a call Wednesday seeking comment.

Aaron Paradiso, the suspect's brother, told KCRA-TV of Sacramento that his brother was "crazy" and said he had told authorities and attorneys that he shouldn't be put on the stand. He said his mother had warned deputies that the family believed Paradiso had a cutting weapon from some sort of clipper or scissors.

Concerns about courthouse security have grown since 2005, when an unshackled defendant being escorted into an Atlanta court for a rape trial stole a deputy's gun and went on a shooting rampage. A jury found Brian Nichols, 37, guilty in November of murdering the deputy, a judge and two others.

Old Judges Don't Just Fade Away, They Loose Their Appeal.

U.S. District Court Judge Pleads Guilty to Obstruction of Justice
WASHINGTON – U.S. District Judge Samuel B. Kent pleaded guilty today to obstruction of justice in federal court in Houston, Acting Assistant Attorney General Rita M. Glavin and Andrew R. Bland III, Special Agent in Charge of the FBI’s Houston office announced.

Kent, 59, a district judge in the Southern District of Texas, pleaded guilty to making false statements to a special investigative committee of the U.S. Court of Appeals for the Fifth Circuit during an investigation of a judicial misconduct complaint filed against him. Kent’s guilty plea was accepted by the Hon. Roger Vinson, Senior U.S. District Judge for the Northern District of Florida, who was sitting by designation in the Southern District of Texas.

A grand jury in the Southern District of Texas indicted Kent in August 2008 on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse for his alleged repeated assaults on an employee of the Office of the Clerk of Court, identified as Person A. In January 2009, the grand jury returned a superseding indictment against Kent, maintaining the original charges and adding one count each of abusive sexual contact and aggravated sexual abuse for Kent’s alleged repeated assaults on another U.S. District Court employee, identified as Person B. The January 2009 superseding indictment also added one count of obstruction of justice, alleging Kent obstructed an investigation into a misconduct complaint filed by Person A.

As part of his plea, Kent admitted that in both 2003 and 2007, he engaged in non-consensual sexual contact with Person A. He also admitted that he engaged in non-consensual contact with Person B from 2004 through at least 2005. According to court documents, when Person A filed a misconduct complaint against Kent, the Fifth Circuit appointed a committee to investigate whether Kent had engaged in unwanted sexual contact with Person A or any other individuals. Kent admitted that when he appeared before the committee in June 2007, he falsely testified about his conduct with Person B.

Sentencing is scheduled for May 11, 2009.

The case is being prosecuted by Senior Deputy Chief Peter J. Ainsworth and Trial Attorneys John P. Pearson and AnnaLou T. Tirol of the Criminal Division’s Public Integrity Section, which is headed by Section Chief William M. Welch II. The case was investigated by the FBI.
FOR IMMEDIATE RELEASE
Monday, February 23, 2009
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(ABA Journal. 23 Feb 2009)
U.S. District Judge Samuel Kent has pleaded guilty to obstruction of justice in a plea deal that avoids a trial scheduled to begin today.

The plea resolves five other charges of aggravated sexual abuse based on allegations Kent fondled two court employees, the Houston Chronicle reports. The obstruction charge is based on accusations Kent lied in a court internal probe of sexual abuse allegations. The government is seeking a three-year prison term when Kent is sentenced on May 11, although the charge carries a maximum of 20 years in prison, Texas Lawyer reports.

Kent’s lawyer, Dick DeGuerin, says his client intends to retire from the bench, the Texas Lawyer story says.

DeGuerin said last week that his client’s contact with the women was consensual, and he was merely trying to protect one of the women when he lied in the court investigation.

Kent usually speaks loudly and clearly, but he nearly whispered his guilty plea today, the Chronicle says.

After the court hearing, DeGuerin read a statement to reporters, according to the Chronicle report. "A trial would have been long, embarrassing and difficult for all involved,'' he said.

Legal experts have said prosecutors upped the ante when they charged Kent under a section of the obstruction law that was strengthened after the collapse of Enron. "It's the Martha Stewart case," said New York University law professor Stephen Gillers in an interview with the Houston Chronicle last month. "You can prove obstruction sometimes even when there is no underlying crime

This Is Your Life. Quest For Justice.

A Virginia federal judge pens his autobiography.

When judges write their autobiographies, it is normally long after they have left the bench, when the hot cases of their careers have cooled and the audience is confined mainly to legal scholars.

But Henry E. Hudson is no normal judge.

Hudson, an Arlington County native and former Fairfax County Circuit Court judge, now a federal judge in Richmond, has published his autobiography, "Quest for Justice," while his judicial career probably has many miles to go. He wrote it shortly before he was assigned to the dogfighting case of National Football League quarterback Michael Vick, which brought him a new round in the media spotlight. So that will be a chapter in his next book.

"Quest for Justice" is a candid, frequently witty and self-deprecating look at a career that has stopped at virtually every rung on the justice ladder, including stints as a barely trained jail guard in Arlington, U.S. attorney in Alexandria and head of the U.S. Marshals Service.

He had roles in such high-profile cases as the deadly 1992 siege by federal marshals and the FBI at Ruby Ridge, Idaho, and the 1980s drug investigation of then-Sen. Charles S. Robb and pornography investigation by the Meese Commission.

He admits to missteps - "During my early years as a prosecutor I was narrow-minded and at times offensively self-righteous," he writes - and misdeeds - "I lied to the General Assembly and the Fairfax County Bar Association when I told them unequivocally that I had no intention of seeking a federal judgeship," the former Fairfax judge writes. "Perhaps lied is too strong a term."

But he stands by some of his most controversial decisions, including the prosecution of a mentally retarded man in Arlington for the rape and murder of a woman in 1984. The man, David Vasquez, served five years in prison before DNA and circumstantial evidence exonerated him.

"I certainly wish him the best, and regret what happened," Hudson writes. "However I offer no apologies." Hudson says that eyewitnesses placed Vasquez near the victim's home and that Vasquez made incriminating statements. "My duty at that point was to present the case to twelve jurors," Hudson writes. Vasquez agreed to an Alford plea, which allows defendants to maintain their innocence while recognizing that evidence would probably result in a guilty verdict.

But the book has far more ups than downs and shows how hard work and hard-earned political connections - he downplays his charm, gregariousness and made-for-TV speaking voice - helped him rise to the top of federal law enforcement.

"I have been blessed with so many exciting experiences," Hudson said in a recent interview. "I not only wanted to share those, but I wanted to inspire other young lawyers to a path of public service."

William B. Cummings, who preceded Hudson as U.S. attorney in Alexandria, said: "It's just a remarkable story. It's kind of folksy at times. But it's something the average person could read and understand how he made it to where he is today, a well-respected judge, first in Fairfax and now on the federal bench."

Hudson said he first tried writing a novel but couldn't get it published. Then he spent about a year "hacking away on a word processor," reviewing his career, he said, with the help of boxes of newspaper clippings he'd kept since his days as an assistant prosecutor in Arlington.

But when he showed his first draft to his wife and friends, starting with his days as a volunteer firefighter, they hated it, Hudson said. So the book now opens with the Vasquez case and his tour of the grisly murder scene of Carolyn Jean Hamm. Then he jumps back to his early days as a jail guard in Arlington and proceeds through his career.

"Folksy" is a good way to describe the judge's writing style, which combines earthy humor with a top-to-bottom grasp of the legal system.

Hudson got a job as a clerk in the Arlington courthouse and began attending night law school. Upon passing the bar, he became an assistant commonwealth's attorney, working his way up from traffic court to gradually handling larger cases, including drug conspiracies and murders.

Hudson's boss was William S. Burroughs, the colorful and controversial Arlington commonwealth's attorney. Police began to mistrust Burroughs and contact his young assistant. Burroughs "repeatedly warned me to tell the police to contact him," Hudson writes. "I disregarded his directions and occasionally stoked the discontent. Call me disloyal if you must, but I enjoyed calling the shots."

He moved over to the U.S. attorney's office as an assistant prosecutor, then decided to run against Burroughs for commonwealth's attorney. Hudson writes that he possibly violated federal law by campaigning on the job.

Hudson won big, and as one of the few successful Republicans in heavily Democratic Arlington, he began making friends in the Republican Party, such as Rep. Frank R. Wolf (R-Va.), whose early campaigns Hudson worked for.

Friends helped him land appointments, including to the Meese Commission on pornography, which he headed, attracting national attention as the commission held hearings and published a controversial report.

"The jobs I've had have been with a little help from my friends," Hudson said. "And that's the way it is in politics. I went out of my way to go over to Capitol Hill, meet with Congress. It really paid dividends. They treated me extremely well."

He landed the U.S. attorney job in Alexandria, overseeing such high-profile cases as the John Anthony Walker Jr. spy ring trials and the fraud prosecution of Lyndon LaRouche, and becoming involved in the debate over the heavy penalties imposed on crack cocaine dealers in the war on drugs.

Hudson supports the tough sentencing, even as critics note that crack cocaine crimes are penalized 10 times more harshly than those involving powder cocaine and that crack cases are more prevalent among African American defendants.

"The drugs are not the same," Hudson writes. "One is highly addictive and the other is not. It gives me pain that many of my distinguished judicial colleagues and other purported legal scholars don't grasp the devastation caused by crack cocaine."

But when federal authorities began investigating Robb for possible cocaine use, it turned into a "political powder keg" that ended Hudson's term as U.S. attorney, he writes. Hudson says that Robb thought leaks to the press were coming from Hudson or his people, and the senator blocked his reappointment in 1991.

And when Hudson sought the job as U.S. marshal, "Robb's appetite for revenge was not satisfied." Hudson writes that Robb blocked Hudson's confirmation hearing, but didn't do so publicly to avoid "the embarrassment of exposing his petty and boorish vindictiveness to his dwindling constituency."

Hudson eventually got the hearing, and the job. He became involved with TV shows such as "America's Most Wanted" and the drama "The Marshal."

More big cases, such as the shootout at Ruby Ridge, occupied his time. But when a Democrat took over the White House in 1993, he was out of a job again.

Hudson parlayed his contacts in the media into regular talk show appearances as a legal expert on the Fox News Channel, CNN, MSNBC, CBS and Court TV. He returned to private practice for several years before landing a spot on the Fairfax bench in 1998.

Hudson said his line in the book about lying about his intentions to the Fairfax bar was a joke, and he knew that as long as Robb was in the Senate, he had no chance of a federal judgeship. But Robb was defeated in 2000, and a new spot on the Virginia federal bench was created in 2001. Hudson was nominated and confirmed in 2002.

Hudson does not discuss any cases he handled during his four years in Fairfax, although he does pass along the advice that then-Circuit Court Chief Judge F. Bruce Bach gave him his first day on the job. "Success on the bench requires only two things," Bach told the rookie judge. "Gray hair to make you look distinguished, and hemorrhoids to make you look serious."
"Quest for Justice" was published by Loft Press of Fort Valley, Va., and is available at http://www.loftpress.com .

© 2008 The Associated Press.