7th Circuit explains why it removed judge from trial

Posted July 30, 2010 at 12:23 p.m.

By Ameet Sachdev and Ray Gibson | A federal appeals court said it took the extraordinary step this week of removing a judge from the middle of a criminal trial because the judge’s conduct showed bias against the prosecutors.

A three-judge panel of the 7th Circuit U.S. Court of Appeals explained Friday why three days earlier it ordered U.S. District Chief Judge James Holderman off the trial of a man facing drug charges. Their opinion blasted Holderman for his abuse of discretion and hostility toward prosecutors.

“No reasonable person would fail to perceive a significant risk that the judge’s rulings in the case might be influenced by his unreasonable fury toward the prosecutors,” the panel wrote.

A person answering the phone in Holderman’s office said the judge declined to comment.

The 7th Circuit decision came after U.S. Atty. Patrick Fitzgerald went to the appellate court last week to complain about the judge’s ruling against key fingerprint evidence against the defendant, Clacy Watson Herrera. In his petition, Fitzgerald also criticized the judge for being hostile toward his lawyers. But the U.S. attorney did not ask for Holderman’s dismissal.

There is a history of tension between the U.S. attorney’s office and Holderman, chief judge of the federal court in Chicago. In 2005, the appellate court had to intervene in a dispute after Holderman ordered a misconduct investigation of the U.S. attorney’s office. At that time, the federal appeals court ordered a halt to the judge’s inquiry.

The 7th Circuit panel noted the past disagreement in Friday’s decision, but it appears to have had no bearing on the appellate court’s action this week.

The appeals court said it took quick action this week because the defendant had moved for a mistrial over repeated delays in the trial due to disagreements between the prosecution and the judge. The panel reversed Holderman’s decision to exclude the fingerprint evidence, calling the judge’s ruling “patently unsound as to exceed the legitimate bounds of judicial power.”

The appeals court also took exception to the judge’s conduct.

“The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record,” the panel wrote.

Holderman repeatedly accused the government’s lawyers of lying. “He said, for example: ‘I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt,’” according to the opinion.

The 7th Circuit also denied the defendant’s petition for a rehearing of its Tuesday order.

The Herrera case has been reassigned to U.S. District Judge Rebecca Pallmeyer. The trial is set to resume Monday, according to a spokesman for the U.S. attorney’s office.

The spokesman declined further comment because the case is pending.

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  1. steve July 30, 2010 at 1:06 pm

    um wtf is up with the whole fargin judicial system? If we only knew– it’s probably WAY worsre than this one rare insight let’s us see. what a sham.

  2. srdib July 30, 2010 at 1:31 pm

    what is up with this country? now a judge of the court cant tell the prosecutors they are filthy liars? the judge claimed he had proof, saw the prosecution lie in court. why didnt the judge have a right to defend himself. the appeals judges can just yank someone off the case just like that? why dont these judges go after the weak and insane judges that let criminals off the hook with a wrist slap? everyone knows everyone lies to get what they want in court. why the big surprise? let the judge alone

  3. jon w July 30, 2010 at 1:42 pm

    If a judge witnesses misconduct on the part of an officer of the court, there are ways for the judge to take action; diatribes on the record of a separate case do not number among those ways.

  4. illawyer July 30, 2010 at 1:49 pm

    This is an anomoly in the legal and judicial system. I have practiced in a large midwestern town for the last 22 years and I have never run across conduct of this nature. Everyone has bad days and in my experience it is rare to nonexistent that problems arising from such things impact the legal system. It is impossible to really understand or judge what was going on in the reported situtation without actually being there. The appellate judges were not there, hence the only action they took was to remove the judge from the case to avoid even the appearance of impropriety. That is the judicial system working as it should. Frankly, it just as easily might be the case that the prosecutors were asking for it.

  5. Chicago citizen & lawyer July 30, 2010 at 2:03 pm

    From the opinion: “The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can
    find in the record.”

  6. Ross July 30, 2010 at 2:30 pm

    How much fury, then, is reasonable from a federal judge?

    If only Julius Hoffman were still with us, he could probably answer.

  7. Danno July 30, 2010 at 2:34 pm

    What about judges who do not automatically accept what defense lawyers say? Or who credit what prosecutors say automatically?

  8. curious July 30, 2010 at 2:37 pm

    interestingly enough Blag’s lawyers were routinely ridiculed in front of the jury and a clear bias in favor of the prosecution was shown throughout–

    Apparently only when the government is having problems will the 7th circuit intervene–

    most judges are prosecutors in robes–while Holderman may have become too personal in his attacks–he was probably dead on–

    dont forget he sat as judge during the famed El Rukn trial where the government was found to have lied over and over–

  9. 25 year court reporter July 30, 2010 at 2:46 pm

    The U.S. Attorney’s Office’s vendetta against Holderman rears its ugly head once again!

  10. marty weiss July 30, 2010 at 2:52 pm

    The problem is prosecutors have an incentive to get convictions.
    They are allowed to make threats and distort the facts in order to convict and/or get guilty pleas.
    With a record of successful convictions, prosecutors’ political future is guaranteed and promotion to higher office is likely.
    This is wrong.
    Equal justice cannot exist in an incentive system, especially when defendants lack effective representation. The system is rigged thereby against them.
    Equal protection demands equal sides. With all the power of government and further devices of prosecutors, the deck is stacked against justice.

  11. former ND attorney July 30, 2010 at 2:52 pm

    Perhaps there is justice after all. As an attorney who has tried 3 cases in front of Judge Holderman, I really cannot convey the sense of injustice and disgust I felt as a victim of his lack of judicial temperament, unacceptable conduct and yes, bias. His conduct was really a disgrace to the bench, and routinely including yelling and intimidation. Thankfully there does seem to be some long overdue redemption in the judicial system in that the Seventh Circuit has finally repudiated his conduct. Unfortunately, the Seventh Circuit needs to do a lot more of that. For too long, such behavior has allowed to continue. Lawyers and judges are governed by rules of professional conduct. No lawyer in the Northern District could get away with engaging in the type of conduct described in this article. These are judges appointed to their positions pursuant to the United States Constitution. They hold a great deal of power in their hands. They must be held accountable otherwise the consequences are too dangerous. thank you Seventh Circuit. It is about time.

  12. ProbateSharks.com July 30, 2010 at 2:59 pm

    If you want to see bias against the attorneys representing the dead, dying, disabled, aged and helpless stop into the 18th floor of the Daley building. The Probate Court of Cook County judges alway take the side of the nursing home preditors and their minions. Lucius Verenus, Schoolmaster, ProbateSharks.com

  13. kathryn July 30, 2010 at 3:15 pm

    Glad to see that the case was transferred to Judge Pallmeyer. She is eminently fair and a fine judge.

  14. Alfred L Moniot MD July 30, 2010 at 3:59 pm

    How about the US 9th circuit for unreasonable stupidity?

  15. The Capitalist July 30, 2010 at 4:03 pm

    I’ve been in front of Holderman several times for status calls and arguing motions. To call him a jag would be an insult to jags everywhere. While I love the fact Posner laid the smackdown on him, remembering that he’s appointed for life brings me back down to Earth.

  16. betty48 July 30, 2010 at 4:03 pm

    So happy to hear that finally an abusive judge has been taken to task. There are way too many of them in the courts. A friend of mine went before a divorce judge & was sent to the California St. jail because a credit card debt of $50,000 his ex-wife had just found, wasn’t paid off. The reason? – the ex-wife wouldn’t approve the deal my friend made the the credit card company. Did the judge read the papers his lawyer presented to show she was at fault?? NO – my friend was sent right to jail, beaten up while the guards looked on – one of whom hit him in the head, knocking a tooth out. The judge is “connected” so he has never been disciplined. This happened a week before an inmate pleaded to be changed from his cell because his roomate said he was going to kill him. The guards ignored him – & he was killed the next day. Great justice system we have

  17. saritaslm July 30, 2010 at 4:12 pm

    OK – that Judge was a teacher of mine in Law School – he was self righteous and mean back then and apparently things have not changed. Back then I thought – wow – how could someone with that kind of ego be a judge – let alone a federal judge? just didn’t seem right. These egos are absolutely out of control.

  18. Atty July 30, 2010 at 4:14 pm

    Thank you, 7th Circuit. For too long Judge Holderman’s “unreasonable fury” has gone unchecked. His judicial temperament is atrocious. It’s about time his unprofessional behavior was condemned.

  19. pete-o July 30, 2010 at 4:40 pm

    Appointed by Reagan. Another case of a conservative with a juvenile personality that has no idea about the word “decorum.”

    Of course-it’s the 7th district’s fault, Pelosi’s fault, Reid’s fault, Obama’s fault-anybody’s fault except the person doing the temper tantrum.

  20. swa216 July 30, 2010 at 4:50 pm

    Folks ~ he was removed from only ONE case. He still has all his power and arrogance.
    I so have to move far away from Chicago and Cook County – it’s beyond embarrassing to be associated with this are!

  21. Jim July 30, 2010 at 5:45 pm

    Meanwhile, Judge Zagel declines the jury request for copies of transcripts, limiting the release to only specific requested testimonies. I don’t know about the rest of you, but if there were something in all of the requested transcripts that would provide insight of the case to the juries, I’d have to think that obstructs the system. He’s just the judge, not the jury nor the executioner. Back off Jimbo!

  22. Felice Eliscu July 30, 2010 at 7:36 pm

    I wonder if you still have to bribe a D.A. $800.00 (1990 price) to get your own child back. Ask Steven Messner.
    Chicago needs an OPPERATION BLACKLORD!

  23. Illinois attorney July 30, 2010 at 8:22 pm

    @Jim. Evidence can be reviewed. Closing arguments are not evidence. Same as it ever was, not a Zagel issue.

    @court reporter. Yeah. How dare they falsify a transcript to show Judge Holderman completely flipping out. Oh wait. He does that more or less constantly.

    Holderman’ behavior is legendary. What’s surprising is that the 7th bench slapped him so hard that the Trib picked it up. I also had him as a professor in law school. Even then (before he was chief judge) his ego barely fit in the courtroom with him.

  24. chris w. July 30, 2010 at 9:53 pm

    Judges and lawyers should all go down the toilet.

  25. Advocate4Liberty July 30, 2010 at 10:48 pm

    The judiciary really seems to be whoring for prosecutors. I’ll bet that whole “3-judge panel” are getting bjs from Fitzgerald! Paddy sez “ooh, bend me over, big boys!”

  26. taxpayer July 31, 2010 at 7:36 a.m.

    Holderman said prosecutors lie. There’s no possibility that could be true, is there?

  27. Law Now Aug. 2, 2010 at 8:16 a.m.

    The prosecution, with all the power & unlimited budget, with a “win at all costs” mentality, now has the appellate court “on its side” in these phony evidence cases. So much for the “scales of justice.”

  28. US Trial Lawyer Aug. 4, 2010 at 11:21 pm

    I witnessed a trial before Holderman, which was a judicial disgrace. The 7th circuit is not choosing sides, it is commenting on his shameful conduct, which reprimand is long overdue. He has no business being a judge.

  29. US Trial Lawyer Aug. 4, 2010 at 11:28 pm

    PS.is there any atty who has tried a case before him who says he is impartial or has a judicial temperment?