A Cite And A Circus

Hat tip to Jim P. Here’s where you can read the decision of the Court of Appeals.

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=12-2488P.01A

I recommend you do it although many of you seem to have already done so. Go to the end at footnote number 3.   There the court says Judge Stearns’s ruling of March 4 on immunity does not necessarily have to be reviewed. Whiteys lawyers, J.W. Carney and Hank Brennan obviously disagree.

Commenter Pam noted as I had been thinking that the footnote seemed to contradict the opinion. The opinion as I read it says: “we are bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim.”

The big defense that Whitey is relying on is that he was granted immunity both retroactively and prospectively. Judge Stearns, while the issue of his recusal was being considered by the Court of Appeals, rushed to rule the issue of prospective immunity out of the case as a matter of law by filing his opinion on the Monday following the day the memoranda were submitted by counsel.

The Court of Appeals says  “reploughing the ground [wherein Judge Stearns rejected Whitey’s immunity claim] given the absence of any allegation that Judge Stearns is actually biased” is not necessarily required. This to me is confusing. Bias is not the issue, it is the public perception of impartiality.

The court seems to forget that it ordered Judge Stearns to recuse himself because “the existence of facts that would prompt a reasonable question in the mind of a well-informed person about the judge’s capacity for impartiality in the course of the trial and its preliminaries.”

How is it then that reasonable question of the judge’s impartiality doesn’t relate to probably the most important decision in the trial which is the question of immunity? Why will the well-informed person think that Judge Stearns may have been impartial through the preliminaries and the trial but not on the one matter that impacts the case mostly.

If “the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between . . . [Whitey] and Government” why doesn’t it follow the same thing would apply to the one issue that decided that Whitey would not be allowed to delve into that relationship.

 Judge Stearns would have been well advised not to have rushed his decision. It puts everyone in a box. The next judge will have to revisit the issue. If she decides like Judge Stearns did then there will be a perception she is trying to placate her fellow jurist. If not, then she might be opening a Pandora’s box to a three-ring circus or as one person who commented to a newspaper wrote a Carneyville.

I would have expected more lucidity and less error from the Court of Appeals that took its time deciding this simple issue of high public concern. I have to say I am sorely disappointed considering the distinguished nature of the panel. One can read between the lines a great deal of pushing and shoving to get this obvious question right. The opinion comes out as if the court was trying to have its cake and eat it. It would have been better if it simply asked Judge Stearns to step down or if he volunteered to do so himself.

The issue was simple. How best do we assure the public the trial is done in the most fair manner especially here because Whitey has become, as the court noted, notorious. A judge who was a lead prosecutor in an office that is alleged to have played a part in Whitey’s criminality is not the best judge for a case against Whitey. This was a simple issue. It required a simple answer and not a double talk opinion trying to placate the trial judge while ensuring the court not be looked at as having a hidden agenda.

I suppose it is appropriate the trial commence in June. Wasn’t that the traditional date for the circus to come to town.