An Ethically Challenged Sentencing Commission Nominee

The President today nominated a full slate of attorneys and judges for the US Sentencing Commission.  The majority are Democrats, as is the President’s prerogative.  I don’t know any of them, but I am familiar with the work on one of them, former US District Judge John Gleeson.  Gleeson will be familiar to most readers as the amicus appointed by the district court in the infamous Michael Flynn prosecution, to argue in support of the court’s continuing with the prosecution notwithstanding the Justice Department’s wish to end the case on account of questionable (at best) prosecutorial behavior.

But there is another aspect of Gleeson’s behavior, undertaken while he was on the bench, that calls into question his ethical fitness.  I wrote about this before, and regrettably, it is newly relevant today.

The title of my post from eight years ago was, “John Gleeson, Defense Lawyer in a Robe.”  I wrote then:

A long time ago, in a galaxy far, far away, judges were neutral. Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there’s the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, [the late] Jack Weinstein and, more recently, John Gleeson. Gleeson is young enough to know better, and I’m sure he does. The problem is he doesn’t care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers). His most recent stunt, however, takes pro-criminal huckstering to a new level. I’ll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

We can start with the statement that the judge who decided the case (both in the past and in the current proceeding) was an advocate for the defendant. One need not have read the canons of judicial ethics — indeed, one need not be out of high school — to understand that a judge (well, an honest judge) cannot decide a case in which he has been, much less in which he actively remains, an advocate.

It’s one thing for a trial judge, during the trial, to make it decently clear he finds one side more persuasive than the other. This is not recommended practice, but it often happens. But it’s another for the judge, years after the case is over and the government’s position fully vindicated by the higher courts, including the Supreme Court, to use his office to go backdoor to achieve the outcome one side — the armed felon’s side — has wanted all along.

As the NYT continues (emphasis added):

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions.

The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

OK, let’s take a timeout here. Again, it’s one thing for a judge to express misgivings about a sentence at the time he imposes it. Indeed, he could find the mandatory sentence unconstitutionally excessive, which Gleeson didn’t and doesn’t. It’s also perfectly permissible, in my view, for a judge to write a letter to the editor or petition Congress generally to seek a change in law — judges have First Amendment rights, too. But to wage his own campaign, using his office, stationery and power in order to blackjack a local prosecutor who regularly appears in his court to genuflect before the repeat, armed felon he/she properly convicted at a trial many years before is astounding.

Indeed, the more pressing (and depressing) question is whether it’s ethical. And that question goes beyond merely gross partisanship for one side in a case; it goes to the fact that no sensible person could possibly view what is (I presume laughably) called the “request” to the US Attorney to be anything but a thinly veiled threat that, if the “request” is not met — “…well, hey Ms. US Attorney, you’ve got a boatload of cases coming up in my court and, ya know, I can be in a good mood or I can be in a bad mood, day in and day out, for scheduling, for continuances, for a raft of procedural motions that could go either way — I mean, we’re getting the idea here, aren’t we, Ms. US Attorney? So I hope you’ll look at my ‘request’ with a, ya know, generous turn of mind, because my being nice is sooooo much better than my being crabby.”

Not that that’s the worst of it either, not by a long shot.

Having blackjacked the US Attorney into going along with a legally baseless motion to vacate two convictions whose validity is not even questioned (so as to get to the desired dumbed-down sentence), Gleeson then goes ahead and presides over the hearing himself.

At that point, there is simply nothing left of the notion that Gleeson cares about judicial ethics. If he must bully the prosecutor into moving for this hearing years after the fact to vacate valid and properly obtained convictions, you might think Gleeson would have at least the decency to allow a different judge to decide the motion to vacate.

Wrongo. Gleeson’s whole gig might get spoiled if a judge who hadn’t prejudged this ginned-up motion — you know, a neutral judge — were able to decide it. So he put it on his own docket to insure that no hint of neutrality crept in.

But really, so what? When the judiciary turns into the public defenders office, you were expecting something else?

P.S. So much for the emphatically repeated defense bar lie that the attack on mandatory minimum sentences is really about “first-time, low-level, non-violent” offenders. Mr. Holloway’s crimes — and I’m not talking about his drug trafficking offenses, mentioned by the NYT for the first time in 28th paragraph of its article — were neither first-time, low-level, nor non-violent.

But there is one thing to be thankful for: Judge Gleeson and his version of playing it straight have given us a window on what “sentencing reform” is actually about.