Is Judge Shopping a Crime? Should It Be?

Last month, the United States Court of Appeals for the 2nd Circuit dealt a stunning rebuke to prosecutors of the Southern District of New York ("SDNY") and Federal Judge, Richard J Sullivan. In a blistering ruling, that overturned the insider trading convictions of Anthony Chaisson and Todd Newman, the 2nd Circuit berated the prosecutors for overreach and the judge for misinterpretation of Supreme Court cardinal. Dynamite stuff but nothing compared to the other issue they raised, "judge shopping."

Procedurally, judges are to be assigned criminal cases in a random process, referred to as "the wheel." It's actually a wooden container, with a crank, spun on a magistrate judge's desk. The vessel containing the carded names of the 45+ SDNY-sitting judges is spun round and round, until a paw goes in and pulls out a "winner" who is assigned the case at hand.

On page seventeen of the ruling, in footnote five, the appellate panel "suggested that prosecutors had steered the case to a judge of their choosing." Interestingly, their alarm had been reported on previously: " a hearing on the appeal, the three-judge panel raised concerns about the unsavory courthouse practice that is known as judge shopping." To put it mildly, a tactic that flies in the face of Lady Justice.

What the 2nd Circuit noted (1) was SDNY's blatant skirting of "the wheel" to secure a preferred judge: "We note that Judge Sullivan had an opportunity to address the issue in Steinberg only because the Government chose to charge... Steinberg in the same criminal case as Newman and Chiasson by filing a superseding indictment...after the conclusion of the Newman trial, after Judge Sullivan refused to give the defendants' requested charge on scienter now at issue on this appeal, and at a time when there was no possibility of a joint trial with the Newman defendants."

Aside: The "unwheeled" Steinberg, before his trial, raised the "judge shopping" issue. Judge Sullivan effectively laughed him off. Not surprisingly, Steinberg was later convicted, in Sullivan's courtroom, on the same prosecutorial overreach and judge error as Chaisson and Newman were. His appeal is pending.

I've seen the wily, SDNY practice of "judge shopping" before, up close. An experience that left me no doubt it's a playbook staple.

In 2008, my case was actually "wheeled" out to legendary, Federal Judge, Robert L Carter. BUT that fairness didn't stop SDNY prosecutors from shooting his tires out.

During pretrial motions, Judge Carter ruled in my favor that prosecutors could not use the word "backdating" during my trial. (2) Noting the process legal but the ominous word ringing inflammatory to laypersons (read jury). The prosecution was furious.

So angry, they later went after Judge Carter. Explaining to him,"there remained... some issues that you had ruled on previously, and... we spoke with the U.S. Attorney, and I'm not sure when he reached out to [the Chief US District Judge]... and here is where we find ourselves." (3)

By day's end, my case was moved to Federal Judge, Jed S. Rakoff -- whom had presided over the only other backdated option case SDNY had brought to that date. 45 judges on "the wheel" and he got both by chance? Odds: One in over two thousand. Not even factoring in the astronomical: Exact same prosecution team on both cases.

Judge Rakoff -- whom promptly overturned Judge Carter's ruling in my favor (4) -- later stated, "...its been reassigned by lot to me." (5) I didn't believe him, still don't. Just as I don't believe Judge Sullivan got the pile of similar issue at stake, insider trading cases without SDNY manipulation.

For a justice system clamoring for greater transparency and fair play, it seems SDNY's actions do not always align with their expectations for others. Judge shopping is indeed "unsavory." Is it a crime?

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(1) 13-1837-cr (L) United States v. Newman and Chaisson (12/10/14) - Page 17, Footnote 5

(2) 08 Cr. 366 (RCL) United States v. James J Treacy (1/22/09) - Pages 35-37

(3) 08 Cr. 366 (RCL) United States v. James J Treacy (1/27/09) - Pages 6-7

(4) 08 Cr. 366 (RCL) United States v. James J Treacy (2/26/09) - Pages 19-21

(5) 08 Cr. 366 (JSR) United States v. James J Treacy (1/30/09) - Page 2