December 26, 2011
Judge James B. Zagel: Out Of Order In Blagojevich Case Comments
Hat tip to Scott Greenfield of Simple Justice for his outstanding post on Judge James B. Zagel's unfortunate public criticisms of one of Rod Blagojevich's criminal defense attorneys, Lauren Kaeseberg. Kaeseberg had the temerity to file a post-judgment Emergency Motion For Evidentiary Hearing Regarding Potential Juror Misconduct, based on news reports that the Blagojevich jury foreperson was publicly displaying her juror questionnaire, arguably in violation of a prior court order. Zagel denied the motion from the bench, calling it "harebrained," according to the Chicago Sun-Times' Abdon Pallasch. The Lake County News-Sun, picked up the "harebrained" comment and placed it in the headline of its story about the ruling. Above the Law piled on with a frivolous post, and Kaeseberg has apparently been taking additional criticism on her web site. You can read the Emergency Motion above for yourself and draw your own conclusions. On its face, I see absolutely nothing wrong with it.
Judge Zagel also hit Kaeseberg, sworn in as an attorney in 2008, with the following zingers:
"The motion was prepared without any adequate thought." It looks thoughtful enough to me. Sometimes criminal defense attorneys, particularly in the post-sentencing, pre-notice of appeal context, have to move swiftly in order to obtain a fact-finding hearing, make a record, and/or preserve error.
"[The filing was] beyond my imagination." That's not exactly the legal standard.
"You should seek outside counsel...and send a letter of apology to the juror." Why? The Emergency Motion was temperate in its discussion of the foreperson, who "has made many public appearances since the verdict...touting her decision and role in the Blagojevich jury."
"By the absence of precedent, I assume you couldn't find precedent." As Greenfield correctly points out, lawyers don't always have on-all-fours (or, as they say in Chicago, "white horse") precedent at hand. The dedicated, imaginative lawyer works with principles and analogous cases and tries to make new precedent. It's called lawyering.
Pallach also reports Judge Zagel saying that he "could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer." On its face, the motion does not seem to be improper at all, much less contemptuous. Perhaps there is some backstory here that we are not aware of. The press seldom reports everything. But this is a serious public allegation for a federal judge to throw at a young lawyer, particularly given the unexceptionable nature of the Emergency Motion.
Ms. Kaeseberg defended her motion in the press. She stands by it. She is proud of it. Good for her. She has guts. She should wear Judge Zagel's criticisms as a badge of honor.
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In California, a State Judge would be subject to judicial review and discipline for such comments. Federal Judges lifetime appointment make them Dictorial and arrogant. Most importantantly they have no or little accountability for their conduct. This needs to change.
Posted by: Larry Acker | Dec 27, 2011 10:54:20 PM