Saturday, July 27, 2013
Yet another story from NPR, with the obligatory quotes from Bill Black and Neil Barofsky, about DOJ's abject failure to properly investigate and prosecute high-ranking corporate insiders for fraud-related activity in connection with the financial crisis. This is the major criminal justice story, and scandal, of the Obama-Holder Administration. From the standpoint of elite corporate fraudsters, the Republicans could not have fashioned a better Dream Team at DOJ. The glaring exception here appears to be Preet Bharera. But it's easier to go after insider trading than control fraud.
Monday, July 22, 2013
Lawyers frequently talk about which judges are pro-defense and pro-prosecution but, perhaps out of fear of upsetting the judiciary, few have made any statistical effort to determine which judges fit where.
Richard Levitt, the imaginative Renaissance man of the criminal defense bar, and Peter Schmidt, the dedicated publisher of the illuminating Punch & Jurists newsletter, did a painstaking analysis of the complete reversal rates of those judges currently sitting in the Second Circuit. The result, while enlightening, was not particularly surprising. The complete reversal rates (determined by the percentages of cases in which the judge voted to reverse all counts of conviction after trial) of the court's sitting judges who heard over fifty cases ranged from 0% (Judge Gerard Lynch) to 8.79% (Judge Barrington Parker). (The article, entitled "What Are the Odds of Complete Reversal After Conviction in the Second Circuit?," appeared in the New York Law Journal on June 27, 2013, and is available online at www.newyorklawjournal.com but only to those with premium access.)
The authors concluded, "The results of our survey strongly suggest that an appellant's odds of winning a complete reversal in a close case brought in the Second Circuit are largely determined by which three-judge panel hears the appeal. By any yardstick this seems random and unfair."
I broke down the complete reversal rates of the judges by party line, depending whether the judges were appointed by Democratic or Republican presidents. Contrary to what many would expect, the reversal rates for those judges appointed by Republican presidents (4.26%) exceeded the reversal rates by those appointed by Democratic presidents (3.55%). While there are several explanations for this finding, including that Judge Lynch is a Democratic appointee and Judge Parker a Republican appointee, it tends to indicate that one cannot reliably predict, at least in a Second Circuit criminal trial appeal, how a judge will rule based on her political party background.