Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, September 4, 2017

Judge Richard Posner Retiring from the Seventh Circuit

Friday afternoon I received startling news in the form of a Law360 email alerting me that Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, was retiring over the weekend.  According to the article:

U.S. Circuit Judge Richard A. Posner, one of the most prolific and influential legal thinkers of the past half-century, is retiring from the Seventh Circuit over the weekend, the court announced Friday.

Posner, 78, has served on the bench for three and a half decades, and said in a press release issued by Seventh Circuit that he will step down officially on Saturday. He said he looks forward to continuing to teach and publish, with a particular focus on social justice reform. He’s a senior lecturer at the University of Chicago School of Law.

Judge Posner has certainly been an influential, and at times controversial, jurist.  Just recently he was reversed by his own court.  In February 2016, Judge Posner sat by designation as a trial judge in a witness tampering case.  According to an ABA Journal article, the Seventh Circuit

reversed the witness tampering conviction because Posner refused to instruct jurors that prosecutors had to prove Edwards had “corruptly” attempted to persuade another person to interfere in a government investigation.

Posner had refused to include the word “corruptly” in his instruction, telling lawyers in a pretrial conference: “No one knows what ‘corruptly’ means. Then there’s a definition, a person acts corruptly if he or she acts with the purpose of wrongfully impeding the due administration of justice. Well, that doesn’t help. You don’t need ‘corruptly.’”

Defense counsel had protested that eliminating “corruptly” would lower the government’s burden of proof, but Posner disagreed. He said leaving out the word would not harm the defense, “unless you’re counting on obscurantism in leading [the jury] to acquit.”

The appeals court disagreed with Posner’s decision, calling “corruptly” proof an essential element of the witness tampering charge.

Despite the reversal, Judge Posner's policy of taking an occasional district court case is commendable. We wish Judge Posner a happy retirement and thank him for his years of service.

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