THE DEFENSE NEVER RESTS
AND THE CURIOUS JUDGE
The Seventh Circuit has decided a matter involving a curious
judge and fighting dogs. In the past many sentences were overly strict, yet
the Sentencing Guidelines bound judicial discretion. In this matter the
guidelines failed to take account the circumstances of the crime. A mindful
judge took it upon himself and educated the bench and bar.
In US v. Courtland the defendant(s) were involved in a
loosely-organized dog fighting conspiracy in the St. Louis metro area called
the “Backstreet Truez,”. An investigation led to numerous arrests and
indictments and the seizure of over 120 pitbulls, most of which were so
aggressive that the Humane Society killed them. The District Court, on its
own volition, prepared a brief on the world of dog fighting and distributed
same to the attorneys in the matter. On appeal defendants objected. In
fielding Separation of Powers arguments by the defendant the Seventh Circuit
“This case illustrates that innovative procedures can
sometimes be very helpful and are not to be automatically condemned as
There was no objection in the trial court over the judges sua
sponte report. The Seventh Circuit turned to rule Fed.R.Crim.P. 51(b) to
find that no objection was necessary.
“[i]f a party does not have an opportunity to object to a
ruling or order, the absence of an objection does not later
prejudice that party.” Id.
While this is true the better practice is to object in
writing to preserve the issue. This rule is at odds with so many other
procedural practices that the prudent path is to object if at all possible.
At trial, the stated procedure after objection is sustained is to make an
offer of proof so as to preserve the issue based on the specific basis
counsel seeks. Any other basis not stated is deemed waived. Likewise a
report submitted by a court can be objected to in open court or in writing
filed with the clerks office. Nonetheless the report is properly before the
“We note with approval that the district court was concerned with giving the
parties the opportunity to comment on the general reference material it
consulted. To do so here was in keeping with the spirit of, but not required
by, the Code of Conduct for United States Judges in the sense that the Code
of Conduct requires judges to give parties an opportunity to respond to ex
This writer commends the Court and takes issue with the
characterization of the information as ex parte. The District Court
presented the information to both parties. Any notion of ‘ex parte’ is
misplaced. Additionally, the Circuit court has indicated that such research
is not improper. To label the disclosed research in the arena of ex parte is
to cast commendable education in a false and negative light.
Both parties had opportunity to learn, to expand, to
refute or to agree with any and all information which the District Court
graciously conveyed. If a judge allowed a person from the galley to ask a
witness a question, with two experienced attorneys present, there can be NO
cry of foul. Either party can object to the question prior to its answer. In
other words the relevant filters were in place.
The pillars of justice stand firm regardless of the
wind and only dependent upon the firmness of their own foundations and not
dependent upon the wind speed which blows upon them. The flow of knowledge
in a learned profession should be unobstructed.
If this were a drug possession case, a court's
comments about related pervasive social problems would be taken as routine
as noted by the Courtland court. What medical malpractice attorney does not
know the organs upon which his case is based? What medical malpractice judge
is not informed of this same information? The rules of ethics dictate - If
you are not competent in a case you are engaged - become competent. The
Court, recognizing its shortcomings and shared such competency with the bar.
True, had the judge recounted a personal incident
wherein he/she was attacked by a pit bull and the trauma it inflicted upon
his demeanor an objection would be expected and warranted. An arms length
objective analysis of any information should be lauded and commended. Such
judges who take interest in the topics before them should be encouraged to
continue to do so, to share such information with the attorneys and the
public. Our judiciary should be an informed judiciary and not one which
basis its ruling on law in a vacuum of life.
Had the objective memoranda been inflammatory a bias
would not and could not be presumed. Objectivity in a criminal case is not
judged by the pleasant nature of the crime. Had the memoranda been grossly
inflammatory but based on true facts this is the nature of the crime which
1855 and Booker compels the Court to consider. Counsel should be apprised of
such inflammation long before sentencing. Discovering inflammatory truth is
not at all tantamount to being biased by it. True, as humans we still must
be mindful of our own frailty.
Scientific journals, the bible, news clippings all are
proper information which a trial court may and has a duty to consider. What
weight the court gives, is a different matter all together. A court may
consider, and has a duty to consider, an attorneys argument that the sky is
falling based on chicken littles assertion of a thud on his head. The weight
the court gives to a talking chicken is a matter of law and may be reversed
on appeal. The Courts consideration is commendable. The Courts refusal to
consider may be a matter of law and error. Rarely, if ever, should
consideration by a court be basis for rebuke.
The Courtland court expresses relief that the District Court
did not consider the memoranda in sentencing the defendant in that
“In other words, relevant to our affirmance is our confidence that
the district court did not attribute to the defendants the evils related in
the “sentencing memorandum.”
Had the court attributed evils learned in research to the
crime of the same genre no error would have been committed. If a judge
learns that people are often shot during drug deals and therefore increases
the sentence of the defendant due to the increased risk no error has been
committed. The consideration is to the nature of the crime and its attendant
dangers. Likewise the Court may decrease a sentence of a marijuana user when
it is learned that studies show that marijuana is less harmful than legal
products one can buy over the counter.
It is not a conservative or liberal issue it is an issue of
the wisdom of our courts, it is an issue as to whether we wish to have
judges, lawyers and juries in the dark ages while the rest of the world
evolves. The Court need not ignore the existence of email and relegate
jurors and lawyers to can and string merely because no lawyer has briefed
him on the issue before the judge has. It is not a race to the library but a
matter of grace that the library is allowed to enter our vernacular of
UNITED STATES v. COURTLAND
Nos. 10–2436, 10–2468, 10–2469.
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