Biden Nominates Ethically Challenged, Pro-Criminal Former Judge to US Sentencing Commission

Last week, President Biden nominated seven judges and lawyers to the US Sentencing Commission. The majority are on record favoring dumbed-down sentencing — hardly a surprise given this Administration. But one is particularly worrisome: John Gleeson, a former US District Judge for the Eastern District of New York, now a partner at the white shoe firm of Debevoise and Plimpton LLP, where he has practiced since 2016.

In my capacity as a guest author on “Crime and Consequences,” the blog of the Criminal Justice Legal Foundation, I wrote about Gleeson’s nomination the day it was made. I adapt my post here from that entry. (Full disclosure: I was a nominee to the Commission in 2018, but the Senate adjourned without taking a confirmation vote on me or the three others (all federal judges) with whom I was nominated).

My misgivings about former Judge Gleeson stem from one particularly egregious case he handled as a jurist as if he owned it — which, given his enthusiastic and public crusading for one side (the criminal’s), is scarcely an exaggeration.

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In days of yore, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

But that would appear to be a dicey proposition in the Eastern District of New York (Brooklyn), known for its twin pro-criminal zealots, the late Jack Weinstein and, more recently, Gleeson.  Gleeson is young enough to know better, and I'm sure he does. The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes.  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

We can start with the statement that the judge who decided the case (both in the past and in the more recent proceeding) was an advocate for the defendant.  One need not have read the canons of judicial ethics  --  indeed, one need not be out of high school  --  to understand that a judge cannot decide a case in which he has been, much less in which he actively remains, an advocate.

It's one thing for a trial judge, during the trial, to make it decently clear he finds one side more persuasive than the other.  This is not recommended practice, but it often happens.  But it's another for the judge, years after the case is over and the government's position fully vindicated by the higher courts, including the Supreme Court, to use his office to go backdoor to achieve the outcome one side  -- the armed felon's side  --  has wanted all along.

As the NYT continues (emphasis added):

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway's 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway's behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway's convictions.

The payoff from Judge Gleeson's efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

OK, let's take a timeout here.  Again, it's one thing for a judge to express misgivings about a sentence at the time he imposes it.  Indeed, he could find the mandatory sentence unconstitutionally excessive, which Gleeson didn't and doesn't.  It's also perfectly permissible, in my view, for a judge to write a letter to the editor or petition Congress generally to seek a change in law  --  judges have First Amendment rights, too. But to wage his own campaign, using his office, stationery and power in order to blackjack a local prosecutor who regularly appears in his court to genuflect before the repeat, armed felon he/she properly convicted at a trial many years before is astounding.

The more urgent question, though, is whether it's ethical.  And that question goes beyond merely gross partisanship for one side in a case; it goes to the fact that no sensible person could possibly view what is (I presume laughably) called the "request" to the US Attorney to be anything but a thinly veiled threat that, if the "request" is not met  --  "...well, hey there Ms. US Attorney, you've got a boatload of cases coming up in my court and, ya know, I can be in a good mood or I can be in a bad mood, day in and day out, for scheduling, for continuances, for a raft of procedural motions that could  go either way  --  I mean, we're getting the idea here, aren't we, Ms. US Attorney?  So I hope you'll look at my 'request' with a generous turn of mind, because my being nice is sooooo much better than my being crabby."

Not that that's the worst of it either, not by a longshot.

Having blackjacked the US Attorney into going along with a legally baseless motion to vacate two convictions whose validity is not even questioned — so as to get to the desired dumbed-down sentence — Gleeson then goes ahead and presides over the hearing himself.

At that point, there is simply nothing left of the notion that Gleeson cares about judicial ethics. If he must bully the prosecutor into moving for this hearing years after the fact to vacate valid and properly obtained convictions, you might think Gleeson would have at least the decency to allow a different judge to decide the motion to vacate.

Wrongo.  Gleeson's whole gig might get spoiled if a judge who hadn't prejudged this ginned-up motion  --  that is, a neutral judge  --  were able to decide it.  So he put it on his own docket to insure that no hint of neutrality crept in.

But really, so what?  When the judiciary turns into the public defender’s office, you were expecting something else?

(And parenthetically:  So much for the oft-repeated defense bar line that the attack on mandatory minimum sentences is really about "first-time, low-level, non-violent" offenders.  Mr. Holloway's terrifying crimes  --  and I'm not talking about his drug trafficking offenses, mentioned by the NYT for the first time in 28th paragraph of its article  -- were neither first-time, low-level nor non-violent).