I realized it when I listened to oral arguments for the US Court of Appeals for the 2nd Circuit. There is an inherent conflict.
Attorney Joseph Tully appeared for Keith Raniere. Assistant US Attorney Tanya Hajjar represented Judge Nicholas G. Garaufis.
Of course, I understand Hajjar represents the Department of Justice. But she was defending Judge Garaufis.
In the appellate court, the prosecution defends the judge. They are his unpaid lawyers. The same lawyers that practice before the judge defend him on appeals. It must be challenging for a judge not to favor the prosecution.
Keith Raniere was a most unappealing defendant.
Raniere Case Cross-Exam
During the trial of Keith Raniere, Judge Garaufis cut short Lauren Salzman’s cross-examination. The judge shouted, “You’re done” at Marc Agnifilo, Raniere’s attorney.
After stopping the cross-examination, he told Agnifilo he could appeal if he didn’t like it.
In court, that day was AUSA Tanya Hajjar calling the judge, “your honor.”
When the judge said, “go appeal my decision,” Hajjar was there – looking for his favor – and ready to return it – as she did in the appeal.
Human Nature
Judge Garaufis stopped the cross-examination of the weeping Salzman, and he said, “I’m a human first and a judge second.”
He might as well have said to Agnifilo, “My lawyers are here, and should you appeal, they will be there in the appellate court to defend me.”
And sure enough, Hajjar was in the appellate court three years later. She argued Judge Garaufis’ decision to cut off cross-examination was most excellent.
A trial judge is not supposed to favor the prosecution or the defense. But it is only human to favor those who help you.
Bronfman Appeal
Clare Webb Bronfman, Seagram’s heiress, convicted felon.
In the case of Clare Bronfman, the prosecutors wanted a five-year sentence. Bronfman’s lawyers wanted probation.
Judge Garaufis went beyond what the prosecution asked. He gave Bronfman almost seven years.
So now comes the appeal. Bronfman’s lawyers said Judge Garaufis made an egregious mistake. They cited reasons from procedural to outright intemperance. A bias – because she’s wealthy.
If the defense wins, it will make headlines. The media will report the 2nd Circuit overturned her sentence. ‘Wealth Is a Bad Thing for Hanging Judge Garaufis.’
And guess who’s representing Garaufis’ honor? The prosecution argued his decision to sentence her longer than what they asked.
How can a judge not love the prosecution?
Better Be Fair to Me
And how much effort the prosecution puts into defending a judge might just be up to the old “quid pro quo.”
In the case of Clare Bronfman, the prosecution thought five years was good. The judge made it six years and nine months.
When it came time to appeal, the prosecution didn’t say, “your honors, we’re sorry. We don’t know why Judge Garaufis decided this way. We said 60 months. He came up with 81 months. Sixty months is fair.”
No. Now, 81 months is fair.
A courtroom sketch shows Lauren Salzman on the stand. Keith Raniere takes notes in the foreground.
Consider a scenario where you – a typical Brooklyn guy – decide on a dispute. Let’s say it’s between your friend who defends you, and an ass who attacks you if you don’t decide his way.
You have to make it look like you’re being fair. But who are you inclined to favor? Who are you most likely to give the edge? The guy who protects you? Or the guy trying to embarrass you?
Obviously
A judge must calculate the chance of an appeal on every decision he makes. He might desire to be fair. He might be afraid of an appeal and not go too far or be too obvious. But wouldn’t you tend to favor your lawyer on every close call?
Editor’s note:
One might argue that defense lawyers defend the judge when the prosecution appeals. This is rare. Why?
Because the prosecution cannot appeal an acquittal. The prosecution will also vary rarely appeal a judge’s sentence. The only time a prosecutor appeals is when the judge makes a directed verdict. Or some procedural ruling.
The prosecution and judge work together and depend on each other, so this does not happen much. In criminal cases, nine times out of 10, the defense seeks to prove the judge wrong. The executive branch combines with the judiciary against the citizen.
What’s a solution? To have lawyers unconnected to the DOJ represent the judiciary on appeals.
