Today Judge Scullin granted two of Mr. Partington’s counsel permission to miss the 29 December hearing “provided that the Plaintiff has proper representation by other counsel on that date.  Otherwise, counsel must attend the proceeding.”  Judge Scullin also reserved judgment on those lawyers’ motoin to withdraw “until after a ruling is issued on the pending motions.”

One Response to “The Partington Press — 21 December 2011 edition”

  1. Socrates says:

    Warning:  This post is long because I find the Partington case interesting and important.  But if you don’t, please click away.
    In anticipation of the upcoming Partington hearing, I would like to provide an observation, and then conclude with a biographic profile of the presiding judge, Frederick J. Scullin, Jr. , and provide some of his more prominent cases.
    An Observation:  
    Charlie Gittens may be able to use an analogy from a case that Judge Scullin participated in 5-years ago. The “theme” of the suggested argument is that all lawyers make mistakes, and sometimes lawyers are too aggressive in their argumentation, but these mistakes do not necessarily require disbarment.  After all, a vast majority of IAC “hits” on defense attorneys do NOT result in disbarment, either.
    Here is the case:  In 2006, Judge Scullin participated in a unanimous decision by a three-judge panel in the United States Court of Appeals for the Second Circuit in Manhattan.  The panel issued a 61-page ruling that overturned the obstruction-of-justice conviction of technology investment banker Frank P. Quattrone.  In May 2004, Mr. Quattrone was convicted of obstructing justice as a result of sending an e-mail message to Credit Suisse First Boston’s technology bankers, in December 2000, which endorsed a colleague’s instructions urging them to “clean up those files.”
    Even though reversals of jury verdicts are rare, Judge Scullin and his colleagues did just that.  The panel compared Mr. Quattrone’s case with the conviction of the auditing firm Arthur Andersen, which the Supreme Court overturned, striking down language in the jury instructions that allowed for a conviction even if the defendant did not know it was doing anything illegal.
    The appellate panel criticized the prosecutors in the case, both of whom have since left the United States attorney’s office for private practice, for trying to prejudice the jury by raising issues outside the scope of the case during their questioning of Mr. Quattrone. 
    Previously (the prior year) the 2nd Circuit panel conducted a contentious hearing in the Quattrone case.  The hearing went on for over an hour after the judges dismissed the usual time limits because, as Judge Wesley said, “it’s a very complex case.”  And at that time, all 3 judges conveyed concerns about whether the behavior of the prosecutor, and the judge’s jury instructions, may have unfairly affected the trial’s outcome.  Judge Wesley tore into the assistant United States attorney who led the prosecution’s case, warning him that he may have unfairly prejudiced the jury by raising issues about Mr. Quattrone’s character that were beyond the scope of the case.
    “Every good trial lawyer seems to push the envelope,” Judge Wesley said to Mr. Anders. “You really blew the side of the envelope out, didn’t you?”
    In other words, the government lawyer was overly aggressive and made mistakes.  Does this sound familiar?
    But, in contrast to the Navy-Marine Court of Criminal Appeals, did Judge Scullin’s panel go nuclear and refer the lawyers to the bar?  No, of course not.  The 2nd Circuit panel did what most mature courts do – they used the decision itself to issue stern warnings to the prosecutors against these kinds of tactics.
    In addition, the panel ruled that “in the interest of justice,” the case should be reassigned to another district judge because, although it had found no evidence of bias, the district judge made “certain comments” that “could be viewed as rising beyond impatience or annoyance.”
    Hmmm.  “Impatience and annoyance.”  This, too, rings familiar.
    I, of course, concede, that if Partington is found to be a “liar,” and someone who “improperly conducts his lawful business” by being an unethical attorney, then he loses, despite the “mistake” defense.
    Profile of Judge Scullin:
    In his younger days, Judge Scullin served in the United States Army as an Infantry Commander in Vietnam. He was a U.S. Army Reserve Colonel until 1991.  Judge Scullin served in various prosecutors’ offices from 1967 to 1982.  Judge Scullin’s initial special focus was organized crime.  He then launched numerous investigations and prosecutions in drug trafficking and — most notably– public corruption.
    In 1982, President Ronald Reagan appointed then-Mr. Sculling as United States Attorney for the Northern District of New York.   He served in the position for ten years until 1992, when, on February 10, 1992, President George H.W. Bush nominated him to the United States District Court for the Northern District of New York.  Judge Scullin ended active service on March 13, 2006, when he transitioned to his current role as a senior judge.
    When he was first nominated in 1992, the American Bar Association (ABA) Standing Committee on the Federal Judiciary, in its “Ratings of Article III Judicial Nominees for the 102nd Congress (1991-1992),” unanimously rated Judge Scullin as “Q = Qualified,” (but not the highest “WQ = Well Qualified”).  The ABA committee consists of fifteen members— one from each of the other federal judicial circuits and two from the Ninth Circuit.
    Judge Scullin’s Tenure at FISA:
    In 2004, Chief Justice Rehnquist appointed Judge Scullin to a 7-year term on the Foreign Intelligence Surveillance (FISA) Court.   His term expired on May 18, 2011.  During his 7-years on the FISA, Judge Scullin, like his two colleagues, almost always sided with the Government.  It is very rare for a FISA warrant request to be rejected by the court.
    In 2008, Judge Scullin agreed with his two colleagues at this secret federal appeals court that telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists.  This rare public ruling was not released until a year later, in 2009.
    Here is Judge Scullin’s 7-years record on the FISA, according to the Electronic Privacy Information Center data (*based on mid-year commencement and termination of the term, the data for calendar years 2004 and 2011 do not fit perfectly):
    During Judge Scullin’s tenure at FISA, from 2004 – 2010, the Justice Department submitted a grand total of 13,374 FISA search applications to the court, only 7 of which were denied.  Despite the rate of applications increasing, 19% from 2009 to 2010, the near-zero rejection rate did not change.  In 2010, the FISA Court did not deny or modify any applications.

    Here are the year-by-year FISA numbers:
    ·         2004: 1,758 FISA applications, no refusals
    ·         2005: 2,074, FISA applications no refusals
    ·         2006: 2,181, FISA applications 1 refusal
    ·         2007: 2,371, FISA applications 4 refusals
    ·         2008: 2,082, FISA applications 1 refusal
    ·         2009: 1,329, FISA applications 1 refusal
    ·         2010: 1,579, FISA applications No refusals
    Dew Process posted back on September 17, Judge Scullin will likely “defer to the government.”   I agree.  He may have developed a muscle-memory for Government affirmations after some 13 thousand of them.
    But my reading of Judge Scullin’s judicial record is that although he is slightly right of center, he is not afraid to push back at the Government.  Judge Scullin follows the law as he interprets it, and he does not perform conservative “posing,” that is, using language or decisions that are meant to garner attention and applause from conservatives, for the sake of career advancement.
    Judge Scullin’s Cases of Interest:
    Largely according to the New York Times archives, here are Judge Scullin’s more notorious cases (citations omitted).  I leave it to CAAFlog readers to decipher a pattern, if any:
    ·         In 2007, Judge Scullin ruled in favor of Public Citizen, permitting lawyers in New York State to use pop-up ads on the Internet.  Judge Scullin reasoned that statewide rule, which stated that no attorney advertising could “rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel,” violated the free speech of lawyers.  NY attorneys objected that “techniques to obtain attention” are the hallmark of good advertising.  Judge Scullin agreed.  But he narrowed his ruling by not answering the bigger but more subtle issue of whether firms must label newsletters and e-mail messages to clients as advertising.  The decision was mostly affirmed in December 2010.
    The New York Sun Editorial wrote about the decision on July 30, 2007, stating:  “It is no small thing that a federal judge had to tell the state’s presiding administrative judges that they flubbed the First Amendment when drafting new rules about attorney advertising in the State of New York.”
    ·         In 2005, Judge Scullin ruled that a group could proceed with a brutality and free-speech lawsuit against New York state troopers stemming from a May 1997 protest that blocked Interstate Highway 81 running through the Onondaga Indian Nation in New York.
    ·         In 2004, Judge Scullin reviewed arguments by John A. Gotti, the purported acting boss of the Gambino crime family, when he filed, pro se, a discrimination lawsuit claiming that prison officials were keeping him incarcerated because he is the son of deceased mobster John J. Gotti.   Between 2004 and 2009 Gotti was a defendant in four racketeering trials which all ended in mistrials. In January 2010, Federal Prosecutors announced that they would no longer seek to prosecute Gotti for those charges. Gotti earned the nickname “Teflon Jr.” for evading conviction like his father.  And speaking of aggressive arguments: US district court judge Steven D Merryday, signaled that he was uncomfortable with the government’s tactics in the case against John Gotti , Jr.  The judge said he was concerned prosecutors were misusing federal racketeering laws that enable the government to tie cases across state lines in the pursuit of justice. “You’ve flipped it over and now you’re using it for a serial prosecution,” he warned the prosecutor.  (But I am not aware of a bar complaint)
    ·         In 2003, Judge Scullen fined New York City $5.7 million for violating the Clean Water Act by discharging muddy brown water into a storied Catskills trout-fishing stream.  Although he did not order the city to shut down an 18 mile, a 79-year-old tunnel, which could have jeopardized New York City’s water supply, he did order the city to coordinate with the NY State Dept. of Environmental Conservation get a water discharge permit to, a typically that 18 month process.
    ·         In 2000, Judge Scullin dismissed a racial discrimination lawsuit brought by nine Chinese-Americans and African-Americans who said they were thrown out of a Denny’s restaurant and beaten by white customers while security guards watched. Judge Scullin concluded that the plaintiffs failed to show they were denied seating or security services.
    ·         In 1999, Judge Scullin overturned a district court’s affirmation of a 55-year-old’s Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. claim, ruling that appellant had failed to establish a prima facie case of “pretextual” age discrimination.  The man’s boss, speaking about the company’s retirement plan, “expressed . . . pleasure with reducing the number of officers at [the company] who were 55 years of age or older.”  Judge Scullin stated that “[c]ontrary to appellant’s argument, [the boss’s] expression of “pleasure” that the undisputedly lawful plan was having a lawful effect is irrelevant” and that a systematic transfer of responsibilities to younger workers, without more, was insufficient evidence to support the claim.  In its 2004 Report, CONFIRMED JUDGES, CONFIRMED FEARS: A Further Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans, the People for the American Way Foundation cited decisions like this as an example of judges “trying to re-make the law to undermine civil and consumer rights, constitutional liberties, environmental protections, and the authority of Congress to protect these and other rights.”  (p1,2)
    ·         In 1998, Judge Scullin granted damages and other relief to a correctional officer who brought suit alleging that the New York State and the New York State Department of Correctional Service (collectively, “DOCS”) discriminated against him in violation of the Americans with Disabilities Act (“ADA”), after the officer won a jury trial.  The 2nd Circuit affirmed.
    ·         In 1994, Judge Scullin approved a settlement in favor of 97 black employees against the Miller Brewing Company as a result of a racial harassment lawsuit.  Because the black workers were subjected to racist slurs broadcast over a brewery’s public address system, Miller agreed to pay $2.7 million.
    ·         In a 1993 loosely related to the Supreme Court’s recent “release” of California prisoners, Judge Scullin placed additional strains on New York State’s overburdened prison system, when he ruled that the Federal Government had no obligation to take custody of more than 3,000 illegal aliens in the state’s prisons who have served their minimum sentences.  Judge Scullin based his ruling on the legal differences between state and Federal sentencing guidelines.  As a result of Judge Scullin’s decision, New York was required to spend more than $65 million a year to house and supervise illegal alien prisoners.
    ·         In 1993, Judge Scullin turned down a request to close a newly constructed New York Indian casino, with a capacity of about 7,000 people, based on the tribe’s internal battle over the authority of a tribal official to operate the gambling hall. 
    ·         In 1993, Judge Scullin urged the parties to settle, enforcing the Federal civil rights law, Title IX, which requires equitable accommodations for male and female athletes at colleges receiving Federal funds. The settlement resulted in Cornell University agreeing to reinstate women’s gymnastics and fencing as full varsity sports rather than mount a protracted court fight it seemed certain of losing.
    ·         In 1993, Judge Scullin sentenced a 35-year-old former Army Green Beret sergeant, who pleaded guilty to felony counts of interstate transportation of stolen firearms and unlawful possession of unregistered firearms, after he sold grenades and 20 pounds of plastic explosives for $10,8000 to an undercover agent of the Bureau of Alcohol, Tobacco and Firearms.
    Of particular note: Judge Scullin’s district court seat has not yet been filled since his transition to senior judge in 2006.  In a recent hearing before the 112th Congress, Senate Judiciary Committee, Feb 2, Feb 16, and Mar 16, 2011, entitled “CONFIRMATION HEARINGS ON FEDERAL APPOINTMENT,” Senator Charles Grassley, Republican Senator from Iowa, described the vacancy created when Judge Scullin took senior judge status in 2006 as a “judicial emergency,” and stated that the delay in filling the vacancy constitutes a “sad record.” Sen. Grassley describes the chronology: “President Bush nominated Mary Donahue in June 2006. Her nomination languished in Committee for over 14 months and then the nomination was withdrawn.  President Bush then nominated Thomas Marcelle. That nomination was blocked by the Democrats, as well, despite the vacancy being a judicial emergency. We are now asked to consider the nomination of Ms. D’Agostino just 4 months after her nomination. Any impartial observer would admit a double standard with this seat.”

    Merry Christmas.