I confess wonder and awe at the recent decision of the Judicial Council of the Second Circuit. They have cleared United States District Court Judge Robert N. Chatigny of all wrongdoing, and they have even blessed his faulty memory.
Chatigny is chief judge of the District of Connecticut. He presided over a piece of Intense litigation about whether a convicted serial killer named Michael Ross could waive the right to habeas petitions filed on his behalf and simply submit to death. Ross had private counsel, T. R. Paulding, Jr., to advocate for his right to chart his own destiny.
The criminal defense bar rallied to save the man's life: Opposition to the death penalty trumped any sense of Ross' autonomy and dignity. Lawyers knew best.
But the courts rejected every effort to compel Ross to litigate claims chosen for him by his lawyers. On the eve of death, Chatigny stepped in and in a sua sponte telephone conference threatened to have Paulding's law license if something were not done to derail the execution.
A puzzled member of the Attorney General's Office asked the judge whether he had a bias in the case.
No, none, the judge said.
It was later learned that the judge had represented Ross, filing an application for permission to file an amicus brief on Ross' behalf for the Connecticut Criminal Defense Lawyers Association in 1992. He never filed the brief, but did have communication with the client and was copied on pleadings in the case for some time. Apparently, the judge simply forgot about all that. Even more remarkably, the Second Circuit panel reviewing Chatigny's conduct accepted failed recollection as an excuse in this case. No appearance of impropriety if the judge simply forgets.Chatigny Cleared, Long Live The King
Chatigny runs an inquisitorial courtroom. He is an active judge who thinks he knows better than the litigants and their counsel. Well before the Ross case, his tendency to step in and to try to take control of a case was evident on the civil side. Lawyers statewide whisper about it.
Now the Second Circuit has endorsed this activism, and rather than trim the judge's sails, the council has all but encouraged him to play king of the courtroom.
Perhaps it was too much to expect the judicial branch to police itself here. I mean did we really expect judges to discipline one of their own for grabbing the reigns of power in a case? As the circuit panel wrote, judges aren't mere umpires; they get to impose their vision of the interests of justice.
I am not buying the Platonic fiction that the robe-wearing caste has some inside vision of the good, true and beautiful. In my view, they have a hard enough time calling simple balls and strikes. But I am mere flesh and blood in the form of a trial lawyer.
Welcome, Connecticut, to our new judge, Baron von Chatignystein. His courtroom is a laboratory in which he feels free to do as he pleases with the endorsement of his superiors. I suppose I should be grateful he recuses himself from my cases, but I fear that the message from his case will embolden other judges to experiment broadly with their private conceptions of justice.
I wonder whether the Senate Judiciary Committee consider the case. It should. Or doesn't the Senate care about judicial activism?