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    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 recognized that

    “This case illustrates that innovative procedures can sometimes be very helpful and are not to be automatically condemned as without precedent.”

   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 Circuit Court.

“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 parte communications”

     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 particular matter.

   “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 modern jurisprudence.

Nos. 10–2436, 10–2468, 10–2469.


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