Tuesday, May 14, 2013

Does judge-shopping exist in criminal law cases?

If you read his online biography, you will learn that Wisconsin Representative James Sensenbrenner likes to watch the Green Bay Packers in his free time. If you read the biography closely you might realize that Representative Sensenbrenner has been in elected office pretty much from the moment he graduated law school. Representative Sensenbrenner graduated law school in 1968 and was promptly elected to the Wisconsin Legislature. After serving there for 10 years, he was elected to the United States Congress and has been there ever since. It does not appear that Representative Sensenbrenner has ever practiced law or  had a full time job that wasn't a political office.

 I note the lack of legal experience because Representative Sensenbrenner sits on House Judiciary Committee.  One might hope that members of the judiciary committee have a basic understanding of how the judiciary works.  The Sentencing Law and Policy blog has evidence that suggests that Representative Sensenbrenner lacks this understanding.  The blog notes that Congressman Sensenbrenner believes that Congress should renew its efforts to pass laws which include mandatory minimum sentences because if Congress doesn't act, prosecutors and defense attorneys will engage in "judge-shopping" to get judges that favor their side of the case.

Judge-shopping refers to a practice of filing multiple civil lawsuits alleging the same claims in a district with multiple judges. Once the plaintiff gets assigned a judge the plaintiff likes, the other lawsuits are voluntarily dismissed. I've never seen this practice done but am willing to believe for the sake of argument that it takes place in civil cases.

That said, I have no idea how a criminal defense attorney could possibly shop for a judge in the federal court system.  Any ideas Mr. Torvik?  Is Congressman Sensenbrenner's concern a valid one?  The SLP blog certainly does not think so.  Neither does this judge

1 comment:

  1. Judge shopping is not possible in federal court as far as I know.

    But, for the record, a kind of judge shopping in criminal cases is theoretically possible in some state law jurisdictions. In Minnesota, for example, a criminal defendant has an absolute right "remove" the judge assigned to his case, but only once. (See Minn. R. Crim. Pro. 26 subd. 14). I certainly observed this kind of "judge shopping" when I was at the Minneapolis City Attorney's office. If you get a bad draw (e.g, Judge Nordby if you're the prosecution) you remove the judge and take another chance.

    By the way, the gratuitous reference to the Packers can be interpreted only as some sort of attempt to smear that fine organization by association. Such tactics are beneath you.


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