Federal judge’s ex parte emails with prosecutor’s office created appearance of bias

United States v. James Atwood, No. 18-2113 (7th Cir. Oct. 24, 2019)

Atwood is entitled to a new sentencing hearing because the judge in his case was communicating ex parte with the prosecutor’s office about other cases, and the content of the correspondence invited doubt about the judge’s impartiality in proceedings involving the prosecutor’s office.

After the judge sentenced Atwood to 17½ years for federal drug offenses, it came to light (through good, old-fashioned newspaper reporting) that while Atwood’s case was pending the judge engaged in extensive ex parte e-mail communications with the prosecuting U.S. Attorney’s Office about other cases. Turns out the judge—mirabile dictu!—had been a federal prosecutor at the same U.S. Attorney’s Office for many years before his appointment to the bench. The emails mostly addressed ministerial matters, but often enough they showed the judge cheering on the prosecutor’s office’s employees and addressing them by nicknames. The judge also wrote to prosecutors to congratulate and thank them for persuading the court of appeals to affirm his decisions. (As if that’s a difficult task!)

Though the judge never mentioned Atwood’s case in any of the emails, the government conceded he should have recused himself under 28 U.S.C. § 455(a) because the emails gave the appearance he was biased in the government’s favor. But, the government argues, the error was harmless; Atwood would’ve been tagged with 17½ regardless.

Not so fast, says the court of appeals. Under Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988), the risk of injustice to the parties in this case, the risk to injustice to parties in future cases, and the risk of undermining public confidence in the judicial process preclude a finding of harmless error. So it’s a  sentencing do-over for Atwood.