NOVEMBER 2019 | ETHICS IN VIEW

Judging the judging: Judge Frederic Block’s “Crimes and Punishments: Entering the Mind of a Sentencing Judge”

by Dennis A. Rendleman, ABA Ethics Counsel, ABA Center for Professional Responsibility

This article reflects personal views of the author and do not reflect those of the Standing Committee on Ethics and Professional Responsibility or official ABA policy.

The ABA Model Code of Judicial Conduct does not use the term “judicial temperament,” but specific rules combine to inform that meaning. 

Rule 2.2 states: “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

Of particular note are Comments [1] and [2] to the Rule:

[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

Rule 2.8 (B) states: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”

While there is a separate Code of Conduct for United States Judges, the principles are comparable.

For evidence of these principles in action, one need only read Judge Frederic Block’s book published by the ABA, “Crimes and Punishments: Entering the Mind of a Sentencing Judge.” 

In his book we get not only insight into the sentencing process but a primer on judicial temperament. For example, in discussing a case regarding a person who had been majority leader of the New York State Senate, the jury convicted on various embezzlement counts but deadlocked on other counts. After that conviction, the defendant pleaded guilty to subsequent tax evasion charges with sentencing stipulations. But before sentencing, the convicted politician submitted a pro se motion for new trial with an affidavit from one juror stating that Judge Block had improperly entered the jury room during deliberations, encouraged the jury to resolve its differences and said he would accept a partial verdict if necessary.

As Judge Block writes: “It was pretty serious stuff…. If I had actually done that, it would, in my opinion, have constituted obstruction of justice and be an impeachable crime.” At the hearing on the motion and subsequent sentencing, the judge established, with documentary support, that he had been at home when the alleged conduct occurred and not present in the building where the jury was deliberating. He then addresses the question of his impartiality in sentencing: “I wondered if I could truly shake the assault on my professional integrity from my subconscious.”  Following presentations and arguments from counsel and a statement from the convicted man, which reflected no remorse, Judge Block states:

During the recess, I sat alone in my private robing room behind the courtroom and painstakingly ruminated about what that number [months of imprisonment] should be. A number of thoughts flashed through my mind:  Should I take into consideration the attack against my judicial integrity? Was there an element of truth in [defendant’s] claim that the…establishment, led by the future governor, was “out to get him”? Indeed, would the investigation into his inappropriate American Express charges even have taken place if not for [defendant’s] brazen political gamesmanship?

The judge continues with more questions about the specific nature of the conduct and the broader context of the defendant’s activities. Ultimately, he decided to go along with the recommendation of the probation department but, “I still had some sleepless nights wondering how all the imponderables in this high-profile case might have been embedded in my subconscious and affected my judgments.”

The chapter on this case is an enlightening insight into Judge Block’s process and serves as a wonderful commentary on the job of responsible judging.

More broadly, Judge Block addresses the sentencing power of a judge in a case where he sat on the circuit court by designation. Here, the facts demonstrate that the defendant was convicted of bank fraud and related crimes. But, it was strongly suspected that he had murdered his wife to gain access to the information and material that he used to commit the bank fraud. The district court judge sentenced the defendant based upon the conviction, but also upon the judge’s conclusion that the defendant had murdered his wife. The judge made specific findings and the sentence was calculated within the sentencing guidelines, but was at the highest level for all the crimes aggravated by the activities related to the unsolved murder. The total sentence was a 15-level upward departure and sentenced defendant within the 210-262 months range.

On appeal, Judge Block wrote the opinion upholding the judge’s sentence, but it was not without serious reservations. At oral argument, the government attorney admitted that the lack of the body limited their ability to bring a federal murder charge. He further agreed that sentencing corrected that problem by allowing them to argue for the judge to consider the circumstantial evidence of murder.

But, the jury had never convicted the defendant of murder. Nevertheless, Supreme Court precedent allowed a judge “the power to sentence a defendant based upon facts not found by a jury up to the statutory maximum” and a defendant “has no right to a jury determination of the facts that a judge deems relevant” in sentencing, so long as the sentence is not “substantively unreasonable.” Block concluded that “it was eminently reasonable for the district court to infer that [the wife] was dead and that [defendant] knew she was dead, and that he brought about her death to pillage her assets.

But despite writing the majority opinion in the case upholding the sentence, Block concludes “what is left to that quaint notion of trial by jury.” 

The judge illustrates this principle in a subsequent case where he decides not to include in his sentencing deliberations a murder – though with significantly less circumstantial evidence.

His thoughtful and insightful description of his sentencing experiences inspire serious consideration of the process of sentencing in the federal courts, the need to understand each individual defendant as a person and the challenge sentencing does – and should – put on every judge, regardless of whether in the federal or in a state court.

Just as important, Judge Block’s accounts of his courtroom interaction with lawyers, defendants, jurors and families demonstrates the principles from the ABA Model Code of Judicial Conduct and serves as a model for judicial temperament. 

ABA Center for Professional Responsibility is a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.