Joel Jacobsen

Last February we had the entertainingly sordid story of the Sharon Freebery, the local Delaware bigwig who took $2.3 million from a Du Pont heiress who, by coincidence, happened to have a major real estate project pending approval from Freebery's local government.   Freebery, in turn, passed along $600,000 to Delaware's federal judge Joseph J. Farnan, Jr., who introduced her to a loan officer who approved her for mortgages totaling over $1.1 million, despite the crimp the monthly payments might place on a government salary.  (See post 64.)

(Not to worry.  Freebery recently cleared a cool $1.3 million by reselling the properties.  See, she was good for it all along.)

Freebery was charged in two separate indictments.  Because of Farnan's involvement, they were assigned out of district - all the way to Philadelphia.  Federal Judge John Fullam dismissed one of the charges against Freebery and her co-defendant before trial.  The indictment, Fullam ruled, failed to allege a crime. The prosecution appealed, the appeal was argued on May 15, and the Third Circuit reversed 24 days later.   

Now, maybe those East Coast Circuits have a different conception of time than the cud-chewing judges of the laidback west, but where I come from, 24 days from argument to 26-page opinion is a remarkably short time.   Wilmington's News-Journal thought so, too:

Thursday's 26-page decision ... was unusually speedy and blunt, appearing to rebuke the lower court.  The 3rd Circuit can take eight months or more, after oral arguments, to make a ruling but in this case the decision came back in a little over three weeks.

It's almost as if Judge Fullam's decision wasn't just wrong but ridiculous.  Here's some of what the Third Circuit said about it:

[T]hat ruling is clearly contrary to the law of this circuit. ...  The indictment clearly alleges the required violation of a fiduciary duty and deceit ...  The indictment clearly informs the defendants of the conduct upon which the government bases its criminal charges, and it clearly sets forth the duties that the alleged conduct violated as well as the statutory origin of those duties.  We don't know what more the government should have done, given the nature of the alleged fraud.  The allegations are more than adequate ...  [T]he indictment clearly alleges that Freebery had a conflict of interest that should have been disclosed.

That's a lot of "clearlys" in an opinion.  And while it may not seem obvious to readers spared the unpleasantness of attending law school, that's pretty strong language for three judges to to use with respect to another. 

The case shows the four most important variables that go toward deciding cases in America's courts.  They're ranked here in order of priority, but it's important to note that not all of them will be applicable in every case, a point that will be returned to below.

1.  The identity of the judge.  Judge Fullam was also the judge who entered a judgment of not guilty after the jury returned a guilty verdict in one of the Abscam cases.  (Abscam, for those of you born yesterday, is described here.)  How many judges get the opportunity to take not just one but two high-profile public corruption cases from the lamentable proles who serve on federal juries?  Then, too, it's not altogether surprising that a high-status elderly man from Philadelphian (no, not the Bruce Springsteen Philadelphia, I mean the Katherine Hepburn one, from a world in which mainline is spelled as two capitalized words, neither of which has the least connection to needle exchanges) would have a deep regard for the Du Ponts.  The judge himself indicated that he believed (or at least was willing to accept) the testimony of Freebery's "benefactress", that the $2.3 million was just a friendly gesture, like sending a handwritten note on a tasteful card from the Museum of Art gift shop.

Various comments to this blog, including Jay Macke's comments to post 149, make the same point in different ways.  Some judges are biased, as Macke suggests.  Others, we know, are corrupt.  Others are so dumb they think they're more intelligent than everyone else, and take every opportunity to prove it (although "it" is never what they think they're proving).  Some of those who have practiced for a long time in a field with clearly-defined sides, like tort or criminal law ("there's no such thing as an ex-prosecutor," one of my colleagues says, "there's only defense lawyers"), keep fighting for their clients from their new position of power.  Others try so hard to avoid even the impression of bias that their rulings against their former colleagues become sadly/laughably predictable.  Some have ideological axes to grind, a few have political scores to settles, and it's a cold person who isn't influenced to some degree by feelings for individual lawyers involved in a case.

Now, in Judge Fullam's case ...  Well, I'll just pause right here to let you complete that sentence.  I'd sure hate to be sued for libel in a Delaware court.  The case would probably be assigned to Judge Farnan.

2.  The demographics of the defendant.  The more the defendant resembles the judge, the likelier it is that the judge will rule in the defendant's favor.  Freebery and her white, male co-defendant were powerful figures in the political establishment of the Delaware River.   Offenses that are regularly committed by people who share the demographics of your average judge tend to be treated leniently.  That's one of the reasons DWI is so hard to prosecute.

3.  The demographics of the victim.  The less the victim resembles the judge, the less seriously the offense is taken.  That's why rape cases were treated with such contempt by American judges for so long (see post 139), and why judicial "liberals" are hostile to the prosecution of violent crimes, the victims of which are overwhelmingly the disadvantaged.  (See post 148 and post 3.)  In the Freebery case, there's really no victim at all, merely an abstract mass of citizenry living in a different state than the judge.

4.  The merits of the case.

Now, many judges will, in many cases, jump right to # 4.  I don't mean to imply that any of the first three factors will always outweigh the fourth.  Far from it.  But the Third Circuit's flip of Judge Fullam's ruling provides some reason to believe that sometimes they do.