Legal Ethics

Stop-and-frisk judge fights her removal from case; brief says she was 'completely blindsided'


Judge Shira Scheindlin is fighting her ouster from the New York stop-and-frisk case with some help from a team of high-profile law professors.

In a brief (PDF) filed Wednesday on behalf of Scheindlin, New York University law professor Burt Neuborne claims the judge was “completely blindsided” when the New York-based 2nd U.S. Circuit Court of Appeals ordered her removal, the Wall Street Journal (sub. req.) reports.

The 2nd Circuit said in an Oct. 31 order that Scheindlin “ran afoul” of the judicial conduct code through her handling of the case. Scheindlin had ruled New York police violated the Constitution with their stop-and-frisk tactics.

Ruling on the removal issue sua sponte, the 2nd Circuit panel said Scheindlin had displayed an “appearance of partiality” by discussing the case when it was pending, and said she had improperly used the related-case doctrine to get the case assigned to herself.

The brief says the 2nd Circuit didn’t give Scheindlin a chance to defend herself, report the New York Times and the Associated Press. That failure “was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between district and circuit judges, it is an affront to the values underlying the Fifth Amendment’s guarantee of procedural due process of law,” wrote Neuborne, who is representing Scheindlin pro bono.

Also signing the brief were New York University law professors Norman Dorsen and Arthur Miller; Yale law professor Judith Resnik; and Frederick A. O. Schwarz Jr., chief counsel at the Brennan Center for Justice at New York University’s law school.

The motion asks the 2nd Circuit to vacate the removal order or to grant en banc review.

Scheindlin had issued a statement after her removal saying she did not comment on the case in the media interviews, and she properly presided over the case because it was related to previous litigation before her.

Prior coverage of related-case issue:

Hercules and the Umpire: “A Cheap Shot”

New York Times: “Court Blocks Stop-and-Frisk Changes for New York Police”

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