7th Cir. Skewers Judge Shadur Over Ex-Lawyer's Sentence, Remands Case to Another Judge
In a stinging rebuke to a federal judge who sentenced a well-known former Chicago lawyer and politician to probation in a corruption case, the 7th U.S. Circuit Court of Appeals today not only reversed the sentence but remanded the case to a different judge.
And, in an opinion (PDF) authored by Judge Richard Posner, the appeals court also offers U.S. District Judge Milton Shadur a lesson on the law and economics of real estate bid-rigging.
While the five-year probation term, 2,500 hours of community service and $50,000 fine imposed on defendant Edward Vrydolyak by Shadur was lenient, “our concern is not with the leniency of the defendant’s sentence as such but with procedural errors committed by the judge en route to the determination of the sentence,” writes Posner for the appellate panel majority.
For example, Shadur supported Vrydolyak’s light sentence by concluding that what Posner terms a “corrupt arrangement” by Vrydolyak and a Chicago Medical School trustee to split a secret $1.5 million fee hadn’t caused the institution any loss. The $1.5 million was to be paid by a company in exchange for their help in promoting its bid to purchase a piece of real estate owned by the medical school.
But in reaching this conclusion Shadur incorrectly refused to consider testimony about what other companies interested in the property would have done, if they hadn’t been prematurely shut out of the bidding process before they could up the ante on the purchase price, Posner writes.
Additionally, the winning bidder must have thought it was getting some kind of price break, Posner points out, or it wouldn’t have been willing to pay $1.5 million to rid the bidding. Given this evidence of some undetermined loss to the medical school, he writes, Shadur could and should have used the amount of the kickback as a measure of the institution’s loss as result of Vrydolyak’s conspiracy to commit mail and wire fraud, thus establishing a basis for a stiffer sentence.
“Ordinarily, we would stop here and remand for resentencing,” Posner states at the conclusion of this law-and-economics lesson, noting that federal judges have broad sentencing discretion. (The appeals court majority did not offer any specific suggestion about what Vrydolyak’s sentence should be.)
But because of “a cascade of errors and omissions” by Shadur in considering the appropriate sentence for Vrydolyak, a longtime influential Chicago alderman, “in fairness to the government, which is entitled to the same consideration as other litigants, the resentencing should be by a different judge,” Posner says—even though, he notes, the government did not request this.
Shadur did not focus on any evidence that put Vrydolak’s character in a bad light, such as the conspirators’ decision to evade taxes and “a history of ethical misconduct” by Vrydolyak, as a lawyer, to which “the judge without explanation gave negligible weight,” writes Posner. Meanwhile, Shadur gave “enormous weight to letters urging leniency for the defendant, while virtually ignoring the evidence that tugged the other way.”
In a lengthy dissent, Judge David Hamilton agrees that Shadur erred in the manner in which he calculated the sentence, but says the error was harmless. “The record shows an experience district judge considering a difficult case thoroughly and exercising his discretion reasonably … to craft a sentence to both fit the crime and the criminal,” he writes.
The 48 letters supporting Vrydolyak, for instance, are described by Shadur as an “extraordinary outpouring that’s not matched—at least in my recollection—in any other case that I have had [in my] coming up to be 29 years on the bench,” Hamilton points out, noting that Shadur initially, like many Chicagoans familiar with Vrydolyak’s negative portrayal in the media, took a jaded view of his purported good works.
Shadur’s one error—mistakenly calculating the loss to the medical school—was harmless, Hamilton says, and even the government did not challenge the reasonableness of his sentence.
