Legal Ethics

Kinder, gentler 2nd Circuit softens Scheindlin criticism, but sticks with removal order

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The federal appeals court that booted Judge Shira Scheindlin from a stop-and-frisk case is softening its criticism of her actions in the case.

The New York-based 2nd U.S. Circuit Court of Appeals clarified on Wednesday that the “long-serving and distinguished jurist” committed no misconduct, though the panel still believes she failed to maintain an appearance of impartiality.

“We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct,” the court said in its new opinion (PDF), “and we do not find that there was any judicial misconduct or violation of any ethical duty.”

But in a second opinion (PDF), also issued on Wednesday, the court denied Scheindlin’s motion to appear before the court and defend herself. The opinion keeps Scheindlin off the case. The Wall Street Journal Law Blog (sub. req.), Politico, the Associated Press and the New York Times have stories.

The second opinion said there is no procedural mechanism that allows a judge to challenge her removal. Scheindlin’s brief challenging her removal said she was “completely blindsided” by the sua sponte ouster.

Two weeks ago the same 2nd Circuit panel removed the judge from the challenge to New York City’s stop-and-frisk policy, saying she “ran afoul” of legal ethics rules for judges.

The new opinion still maintains that Scheindlin created an appearance of partiality through two actions. The first was giving media interviews while the case was pending in which she described herself as skeptical of law enforcement. Though she didn’t specifically discuss the case, “such situations can get out of the control,” the court said. As an example, the appeals court cited a New Yorker story in which a former law clerk said the judge “thinks cops lie.”

The second problem, the court said, was Scheindlin’s use of the related-case doctrine to get the case assigned to herself. Scheindlin had suggested to lawyers in a prior racial-profiling case that they could file the stop-and-frisk challenge and mark the case as “related,” which would result in the case being assigned to Scheindlin.

After the new case was filed, Scheindlin struck down the stop-and-frisk tactics by New York City police in an August opinion that required a monitor to oversee changes.

Still pending is a request filed Monday by the stop-and-frisk plaintiffs to oust the panel judges who ousted Scheindlin. The plaintiffs are seeking en banc review of the removal order.

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