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  2. Ryan v. U.S. (“Alschuler v. Easterbrook”)

Ryan v. U.S. (“Alschuler v. Easterbrook”)

Ryan v. U.S. ⸻ Story │ Record │ Discussion
Governor George Ryan
Governor George H. Ryan
Judge Rebecca Pallmeyer
Judge Rebecca R. Pallmeyer
Judge Daniel Manion
Judge Daniel A. Manion
Judge Michael Kanne
Judge Michael S. Kanne
Judge Diane Wood
Judge Diane P. Wood
Judge Diane Wood
Judge Diane P. Wood
Judge Frank Easterbrook
Judge Frank H. Easterbrook
Judge John Tinder
Judge John D. Tinder
Prof. Albert Alschuler
Prof. Albert W. Alschuler
Prof. Al Alschuler
Prof. Albert W. Alschuler

How Frank Easterbrook Kept George Ryan in Prison

In July 2016, the Valparaiso University Law Review published an extraordinary/notorious/blockbuster article (styled a “Memoir”), written by a respected professor of law, Albert Alschuler,α telling the story of how a “renowned” (though perhaps not necessarily “respected”) judge, Frank Easterbrook of the 7th Federal Cir. Court of Appeals (and, incidentally, a colleague of Alschuler’s at U. Chicago), committed Judicial Misconduct from the bench, with the biased/illicit/illegal goal of keeping George Ryan (former governor of Illinois) in prison. (The nature of the civil/appellate action, based upon 28 USC §2255, was to vacate part of — namely, the part about the “honest services” clause, 18 USC §1346, of the mail fraud statute which was later invalidated by the case of Skilling v. U.S., and hence the RICO charges predicated upon it — Ryan’s prior criminal conviction/sentence; Alschuler was Ryan’s lead appellate attorney.)

α･ Prof. Alschuler’s academic credentials can be found online (University of Chicago ⌥; Northwestern University ⌥). As a broad-brush generalization, it can be said that Alschuler’s academic/professional interest/expertise lies in the direction of post-conviction criminal law, as evinced in the Ryan v. U.S. case analyzed in this place; see also, for example, his Amicus Curiae briefs, filed in the cases of Weyhrauch v. U.S. ⌥, and of Class v. U.S. ⌥.

Publication of the Memoir amounted to a “scandalous”/“tell-all” exposé, breaking the legal profession’s “code of silence” (but upholding its “code of ethics”!) regarding corrupt/criminal judges who commit obstruction of justice. The combination of the Memoir’s impeccable provenance from an unimpeachable source (knowledgeable/academic, not “mere/emotional sour grapes”), excruciating detail (fully documented), masterful presentation, and the fact that all the Memoir’s claims of Judicial Misconduct had already been made previously in legal briefs/petitions to the Appellate/Supreme courts reviewing the Ryan v. U.S. matter (but ignored by those courts), caused a major convulsion, reverberating throughout the American legal establishment (which unfortunately, though unrebutted to date, has not yet led to measurable reform in the judicial system [though that process has now been started, via Judicial Misconduct proceedings, see infra]):

The case of Ryan v. U.S. (a.k.a. “Alschuler v. Easterbrook”) represents, rather certainly, the leading instance/object-lesson of Judicial Misconduct on recordβ (though it wasn’t formally/officially prosecuted as a case of Judicial Misconduct per se — until now, see infra). Alschuler’s Memoir “speaks for itself,” is exhaustive, and cannot be bettered.γ For that reason, we do no more in this place than offer a convenient repository for case documents, advertising/facilitating/urging readers to study this case.

β･ ⁠Perhaps the most notable previous fusillade, by professor Anthony D’Amato ⌥, also targeted Judge Easterbrook: (i) Chicago Tribune, John Branion Story ⌥; (ii) Illinois v. Branion (1970) ⌥; (iii) Branion v. Gramly, 855 F.2d 1256 (7th Cir 1988) ⌥; (iv) Chicago Tribune (1988) ⌥; (v) New York Times (1989) ⌥; (vi) 11 Cardozo L. Rev. 1313 (Jul/Aug 1990) ⌥; (vii) 26 U. C. Davis L. Rev. ℘527–582 (1992–93) ⌥.

γ･ ⁠Well, there is one minor sense in which this case may be considered “deficient” (if that’s the best term), namely, it’s a “lawyer’s case,” that is, it’s full of low-level technical/legalistic twists-and-turns, that only a lawyer can fully appreciate (Alschuler himself admits as much, in his Memoir at ℘19). By contrast, Tuvell v. IBM is a high-level model of layperson-friendly simplicity, hence more suitable as a “perfect test-case” of Judicial Misconduct. The dates given in the following list are end-dates (for example, end-of-trial).

Complaint(s) of Judicial Misconduct

On Jul 13 2017, a Complaint of Judicial Misconduct against Easterbrook was formally filed with the Seventh Circuit Judicial Council (see the 7th Cir. Judicial Misconduct webpage), based on Alschuler’s Memoir (in conjunction with this website).δ

δ･ Note that anybody has “standing” to file a Judicial Misconduct Complaint, against any Federal judge (regardless of jurisdiction or any other consideration, such as statute of limitations, JCDR 9): “A complaint … is filed by any person in his or her individual capacity or on behalf of a professional organization …” (JCDR 3(c)(i)). The only significant “Catch-22” is that a complaint will be dismissed pro forma if the judge is not currently in service (see JCDR 4); this is how Judge Alex Kozinski “beat the rap” against him (for sexual misconduct): he resigned immediately after the complaint against him had been filed, but before it could be reviewed/processed (Accusation ⌥; Ninth Circuit Order ⌥; Reassignment ⌥; Supreme Court Transfer Order ⌥; Inaction ⌥; Dismissal ⌥; Dismissal Order ⌥; Judicial Conference Referral).

More than 7 months later, the Judicial Council still(!) hadn’t acknowledged the receipt/filing of the Complaint, even though the Complaint had indeed been delivered (provably so, according to the U.S. Post Office’s Proof of Service), and acknowledgement of receipt by the court clerk is required by law/rule, JCDR 8(a). Thereby, the clerk violated, not only (i) JCDR 8(a) (by failing to notify Complainant of receipt of the Complaint), but also (ii) statutory law 28 USC §351(c) (by failing to notify the judges of receipt of Complaint). That being the case, Complainant phoned the clerk’s office on Feb 27 2018 to check on the status of his Complaint, and recorded itε (audio, albeit rather low quality; transcript). The clerk (who refused to identify herself(!), or to transfer the call to her supervisor(!)) falsely denied the Complaint had been received! Instead, she “suggested” that Complainant re-submit the Complaint. So Complainant complied, re-submitting the Complaint on Feb 28 2018 (Proof of Service #2).

ε･ Recording one’s oral communications with others, including telephone conversations, is “historically generally frowned upon,” and there are many laws regulating it — though it’s not as bad as third-party covert (“0-party consent”) “wiretapping” interception (Federal Wiretap Act (a.k.a, Title III of the Electronic Communications and Privacy Act, ECPA), 18 USC §2510–2522, esp. §2511; and the Congressional Research Service Report on Electronic Privacy ⌥). There are exceptions to the laws, however, and times are changing. For example, some courts have held that such recordings are illegal only if accompanied by the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself (⌥ ⌥ ⌥). In particular, when self-recordings are made “in anticipation/expectation/purposes of uncovering/gathering/preserving evidence of illegal activity” (such as the illegally unprocessed filing) — and especially if the target of investigation is government officials conducting the usual course of their official duties, interacting with the public — then “all bets are off.”† And that was indeed the case here. The tactic succeeded: at the 09:02 mark of the transcript, the clerk voluntarily admitted that the Seventh Circuit clerk’s office, as part of its standard practice, secretly (without publishing notice of the practice, which is certainly a requirement,‡ and even more certainly so for pro se “customers”), consciously/knowingly/actively refuses to acknowledge receipt of complaint, and instead passively forces the Complainant to call the clerk’s office for confirmation of receipt. Thereby breaking the law/rule JCDR 8(a) (emphasis added): “Upon receiving a complaint against a judge …, the circuit clerk must open a file, assign a docket number according to a uniform numbering scheme promulgated by the Committee on Judicial Conduct and Disability, and acknowledge the complaint’s receipt.” {†・In this case (gathering evidence of crime), in addition to many jurisdictions having statutes legalizing recordings, the equities (“spirit/habit of fairness/justness/right-dealing which regulates intercourse amongst people” — Black’s Law Dictionary, 2nd ed., paraphrased; the “third leg of the law,” after statutory/legislated and common/court-made) are super-strongly in your favor. No prosecutor will prosecute, no jury will convict, no judge will uphold. Think 60 Minutes. Analogy: it’s OK to jaywalk if that’s what it takes to prevent a robbery. References: Digital Media Law Project (DMLP), Recording Phone Calls and Conversations ⌥ (noting the federal single-party-consent rule/law, 18 USC 2511(2)(d), this being a federal case), Recording Police Officers and Public Officials ⌥; Citizens’s Right to Monitor Government Officials, ⌥. Cases: Overturning Insane Recording Laws 1 ⌥ ⌥, Overturning Insane Recording Laws 2 ⌥, Overturning Insane Recording Laws 3 ⌥ (plus many more to come, such as this one ⌥ ⌥).} {‡・See Murphy, The Duty of the Government to Make the Law Known, Fordham Law Review, ʋ51 İ2 Å2 (1982) ⌥. See also the present writer’s essay on the Promulgation Clause, in his Petition for Rehearing to the Supreme Court.}

A month later, on Mar 28 2018, the Judicial Council finally did (i) acknowledge receipt of the (re-submitted) Easterbrook Complaint, and (ii) assigned it a case number (№07-18-90014), and simultaneously (iii) dismissed the Complaint.ζ

ζ･ Not surprisingly (given the general perfidy of the Seventh Circuit, as seen in the Ryan v. U.S. case reviewed here), that Dismissal falsely cited the date of the Complaint’s filing as Mar 7 2018; but that reflected the second filing date (actually, timestamped Feb 28 2018), instead of the correct first filing date of Jul 13 2017, as noted supra.

Judicial Council Review(s)

And so, in what had become by now a sadly familiar ritual (see Tuvell v. IBM Judicial Council Review), two responses were now in order (filed on May 9 2018, delivered on May 14 2018):

BUT … on May 14 2018, the Judicial Council rejected (refused to accept/file) the Petition for Review (of the Easterbrook Complaint), on the basis of (alleged) untimeliness: Rejection Letter (of Easterbrook Complaint).

“Normally,” one would think an out-of-time submission (as alleged here) would automatically be final/fatal, without recourse. But, this was not exactly a “normal" case. And so, this led to the next step: Judicial Conference Proceedings, infra (again paralleling Tuvell v. IBM Judicial Conference Review).

AND THEN … on May 18 2018, the Judicial Council (i) acknowledged receipt of the Wood Complaint, (ii) assigned it a case number (№07-18-90037), and simultaneously (iii) dismissed the Complaint.η

η･ The dismissal of the Wood Complaint was written by Judge Easterbrook himself! This was “more than a little curious,“ for two reasons: (i) Judge Easterbrook should have recused himself, because … obviously. (Easterbrook judging Wood judging Easterbrook⁇ Oh Come On, that's clear conflict-of-interest, calling for disqualification/recusal.) (ii) On a Complaint of Judicial Misconduct against the Chief Judge (in this case, Wood), a “designated acting chief judge” must be chosen/appointed for the “initial review of the Complaint by the (nominal-)‘chief judge’” (JCDR 25(f)) The order-of-choice for this appointment proceeds through the list of active-status judges, in descending order of seniority. In the present case, there were more-senior judges between Wood and Easterbrook: William J. Bauer (ineligible, because “senior-status,” hence not “active-status”), and Joel M. Flaum. So, Flaum “should” have reviewed the Wood Complaint. But he didn’t, deferring instead to Easterbrook. The “curious” thing about this is that, such kind of “irregularity” (non-algorithmic, preferential) in appointment/selection of judges to cases is precisely one of the bad-faith activities in the Seventh Circuit that Alschuler complains about in his Memoir (c. ℘38ƒ156)!

On Jun 21 2018, Petition for Review of the Wood Complaint was filed (with Annotated version of the Dismissal Order) ⌥ ⌥.θ It was, of course, denied on Aug 14. Without substantive opinion/comment, of course (i.e., typical continued cover-up).

θ･ This legally processed proof-of-receipt for the Jun 21 2018 filing is especially interesting, because it’s signed with the same signature as the illegally unprocessed proof-of-receipt for the Jul 13 2017 filing (but different than the signature on the legally processed proof-of-receipt for the Feb 28 2018 filing). Hmm, inquiring minds want to know just who this illegally-nonprocessing signature belongs to ?…

Judicial Conference Proceedings

On May 28 2018, Petition for Review by the Judicial Conference (of Easterbrook Complaint) was filed ⌥ ⌥ ⌥ ⌥ ⌥ ⌥ ⌥.

On Aug 29 2018, Petition for Review by the Judicial Conference (of Wood Complaint) was filed ⌥ ⌥ ⌥.

⌘TBD⌘