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Professor Alschuler Takes A Shot at Judge Easterbrook

This post does not discuss a legal malpractice issue but an issue of appropriate judicial conduct. Professor Alschuler represented former Governor George Ryan in several of his post-conviction appeals. He is an Emeritus Professor of the University of Chicago Law School and a distinguished scholar in the criminal justice field.

Professor Alschuler has written a memoir of his efforts to obtain post-conviction relief for George Ryan. Professor Alschuler argues that Judge Easterbrook has a pattern of abusing lawyers at oral argument and that Judge Easterbrook has a pattern of making up facts without consulting the record on appeal. He argues that many lawyers have been afraid to challenge Judge Easterbrook.

The article is a fascinating read and every practicing lawyer should read it before forming an opinion as to its merits.

Here is the abstract:

This lawyer’s memoir tells the story of my unsuccessful representation of former Illinois Governor George Ryan in the U.S. Court of Appeals for the Seventh Circuit. It describes how, in opinions authored by Judge Frank Easterbrook, the court made six rulings in favor of the government the government had not sought. All of these rulings were questionable or worse, and the court afforded Ryan no opportunity to address most of them until after Judge Easterbrook’s opinions had been published. In addition, the memoir documents eight falsehoods told by Judge Easterbrook in written opinions and statements from the bench. These falsehoods included statements that the trial court gave instructions it did not give, that both the defendant and the government made arguments they did not make, that litigants in the Supreme Court made arguments they did not make, that the defendant and the government waived or forfeited arguments they did not waive or forfeit, that the Supreme Court said things it did not say, and that several of the defendant’s sentences had expired when they had not expired. I note that Judge Easterbrook’s appearance on the panel that heard Ryan’s appeal was not the result of random assignment and show that the government played no part in producing his falsehoods.

http://ssrn.com/abstract=2814148

Everyone should read and consider this article. It does not appear that Professor Alschuler will face any professional discipline for publishing this article.

Edward X. Clinton, Jr.