October 19, 2004

Acquittal by judge draws criticism

U.S. District Judge Joseph Tauro (D.Mass.) is being attacked for granting a defense motion pursuant to Fed.R.Crim.P. 29 at the close of the government's case in chief in a money laundering case against a lawyer.

The Boston Globe article cites prosecutors' and former prosecutors' complaints about D.Mass. Judges granting Rule 29 motions too frequently. But the article does not discuss the facts of the case, or whether there was sufficient evidence on all elements of the charged offense to let the case go to the jury. Nor is there any input from defense attorneys, which may have offered a more balanced view to prosecutors' knee-jerk reaction.

Thus, it is impossible for us to comment on whether the judge acted correctly in the specific case. However, anyone practicing criminal law before the federal courts knows that there are very, very few cases that actually go to trial. This is so because in most cases the evidence is overwhelming, and defendants seek to cut their losses. Of the few cases that do go to trial, the government wins a huge portion of these as well. However, it should not be surprising to anyone that a few defendants do go to trial because they understand -after consulting with their attorneys- that the government does not have sufficient evidence on all elements of the offense. Even then, almost all cases tried do manage to get past defendants' motions for acquittal and to jury verdict, and this happens even when a properly grounded Rule 29 motion should have been granted by the Court. Each and every reversal on insufficiency of evidence grounds is precisely an appellate court telling the prosecutors that the evidence was lacking, insufficient, on at least one element of the offense charged, and telling the court that it should have granted the Rule 29 motion made by the defense. Would the Boston Globe care to publish how many federal cases get reversed annually on such grounds?

We also take issue (and this is rare) with Professor Douglas Berman's guarded speculation at Sentencing Law & Policy that Judge Tauro "might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted." While Professor Berman calls this speculation on his part, we think it would have been better left unsaid. It just feeds -without any basis in fact- into prosecutorial claims of judicial abuse. Haven't we had enough Feeney Amendments?

Update: Professor Berman has referenced our post as an update to his post linked to above, but argues that our comment to the effect that his comments as to speculating as to whether the harsh penalties the defendant would have faced may have caused Judge Tauro to grant the motion for acquittal "would have been better left unsaid" is contrary to "[his] strong commitment to transparency (discussed here) [which] entails that few if any points will be 'left unsaid' on this blog." I have no problem with transparency, and am wholeheartedly in favor of it. However, I still feel that, without even knowing what the penalties were or the evidence in the case was, the speculation as to what may have prompted the Judge's actions are not proper. So, we respectfully dissent from Professor Berman's views on this one without more facts. Yes, the facts do matter.