This is no case for a judge who could be pushing 94 by the time a jury is selected.
This is no case for a judge who could be pushing 94 by the time a jury is selected.
O n Monday, I noted that the criminal narcotics case against Nicolás Maduro and his wife, Cilia Flores de Maduro, had been assigned to an elderly jurist in Manhattan federal court, the Southern District of New York (SDNY). That’s a problem.
Judge Alvin Hellerstein was appointed to the bench by President Clinton in 1998 (a year before Maduro’s patron, the late Hugo Chávez, was elected by a slim margin and began seizing control of Venezuela). The judge is now 92 years old.
Fifteen years ago, he took senior status, which is sometimes in the judicial context referred to as “semi-retirement” because it means a reduced caseload. But 92 is very old. In the judicial context, there are many useful things someone of Judge Hellerstein’s experience, accomplishment, and energy could do at his age, and no one is claiming he lacks acumen. But a person at his age simply should not be assigned to preside over a case that would be a tough grind even for a considerably younger judge.
In a New York Times op-ed yesterday, in which legal analyst Jeffrey Toobin urged Hellerstein to recuse himself, he noted that the judge last year dozed off multiple times during the six-week trial of Charlie Javice, who was eventually convicted of massively defrauding JPMorgan Chase. The lawyers for both sides conferred over what to do about these sleeping episodes. Ultimately, they did nothing.
That’s regrettable but not surprising.
A judge should withdraw, and otherwise be removed, if his capacity to preside fairly and effectively could reasonably be questioned. The most obvious grounds for disqualification involve bias: an inference of judicial animus or hostility, for or against one of the parties, due to some personal, associational, or financial tie. While not routine, bias-based recusal motions are far from unheard-of. Because the issue of judicial fitness focuses on not just the fairness but the integrity of court proceedings, age can also be a rationale for seeking recusal: All of us are subject to the natural slippage it causes, which only gets worse as time passes. Yet no lawyer is anxious to raise age as a reason for removing the presiding judge.
In the federal system, there is no mandatory retirement age for judges — or even a requirement that they take senior status (although most do). Essentially, then, our law leaves it up to judges to decide whether they are up to the task.
In the first instance, a recusal application must be made to the very judge whom the litigant is seeking to remove. When a party’s lawyer seeks to remove a judge because of implied bias, a good judge will not take it personally: The legal test is not whether there is actual bias, just whether there is an appearance of bias that could undermine the integrity of the proceedings. Most judges understand that, if there is some troublesome tie between the presiding judge and a party, even if it is attenuated, the lawyer is dutybound to raise it. By contrast, an objection based on age implies that the lawyer is pronouncing the judge incompetent. Judges would not continue to serve as they age unless they deemed themselves competent and capable, so they are apt to be offended by any suggestion that they are not.
No lawyer wants resentment from the bench to redound to the client’s detriment. Emerson’s axiom, “When you strike the king, you must kill him,” sums up a litigant’s wariness about recusal applications: If you’re not absolutely sure you can convince the judge to withdraw, you don’t risk the ruinous downsides of making the motion. Experienced litigators can attest that there are a million ways a peeved judge can hurt your case, including your standing with the jury, without taking actions that could be grounds for reversal on appeal.
I will tell you this, though, from personal experience. There is no grind in litigation quite like a criminal case in which (a) the political stakes are high; (b) the charges involve a historical conspiracy stretching back many years that will take months to prove; (c) the main action in the case takes place in foreign countries — including some hostile to the United States — where the writ of American courts does not run, where American law enforcement agencies are powerless, and where it can be difficult (to put it mildly) to compel the production of physical evidence and testimony; (d) the vast majority of the evidence is in a foreign language (such that it must be translated into English, which takes lots of time and involves extensive disputes about meaning and nuance); and (e) some portion of the evidence is bound to involved classified information, which, as we’ve discussed before (see, e.g., here and here), triggers a complex process (under CIPA, the Classified Information Procedure Act) to determine questions of access and admissibility (a process that can be extraordinarily lengthy because pretrial appeals are permitted).
The Maduro prosecution is shaping up to be exactly this kind of trial. Indeed, the matter is so complex that, at Monday’s arraignment, Judge Hellerstein did not even set a schedule for pretrial proceedings. That’s not going to happen until March 17, more than two months from now. Mind you, nothing of substance will happen even then. Rather, there will be a plan to make a plan once the dust settles from the immense amount of discovery the case entails — under circumstances in which the defendants are in pretrial detention, so special security arrangements must be made to allow them, under our generous due process rules, to review materials that the government discloses.
The way things work at the Justice Department these days ––with Main Justice lawyers routinely joining assistant U.S. attorneys in the trial district (here, the SDNY) to prosecute cases — I would expect the government to be represented by at least five prosecutors, perhaps more. The defense will match or exceed that staffing level. This is because of how demanding this case will be, in time and effort: long days of work well into the night, long weeks often without weekends off. It is reasonable to believe that the matter will not be tried until sometime in 2027, and that the trial will take three or four months, if not more.
As I’ve observed before, when the Constitution was ratified in the late 18th century, life expectancy in the U.S. was about half of the slightly over 78 years it stands at today. This can be misleading because average age at death was brought down by high infant and child mortality rates — people who made it to adulthood often lived into their sixties. (John Adams lived to be 90.) Still, because old age was not the commonality that it is today, the Framers concerned themselves with minimum age requirements for public office, not maxima. And for judges, unlike presidents, senators, and representatives, there has never even been a minimum age mandate.
To my mind (as I approach 67), we have to give careful thought to maximum age standards for federal officials. If Hellerstein were a state judge in Manhattan, he would’ve been required to retire at 70 — i.e., 22 years ago. Maybe that’s too young (the state allows some superior court judges to serve until they are 76, and there have been legislative efforts to make that the maximum age for all New York state judges), but it’s not unreasonable and it recognizes that aging diminishes performance in tough jobs of great public importance.
At the very least, we should acknowledge why the federal judiciary has long permitted aging judges to shift to part-time work — senior status. Implicit in this accommodation is the remorseless fact that, while elderly jurists can make meaningful contributions, reduced workloads are appropriate and some withering assignments should be avoided.
Whatever the standards should be, and whatever exceptions we might make for special people who continue functioning at a high level as they age, the Maduro prosecution is no case for a 92-year-old judge who could be pushing 94 by the time a jury is selected. I hope Judge Hellerstein takes it on himself to recuse. There’s plenty he can still do, but he ought to let this one pass.