One can see why the court might have been frustrated by Judge Martini’s handling of that matter. Reviewing courts don’t like it when lower courts fail to follow instructions. From Judge Chagares’s opinion:
At the initial sentencing, the District Court granted [defendant Douglas] Kennedy’s motion for a new trial with respect to four counts of conviction. We reversed on appeal. On our limited remand for “re-sentencing only,” the District Court sua sponte found certain counts of conviction multiplicitous and vacated another count on the basis that its own jury charge was plainly erroneous.
C’mon, Judge Martini, who do you think you are? The Ninth Circuit?
We will vacate the District Court’s judgment, once again reinstate all counts of conviction, and remand for resentencing. Regrettably, we find it necessary to direct the Chief Judge of the United States District Court for the District of New Jersey to reassign this case, and all related matters, to a different district court judge on remand.
Judge Martini’s flouting of their mandate wasn’t the only thing that displeased the Third Circuit judges. They didn’t seem to like his treatment of the prosecutors, for example:
When a judge openly questions the integrity of the Government’s evidence collection practices, undermines the professionalism of the prosecutor, and accuses the Government of prosecuting in bad faith — all without evidence of governmental misconduct — a reasonable observer could very well find neutrality wanting in the proceedings.
Ya think? Seems like some diplomatic understatement from Judge Chagares (who’s known for being a very pleasant person to work for).
But wait, there’s more (citations omitted):
Other aspects of these proceedings are equally troubling. The Government points out that, at times, the District Court Judge’s conduct veered closer to that of a defense attorney than an impartial adjudicator. At trial, he questioned witnesses substantively to clarify matters left unaddressed by defense counsel. Before the jury rendered its verdict, he urged Kennedy to consider pleading guilty so as to avoid the 40-year mandatory sentence, an entreaty that was arguably problematic in light of the Federal Rules’ prohibition on judicial involvement in plea negotiations. Before the initial sentencing, he urged Kennedy to cooperate with the Government so as to release the court from its obligation to impose the mandatory sentence. At resentencing, he exhibited a willingness to raise arguments on behalf of Kennedy, even when Kennedy chose not to press those arguments and despite the fact that certain matters were beyond the scope of the mandate and the power of the court to remedy. And throughout the proceedings, he characterized the charges and sentence as “Draconian,” “excessive,” and “offensive.”
Wow. With a trial judge like that, who needs a defense lawyer?
Alas, unfortunately for Douglas Kennedy, Judge Martini won’t be able to help him now. On remand — once again, “for resentencing only” — a different district judge will be wielding the gavel.
When I first heard about the government taking affirmative appeals in which it asked to have Judge Martini bounced from two cases, I thought it sounded like an aggressive move — and an uphill climb. But if a district judge goes rogue enough, anything is possible. Kudos to U.S. Attorney Paul Fishman and to the AUSAs who worked on these cases — appeals chief Mark Coyne and line attorneys John Romano and Steven Sanders — for achieving these impressive wins.
Disclosure: I worked in the U.S. Attorney’s Office in New Jersey from 2003 to 2006.
United States v. Bergrin [U.S. Court of Appeals for the Third Circuit]
United States v. Kennedy [U.S. Court of Appeals for the Third Circuit]
U.S. Court of Appeals removes federal judge from two cases, including Paul Bergrin’s trial [Newark Star-Ledger]
Judge Is Taken Off Murder Case for Bias Toward the Defendant [Associated Press via New York Times]
Former Newark Mayor Is Sentenced to 27 Months [New York Times]
For 2 Titans of U.S. Court in Newark, Bad Blood [New York Times]