Decision-making at the Second Circuit: Judges Barrington D. Parker, Jr. and Robert D. Sack.

• Author: Shifton, Christina L.

1. INTRODUCTION

   This article seeks to empirically examine the voting patterns of two judges, Judge Barrington D. Parker, Jr. and Judge Robert D. Sack of the United States Court of Appeals for the Second Circuit. These judges were selected for inclusion in this issue of New York Appeals because their opinions evidenced a clear pattern of protecting a defendant or petitioner against the power of the state. Examining judicial decision-making helps to illuminate the priorities of judges that underlie their decisions. Particularly with regard to appeals, there is often a disagreement about the outcome and there are frequently strong arguments and case law in support of both positions. The way a judge votes can thus be analyzed over time to reveal patterns.

   First, this article will examine the background of the judges. (1) Second, the dissenting opinions authored by the judges over the past five years will be examined in detail. (2) Next, this article will examine the voting patterns in the majority opinions the judges authored. (3) Finally, this paper will conclude with a discussion of the themes and patterns which have emerged from the study. (4)

2. BIOGRAPHIES

   1. Judge Parker Judge Parker was born and raised in Washington, D.C. (5) His father, Barrington D. Parker, Sr., was a federal district court judge for the District of Columbia from 1969 to 1993. (6) Judge Parker attended Yale for both undergraduate and law school. (7) He received his Bachelor of Arts degree in 1965 and his Bachelor of Laws (8) ("LL.B.") in 1969. (9)

      After law school, Judge Parker began his legal career clerking for Judge Aubrey E. Robinson, Jr. of the District Court for the District of Columbia. (10) Following his clerkship, Judge Parker worked in private practice for approximately twenty-three years in New York City with Sullivan & Cromwell, Parker Auspitz Neesemann & Delehanty, P.C., and Morrison & Foerster. (11) Judge Parker's practice focused on general commercial litigation. (12)

      In 1994, President Clinton appointed Judge Parker to the District Court for the Southern District of New York. (13) He served there until 2001 when President Bush elevated Judge Parker to the Second Circuit Court of Appeals. (14) Judge Parker took senior status in 2009. (15)

   2. Judge Sack

      Judge Sack's legal career followed much the same path as Judge Parker's. He graduated from the University of Rochester in 1960 and Columbia Law School in 1963. (16) Following law school, Judge Sack clerked for Judge Arthur S. Lane at the District Court for the District of New Jersey. (17)

      Judge Sack spent approximately thirty-three years in private practice in New York City as an associate and partner with Patterson, Belknap, Webb & Tyler and a partner with Gibson, Dunn & Crutcher. (18) Judge Sack's practice focused on national and international press law. (19) Judge Sack also "served as a Senior Associate Special Counsel to the United States House of Representatives Impeachment Inquiry Staff' in 1974. (20)

      Judge Sack has authored and co-authored a number of texts on press law including Sack on Defamation: Libel, Slander, and Related Problems, (21) Advertising and Commercial Speech: A First Amendment Guide, (22) and Protection of Opinion Under the First Amendment: Reflections on Alfred Hill: "Defamation and Privacy Under the First Amendment." (23)

      Judge Sack was appointed to the Second Circuit by President Clinton in 1998. (24) He was "awarded the Federal Bar Council's Learned Hand Medal for excellence in federal jurisprudence" on May 1, 2008. (25) He took senior status on August 6, 2009. (26)

3. DECISIONS

   A central focus of this paper is Judge Parker's and Judge Sack's dissents. A dissent is a very illuminating piece of writing in that it is a public proclamation that the judge disagrees with the majority of the courts On the Second Circuit, unless it is an en banc dissent, a written dissent is a lone opinion which shows that the judge disagreed with the other members of the panel. (28) A dissent is never mandatory. The decision to write a dissent in any particular case is a personal decision where the judge disagrees strongly enough with the majority to go public with his concerns. At the Second Circuit, a dissent in a panel opinion may help to encourage an en banc review of the case to help to overturn the decision or to strengthen the case for certiorari at the Supreme Court. In any case, a dissent is personal and therefore very informative about a judge's motivations and priorities.

   Neither Judge Parker nor Judge Sack writes a large number of dissents. Part of this may be due to the fact that there are only three judges on a panel. (29) Thus, if one other judge rules the same way, that opinion becomes the majority. This article will focus on the dissenting and majority opinions authored by Judge Parker and Judge Sack. After examining the dissenting opinions, the voting pattern in the majority opinions will help give more insight into the priorities of each judge. These opinions will tell us, in their own words, what these judges thought was the correct resolution of the case. After examining these opinions, some themes and similarities will become apparent. (30)

   1. Judge Parker's Dissenting Opinions

      Judge Parker dissented four times between August 1, 2006 and October 1, 2011. (31) In these four cases, Judge Parker felt the majority's holding was wrong enough to go public in his disagreement with the resolution of the case.

      1. United States v. Gupta

         In United States v. Gupta, the defendant was convicted in the Southern District of New York of immigration fraud. (32) During voir dire of the jury pool, the defendant's brother and girlfriend had been excluded from the courtroom because of a lack of space and to ensure that the jury pool would not be tainted by hearing any information about the case from the public. (33) The defendant argued that the exclusion of these people violated his right to a public trial guaranteed by the Sixth Amendment and thus required the overturning of his conviction. (34) The majority of the court found that the reasons the judge had excluded the family members from voir dire were insufficient to justify closing the courtroom under Waller v. Georgia. (35) Based on the triviality exception espoused in Gibbons v. Savage, the court found that while the exclusion of family members violated the right to a public trial, it was too small of an incursion and "did not subvert the values underlying the Sixth Amendment's public trial guarantee." (36)

         Judge Parker dissented, noting that the exclusion of the defendant's brother and girlfriend was for the entire voir dire process, while the exclusion that had occurred in Gibbons was for merely one afternoon of venire. (37) Judge Parker noted that precedent recognized that jury selection "has presumptively been a public process" to '"[assure] those not attending trials that others were able to observe the proceedings and enhanced public confidence."' (38) A "violation of the right to a public trial is a 'structural' error" and thus "renders a criminal trial fundamentally unfair and 'requires automatic reversal."' (39) Judge Parker reviewed the precedents and concluded that the triviality exception utilized by the majority was inapplicable to this case because "[a] trial judge's undisclosed exclusion of the public from jury selection, without the knowledge or assent of the accused or the lawyers, seriously undermines the basic fairness of a criminal trial and the appearance of fairness so essential to public confidence in the system." (40) Judge Parker closed his opinion by noting that, in his view, the case was not even close and he "hope[d] that it be[camel the subject of certiorari." (41)

      2. United States v. Johnson

         In United States v. Johnson, the defendant was convicted of being a felon in possession of a firearm. (42) The question on appeal was whether one of the defendant's prior convictions, namely for "rioting at a correctional institution," (43) qualified as a "violent felony," thus making him eligible for sentencing under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. [section] 924(e)(2)(B). (44) The majority looked at the Connecticut statute categorically and '"examine[d] it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." (45) Using this approach, the majority found that the statute was not a strict liability crime and thus included "the purposeful conduct required by Begay [v. United States]." (46) The majority noted that rioting is typically aggressive and violent and thus satisfied the definition required under the ACCA. (47)

         Judge Parker dissented on the basis that the Connecticut statute in question "criminalizes much more than rioting." (48) He argued that because conduct which is not inherently violent or aggressive could be the basis of the conviction, it was inappropriate to categorically define a conviction under the Connecticut statute as a crime of violence under the ACCA. (49) Judge Parker advocated for using a case-by-case approach to examine the actual conduct underlying the conviction in order to determine whether the conviction fell within the enumerated categories of violent crimes as outlined in the ACCA. (50) Judge Parker concluded by saying that "[b]efore we require defendants like Johnson to spend at least five extra years in prison ... I would remand and require the government to establish the type of conduct that led to the conviction." (51)

      3. Jenkins v. Greene

         In Jenkins v. Greene, the defendant was convicted of assault in the New York State courts and sentenced to fifty years. (52) After exhausting his state appeals, he sought state habeas corpus relief on the basis of ineffective assistance of counsel, claiming that his attorney had not accurately told him the length of sentence he was facing and, if he had been given that information, he would have accepted a plea...