An attorney who represented former Illinois Gov. George H. Ryan in a bid to overturn his corruption conviction contends his client was the victim of lies told by Judge Frank H. Easterbrook of the 7th U.S. Circuit Court of Appeals.
In a law review article posted online last week, Albert W. Alschuler blasted Easterbrook’s use of “wildly inaccurate, made-up statements” as well as his “abusive demeanor on the bench.”
Easterbrook made eight falsehoods in court and in written opinions issued in Ryan’s unsuccessful collateral attack on his mail fraud and racketeering convictions, Alschuler alleged.
“By falsehoods, I do not mean minor misunderstandings or misinterpretations; I mean whoppers,” he wrote in an article published Thursday on the Valparaiso University Law Review’s website.
Alschuler also suggested Easterbrook’s appointment to the panel that heard Ryan’s collateral attack was not the result of a random assignment.
And Alschuler contended that Ryan, who has served his sentence, deserves a pardon.
“In my fantasy world, Judge Easterbrook himself might recognize that his work in Ryan’s case was imperfect, and he might write the president to support a pardon,” he wrote.
He wrote he wishes such a request would be supported by the jurists who served on the panel with Easterbrook, now-Chief Judge Diane P. Wood and now-retired judge John Daniel Tinder.
“But I know that the odds of such judicial redemption in the real world are probably negligible,” he wrote.
Noting the 7th Circuit upheld Ryan’s conviction and 6½-year sentence, Alschuler conceded his accusations could be viewed as sour grapes.
“To the charge of being a sore loser and a crybaby, I plead guilty,” he wrote. “I think that lawyers should be sore losers and whiners when judges cheat.”
In separate e-mails, both Easterbrook and Wood declined to comment.
Both judges wrote that the 7th Circuit’s opinions “speak for themselves.”
Tinder could not be reached for comment.
Alschuler, who is retired, previously taught at the University of Chicago Law School and Northwestern University School of Law. He now lives in Maine.
In a telephone interview, Alschuler said his article is aimed at Easterbrook’s colleagues on the bench.
“The primary audience is the other judges of the 7th Circuit,” he said. “They need to recognize that Judge Easterbrook’s actions pose a problem for the court and they need to rein him in.”
In 2006, a federal jury in U.S. District Judge Rebecca R. Pallmeyer’s court found Ryan guilty of 18 counts stemming from actions he took as Illinois secretary of state and later as governor.
Ryan was accused of steering state contracts and leases to people who reciprocated with benefits for Ryan and his family and close friends.
Ryan also was accused of siphoning money out of his campaign fund and of misusing taxpayer dollars and the services of state employees.
And he was accused of hiding his involvement in wrongdoing by lying to federal agents.
Co-defendant Larry E. Warner, a Chicago lobbyist and longtime friend of Ryan, was found guilty of 12 counts.
He was accused of funneling cash to Ryan that had been collected from state vendors and landlords.
In 2007, the 7th Circuit upheld Ryan’s and Warner’s convictions in a 2-1 vote. Wood and Judge Daniel A. Manion joined in the majority opinion; Judge Michael S. Kanne wrote a dissent.
Over the objections of Kanne and two other judges, the full court denied Ryan and Warner’s motion for a rehearing en banc.
Ryan then filed a habeas petition under 28 U.S.C. Section 2255.
He did not challenge his conviction on charges of tax fraud and making false statements.
But he argued his conviction on racketeering conspiracy and mail fraud charges was invalid under Skilling v. United States, 130 S. Ct. 2896 (2010).
In Skilling, the U.S. Supreme Court held the “honest services” provision of the mail fraud statute, which makes it a crime to deprive another of the intangible right to honest services, applies only to bribery and kickback schemes.
Ryan argued prosecutors failed to prove he took a bribe.
After Pallmeyer dismissed the habeas petition, Easterbrook, Wood and Tinder heard arguments in Ryan’s appeal.
In his article, Alschuler alleged the case was assigned to this new panel even though the panel that hears a direct appeal “ordinarily hears any appeal growing out of a post-conviction proceeding.”
Alschuler suggested then-Chief Judge Easterbrook might have discouraged two of the judges who served on the original panel — Manion and Kanne — from continuing with the case.
And he suggested Easterbrook might have indicated he was available to take a spot on the panel when Manion and Kanne backed out.
Circuit Executive Collins T. Fitzpatrick rejected Alschuler’s suggestions.
Panel members are chosen at random, he said, except when someone is unable to serve at the last minute.
In that situation, he searches for a judge who is available to take his or her colleague’s place, Fitzpatrick said.
“Judges do not get to ask to sit on particular cases,” he said. “And every time that’s occurred, the answer’s been ‘no.’”
The 7th Circuit, in an opinion written by Easterbrook, affirmed the dismissal of Ryan’s habeas petition in 2011. Ryan v. United States, 645 F.3d 913 (7th Cir. 2011), vacated and remanded, 132 S. Ct. 2099 (2012).
The U.S. Supreme Court sent the case back to the 7th Circuit to reconsider its holding in light of Wood v. Milyard, 132 U.S. 1826 (2012).
In Wood, the high court held that a federal appeals court considering a Section 2255 petition may not raise an argument on its own initiative that the government deliberately waived.
The high court also held that a federal appeals court may raise an argument that the government inadvertently forfeited only in “extraordinary circumstances.”
In 2012, the 7th Circuit panel again ruled in favor of the government. Ryan v. United States, 688 F.3d 845 (7th Cir. 2012).
In his article, Alschuler noted that the first opinion written by Easterbrook held that Ryan was blocked from challenging the jury instructions concerning the honest services allegations.
That opinion ignored the fact that prosecutors expressly waived any argument that Ryan had forfeited his objections to those instructions, Alschuler contended.
Easterbrook also failed to mention, he continued, “that Ryan had objected to these instructions at every state of the proceedings.”
In the second opinion, Alschuler wrote, Easterbrook “announced that the court would refuse to review four of Ryan’s mail fraud convictions at all” because those sentences had expired.
But the sentences had not expired and, even if they had, the panel had no justification for refusing to review the convictions, Alschuler argued.
In both opinions, he contended, Easterbrook made rulings prosecutors had not sought.
And Easterbrook gave Ryan’s attorneys no chance to address the issues he addressed, Alschuler argued.
“Judge Easterbrook is a stickler for rules who breaks the rules,” he wrote. “The other judges of the Seventh Circuit should enforce the rules, respect the basic principles of the adversary system and check Judge Easterbrook’s penchant for confabulation.”
Andrea D. Lyon, now dean of Valparaiso University Law School, represented Ryan at trial and on appeal.
“Professor Alschuler’s analysis of this case is a passionate representation of his legal experiences on this case,” she wrote in an e-mail, “and a defense of maintaining the highest levels of judicial conduct to prevent injustice.”