CHICAGO _ Judge Frank H. Easterbrook of the U.S. Court of Appeals for the 7th Circuit in Chicago is considered one of the most distinguished of United States judges.
He is among the most cited of federal judges in the country, and the judge whom the late Justice Antonin Scalia once said publicly he hoped would replace him on the Supreme Court.
So it was no small matter when Albert W. Alschuler, himself a highly respected law professor, wrote in a law review, "Judge Easterbrook persistently presents wildly inaccurate, made-up statements as unquestionable statements of fact," adding, "The truth is not in him."
The rarity of Alschuler's attack underlined one of the facts of federal judges: once confirmed to lifetime appointments, the quality of their work is not subject to review except by their peers on the appellate court or by the Supreme Court. In the case of appeals courts like the 7th Circuit, the opinions are reviewed only in the rare instances when the Supreme Court takes up a case, or in the more unlikely event that a majority of the 7th Circuit judges vote to rehear a case as a group.
That led Injustice Watch to conduct the kind of review that judges like Easterbrook seldom _ if ever _ undergo. Were Alschuler's criticisms on target? And if the judge did those things in the case Alschuler had before him, did he do them in others?
The result: Injustice Watch documented a pattern of misrepresented facts in Easterbrook's opinions. Injustice Watch uncovered 17 cases since 2010 in which opinions authored by Easterbrook misstated the facts, omitted facts, or made assumptions that were contrary to the trial record.
In some cases, the misstatements only strengthened the court's ruling in favor of a party that seemed to have the better legal argument. In many cases, though, the errors seemed to play a significant role in the outcome.
An opinion authored by Easterbrook brushed aside one convicted murderer's challenge to his death sentence, which was based in part on the failure of his defense attorneys to present evidence that he had schizophrenia. Easterbrook wrote that the attorneys offered two specific reasons at a post-conviction hearing to explain their decision not to call an expert to the stand. But the transcript of that hearing shows that the lawyers gave no such explanation. Instead, they testified that they thought they had a reason for not having called the expert but couldn't remember what that reason was.
Easterbrook wrote an opinion refusing to let another prisoner challenge his death sentence on the basis of government records showing that the defendant had an intellectual disability before the crime occurred. The records of his mental state, Easterbrook wrote, were known to the defendant and his counsel long ago and could have been obtained sooner. But nothing in that record supported Easterbrook's conclusion.
In a third case, Easterbrook wrote in an opinion that there was not sufficient evidence to support holding two members of the Chicago Police Department responsible for events that led to the highly publicized rape of a mentally disturbed woman. The federal judge hearing the case, however, recited a cascade of evidence in the record before the panel that sharply contradicted the 7th Circuit's decision.
