Federal District Judge Gladys Kessler: Unwilling Unitary Executrix?

"I know it's a sad day when a federal judge has to ask a DOJ attorney this, but I'm asking you -- why should I believe them?" --Federal District Judge Gladys Kessler, March 2nd, 2006. (Washington Post, March 3rd, 2006)

Washington D.C.--With the recent shuttering of any due process in the pretrial proceedings of Deborah Jeane Palfrey (labeled the 'DC Madam' by a preemptively biased press), a brief overview of Judge Kessler's past rulings and judicial behaviors is in order. It should be remembered that Kessler was appointed by President Bill Clinton in 1994.

In all fairness, her rulings run-the-gamut, but she shows a great deal of deference towards the executive branch in general in a number of key decisions. Her most questionable rulings relate to the release of sensitive government documents, and Palfrey's case is no exception. Ironically, Kessler has repeatedly argued for disclosure in the Bush administration's execution of arrests and detentions in the storied 'war on terror, virtually from its inception.

The Bush administration contends that it cannot protect national security and also meet a judge's deadline to reveal names of those held in the investigation of the Sept. 11 terrorist attacks. U.S. District Judge Gladys Kessler ruled Aug. 2 that the Justice Department has not proven the need for a blanket policy of secrecy about more than 1,000 people picked up since the jetliner attacks. She gave the government 15 days to provide the names. ('Bush administration condemns order to release detainee names,' AP, 08.05.2002)

Judge Kessler applied no enforcement 'teeth' in the ruling to 'allow for appeal' by the government (the DOJ). But by June 17th of 2003, the Bush administration successfully appealed the limp ruling, and even utilized an aspect of its original logic by homing-in on FOIA-provisions that pushed the appeals decision in their favor. By all appearances, Kessler showed them the way through the FOIA-loophole door. In early-April 2003, she ruled predictably to quash a request to allow the release of documents surrounding Clinton's 177 pardons his last day as president:

Then, Tuesday the Bush Justice Department won a victory in federal court. It persuaded U.S. District Judge Gladys Kessler to stymie a request from the watchdog group Judicial Watch to release a batch of documents relating to former President Clinton's 177 "midnight pardons" issued on his last day in office. The fact that the Bush administration would go to court to protect the secrecy of the Clinton administration seems to validate the charge by Judicial Watch chairman Larry Klayman that the action was politically motivated - to keep the Bush administration from having potentially embarrassing documents made public after the current president leaves office. ('Obsessive Secrecy/Bush Administration Plays Politics With,' The Colorado Springs Gazette, 04.07.2003)

But Kessler has also ruled in favor of America's unions, forcing an injunction against new financial filing rules that would have cost all of them $1 billion-per-year due to new filing regulations pushed by Bush's then Labor Secretary Elaine Chao. Kessler's ruling is likely due to her time during the 1970s as a low-level employee of the National Labor Relations Board, and she appears to understand the concept of the public interest, which is commendable. But she has a strange way of applying it in other areas of law, and in other cases.

District Judge Kessler has displayed a consistency in this area of the common good, and could be applying this understanding to her rulings over Palfrey's motions for discovery and the calling of particular individuals for testimony: 'Is the public being served by this?' appears to be her primary concern in the majority of her rulings. But Kessler has also been known for backtracking on some of her decisions and her about-face and credulity towards the prosecution in the Palfrey case is not entirely in-character for her. Night is day when it comes to the case of the so-called 'DC Madam.' Nonetheless, the Wednesday ruling's language canceling the November 28th hearing over whether to end the temporary restraining order in Palfrey's civil case against Paula Neble is instructive--Kessler's contends that she's showing judicial independence and also applying the federal trial procedures (presumably dictated by Congress).

The answers might be related to the particulars of the case--facts not allowed to be presented to the defendant at any point of pretrial proceedings--and there is the appearance that Judge Kessler may have already formulated opinions of her own on Palfrey's innocence or guilt a priori. [Ed., 08.28.2008-I no longer believe most of this. I think that Judge Kessler knew Palfrey was suicidal and was removed for this and other, darker reasons.] What's potentially disturbing is that Kessler has made statements condemning the treatment of Guantanamo Bay Naval Base prisoners, and even quashed motions by the government to continue stays (delays) on their motions for complaint hearings...but little resulted from any these criticisms coming from the bench in any substantial sense up to late-2006 and 2007.

Opinions are fine, but they don't accomplish much without enforcement teeth. The wheels of justice turn slowly in the chambers of Judge Kessler, yet she's facilitated this slowness in Palfrey's case while simultaneously complaining about it. There are other problems in her legal logic. The November 21st cancellation of the hearing that would have brought Senator David Vitter, Paula Neble, and others into the sunlight (being that best disinfectant) rests on some shaky contentions:

7. In granting the original request for a Temporary Restraining Order, the Court found that "it is apparent that Defendant is pursuing the Neble [underlined] case in order to obtain from those civil defendants discovery to which she would not be entitled in her criminal case." [Dkt. #12]. ('United States of America v. Deborah Jeane Palfrey, Defendant. Memorandum Order,' November 21st, 2007)

Yet Kessler allowed the hearing earlier this month, irregardless of this previous observation that she's selectively trotted-out in a new, but substantially similar context. There is no detailed summary of what evidence is and is not allowable under federal criminal trial procedure anywhere in the new order. According to what has already occurred in proceedings, it must mean that virtually no discovery is necessary under current federal law in a criminal trial. How can this be constitutional? Where was the assertiveness required for a genuine flexing of constitutional checks-and-balances?

In another case, we have a surprise turn: on October 9th of this year, her unsealed decision to block the transfer of Mohammed Rahman to his home country of Tunisia came in the form of an injunction--it was unprecedented. A week earlier, she blocked the transfer of an Afghani-detainee without a 30-day notice to the individual's lawyer. That's fairly aggressive, but there's no sign of this in Palfrey's proceedings. The Afghani detainee opinion seems to be a more important ruling than the one over Rahman, as it injects direct judicial supervision in a more substantial sense over the processing of foreign detainees and their access to legal representation in the so-called war on terror. ' “It is the only time a court has said the government does not have the unfettered right to do what they will with these people,” ' said an attorney for Rahman, Joshua W. Denbeaux. ('Judge Halts Transfer of Guantanamo Detainee,' New York Times, 10.10.2007) So why all the acquiescence in the pretrial proceedings of Ms. Palfrey?

You can't say Judge Kessler hasn't acted with reasonable independence against the Bush administration as she is directed to under the Constitution of the United States of America, but has it been aggressive enough overall, or has it all just been window-dressing? There are a gamut-of-opinions on this issue which cannot begin to be covered by the space and format of this site (and also thanks to Google's glitchy layout software), but this writer believes Kessler's constitutional vigilance simply lacks enough teeth. Federal Judges are only allowed to overrule the decisions and behavior (law or statutes, and administrative code and actions) of the other branches of our government (the legislative and executive) when there is a constitutional issue, but what could be more obvious than the lack of due process in Ms. Palfrey's pretrial proceedings?

An aside in Kessler's cancellation of the November 28th hearing: she doesn't contend at any point that she believes prosecution's witnesses are being 'harassed,' yet claims the right to continue what is now deemed a 'protective order.' It's just one example of many in the November 21st court order that contradicts other areas of the document, making for a painful read. Judge Kessler isn't wrong that the defendant is attempting to achieve discovery (the exchange of evidence and information between the plaintiff/prosecution and defendant), because she isn't getting any in either her civil or criminal proceedings. Kessler's take on it, however, is selective and appears forced. The fact is: Palfrey's not getting any discovery process, and Judge Kessler originally allowed the hearing to proceed.

She has now abruptly canceled it with a statement that is rife with legal gymnastics that would make anyone's head spin. According to my first year law textbook, Federal District Judge Gladys Kessler has more leverage in her interpretation of federal criminal trial procedure than she's letting-on. What happened before Wednesday of this week? Was it a dramatic ex parte (a decision where not all of the parties need be present) confrontation by the prosecution? What's going on here? Defendants are supposed to be able to avoid a legal ambush in court through genuine due process. By all appearances, this is not America.