Responsibilities of United States Magistrate Judges and the United States District Court Judges

Magistrate judges in federal court have limited authority compared to the United States District Court judges who employ them. Magistrate judges handle responsibilities and cases that the judges regard as rather tedious and not worth their time and trouble. Thus, the magistrate judges handle petty offenses and misdemeanor criminal cases. With the consent of the parties they can adjudicate civil cases.

The district court judges who oversee their work are nominated by the president, and if confirmed by the Senate, they are appointed for life. The United States District Courts are our federal trial courts. With the exception of the nine justices on the SCOTUS and the federal judges on the Circuit Court of Appeals in which their district is situated, the district court judges are absolute masters of their domain, subject only to abiding by the United States Constitution and its amendments, including the Bill of Rights, and appellate and Supreme court review of their decisions. Depending on the circumstances and applicable laws, they also have the power to order the POTUS to do or to stop doing something.

Vested with virtually unlimited power to decide the cases and controversies that are assigned to them, even the most gracious and polite district court judges eventually develop an expectation that if they say “frog,” to someone, they expect that person to respond by asking “how high do I jump, your honor.” Should you appear before one of them as a party to a lawsuit, a lawyer representing a party to a lawsuit, a witness testifying in a case, a juror, or as an observer sitting in the audience, you best be on your best behavior with hat in hand and ready to address them formally as “Your Honor.”

Do not even think about entering a courtroom with a cell phone or a camera because you will be ordered to immediately leave the courtroom and if you do not move fast enough, you will be escorted out.

When they reach age 65, they can opt for senior status, which is a form of semi-retirement at full pay and benefits in which they get to control the number of cases assigned to them. They also have the option of travelling to any another district that is backlogged with cases and agree to lend a hand to reduce the backlog by taking a few cases leaving them plenty of time to enjoy living in a new community and exploring its amenities. If my life had taken a different path, I would be splitting my time between Seattle and Hawaii.

In many ways it is the perfect job providing an endless supply of intellectually stimulating cases with important issues that occasionally affect all Americans.

United States Magistrate Judges handle all of the initial appearances in the federal court system. They advise defendants of their legal rights, confirm counsel, review complaints and the affidavits of probable cause filed in support of the charge(s) in the complaint, and make sure that each defendant understands the charges against them. They also conduct detention hearings, which are bail hearings, and either detain defendants without bail or set bail and conditions of release.

Magistrate judges also conduct preliminary hearings to determine whether probable cause exists to support the charge(s) in the complaint. Unlike the probable cause determination at the initial appearance, which is based only on a review of the affidavit attached to the complaint, the probable cause determination at the preliminary hearing usually is based on the testimony of the agent whose affidavit was filed with the complaint.

The federal prosecutor conducts the direct examination and defense counsel cross examines. The scope of the hearing is supposed to be limited to the issue of probable cause, but most defense lawyers, including me, attempt to venture as far afield as the magistrate judge will permit to obtain as much discovery as possible.

In Dzhokhar Tsarnaev’s case that might include inquiring about Dzhokhar’s getaway and the death of Tamerlan, Dzhokhar’s role in the offense compared to Tamerlan’s, the identity of the driver whose car was allegedly hijacked and how he got away and whether he called police, and what Dzhokhar told the interrogators.

Assuming for the sake of argument that prosecutors seek the death penalty and Dzhokhar is convicted, with one exception, his age, youthful appearance, emotional maturity, ability to reason, significant wounds and most important, his role in the offense, likely will be the factors that the jury will focus on in deciding whether to sentence him to death or to life without parole.

The one exception or wild card in the trial may be police misconduct and a government effort to conceal that misconduct that persists through the trial. For example, who ran over Tamerlan and dragged him 30 to 40 feet? Was it Dzhokhar attempting to elude capture or was it someone driving a police SUV?

I hope this brief description clarifies any questions you have about the duties and responsibilities of United States Magistrate Judges and the United States District Court Judges who employ them.

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118 Responses to Responsibilities of United States Magistrate Judges and the United States District Court Judges

  1. Malisha says:

    BlackButterfly, Beautiful! Great work! 😀

    • Soulcatcher says:

      @Zena,
      Perfect. Looks like he’s got a problem….Must be all that cotton he’s got stuffed in his ears.

      • Xena says:

        @Soulcatcher.

        Looks like he’s got a problem…

        Who GZ?? He thinks he’s perfect. In fact, he believes that he is so perfect that his wrong is even planned by God. (snark)

    • Rachael says:

      If his words alone don’t make me sick, that smirk – Oh GOD that smirk. It must be God’s plan to make me want to smack that smirk off his face. I can’t even stand to look at him. I’m really not sure why his remark upsets me so much, I don’t even believe in God, but for some reason, when he said that it did something to me that there’s no going back.

      • Malisha says:

        Rachael, his using “God’s Plan” to excuse a murder is exactly why the religiosity rings so false. It is the “blessed evil” that authoritarians do and either pre-protect from correction or later cover-up (depending on the circumstances and the culture) in all the offensive ways. It was “in God’s name” that disobedient wives were burned at the stake throughout the witch trials; it was “in God’s name” that the Inquisition tortured and murdered and al-Qaeda (or whoever else) brought down the Twin Towers in New York. It is no different whether done before the evil act, used to justify the evil act, or used to cover up the evil act. There is always a “God” handy to bless perpetrators who have yelled out his name first.

        This is why I don’t go for the cutesy modernistic habit of switching the gender of “God” in every other line of religious texts. “God” stands for authoritarian power that blesses any authoritarian action, good, bad, evil, atrocious, and yes even the imponderable.

        Let the defense be “God’s Plan.” I’d like to see that one. And come to think of it, that is the only defense O’Mara has left!

        Huzzah!

      • Xena says:

        @Rachael.

        I don’t even believe in God, but for some reason, when he said that it did something to me that there’s no going back.

        The Apostle Paul had something good to say about people who do not believe in God. To paraphrase, when people know right from wrong, good from evil, and they choose what is right and what is good in their lives and the way they treat others, they give glory to God and he considers it righteousness, even without their knowledge and/or belief.

        Or in summary, a tree is known by its fruit.

        That is why believers of various faiths and non-believers are sickened by the Zimmerman tree.

      • Soulcatcher says:

        @Rachael, I feel exactly the same way!!!! And when he answers that he said fuckin punks, uh hell no, its coons as clear as day. People dont say coons now days, well that’s news to me.

        What amazes me is how Ignorant people are. They are still stuck in their own world of “The whiter, the righter.” They are the same people who bitch they don’t owe black people a thing, they aren’t responsible for what their ancestors did. They believe slavery ended 200 hundred years ago, and in 1865 all slaves were free, so it’s not my fault they are lazy, thugs, on welfare, always lookin for a hand out, oh and their all on drugs?

        Okay, wake up. In 1865, millions of slaves were freed, and they all walked off the plantations and enrolled in college. With all they money the had managed to save, caused you know they got paid well by their massa, they went and rented them a nice place, and picked up some groceries. People believe that storey.

        Millions of slaves who had nothing, most could not read or write, didn’t even know their name, many didn’t know their birthdate, where they were born, or who their mother was, and many didn’t even know how to speak English. Believe it or not, slavery did not end in 1865. Well, it ain’t my fault, they could be sitting in a mansion like me, there just lazy, and they got all the rights as me. We gave them all EEOC, so there’s no excuse. Oh, and they all are on drugs.

        News flash….I was in high school in the 70’s, in one of the uppity neighborhoods, 99.5 percent white, maybe 2 blacks, and 10 others. I am guilty of falling into to ignorant catagory as I look back at that time. I fall in the 99.5 percent group, and can truthfully say, I would not have the knowlege of what I now know, if I had not married a black man 12 years ago. Back to the past. I attribute some of my ignorance to either 1. Black history was not taught in high school, or 2. I am going to say this is probably it. I didn’t like history much, and it happened to be the period after lunch. And her it goes…..I would be encluded in the 75 percent of the students and a few teachers who would walk over the levee to the river, and smoke out. I would be so high when it came to history, I slept through it. No, it’s all the black that are on drugs, white people are good, they don’t use. And Treyvon had and empty bag, so he was on drugs. LOL

        Stop with the drug thing, the truth is more likely this. People are getting alittle nervous, white people are gettig busted with drugs. True, black people getting paid to supply, but it’s mainly going to the white, educated, all walks of life, doctors, lawyers, polticians, moms, dads, even priests. Just not me, I quit in the 80’s, or maybe 90’s.

        Thats all for now, next……Ignorance in Todays world, have we really come that far?
        .

        • cielo62 says:

          SoulCatcher~ There are none so blind as those that will NOT see. History means NOTHING if you don’t apply the lessons to today. Of course, having ignorant whites dictate what is TAUGHT (like here in Texas~ don’t get me started) makes it even harder to learn anything as a society.

  2. Malisha says:

    THE IRONY OF IT:

    The words “fearful,” “distrustful” and “confused”
    should ONLY be used to describe Trayvon Martin — not his killer, not his killer’s lawyer.

    Trayvon Martin had reason to be fearful, distrustful and confused. On February 26, 2012. HE was given no notice of the fact that he was hunted prey. HE was given no notice that he was “on trial” for his life and that there would be no opportunity for appeal. HE was given no notice that anything he did could be used against him in a court of law.

    Fogen? “fearful, distrustful and confused?” Not so much. Fogen is, instead, manipulative, dishonest and indignant that he is not allowed to bully everyone else into how to think about what he did.

    He even reached out for support from the Big Guy in attributing his behavior to “God’s Plan.”

    • Soulcatcher says:

      believing according to “Gods Plan” that he is the chosen one, and when he is aquitted, he will be the winner, and life will be good.

      God does have a plan, George just wasn’t listening. I hear the message. It will be found within your soul. Only when you search within your soul, will you hear what has always been there. In the end, George will hear the message, life anyway he looks at it, will never be the same again, he may exsist, but his life is over. What he finds within his sole, is Gods Plan, it’s all the beauty, love, all the warm, compassion, all the goodness. one can catch within your soul. It can also haunt you. George, are you Listening?

      I am Soulcatcher

  3. OT: I nearly always ignore those subhuman trash racist comments on those news websites without any basic human decency in their moderation, but I wandered by and suddenly went all Gary Oldman:

    Subhuman trash said:

    Tiger McLanahan · Hartselle High School
    How much did the ghetto trash family of this subhuman Trayboon make off with, from the blood of their dead thug wannabe trash kid, anyway?

    I betz dey wentz all tooz dizzzneee!
    Reply · 1 · Like · Follow Post · 9 hours ago

    And then I replied:

    Rachel Leatherman · Occidental College
    Spread that love you big fat pasty faced disgusting perverted bigot. Spread it all around.
    Reply · Like · 2 seconds ago

    At this unmoderated ‘news’ site that allows filth like that comment:

    http://www.hlntv.com/article/2013/04/26/critical-hearing-next-week-zimmerman-case

    My bad, usually I ignore them. I know they want someone to engage so they can then whine and cry to the rest of the hateful foul-mouthed bigots that populate these websites where they can hide behind their keyboards and act like animals. Whine and cry about folks like me ruining their world, where it’s supposed to be okay to gun down an unarmed kid when and where you want to because you can. Whine-a-coward-bigot circle.

    Dear Tiger McLanahan:

    Blow it out your ass, dickhead.

    /endrant

    • Xena says:

      @Crane-Station.

      Blow it out your ass, dickhead.

      Please, please, allow me to give the subhumans the two word symphony. (If professor thinks it’s inappropriate, please delete.)

      • Oh Lord, I am in agony doubled over I haven’t laughed this hard in years. This is brilliant, I am ripping in straight off for future use. Every once in a while I get the urge to cut one of these filthy trolls off at the knees, and ending it with a cold symphonic fuck you is a brilliant backward by-the-way, on the way out. I love it.

        Thank you.

      • gbrbsb says:

        Nice. Don’t know if Millie Jackson had anyone or thing in mind, but I can think of no end of things and people it would feel really good to sing or play that too!

      • Trained Observer says:

        @Zena — So very fuckin’ special. Am pleased to add this to my portfolio of musical expression.

      • Two sides to a story says:

        😀

  4. parrot says:

    Professor,

    A bit off topic at this point but related to recent events that have spurred your writing:

    You posted an article about drone attacks back in June, and I thought this article would be of some interest to you.

    It is a hypothetical posed by Micah Daigle on his Facebook page.

    ‘What if the manhunt for Dzhokhar Tsarnaev had ended with a drone strike but in the process destroyed neighboring houses killing innocent bystanders including 12 children?’

    Especially intriguing were the Pakistani reactions.

    • Dennis says:

      Obama and his NDAA…he can now kill anyone he wants in the world, including on US soil, if they are deemed a terrorizer.

      America is becoming the Fourth Reich as predicted by Jim Marrs. If you want change in this country, stop voting for Illuminati sponsored candidates.

    • aussiekay says:

      What is police raid the wrong house and the resident, thinking he’s under attack, produces a weapon and them gets shot dead?

      What if police raid the wrong house and SET FIRE TO IT with the same “burners” they used on Dorner?

      Nothing. Sorry, accident. You can’t claim for a new house, it was legit police action.

      The two women shot in the Dorner chase just got over $4 million BUT only because the case was so publicised.

      • Cercando Luce says:

        There was a case in 1985 in which the Philadelphia police set fire to a house to drive its residents out, and ended up killing 11 children and adults and destroying 61 houses in the neighborhood. (See Philadelphia, MOVE fire)

      • Dennis says:

        I believe here in Detroit a year or two ago they raided the wrong house and killed a young girl with a flashbang.

        Does anyone here actually believe the police in Boston did door to door searches and patdowns, without warrants or probable cause, to find 2 suspects that had already been identified by the FBI?

        They were testing the sheep, and the sheep went “bahhhh”, put up their hands, and let the thugs with guns into their house.

        • PiranhaMom says:

          @Dennis,

          I want you to sit down in the shade, and sip a nice tall cool drink of home-made lemonade.

          Chill, my sweet brother ….

        • cielo62 says:

          Dennis~ Don’t be such an ass. Pople saw guys with guns. If they didn’t say “bahh” they would have responded with “boom.” At that very moment, do you seriously think ANYBODY was going to demand a warrant or call a lawyer? The best response NOW would be to have all those poeple file a class action suit against the local cops for warrentless searches. THAT way, nobody gets turned into a 4th Amendment martyr. Gthe only bad thing about being a martyr is that you have to be DEAD.

      • ladystclaire says:

        @Dennis, was that the case of the little AA girl who was asleep on her grandmother’s couch? a lot of this stuff committed by LE is in no way always accidental and, they know it. it seems as though they can kill and maim others and, not pay for what they’ve done. smdh

    • gbrbsb says:

      Great find and very interesting, more now we have just been told today that the UK have just started flying armed drones out from here. Not meant to kill mind you, (we the English would never do anything like that now would we), but just to engage in normal warfare under the normal warfare rules!

      • Two sides to a story says:

        I’d hoped you Brits were more polite than that.

        • gbrbsb says:

          @two sides

          I’d hoped you Brits were more polite than that.

          Oh yes we are all real and proper gentlefolk over here where war is a game with rules that we Brits always stick to, otherwise it just wouldn’t be cricket, would it?

          I don’t know, but from my knowledge and experience I see the Israeli – Palestinian problem is always at the core of modern terrorism, at least where Muslims are involved, going from from Irgun to the PLO like a fish biting its tail, and if we don’t resolve that injustice once and for all equanimously and fairly, and I am not sure it even has a solution by now with Israel as powerful as it is in the US congress and Senate, as the Spanish would say, “Apaga y vamanos” because there will be no way forward. Just my opinion.

      • gbrbsb says:

        @two sides

        I’d hoped you Brits were more polite than that.

        Oh yes we are all real and proper gentlefolk over here where war is a game with rules that we Brits always stick to, otherwise it just wouldn’t be cricket, would it?

        I don’t know, but from my knowledge and experience I see the Israeli – Palestinian problem is always at the core of modern terrorism, at least where Muslims are involved, going from from Irgun to the PLO like a fish biting its tail, and if we don’t resolve that injustice once and for all equanimously and fairly, and I am not sure it even has a solution by now with Israel as powerful as it is in the US congress and Senate, as the Spanish would say, “Apaga y vamanos” because there will be no way forward. Just my opinion.

        • cielo62 says:

          gbrbsb~ This might get me a few angry posts, but well… I don’t think we (as a country) owe Palestinians anything. THEY launched HOW many attacks against Israel? Alone, with neighbors, doesn’t matter. They ALWAYS LOST! And yet the UN staffed by all the anti-semitics of the world want to keep giving Palestinians “another chance”? I say STOP already! They have lost fair and sqaure ,many times over. They can go back to the Trans Jordan (AS IF any Arab countries will have terrorists within their borders) OR they can give up the fairy tale that Arafat created ( a palestinian ‘people’), and become Israelis. Israel is ALSO a dynamic country, needing to provide for its growing population as well. 2 State Solution has evaporated; Hamas won’t accept Israel, and Israel will NOT just roll over and die.

      • gbrbsb says:

        Sorry professor for repeat but strange things happening with WordPress. The first copy of my reply to Two Sides posted on my notifications page as a reply to myself! Please delete the first one if you wish but leave the second as that posted as it should, in reply to Two Sides.

  5. Malisha says:

    Professor, can a Magistrate Judge handle a habeas corpus petition under 2254?

    Do you know how I can find out the time limits a federal judge is permitted to take on ruling on a habeas corpus petition? If there is a Magistrate judge involved, does that extend the time?

    Thanks.

  6. PYorck says:

    Professor and everybody else,

    what are your thoughts on elected judges?

    I live in a country with a very different legal and political tradition and I have to say that I find the idea of elected judges a bit worrying. I realize that priorities differ, but I would consider it more important that a judge is competent and independent than that they follow the real or imagined preferences of an electorate. Now I would be interested in opinions of those who are familiar with such a system. How do elected state judges compare to appointed federal ones?

    Here is an article (btw. part of an interesting series) that highlights how unusual elected judges are outside of the United States.

    http://www.nytimes.com/2008/05/25/us/25exception.html?pagewanted=all&_r=0

    • cielo62 says:

      I’ve always thought elected judges practically SCREAM “conflict of interest.” And as bi-polar as our 2 party system is, it’s sickening to get judges who are GOP (and tough on crime, hence horrible to minorities) or DEM (who are considered too liberal and easy on criminals). I just want someone with integrity to APPLY THE LAW which is supposed to be equal for all!

      • Two sides to a story says:

        On the positive side, corrupt or inept or politically biases judges can be voted out, but I have no idea how often this happens. Since I’ve been voting (many decades) I’ve seen many local and state ballots in which judges were running for re-election unopposed, and I suspect that this is true in many places. Judges seem to hold their posts for very long periods of time despite being elected . . .

      • aussie says:

        They won’t be voted out if their bias or prejudice happens to match that of the majority of those who turn up to vote. The whole electing them idea ensures the judge is a tool of the local majority, which will usually be those with the spare money to fund a campaign.

      • Two sides to a story says:

        “They won’t be voted out if their bias or prejudice happens to match that of the majority of those who turn up to vote. ”

        Aussie, that’s true, and I suspect lot of folks don’t even bother to mark the ballot for retentions because they figure the judge is 99.99% likely to be retained anyway, so why mark it?

    • Xena says:

      @PYorck. Not all states have elected state judges. Even in Illinois, we have associate judges. They are appointed when case load is heavy or when there is an illness or retirement. Some later run on the ballet. Others do not.

      Also with elections, state judges do not actually “run” for re-election. Rather, they run for retention.

      The appointment of federal judges provides for citizens to contact the Senate Judiciary Committee to voice any concerns, although that seldom results in recommendations being withdrawn.

      • Two sides to a story says:

        Yes, retention was the word I was trying to think of. Thanks, Xena.

      • Two sides to a story says:

        PS – But where I used to live, they put the judges right on the regular ballots even though it was more a retention than an election.

      • SearchingMind says:

        @ Xena

        “Also with elections, state judges do not actually “run” for re-election. Rather, they run for retention”.

        LOL, Xena, that’s a good one. Mesmerizing. I am wondering if there is any difference between “re-election” and “retention”?

        Thanks in advance.

        • Xena says:

          @SeachingMind.

          LOL, Xena, that’s a good one. Mesmerizing. I am wondering if there is any difference between “re-election” and “retention”?

          Thanks in advance.

          LOL! Voters can cast a vote against retention. The decision rests on a percentage of votes, and I’m not going to try and explain that. 🙂

    • Lonnie Starr says:

      Reading about law down through the ages, one learns that the law is actually an illusion, not so much the law itself (the written component, the “codified rules” are less of an illusion than “the rule of law”), but “the rule of law”, having to do with how the laws, both written and unwritten are interpreted, only serve to create an illusion, when what is occurring is widely understood, if not agreed upon.

      The fact that the rule of law is an illusion, is itself a double edged sword, both a hazard and an opportunity. What it means is that, “we the people” must continue to have views of the practical application of law, since this understanding is what drives how “the rule of law” is generally applied.

      Mothers and Fathers have views of the law, that they pass on to their children, while teachers and peers have views of right, wrong and what the law is supposed to do to correct error and/or settle grievance. Everyone, from the President on down to a policeman on the beat, goes through these processes. What they all come up with is generally the view of “the rule of law”. But then, the finer points are left to the practitioners.

      How well a society’s “rule of law” is, depends on how involved it’s public is in formulating views of it. An apathetic society that cares not much for matters at law, makes way for totalitarians to usurp power.
      Thus it derives that a society that doesn’t “place all of it’s eggs in one basket”, is probably going to get the better result. While elected judges don’t produce the most precise rulings one could want, the trade off is that they do keep people more involved in thinking about the law, than appointed judges do.

      • SearchingMind says:

        @ Lonnie

        IMO, there is no difference between “the law” and “the rule of law”. The rule of law (also known as the principle of legality in Civil Law Systems) is one of the many general principle of law and means that all acts of government must be based on- and conform with prior, well established, defined law. The rule of law has nothing directly to do with the way the law is interpreted by the judiciary. Above all, the law is not an illusion (as you suggest) – at least by virtue of its binding nature, general applicability, regulatory functions, etc. Under an illusion is generally understood that which in reality is not, yet appears to be – a kind of mirage. Such is the law by no means. Just as anthropology, philosophy, sociology, etc., the law is an independent science and based on this ground also cannot be an illusion. I think you are trying to answer PYorck’s question from the point of view of philosophy of law, but the illusion-argument you make kind of makes the message you want to convey illusory.

        • Lonnie Starr says:

          You seem to believe that the law is like a cash register, simply press a few buttons and a price pops up and the draw opens. The law does not work like a machine. Depending on who enters the transgression into the system, determines how the system will deal with it, or even if it will review it at all.

          An illusion is something that seems real but is not! The law prohibits many things, and supposedly by any and all people who transgress. In actual practice it does not work that way. Tyrants for example, do many things that are illegal, but they do not get held to account because the will or ability to enforce the law has been undermined and/or no longer exists.

          No my friend, once you face the fact that the law and rule of law, is merely a goal to strive for, and not an actual fact, the people begin to realize the risk that their own apathy places them at.

    • SearchingMind says:

      The political traditions of all Western countries (the US, countries in Continental Europe, Australia, Israel, Canada, Great Britain, SA, etc.) are based on the theory of Trias Politica (Separation of Powers, Checks and Balances, etc.), the Rule of Law and democracy. I am sure the political traditions of the United States and that of the Federal Republic of Germany are not “very different” (as you suggest). In fact, the US and Germany shear more in common with each other – politically, than say with Great Britain, Belgium, The Netherlands, etc. all of which has Constitutional Monarchs, etc.

      From the perspective of legal science, the United States and the Federal Republic of Germany are used in lecture halls as paradigms of two different legal systems: the Civil Law System (Germany) and the Common Law System (the US). But this difference (which I will not be getting into, because of the vast nature of it) does not account for why judges and prosecutors are elected in 21 States of the US. In both Common Law based Great Britain and Civil Law based Federal Republic of Germany, Law Lords res. ‘Richter des Bundesverfassungsgerichts’ are selected on the basis of professionalism, American Supreme Court Justices because they appeal to the President and majority of senators. American method does not necessarily mean that professional considerations are absent; but other elements may prevail in the selection procedure. Justice Frankfuter, who had made a career as a law professor, was appointed by FDR in 1939 after having been an adviser to him and an intimate friend as well; Chief Justices Rehnquist was appointed in 1986 because he was a well-known conservative lawyer. There are no parallels in Westminster (Great Britain which, like the US, is also Common Law based).

      In my most educated opinion, the phenomenon of elected judges is a product of efforts to close the democratic deficit within the judiciary in America. Judicial decisions (just as acts of the executive and congress/parliament/Bundestag) immensely impact the direction and progress of fundamental societal processes. Folks want to have a say in that and as such elect judges who takes their values and interests into consideration and who are not beholden to the elected branch or special interest. By so doing, they keep the judiciary in check and prevent it from becoming a self- perpetuating elite profession that would be excessively insulated from the democratic concerns of the democratic authorities. I would therefore suggest that “appointed” judges are indirectly elected judges.

      Appointed/indirectly elected judges and directly elected judges have their advantages and disadvantages. Ultimately, a good jurist (and all judges and lawyers are jurists) realizes that the only god before whom he/she may bow is no other than the legal science. A good jurist shall have no other god – regardless of whether or not he/she is elected.

      • SearchingMind says:

        I said that “appointed judges” are indirectly elected judges because the same motives, considerations and factors that lead to elections of judges are also dominant in the minds of the elected officials who appoint the “appointed judges”. Thus, “appointed judges” are indirectly elected by the constituency of the politicians who appointed them.

      • SearchingMind says:

        @ PYorck

        Current situation

        In the US, only twenty-one states elect all judges; some states use contested elections to choose judges for SOME level of their courts; in a couple of states judges are selected by the Governor and are subject to a confirmation hearing in the state senate; in Virginia and South Carolina, the legislature selects the judiciary; All federal judges are appointed (for life).

      • PYorck says:

        I am sure the political traditions of the United States and that of the Federal Republic of Germany are not “very different” (as you suggest).

        That bit was mostly meant to relativize my question and my doubts about the practice. Obviously those were shaped by my background. “Very different” may be relative, but I would say that historical precedents, values, priorities and conventional wisdom are different enough that many things that are generally accepted in one setting are not in the other.

        Oh, and I never meant to imply that all US states elect their judges.

    • groans says:

      Maybe MOM has given up hope of raising enough money from donors, so he’s trying to force the State to “pitch in” for the killer’s defense via “sanctions” motions. He sure couldn’t ask for $400/hour if he went the indigence route.

      Amazing how they play both the bully and the baby at the same time!

      • Malisha says:

        Playing both the bully and the baby is exactly the game they have practicing this whole time, starting with BabyBully Fogen on 2/26/2012 with his, “Uh oh a real suspicious guy is making me nervous, guys, so this here scared little baby-boy is gonna have to bully him into stopping his scaring me” and graduating to his story to Singleton: “Uh oh he scared me and he hurt me and he nearly killed me so I had to shoot him” and finally his full-length babyish temper tantrum on Hannity where he sky-hooked onto God to protect poor widdow him.

    • cielo62 says:

      Trained Observer~ Let’s send MOM some cheese to go with all that WHINE!

  7. SearchingMind says:

    Is O’Mara also “fearful”, “distrustful” and “confused”?

    Today, O’Mara has indirectly motioned for the extension of the deadline for the submission of final witness list. O’Mara calls it “Redacted Motion to allow additional witnesses”
    http://www.gzdocs.com/documents/0413/042513_motion_witness_disclosure.pdf

    O’Mara also wants Prosecution’s work product. He calls it “Any and all cleaned up, edited and/or enhanced version(s) of any and all recorded 911 calls listened to by Tracy Martin as referenced by Benjamin Crump, Esquire.
    http://www.gzdocs.com/documents/0413/042513_discovery_demand_2.pdf

    Lastly, O’Mara seems to be reinventing the Brady rule. His latest Motion demands “any and all data in the State’s possession or the State has received regarding any downloads or reports from any phone number connected to Trayvon Martin or any information that the State Attorney’s Office or law enforcement has retrieved, recieived or investigated concerning data on or regarding Trayvon Martin’s phone, phones and/or phone numbers”.
    http://www.gzdocs.com/documents/0413/042513_discovery_demand.pdf

    • Malisha says:

      Oh my, this looks more and more like a huge federal grand jury investigation of Trayvon Martin, doesn’t it? What, for instance, is a “phone number connected to Trayvon Martin?” A PHONE NUMBER connected to the kid? How about a phone number with a “1” and/or a “7” in it, because Trayvon was 17 and that’s a connection. How about the phone number of the candy company that makes skittles, surely THAT’s connected? How about the phone number of the NAACP — connected enough? And “any information the SA office or LE [generic???] has retrieved, received or investigated concerning DATA on or regarding TM’s phone, phones and/or phone numbers.” Uh…

      Well now, that would include all phone numbers concerning all data, wouldn’t it? I mean, according to Sesame Street, if you just start off with the number zero … {Remember “This is brought to you by the number six”?} …

      Someone in O’Mara’s office who thinks himself or herself rather clever should check into a nice restful sanitarium about now…

    • Cercando Luce says:

      “…any and all data…regarding any downloads or reports from any phone number connected to Trayvon Martin” is so broad a request as to be impossible to accurately comply with. Is that a trick to trip up the prosecution procedurally?

      • PYorck says:

        I still suspect that they don’t really expect those discovery-related motions to be successful. It gives the defense a chance to look aggressive while they are not actually achieving anything.

      • Lonnie Starr says:

        No, it’s foolishness, obviously no judge is going to let anyone burden their opponent with an impossible task, by using the power of the court to do it. Either the request will have to be pared back to manageable/reasonable levels or face dismissal.

  8. groans says:

    [Re-posting here, from:
    http://frederickleatherman.com/2013/04/24/welcome-to-federal-court-counselor/#comment-105945.%5D

    Professor,

    I thought this was just a mystery to me, but apparently it’s a mystery to the “main stream media” now, as well:

    What procedural (or other) mechanism might have led to a federal judge (or magistrate?) and a federal public defense lawyer showing up in Dzhokhar Tsarnaev’s hospital room to hold an “initial hearing” (or whatever it was)?

    It’s hard to imagine that the suspect – in view of his serious medical condition – could have made that happen. But if it hadn’t happened, I question whether Dzhokhar would have been informed of his Miranda rights even by this point in time.

    So, it was a welcome development, in my view. But “mysterious” developments – even good ones – give me cause for concern down the road.

    Do you have any thoughts or insights?
    Thanks.

    • parrot says:

      Groans, I’ve seen a federal magistrate, in his black robe, go to the local jail to conduct an initial appearance for an extradited Colombian drug transporter whom the DEA picked up in Panama.

      The Professor can correct me if I’m mistaken, but timeliness is the issue with the Colombian and with Dzhokhar Tsarnaev.

      Once arrested the defendant must be brought before a magistrate, “without unnecessary delay.” (Rule 5 of the Federal Rules of Criminal Procedure).

      He was arrested on April 19, and the magistrate conducted the initial appearance at his bedside on April 22nd.

      http://www.law.cornell.edu/rules/frcrmp/rule_5#rule_5_c

      • groans says:

        Thanks, parrot. Yes, he was arrested on a Friday night, and the bedside initial appearance was on Monday (don’t know what time). I appreciate the rule reference, too.

  9. PiranhaMom says:

    @ two sides –

    Re: “I just read an article that stated Dzhokar was questioned for 16 hours before being mirandized. That’s an awfully lot of stuff to not be able to bring up in court, just sayin’.”

    1. He’s a slow writer.

    2. His interrogators are not concerned about a Dzhokar conviction. They want to know: Who are the other terrorists? What are the next targets?

    How you stay ahead of future terrorist acts is by quizzing the last terrorist you got.

    • cielo62 says:

      P-Mom~ Thanks. My brain was trying to articulate all that, but couldn’t. Knowing what they (The FBI, etc)  want to know about OTHER attacks will have no impact on his (DT)  own trial. Miranda is not needed for that kind of info.

      • PiranhaMom says:

        @Cielo –

        Re: “Knowing what they (The FBI, etc.) want to know about OTHER attacks will have no impact on his (DT) own trial. Miranda is not needed for that kind of info.”

        You got it, Cielo.

        Counterterrorism is not much concerned about the trial, although they recognize the deterrent and the value of keeping terrorists off the street. They also recognize “lone wolves” but have no way of knowing if an attack came from a cell or a singular crazy.

        They want to know what could happen tomorrow, and not in court next year.

      • Two sides to a story says:

        PS – Oh, I’m sure he “said” a few things that could be used against him.

    • Two sides to a story says:

      Yes, I totally understand the point about gathering info to prevent any more attacks. But just sayin’, they’ve got a lot of stuff they can’t use in court, even so. But they don’t need statements because they already have plenty of physical evidence.

      I don’t think they’re going to stay ahead of much with incidents like this one, except to perhaps be more vigilant at large public events. If people are independently going terrorist more often, it will be difficult to keep up.

      Actually, the good news is there are fewer Islamic-based terror attacks in the past few years.

      • Two sides to a story says:

        I can’t imagine why anyone thinks that physically harming others is going to solve anything at all.

        What a horrible waste of talent and lives, terrorists and victims both.

        I do agree though, with the thought that by “accidentally” killing civilians in conflicts in the Middle East (and the numbers are staggering) that it does bring terror home to us. What goes around comes around. Two wrongs never make a right, however.

      • PiranhaMom says:

        @Two sides –

        But until they talk to these guys they never know if it’s a couple of malcontent loons or not. That’s the point of interrogation, I expect it was slow-going with a suspect who could not talk. A lot to judge – attitude, whether he repeats the same details, etc. And when he did respond, he had to write it down. Difficult to observe facial expression when he’s staring down at the pencil.

        You don’t always land a big fish. And the fish you land may not talk. And if he talks, it may not be the truth.

        Takes a lot of skill to get anything out of guys like this. Going silent helps. They fill in the long pauses out of nervousness.

        This is probably the only interrogation ever, with penciled replies.

      • Two sides to a story says:

        If you can’t talk, I bet you don’t get nervous about silences.

        And some folks are comfortable with silence, so . . .

  10. two sides to a story says:

    I just read an article that stated Dzhokar was questioned for 16 hours before being mirandized. That’s an awfully lot of stuff to not be able to bring up in court, just sayin’.

    • Dennis says:

      I’ve been doing some research and looking at the photos. The naked man may really have been the older brother!

      Did you see his autopsy photos? It clearly looks like he was mutilated/tortured.

      The more you research about the Boston Marathon event, the more disturbing it gets.

      • PiranhaMom says:

        @Dennis –

        While the e-mail photos I saw were not all that clear, he looked to me like a guy that got dragged by an SUV .

        Surely somebody is checking that SUV for blood/DNA on the wheels
        or whatever part of the vehicle that supposedly dragged him?

      • ladystclaire says:

        @Dennis, the photos that I saw of the naked man, he had a huge chunk of flesh cut out of his left side. I couldn’t imagine why if he was shot like I’ve heard he was, why in the world did he end up having a large chunk of flesh missing from his body?

        • fauxmccoy says:

          @ladystclaire

          I couldn’t imagine why if he was shot like I’ve heard he was, why in the world did he end up having a large chunk of flesh missing from his body?

          the suspect, tamerlan was drug for about 30 feet, reportedly by an SUV. cops and some neighbors state that the younger brother was driving the SUV, a small number of neighbors state that it was the cops driving the SUV.

          personally, i am waiting for some authentication that the photo of the body in question is actually that of tamerlan.

      • cielo62 says:

        The only thing disturbing are these stupid conspiracy theories. There is NO AGENDA. With sophisticated photoshop, anybody can make anybody look like anything! That is why Provence is so important. That “tortured Tamerlane” photo is no more real than GZs bloody nose.

        Sent from my iPod

  11. cielo62 says:

    THIS is the position GZ was hoping to hoodwink others into believing that his DADDY did for a living! “Yeah, dad is a federal judge”. With his bad memory from ADHD, he manages to forget the “magistrate” part.

    • two sides to a story says:

      And his daddy didn’t work for the feds, either.

      • Trained Observer says:

        When people hear “magistrate,” many automatically think federal. Fogen seemed to be counting on that …

        Actually, Fogen Sr. was more in stature like a justice of the peace (although, make no mistake, I do not mean to insult JOPes out there).

    • Xena says:

      Yep. It’s more of that posturing — being more intelligent or better than others. Magistrates are like schedulers. In federal civil cases, they oversee scheduling of discovery, filing of motions, granting continuances — stuff like that. They do not make decisions on merits but refer those motions to the district court judge.

      For Papa Zim, his position didn’t require completion of law school. Papa Zim was not a lawyer.

    • Malisha says:

      Robert Z Senior was not a federal magistrate judge. You have to be an attorney to fill that position. Senior was a STATE COURT Magistrate who was just responsible for signing warrants etc. and basic probable cause hearings if I’m not mistaken. Lots of the Virginia state court magistrates are on the take; it is easy to get a warrant from them for a little — uh — consideration. Especially the NIGHT MAGISTRATES who can just sign off on stuff when one cop comes up to them and asks a favor. Let all the real judges figure out later whether it was valid or not; they can always toss the case if it was NOT valid. What does the Magistrate care? He never gets punished for issuing faked-up warrants.

      The Virginia system is full of little no-accountability slots like that. There are so many cracks you don’t have to “fall through them” — they comprise nearly the whole structure.

      • cielo62 says:

        Malisha~ I know that. All I meant to say was that GZ was banking on people NOT knowing the difference and using that to his lying advantage. You could say your dady was a doctor and “forget” to mention that it’s a PhD. People will assume you know something about medicine because of your family, assuming your daddy was a medical doctor. These are games people play with titles, to inflate their own importance. GZ could definitely work for the courts… as a JANITOR.

      • Jun says:

        Papa Fogen is a perversion of justice. I am sure with the recent circumstances, everything that has been looked over by him, is now being double checked or the people may have gotten their lawyers to re-look over the cases now

        Papa Fogen may be in for some lawsuits, because, he does not look over felonies but just misdeamor crimes sometimes, and he may have screwed some people

      • Malisha says:

        Jun, nobody looks back over the “cases” Magistrates handle in Virginia. If they issue a fraudulent warrant and it turns out that an illegal search was conducted, MAYBE the public defender representing that defendant will bring it up on a motion in limine and maybe not. Even if so, maybe the judge (Virginia judges are also likely to be corrupt) will rule with the law and maybe not. If not maybe the Court of Appeals of Virginia (extremely corrupt and half the time stupider than a rock) will overturn it and the other half the time find some idiotic excuse to affirm. On and on and on. Meanwhile the guy has been in jail for years. NOBODY looks over the Magistrates’ work. On December 1, 1982, a corrupt Virginia Magistrate issued a felony warrant with NO EVIDENCE just to do a favor for a cop who was doing a favor for a buddy. There is still litigation over that warrant and the Commonwealth Attorney of Arlington, Virginia (Helen F. Fahey) lied about when and why she later (on February 18, 1987!) withdraw that warrant, which she already knew was fraudulent the day after it was issued.

        Nobody will look into Robert Zimmerman Senior’s [in all probability corrupt] behavior when he was a Virginia Magistrate in Manassas. He has probably been a dishonest and corrupt public official or public employee from his youngest days (as Fogen himself would have been had there not been a fuss about a simple little murder in the backyard) until retirement. Our government is absolutely INFESTED with these vermin at all levels.

      • Trained Observer says:

        If this is the case, Malisha, (and I don’t doubt it), then Pops Fogen must be feelin’ mighty edgy about now.

        The Florida good ol’ boy system seems about to abandon Fogen in a rare salute to justice, practicality and undisrupted tourism.

  12. fauxmccoy says:

    thanks for the article, fred. i look forward to learning more about the federal court process.

  13. cielo62 says:

    disappointed~ Now that we’ve cleared the air, you might want to change your screen name? We often answer issues from experience. I, too, answered hotly about someone who had been fired without any due process. I see it happen all of the time in the education field. So I am very touchy about situations where just an accusation results in termination. Experience is the basis of the lense from which we see and judge our reality. My sympathies on the loss of your son. I can see how this situation would certainly bring up painful memories.

    • disappointed says:

      I kept the name because like my son Trayvon did not have to die. I am disappointed that so many people put little value in the life of another. Zimmerman did not value Trayvon’s life and terrorist did not value the life of thousands of working Americans. (9/11)
      Crane sorry for your loss also. Some people say “it gets easier” for me days just pass without my son. Not really easy just reality of the knew era I suppose. Thanks to everyone for the replies. I mostly read but I will comment again you all made me feel welcome even though I misunderstood the comments.

  14. disappointed says:

    I also hope for a fair trial. I would bet someone has footage as to who ran over the brother. Also I would like to say I am sorry if I misunderstood past comments. I lost a son to terrorism so mostly I see red when reading about it! I hope everyone will accept my apology.

    • No need to apologize to me. But thank you for doing so.

      I figured that our focus on the constitutional rights and legal issues affecting Dzhokhar Tsarnaev pushed a button that triggered your response. I didn’t want to pry or cause more pain by asking a question that you may not have wanted to answer, so I didn’t respond.

      Please accept my sincere condolences. I’ve never had to bury a child and hope I never have to.

      I will remember you in my prayers tonight.

      Thanks again for sharing and welcome to the blog.

    • I am so sorry you lost a son, and extend deepest sympathy to you.

      My sister lost a son to a gun murder in ’85, in Indiana. It was an egregious and remains unsolved double murder involving him and his girlfriend, who were junior class president and homecoming queen most popular highschool couple ages 15 and 16. For no reason..

      It divides a live into two, a loss like that. As a family we each limped along our paths of agony individually and collectively for years. I understanding seeing red. Pulling off to the side of the road suddenly, 10 years later and crying openly. The geography of pain that is now your life. Seeing others faced with this as one who has been there must be heartbreaking and outrageous.

      Thank you for sharing, and I am sorry.

    • Xena says:

      @disappointed. Sorry for the loss of your son.

    • pat deadder says:

      to disappointed I can never imagine your pain.I have never read any of your comments except this one and you sound like a wonderful person.Your son was lucky to have you.I too hope the 19 year old is afforded his constitutional rights,easy for me to say I’m not one of the people who has suffered a loss in this tragedy..He has a Mother too.My Mother lost her son when he was 42 my brother.My Mother was the nicest person I ever knew and you sound like her.

    • fauxmccoy says:

      thank you for the explanation, disappointed. like the professor, i am sorry for your loss and can see as a parent myself that reading about some legal issues could certainly push one’s buttons.

    • I’m so sorry for your loss.

  15. First!

    Just tweeted this article!

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