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Analysis: In removing stop-and-frisk judge, U.S. court enters rare territory

By Joseph Ax and Julia Edwards

NEW YORK (Reuters) - In a series of interviews in May, U.S. District Judge Shira Scheindlin said federal judges are too cautious in exercising their creativity and independence.

On Thursday, her own efforts to avoid that pitfall landed her in trouble with the 2nd U.S. Circuit Court of Appeals, which removed her from a high-profile case involving the New York City Police Department's controversial stop-and-frisk program. Her actions had compromised the appearance of impartiality, the court said.

Such a move is rarely seen from a federal appeals court and signaled that the three judges who wrote the decision were deeply troubled by her actions. But ethics experts said they did not expect Scheindlin to face any formal discipline.

In August, Scheindlin ruled that the stop-and-frisk tactic, in which patrolling officers stop suspicious individuals and search them, had an unconstitutional and disproportionate impact on minorities. She ordered a federal monitor to supervise broad reforms of the department's practices.

In a brief order, the panel found that Scheindlin had "run afoul" of the judicial code of conduct for giving media interviews. The code says judges should not comment on the merits of pending cases.

The court also chastised Scheindlin for encouraging the plaintiffs in the stop-and-frisk case to file a lawsuit and mark it as "related" to another case before her, thus ensuring that she would preside over the case.

Scheindlin's actions ensured that her objectivity could reasonably be questioned, the court concluded.

In a statement, Scheindlin rejected the 2nd Circuit's reasoning, saying she simply instructed the plaintiffs in the case that bringing a "related lawsuit" was the appropriate procedural action.

She also denied that she ever discussed the case in any interview.

"All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case," she said. "A careful reading of each interview will reveal that no such comments were made."

Medical student David Floyd was one of the plantiffs in a lawsuit brought by four black and Hispanic men who claimed police improperly targeted them because of their races.

DISCIPLINE IS RARE

There have been a handful of other instances in which appellate courts have cited a judge's conduct in reassigning a case.

Last year, for example, the 3rd Circuit removed U.S. District Judge William Martini in Newark from a pair of criminal cases, including a murder case against former prosecutor Paul Bergrin.

The decisions, which came on the same day but were written by different appeals court panels, found that Martini had wrongly limited the government's prosecution in the Bergrin case and had improperly accused the government of misconduct in a separate case.

Ethics experts said it is extremely rare for judges to face discipline in such cases.

"It is hard enough to discipline a state judge here in New York, but it is rarely used in a federal context," said Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz and an adjunct professor at Benjamin N. Cardozo School of Law at Yeshiva University.

Under federal rules, the chief judge of the 2nd Circuit would initiate any investigation into an allegation that a judge had engaged in misconduct, whether a formal complaint has been filed or not.

The chief judge then has the discretion to dismiss the claims, conclude that corrective actions have been taken, conclude that intervening events have made a review unnecessary or refer it to a special committee for recommendations, which are then sent to a panel of judges for final determination.

Thursday's order by the 2nd Circuit gave no indication that any such inquiry was in the works.

The 2nd Circuit has not admonished a judge since 2004, when Circuit Judge Guido Calabresi apologized for making comments comparing President George W. Bush's election to the rise of Adolf Hitler and Benito Mussolini.

The chief judge at the time, John Walker, accepted the mea culpa, and in light of the apology a review panel dismissed five complaints against Calabresi.

Scheindlin has clashed with the 2nd Circuit on occasion in other high-profile cases. In 2003, the appeals court overturned her finding that the United States detention of a militant suspect, Osama Awadallah, was illegal.

A jury eventually acquitted Awadallah in 2006.

(Reporting by Joseph Ax and Julia Edwards; Editing by Eddie Evans and Lisa Shumaker)

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