U.S. appeals court strikes back, finds Judge Posner unfair to pro-se defendant

A panel of the Seventh Circuit U.S. Court of Appeals on Tuesday reversed a mail-fraud conviction, contending the trial judge violated the rights of a defendant who represented himself at the jury trial.

Ironically, the trial judge was former Seventh Circuit Judge Richard A. Posner, who left the bench this summer after clashing with his colleagues over the way the courts treat litigants representing themselves.

The case involved an appeal by Hakeem El-Bay, who was accused of filing false income tax returns for which he received $600,000 in refunds from the Internal Revenue Service that El-Bay used to purchase seven vehicles, a house, and to pay personal expenses.

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He was convicted of mail fraud and making false statements to the IRS at a jury trial over which Posner, sitting by special designation, presided.

In its unsigned opinion dated Tuesday, the panel of Chief Judge Diane P. Wood, and senior circuit judges Daniel A. Manion and Ann C. Williams wrote that although El-Bey had been a “difficult litigant, El-Bey had a right to a fair trial, and we cannot be assured that he received one. Statements by the court in the presence of the jury conveyed that El-Bey was guilty or dishonest and impaired El-Bey’s credibility in the eyes of the jury.”

At issue were Posner’s comments after El-Bey suggested that paying income tax is “voluntary.” The judge responded, in the presence of the jury: “I’m going to kick you out if you keep on with this nonsense. You understand that? You can go watch the case from another room.”

He added, “Don’t you say that tax payment is voluntary.”

Before the jury was brought into the courtroom the following morning, Judge Posner apologized to El-Bey. After prosecutors expressed concern that Posner’s comments could have been prejudicial to El-Bey, the jurors were brought in and Posner advised them not to “worry about the exchanges that Mr. El-Bey and I have had. And I don’t want you to feel any hostility to Mr. El-Bey just because I got annoyed occasionally.”

The three-judge panel ruled that Posner had failed to erase the prejudice, especially because he then repeated to the jury the previous exchange. The panel noted there was “more than enough evidence of El-Bey’s guilt,” but said the defendant was nevertheless entitled to a fair trial.

Posner, 78, was one of the most prolific and best known of federal judges, authoring a series of books and articles on the law in addition to his work on the court. As he stepped down from the bench last month, Posner told the ABA Journal he was doing so because of his disputes with colleagues over what he considered the poor treatment of “pro se litigants, who I believe deserve a better shake.”

He had cited the way the courts responded to lawsuits brought by convicted defendants on their own after conviction. In recent days, Posner has volunteered to represent litigants representing themselves, and announced he was creating a national organization on behalf of pro-se litigants.

On Tuesday Posner declined to comment on the court decision, noting he had nothing to do with the appellate decision.