Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt

The brewing separation of powers conflict continues.


Recently, I wrote about a brewing separation of powers conflict in South Dakota. In short, a federal judge sought to hold in contempt employees of the U.S. Marshals Service who refused to disclose whether they are vaccinated. The District Court said if the DOJ would not prosecute the Marshal employees, it would appoint a special prosecutor. You can read all the sordid details here. Since that post, there have been several updates.

Unsurprisingly, the Department of Justice "respectfully decline[d] to accept this matter for prosecution." (I'm sure Merrick Garland was thrilled with this request). At that point, the District Court denied as moot the AUSA's request for pro hac vice admission. (Seems like a petty move). Today, the District Court entered an order appointing a special prosecutor. But there are several twists and turns.

First, we get a meandering story about how the former U.S. Attorney for the District of South Dakota was unable to take up the case.

Following the refusal of the United States Attorney's office and that of the United States Department of Justice to prosecute the three named defendants, I appointed Attorney James E. McMahon, a retired attorney living in Colorado, all as required by Federal Rule of Criminal Procedure 42. Mr. McMahon was always a very talented and hard working attorney. He is a past United States Attorney for the District of South Dakota. He agreed to the appointment with the understanding that, if the charges proceeded to trial, he did not wish to again begin the practice of law with all the stresses involved. He traveled from Colorado to Sioux Falls to imdertake discussions with the other three former United States Attorneys now representing the defendants in the criminal contempt matter. He spent considerable time in negotiations in an attempt to resolve these matters. All were fruitless and accomplished nothing, despite Mr. McMahon's best efforts.

Second, we learn that this case has nothing to do with vaccinations:

The Department of Justice, acting through the Marshals Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Third, he continues to charge DOJ with dishonesty and illegality:

The defendants and the Department of Justice continue to maintain a position that the only failures here were failures of communications. That is simply not true. The cases of the three defendants involved deliberate and contemptuous removal of defendants in custody pursuant to lawful court scheduling orders, thus preventing timely scheduling as previously ordered. . . . I sincerely regret that the disputes must continue but I cannot ignore what may be a significant conflict between the Federal Judiciary and the Executive branch of our government.

Fourth, the Court appoints Tom Fritz, a Rapid City attorney to prosecute the federal officers. The Court will pay him $300/hour, plus cover an associate attorney and paralegal. What a waste of taxpayer dollars.

It is now necessary to allow Mr. McMahon to withdraw and be compensated. It is now necessary for the Court to appoint a successor special prosecutor and I appoint Attorney Thomas G. Fritz of Rapid City, South Dakota. He has agreed to the appointment and, like Attorney McMahon, his compensation shall be at an hourly rate of $300 plus all necessary and proper expenses, including the appointment and use of an associate attorney or paralegal or both. The compensation shall be paid by the Administrative Office of the United States Courts. After all, they will be facing three very competent and talented criminal defense attorneys.

Fifth, you are not going to believe the kicker: Judge Kornmann recused. And the Chief Judge of the Eighth Circuit will have to appoint another judge to try the case:

I hereby recuse. It is my understanding that the other Article III judges in the District of South Dakota will also recuse and the appointment of another judge will fall to the Chief Judge of the United States Court of Appeals for the Eighth Circuit.

I did not see that twist coming. Recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

Hopefully, the unlucky judge who gets this case can promptly dismiss it.

NEXT: Justice Kavanaugh Grants Holdover Tenants A One-Month Reprieve From The Law

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. For those who haven't been fully following, can someone explain how we know to a certainty that the marshals are innocent?

    I mean, maybe they are, there may be no criminal intent, or the conduct may be legal.

    If so, then the "separation of powers issue" is that there are false charges against defendants who happen to be marshals - which would be just as bad, and no more, as false charges against Joe Average Defendant.

    1. The marshals sure seem guilty to me. They should get a fair trial and a maximum guidelines sentence if convicted.

      And Blackman is full of it. These are insubordinate, immature federal employees who have no right to endanger federal prisoners.

      1. Guilty of what? Following defined guidelines?

        Regardless of the outcome, the Marshalls are "innocent".

        1. Incredibly simple. They are as guilty as hell.

          They were ordered to have specific prisoners present at a specific time for a specific court hearing. They failed to do so, and therefore violated a court order. Everything else is completely irrelevant.

          If a judge can find a juror in contempt and fine him $11,000 for violating a court order by doing independent research on a case, then a judge can certainly jail a U.S. Marshal for not having a prisoner present in court as ordered.

          Separation of powers means that the policies and regulations of an executive branch agency have no power inside the courtroom of a federal judge. A U.S. Marshal cannot use that as an excuse for failure to follow a court order.

          1. As I understand it, they had the prisoners in place, and the judge ordered that they leave, and that they leave the prisoners behind. As leaving the courtroom without the prisoners would be a dereliction of duty, they had to pick which order to break.

            I imagine if they'd stayed, he'd be prosecuting them for that, instead.

            1. Separation of powers.

              A federal judge has absolute authority inside his courthouse.

              1. If a federal judge ordered the marshal to shoot the defense counsel in the head, what then?

              2. Federal judges may think federal judges have absolute authority inside courthouses. Most sane people would beg to differ... outside their hearing.

          2. "28 U.S. Code § 331 - Judicial Conference of the United States
            The Judicial Conference shall consult with the Director of [1] United States Marshals Service on a continuing basis regarding the security requirements for the judicial branch of the United States Government ... The United States Marshals Service retains final authority regarding security requirements for the judicial branch of the Federal Government."

            Let's reiterate that.

            "The United States Marshals Service retains final authority regarding security requirements for the judicial branch of the Federal Government"

      2. Bzzt

        Exactly HOW are they "endangering federal prisoners"?

        It is neither insubordinate, nor immature to tell a judge he has no business inquiring into one's personal health decisions.

        Stop being such a fascist

        1. It's not a fascist to require federal employees, who hold the PRIVILEGE of federal employment, to disclose whether they have been vaccinated and thus can safely remain in their jobs (which bring them into contact with other people they could kill if they are not vaccinated).

          Having some minimal sense of personal responsibility =/ fascism

          1. "It’s not a fascist to require federal employees, who hold the PRIVILEGE of federal employment, to disclose whether they have been vaccinated and thus can safely remain in their jobs"

            Maybe the Marshals Service should have required the Marshals to be vaccinated. Maybe the judge could somehow have required them to be vaccinated.

            But nobody did that, so it's hard to see how the Marshals, whose actions with respect to the prisoners almost certainly would have been the same if they disclosed to the court that they were not vaccinated, are guilty of anything. They're not supposed to just leave prisoners in their custody in court.

          2. (which bring them into contact with other people they could kill if they are not vaccinated)

            The word "could" is doing an awful lot of work. The 7-day moving average of "new" (not previously reported) cases in South Dakota is 17 per million; "new" deaths are 1 per million. Even if these are (1) actual new reported deaths (as opposed to harvesting of prior death certificates) and (2) actually were due to COVID, that's auto accident territory. Now calculate the risk for one of those deaths being due to a specific interaction with another specific person. Numbers get very tiny very fast.

            It's high time to dial down the overwrought rhetoric.

          3. "which bring them into contact with other people they could kill if they are not vaccinated"

            That's an amazingly innumerate and scientifically stupid statement.

            Let me count the ways:
            1: There are more contagious diseases than just Covid. Many with much higher CFRs.
            2: No vaccine is perfect. And people who have been vaccinated can still act as carriers. Which means that anyone "can" kill you with covid.
            3: The vaccine has been in "anyone who wants it can have it availability for over a month. So at this point anyone at serious risk from Covid who hasn't been vaccinated is on their own hook.

            In short: your statement is the statement of a delusional nut for whom numbers are magic. You "can" trip and fall and kill yourself walking across the courtroom.

            "Can" is what you say when you're a religious fruitcake intent upon forcing your beliefs on the rest of us.

            People who aren't religious fruitcakes say "you have an X in Y chance of causing this damage if you haven't done Z, and therefore we have the right to force you to reveal private health information, and to force you to take experimental medical treatments, in order to prevent this significant harm to innocent people."

            But you can't say that, because 1: you have no idea what the numbers are, or 2: if you did give the real numbers, we'd laugh at you for being such a lunatic

          4. "It’s not a fascist to require federal employees"

            1: The judge is not their boss. Therefore he has no supervisory right to adjust their conditions of employment

            2: It is thugish and fascist of you to want to force other people to take an experimental medical procedure where the only justification you can offer is "because it will make me happy"

            The chance of dying from Covid if you've been fully vaccinated is roughly 1 in a million

            The chance of getting anything more than the flu from Covid if you've been fully vaccinated is less than 1 in 10,000

            Since every adult in America who wants to be vaccinated has the ability to do so, and has had that ability for over a month, there exist less than 1 in 100,000 adults in America who aren't vaccinated yet who could legitimately complain about you not being vaccinated.

            In short, the only reason to attempt to force other people to take the vaccine is because you are a power hungry thug and bully who wants to force everyone else to bow to your desires


            1. Fully agree Greg ... well said.

            2. Since every adult in America who wants to be vaccinated has the ability to do so,

              Except immunocompromised ones, or people who don't have any say in the matter like prisoners.

              1. 1: Do you have any evidence that the prison systems / jail systems are not getting people vaccinated?

                Given that they were forced to let criminals out early, i expect that the systems have been vaccinating everyone (you're in prison, you have far fewer rights. They line everyone up, jab em, two weeks later, they come back and do the 2nd jab. Problem solved).

                If they haven't, then those prisoners have a valid complaint against the prison system. NOT against the Marshals.

                2: Is the judge immunocompromised? Has he revealed HIS personal medical information to that effect?

                A particular prisoner who is immunocompromised might have grounds to request vaccinated officers.

                But that does not justify a blanket demand like the judge made

      3. These marshals should take extra care the judge does not have with an accident, going down the court steps.

        1. If they think like that, it would prove my point.

    2. The basic issue is this.

      The Marshal's security policy pretty explicitly states that they can't leave the prisoner. They need to stay with the prisoner in order to ensure security.

      The Judge ordered the Marshal to leave the courtroom. AND ordered the Marshal to leave the prisoner. Which put it in direct contradiction to the standing security policy. So, the Marshal is left with an option to either violate the court order or violate the standing security policy. There's no "good" or "right" option. The Marshal chose to keep with the standing security policy.

      1. Ah, now that makes sense, and also why the judge won't drop his silly complaint that they wouldn't turn private medical information over to him. He threw a hissy and put everyone around him in a lose lose situation and now is just ass covering with the claims that it isn't about his demanding information he had no legitimate reason to request.

        1. I will give the judge credit for refusing himself though. Most folks on a power trip won't.

        2. There's nothing private about one's vaccination status in a pandemic. Refusing to share that with a random person you encounter who asks is rude. Refusing to share that with a judge in his own courtroom is contempt of court.

          1. If you are vaccinated, then you don't have the slightest shred of legitimacy to inquire what my vaccination status is. You're already protected.

            If you are not vaccinated, it's by your own personal choice. And you have not the slightest justification for demanding that I make a different choice than you did.

            So no, there is not the slightest legitimate justification for the judge asking what the vaccination status of the Marshals is

            Stop being a bully, a thug, and an innumerate scientific ignoramus

            1. You want to talk about numbers? Fine. The best efficacy numbers I have seen for any vaccine are 96%, not 100%. So if you are unvaccinated, you are still a threat to me, even if I am vaccinated.

              Even if, hypothetically, all vaccines were 100% effective against all variants in circulation, that wouldn't resolve the issue. A judge is responsible for the safety of everyone in their courtroom, even if those people are unvaccinated, and even if they don't care about their own safety. If two unvaccinated people walk into their courtroom, and one gives covid to the other there, then the judge is still responsible, and still has a legitimate interest in preventing that spread. The same is true of the leader in any social space.

          2. There’s nothing private about one’s vaccination status in a pandemic.

            Enough with the loosey-goosey usage of Big Scary Words. Pray share what definition of "pandemic" you think still applies to COVID today, particularly in the US. What statistics are you using to support that? How will you know when it's no longer a "pandemic" under your definition? Thanks.

            1. +1 (actually, +several)

            2. You're right, my use of the phrase "in a pandemic" was to emphasize the increased importance, not to draw a hard line, we can strike it. There's nothing private about one's vaccination status. Period. Schools at all levels have long required that both their students and employees turn over vaccination records for normal every day vaccines like MMR. There's no privacy interest in preventing anyone else in any other context from asking for that same information. The degree to which you might spread a communicable disease is always the business of the people around you.

              1. Schools get to ask about vaccination status over a few diseases that have caused significant problems with kids, who are forced to be there, and haven't committed any crimes such that their rights should be trampled.

                For example, no school can demand that you tell them whether or not you've taken the HPV vaccine. For that matter, i don't believe that any school can require you to get the flu shot.

                So no, there's no blanket "you have no right to keep your vaccination status private" exception to PHI.

                We're dealing with adults (well, legally), who've had every chance to get vaccinated (what's the judge's vaccination status?), who face no real risk from anyone, vaccinated or not, so long as they are vaccinated.

                So, since it's an entirely different situation than the school one, you claim fails.

                1. The burden isn't on me Greg, it is on you. You can't just say "it's private" without giving a reason and expect not to be laughed at. Why should we want to treat vaccination status as private?

                  Schools were just one example. I don't know if schools could force people to get the flu shot, I'm not aware of one trying to, but forcing someone to get a shot and forcing someone to disclose the fact of whether they have chosen to are two very different things.

                  Also, different people have different risk tolerances. Just because you don't care about the risk to a vaccinated person doesn't mean you get to force other people to take the risk. You don't get to decide what is "no real risk" to somebody else.

      2. There is an obvious better policy: follow the judge's orders. Violating a judge's orders in his own courtroom is contempt of court, which is obviously worse than violating the policies of the US Marshal service. When your employer tells you to do one thing, and the law tells you a contradictory thing, you follow the law.

        Although I would argue that contempt had already occurred before this point, simply by refusing to disclose their vaccination status, so they had essentially already made their choice before the judge ordered them to leave, and they made the wrong one.

        1. The judge is not the "law" and policies of the Marshall Service are orders of the President in effect.

          1. re: "policies of the Marshall Service are orders of the President in effect"

            No. Just no. First, there is a vast range of difference between a properly executed Executive Order and a bureaucratic policy set far lower in the organization. Second, an illegal order from the President is as non-binding as an illegal order from the third assistant clerk at the Podunk post office. In his courtroom (within reason and pending appeal), the judge is the law. The judge may be wrong in this specific case - but that will require a higher judge to sort out. The Marshal Service orders are not automatically controlling.

            1. Technically speaking, the Marshal service has final authority regarding the security policy of the Judicial Branch.

              28 U.S. Code § 331 - Judicial Conference of the United States

              If the judge ordered the Marshal to leave, but first hand their gun over to the judge, so the Judge could "do security themselves"...the Marshal may be within their rights to refuse.

        2. Every marshal should have been vaccinated (absent a rare, legitimate medical reason), as a condition of employment.

          Every marshal should have answered the judge's question.

          The disaffected, virus-flouting, anti-social hecklers of this judge should be accustomed to complying with the preferences of others by now.

          1. Ah, fascist Rev jumps again with his desperate desire to run everyone else's life

            Because when you're an innumerate scientific ignoramus like the Rev, throwing your weight around is all you have left

          2. I blame their boss.

            1. I am not familiar with the record on that. Did their supervisor direct them to be disrespectful, anti-social, lethally reckless jerks?

              1. Hey, you've figured out that this is a criminal case! Maybe next you'll figure out who the defendants are.

        3. What if the judge orders you to tell him the names of your last three sexual partners?

          1. Then Arthur would be held in contempt.

          2. That is not relevant to the context of a question concerning vaccination during a pandemic. Even the most virus-flouting, belligerently ignorant, anti-social, disaffected, backwater conservative should understand that.

      3. If I remember the original story it isn't quite that simple. There was a Court Security Officer present who work for a private company but the company has a contract with the US Marshall service. I freely admit to not knowing what the exact directive is, but it wasn't that the Judge was ordering the prisoner be left there unattended.

        Further he had no problem with a/the Marshall staying if he knew she was vaccinated. Were there no Marshall's there that were both vaccinated and willing to tell the judge that? If there was it doesn't seem like taking the prisoners back to prison was necessary.

        Basically this seems like both Judge and the USMS (or at least those responsible in SD) acted like and are continuing to act like children. None of the is right or worthy of support.

        1. It is none of the judge's business as to whether or not the Marshal was vaccinated

          The proper response to nosy bullies who demand thing's they're not entitled to is FOAD

          That remains true for judges as well

          The Marshal's service refusing to bow to a petty dictator's demand for private information he's not entitled to is entirely correct

          1. "It is none of the judge’s business as to whether or not the Marshal was vaccinated"

            I am beginning to enjoy the impotent whining of anti-social clingers. Stomping their bigoted, obsolete preferences into cultural and political irrelevance is totally worth it.

            1. Poor Rev, doesn't know what the word "impotent" means.

              Oh, wait, he probably does, and is just projecting it on the rest of us.

              If anyone in this story was "impotent", it's the judge who didn't get his way

      4. That is a very fair statement of the controversy. The root question (which is obscured by the vaccination status) is whether the marshal's security policy (that they can't leave the prisoner) automatically trumps a legal court order to the contrary. It is, after all, a mere policy, not binding law.

        Yes, the marshals were caught between a rock and a hard place. I'd have more sympathy for them if law enforcement were equally sympathetic when we peons are caught between two incompatible requirements. I don't feel too bad that their "let the courts figure it out" attitude is being applied to them this time.

        1. Still, what are the consequences to the Marshall if he valuates clearly established policy? Does he lose Qualified Immunity if something happens? Not following policy in a number of federal jobs leads the person open to criminal and civil penalties.

          1. Indeeed, it also bears mentioning that the prisoner had been convicted of killing his own brother. We're not talking about a losing a shoplifter or a car thief and if he had escaped or attacked someone when the Marshall wasn't present (as she was required to be per US Marshall Services policy), she'd probably be facing some pretty serious consequences.

            1. At the same time, we're not talking about a prisoner who would suddenly be left uncuffed and unattended in the cafeteria. There were lots of other law enforcement staff on hand and capable of protecting and detaining this one prisoner. As I understood the story, the judge specifically called for custody to be transferred. US Marshals may be good but they're not the only ones capable of doing that job.

              1. And if the judge then ordered the court security officer (who was under the judge's authority) to leave the room...but uncuff the prisoner first?

                Who is responsible? The Marshal is still responsible for security.

        2. Actually, sometimes policies are binding law, sometimes they're not, depending on how they were arrived at.

  2. When no judge in the state will take the case and no prosecutor will take it up, perhaps the judge should have realized that he was in the wrong on this situation, or at least was so heavily outvoted that it's not viable.

  3. Also, would it be extreme naivite to notice that the phrase "all criminal prosecutions" in the Sixth Amendment says nothing about "except criminal contempt." Obviously, the judges have carved out exceptions for themselves, allowing trial without a jury in cases of criminal contempt, so if take the judges' word for it there's no problem!

    But officials who were intended (among others) to be restrained by the Sixth Amendment aren't necessarily the best sources of reassurance when they say "this doesn't apply to us."

  4. At a bar tonight, I was asked an interesting question: if "The Wonder Years" was re-filmed today, what year(s) would it represent?

    Questions arise periodically. There have (and likely always will be) questions regarding the separation of powers, the counting of votes, the meaning of the right of "self determination", et c. Do we always choose to stand by things decided (stare decisis)? At what point does simplex logica Trump legalis ratio?

    1. "What did I do *this* time?"

    2. The Wonder years (saith Wikipedia) "ran on ABC from March 15, 1988 until May 12, 1993. ...The series stars Fred Savage as Kevin Arnold, a teenager growing up in a suburban middle-class family in the late 1960s and early 1970s."

      OK, so it aired in the late 1980s and early 1990s about events of twenty years previously. So if they started a new series today (2021), it would follow the kid's life for five years beginning in 2001. Yes, after the airing of the Wonder Years series iteslf.

  5. Also, if innocent defendants are being harassed, a Presidential pardon seems appropriate.

    If it's clear the defendants are innocent and are being dragged through prosecution for something which they didn't do, or which isn't a crime, then there's no need to wait for conviction to issue a pardon, is there?

    1. Is contempt even a crime that can be pardoned?

      1. I'm sure if you asked a judge, they'd say "no", judges aren't big on admitting that judges lack the power to do something.

        "and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

        Contempt IS an offense against the United States, so I'd answer, yes, since the only exception to the power is impeachment.

      2. "Is contempt even a crime that can be pardoned?"

        Criminal contempt like this is.

        Civil contempt [like where you yell at the judge and he sends you to jail until you apologize] is not pardonable.

        1. So, how long can the judge keep you locked up? I'm not seeing the relevant difference here, both are offenses against the United States, aren't they?

          1. The idea is the criminal contempt is punishment for past actions. It is all punitive and not mean to cause any future action.

            Civil contempt is to induce action. So civil contempt is supposed to only be allowed to continue as long as it still has a reasonable probability (my own words not necessarily the legal jargon) of working. The classic example is a witness who is subpoenaed and refuses to testify. They are held in civil contempt until they agree to testify or it has been long enough that is no longer reasonable to think it may induce said testimony (this necessarily also occurs if the proceeding at issue concludes). This is what journalists who refuse to reveal sources tend to be imprisoned for. This isn't an offense against the United States since it isn't about punishment (at least theoretically). This has been the case since the founding.

          2. "both are offenses against the United States"

            Not the civil type. Its not a crime, its disrespect to the court or failure to obey a lawful court order. Jail can be involved but you can "purge" the contempt by apologizing or doing the ordered act.

          3. Criminal contempt is punishable by a sentence of up to $1,000 and 6 months. However, if the judge convicts a defendant at a bench trial and imposes a sentence of greater than $300 or 45 days, then the contemnor can demand a new trial with a jury. See 42 U.S.C. sec. 1995.

            As others have said, civil contempt is not a criminal matter. The purpose is to extract compliance with a court order, and the contemnor can walk out of jail the moment he decides to comply.

            1. Unless he can also walk out after less than six months have passed, I'm still not seeing any real distinction.

            2. Interesting how our federal laws imply that getting put in jail for a day is equivalent in severity to a $7 fine.

      3. Yes. See Joe Arpaio.

  6. I would be interested in a review of the concept of a private prosecutor, an old concept that has fallen in the face of Democrat rent seeking for worthless public employees. This is a type of self help for crime victims, not involving physical violence.

  7. I can't remember what my opinion was about the merits of this case, but I will say that sometimes important legal/constitutional precedents are set when people do really unreasonable things, like litigate all the way up to the supreme court over a $50 fine instead of just paying it. So let's see what happens here.

    1. If that $50 fine represents $billion stolen by the scumbag lawyer profession across the country, going to the Suprem Court makes a lot of sense. This toxic profession must be stopped at any cost. It is a patriotic duty to go to the Supreme Court to stop their criminality.

  8. On a larger note, there are some interesting separation of powers issues here.

    The US Marshalls originally answered to the courts. They were paid by the courts, and did the court's business. Until 1965 each district court hired and administered its own Marshalls independently. But in 1969 The United States Marshals Service was created as a federal agency, presumably answerable to the executive branch.

    So...did the executive branch "Take over" the Marshalls from the courts, effectively stealing them? Who do the Marshalls answer to? The courts? Or the Executive branch?

    1. Out of curiosity, did the courts' marshals budget transfer with the marshals, or did the courts suddenly have money left over?

      And could the courts restart their own police service, call them bailiffs or something, and tell the executive branch marshals to suck it?

    2. "Until 1965 each district court hired and administered its own Marshalls independently."

      The chief US Marshal was always appointed by the President and confirmed by the Senate since the original 1789 Judiciary Act.

      1. But the individual marshals were appointed and paid by the local district courts.

  9. I'm utterly baffled as to how Prof Blackman has decided the judge is wrong. Everything about this case is bizarre, except his behaviour in response to the bizarre behaviour of the Marshals.

    The marshals' refusal to answer the vaccination question is completely bonkers. Just answer; the judge cannot (lawfully) take any action based on vaccination status, but can indeed enforce compliance with any vaguely reasonable demand he makes in the courtroom of anyone present, with contempt as his weapon.

    The judge's description of 'kidnapping' defendants seems appropriate. It raises the question of whether the Marshals service even had the right to hold prisoners if they *removed them forcibly from a timely trial* for personal reasons.

    Obviously the Marshals have behaved incredibly unprofessionally and demonstrated they do not understand the basic requirements of their job. Given that they have likely been trained previously in them, and the training didn't stick, we know they simply aren't competent to do the job. Gross misconduct; sacked without compensation or notice; end of story.

    1. The basic requirement of the Marshal's job is to ensure security for the court. One of the security policies in place is that the Marshal must be in the courtroom with the prisoner. They cannot leave the prisoner.

      The judge ordered the Marshal to violate this policy. The judge ordered the Marshal to leave the court room, but keep the prisoner in the court room.

      This leaves the Marshal with one of two options. Violate the court order. Or violate the security policy. One way of deciding is to look at the "worst case example" of what might happen if you violate the each.

      If the Marshal takes the prisoner with them, the worst thing that happens is the case needs to be rescheduled.

      If the Marshal leaves the prisoner in the courtroom, there's the possibility that the prisoner escapes and hurts or kills someone, and the Marshal isn't there to stop it.

      I believe the Marshal chose correctly. The core mission, ensuring the security of the court, took priority.

      1. When your employer tells you to do one thing, and the law tells you to do a contradictory thing, you follow the law. This is not a hard analysis. An illegal order (which is what the Marshal Service's policy became the moment the judge issued a contradictory order) is no order at all.

        1. That really depends on how the Marshal Service's policy came about. You might have trouble convincing a judge of it, but their orders are not laws.

        2. Wrong. It was the judge's order that was illegal

          1. What law do you think the judge's order violated Greg?

            1. The order to the Marshals to give up custody to their prisoners was not valid.

              As has been pointed out to you by multiple people

        3. Your own words belie themselves. The law is the law; the judge is the employer.

          1. The judge is NOT the employer of the US Marshals. The Marshals work for the DOJ, part of the executive branch.

        4. When your employer is the government and it tells you to do one thing, and it's relying on the 28 US code 331 and 28 US Code 566 for what it's telling you, and the judge tells you to do something else....

    2. "The marshals’ refusal to answer the vaccination question is completely bonkers."

      No, it's not. It's the proper response to the question.

      "Have you had this medical procedure" is a private medical question. Asking that is like asking all female Marshals if they've ever had an abortion, or asking all Marshal's if they've ever had a STD.

      It is none of the judge's business, and anyone who's not an innumerate scientific ignoramus knows it.

      If you've been vaccinated, then your risk of catching covid from someone is so small that you have no meaningful right to demand the information

      If you're not vaccinated, it's because you've chosen not to be. Having made that choice, you have no legitimate right to demand that others make a different choice to benefit you.

      Stop being a nosy jerk

    3. Yeah, this doesn't seem like an easy case in favor of the USMS. If anything the other way around.

      It's basic that courts have an inherent power to regulate their proceedings, which the judge was exercising here by requiring the USMS staff to disclose vaccination status. That kind of information is relevant to a judge directing people where to place themselves within the courtroom, which is obviously within the judge's power.

      It's true that the USMS has a statutory obligation to maintain courthouse security (so that perhaps they couldn't leave the defendant alone with the judge), but as I understand the facts, the deputy marshals had an easy alternative course: give the judge the information he was asking for.

      (And, by the way, it's not obvious that the statutory obligation to maintain courthouse security should trump the constitutional ability of an Article III court to order the executive branch to render a prisoner to the court -- the writ known as habeas corpus. But that hard question could have been avoided, by the USMS.)

      Criminal contempt proceedings are completely appropriate here, to vindicate the power of Article III judges to control their own proceedings, even though Article I staff have custody of the defendant (the USMS) and responsibility for some courthouse administration (GAO). And it's totally normal for a judge to refer criminal contempt to another judge -- see the Donzinger case.

      1. "It’s basic that courts have an inherent power to regulate their proceedings, which the judge was exercising here by requiring the USMS staff to disclose vaccination status."


        That is private health information that the judge has no legitimate grounds to demand. It's as if the judge demanded to know if the Marshal had had sex last night, since someone who's been in intimate contact with another person is more likely to be carry a disease today.

        It's none of the judge's business.

      2. Except here we have a statute which says that the "United States Marshals Service retains final authority regarding security requirements for the judicial branch of the Federal Government.” Those policies per statute are also created in consultation with the judicial branch through the Judicial Conference of the United States (even though the Marshall Services has the final say).

        Keep in mind, that we are also talking about a violent prisoner here (who had been convicted of killing his own brother). If I was the Marshall, I would no more violate Marshall policy (which per federal law the USMS has the final authority on) by leaving a violent prisoner without a Marshall present than I would give him my sidearm merely because a judge in a fit of pique "ordered" it.

  10. Lawyers please educate me. Where are chief judges in a case like this? In any other industry, we expect a senior manager to confront an employee behaving unreasonably and say, "Cut it out."

  11. 28 USC §566(a):

    It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts [...]

    so there is a real opportunity for conflict between courtroom security and a judge's order. It's not clear we'll reach that question here though, the prisoner was originally left in the custody of another vaccinated member of the marshals service and only removed during the noon recess which raises the question why an arrangement that was secure enough in the morning wouldn't have been in the afternoon.

  12. Does anyone know if there was a policy in place prior to this which required Marshals or everyone in the court room to be vaccinated? That is were these Marshals on notice that vaccination was required and did they ignore that?

    It's my understanding that employers may require their employees to be vaccinated. This not only protects the employee but also coworkers and customers. It seems to me that U S Marshals are in a position where they are required to deal with prisoners in fairly close settings and to transport them to court in again confined settings. Has the Marshal Service required their employees to be vaccinated?

    Would recklessly transmitting Covid 19 to prisoners be a violation of the prisoners' rights?

    1. "Would recklessly transmitting Covid 19 to prisoners be a violation of the prisoners’ rights?"

      If the prisoner was vaccinated, then the chance of passing it on is essentially null.

      If the prisoner chose not to be vaccinated, that's the prisoner's problem.

      If the State is refusing to vaccinate prisoners, you have a complaint against the people holding the prisoners, not the Marshal

      1. If someone were first arrested their vaccination status may not be immediately known.

        If they were offered an immediate vaccination and accepted it, it would still be two weeks before the vaccine reached it optimum efficacy.

        If they were unvaccinated holding them in close quarters would substantially increase the possibility of contracting the disease

        1. If someone has just been arrested then they've had over a month to get vaccinated.

          By "over a month to get vaccinated" I mean that they could have gotten vaccinated w/o any risk factors, and without cost. heck, depending on where they live, they could even have been offered to get paid to get vaccinated.

          So no one who's just been arrested has any legitimate grounds to complain about the vaccination status of the Marshals.

          Someone who's been in jail for the last six months, and hasn't been offered a vaccination while in jail, would have grounds to complain. But their valid target is the jail / prison system that didn't vaccinate them, NOT the Marshals

  13. You didn’t see that there might be a problem with a judge was in effect the complaining witness, appointed the special prosecutor, and is in effect the special prosecutor’s boss, also judging the case?

    You didn’t see that that might be a problem?

    Recusal is the most obvious course of action the judge took here, once the point of prosecution was reached.

    1. For the reasons you said. If the judge hadn’t recused himself, any conviction would be overturned on appeal in a heartbeat for not getting an impartial tribunal. The judge knows this.

      1. I think the surprise was that, after the judge's previous behavior in this case, he suddenly demonstrated a moment of sanity.

Please to post comments