Money to Burn: A literary brief for result-oriented judging

by John P. Messina

  1. Introduction
    1. Synopsis of Money to Burn
    2. The pedagogical purpose behind the novel
    3. Devine’s rule about not always telling "the whole truth."
    4. The organization of this Memorandum
  2. The Plot
    1. The back story
    2. The scheme to steal $100 million
    3. The three accomplices
    4. The theft and its aftermath
    5. The main characters' poetically just fate
    6. The pity and fear aroused by the story’s tragic elements
  3. Judge Devine at work—"do[ing] the job exactly as I see fit."
    1. Norms for Judge Devine (and for every other federal trial judge)
    2. United States v. Massachusetts Slim—Establishing Devine’s gift for judging character
      1. Statement of the case
      2. Judging character
      3. The activist (but covert) intervention
      4. The non-reviewable finding
      5. Conclusion
    3. Scott v. Federal Reserve Bank—The civil suit that propels the main plot
      1. Statement of the case
      2. The three interventions
      3. Conclusion
    4. United States v. Younkers—The only intervention that is arguably non-partisan
      1. The trial
      2. The debate over the proper scope of judicial interrogations
      3. Conclusion
    5. United States v. Serena I—The judge becomes a prosecutor
      1. The rejected plea bargain
      2. The trial
      3. Conclusions
    6. United States v. Serena II—The judge conspires with a detective to enhance a defendant’s punishment
      1. The ex parte meeting between the judge and the detective
      2. The trial
      3. The sentencing hearing
      4. Conclusion
    7. United States v. Aranow—The judge punishes a venal lawyer
      1. Statement of the case
      2. Devine’s off-the-record intervention
      3. Conclusion
    8. Brace Corp. v. Brace—The judge plays Solomon
      1. Statement of the case
      2. Conclusion
    9. United States v. Chalani—The judge coerces a lawyer into betraying his client
      1. Statement of the case
      2. Conclusion
    10. The real-life events that inspired Money to Burn’s episodes of "off-kilter" judicial behavior
    11. The scorecard for the "honest and fair judge"
  4. Using poetic justice to justify result-oriented judging
    1. The single case where Devine has a bad motive for intervening
    2. The seven cases where Devine has a pure motive for intervening
  5. Conclusion

I. Introduction

A. Synopsis of Money to Burn

Judge Paulie Devine is the accomplished, virtuous, but flawed hero of Money to Burn (Putnam 2002), a crime novel written in the style of a tragedy.

As a youth, Devine was an honors student and a championship athlete.  He graduated from Harvard College summa cum laude, then got his law degree from Yale.  After serving two years in the Army intelligence corps, he became a high-profile federal prosecutor before receiving a life-time appointment to the federal bench in Chicago.  He married Ellen Doherty, also a lawyer, and remained devoted and faithful to her until the day she died, suddenly, in the prime of her life.

As the story opens, Devine, the first-person narrator, is still grieving over Ellen’s recent death.  His antagonist is Redding Prindiville, president of the Chicago Federal Reserve Bank.  He blames Prindiville for instigating politically motivated charges against Ellen early in their marriage.  Ellen eventually beat the charges, but the four-year ordeal tarnished her career and cast a dark cloud over the marriage.  

Devine’s flaw is his hatred for Prindiville, which incites him to seek revenge for the hardships he caused Ellen.  Devine concocts a scheme to rob Prindiville’s bank of $100 million.  He recruits three accomplices, including his best friend, Dave Brody.  They pull off the robbery, but unanticipated complications lead to Brody’s death, leaving Devine more lonesome than ever.  

B. The pedagogical purpose behind the novel

Zagel has publicly complained that popular culture unfairly stereotypes judges as being under the thumbs of their political sponsors.[1]  Judge Paulie Devine is Zagel’s answer to this alleged stereotype.  Devine[2] listens only to his own inner voice, not to any political boss.  We hear that voice as Devine, while plotting to rob the Fed and then trying to cope with unforeseen consequences, works his way through a docket of 29 civil and criminal cases.  Describing Devine’s exploits in these cases "gives Zagel many opportunities to describe and explain American judges in a way that a former prosecutor and judge is especially equipped to do."[3]

The picture Zagel creates through these fictionalized cases is "a little scary,"[4] especially when Devine is presented with a case where, if he were to play the detached magistrate, he would have to “perpetrate those errors that the law requires.” (184.)  Devine intervenes in such cases to avoid the “wrong” result, even if he has to violate a rule or two to get the “right” result.  He has no qualms about violating judicial norms because he knows that he has a “job for life”[5] and won’t ever be impeached so long as he doesn’t trade the outcome of a case for a bribe.[6] 

Zagel has publicly lauded the fictional Judge Devine as an “honest and fair judge.”[7]  This public praise for Devine, coupled with the poetic justice achieved in the cases where he intervenes to avoid the “wrong” result,[8] signals the author’s approval of Devine’s result-oriented style of judging.[9] 

C. Devine’s rule about not always telling "the whole truth"

Devine begins his story by telling us in the very first sentence that he plans to rob the Federal Reserve Bank.  Then, after sharing some interesting but superficial information about himself—his fondness for custom-made English suits, his eye for architectural detail, and his Catholic schooling—he matter-of-factly reveals a profoundly important trait: his life-long rule about not always telling “the whole truth.”[10]

By placing this revelation in the novel’s opening paragraphs, Zagel lets us know that Devine’s rule about not always telling “the whole truth” will influence the events that follow.[11]  And it does—in seven of the 29 cases on his docket,[12] Devine fails to tell the litigants “the whole truth” about the reasons behind his rulings. 

For a judge who toils in a system with the declared goal of searching for the truth,[13] having a rule about not always telling “the whole truth” is a strange quality to prize.  Indeed, it is the gist of what Judge Posner condemns as result-oriented judging.[14]  Nevertheless, by publicly describing Devine as an “honest and fair judge,”[15] Zagel has signaled his approval of judges who don’t always tell litigants “the whole truth” about the reasons behind their rulings.

D. The organization of this Essay

Section II summarizes Money to Burn's back story and plot; analyzes the main characters’ poetically just fates; and comments on the pity and fear aroused by the story’s tragic elements. 

Section III analyzes the eight cases that Zagel uses to carry out his pedagogical purpose of describing and explaining American judges from his unique perspective.  This Section includes a description of three norms that should govern the behavior of federal trial judges.  It concludes with a scorecard summarizing how Zagel’s “honest and fair” has handled his docket. 

Section IV explains how Zagel uses the device of poetic justice to praise result-oriented judging. 

II. The Plot

A. The back story

Paul Devine was born and raised in Chicago—as was Zagel.  Like Zagel, Devine was a successful student and prominent prosecutor before he was appointed to the federal bench at a relatively young age. 

The novel opens sometime after the premature death of Devine’s wife, Ellen.  She was a corporate lawyer “modeled sort of on my wife,” according to Zagel.[16]  Like the Zagels, the fictional Devines are childless.

We learn in flashbacks that Paul and Ellen first met when he was a federal prosecutor and she, a state’s attorney.  After they married he was appointed to the federal bench and she joined the law department at a private national bank.  Her career got sidetracked when one of the bank’s investment trusts ran into a liquidity crisis.  Ellen came up with a pragmatic solution that might have been “legally wrong,” but it reflected “her honest opinion” about what was fair under the circumstances.

A minority of the investors complained to the Comptroller of the Currency.  The bank asked the Comptroller to approve Ellen’s plan, but Redding Prindiville, a senior official in that office, rejected it.  Worse, he filed administrative charges against Ellen, accusing her of breaching her fiduciary duties to investors.  He alleged that “she had given her legal advice knowing it was wrong and did so because she was ambitious and decided to tell the bank officers what it was they wanted to hear rather than tell them what was right.”  (42.) 

The investors who had complained to the Comptroller didn’t think she should be charged; they never believed she acted in bad faith and said so to Prindiville. Nor did the Comptroller’s investigators think that charges were warranted.  Nevertheless, Prindiville refused to back off; he thought “the case would get more attention if they banged a lawyer on the head.” (59.) 

Ellen eventually cleared herself, but it took four years, and the effort and its uncertain outcome strained and darkened the Devines’ marriage. 

Paul never forgave Prindiville for tainting Ellen’s career, but she moved on, getting a fresh start as general counsel at a high-tech firm.  She was about to step into the legal limelight for her role in a big international transaction when she suffered a burst aneurism and died, leaving Paul lonely and distraught.  

B. The scheme to steal $100 million

Sometime after Ellen’s death Prindiville shows up in Devine’s courtroom in his new job as president of the Chicago Federal Reserve Bank.  Devine “wanted retribution for Prindiville.” (30.) He conjures up a clever scheme to embarrass and humiliate Prindiville—he will steal $100 million from under Prindiville’s nose. 

He plans to stage the theft inside the huge, impregnable vault where Fed employees count and sort currency.  There, they separate the worn and torn bills from those still in good condition and then, using a conveyor belt, they send the worn and torn bills to a shredder.  Devine plans to snatch $100 million in worn and torn bills before they are sent to the shredder.

To carry out his plan Devine needs the help of a pair of insiders.  On the appointed day, these two accomplices will create a diversionary electrical fire in the vault that will trigger emergency alarms.  Devine, disguised as a paramedic, will respond to the alarms.  Using smoke from the fire as cover, Devine and a third accomplice, who is a real-life paramedic, will stuff $100 million in worn currency into specially-rigged gurneys.  They will wheel the gurneys out of the smoke-filled building and into their ambulances, then speed away to a rural hideaway where they will bury the loot. 

Devine and his accomplices agree to leave the money buried for five years, which is the length of the statute of limitations for bank robbery.  They will retrieve the money after the statute expires and then, to avoid tax problems, they will move abroad. 

C. The three accomplices

The first accomplice Devine recruits is Dave Brody, his best friend since childhood. Brody is a fire department paramedic and a decorated hero.  Like Devine, he was a successful student and athlete, but he lacked the ambition to take the lieutenant’s examination.  At age 26, he fell in love with the unattainable Bridget Ryan, the daughter of a rich and prominent physician who did not want Bridget to marry a civil servant with no ambition.  “Dave would not ask Bridget to defy her father until he had enough money to buy the life she was used to living.”   To raise that money he made a fateful decision—he began moonlighting as an arsonist. (17.) 

After five years of hiring himself out to insurance fraud artists, Dave had enough money to “pay for the good life” Bridget would expect.  He proposed, but she turned him down.  “I love you,” she tells him, “but if we married, we’d learn to hate each other.” (18.)  Life after Bridget had three functions for Dave—“he saved lives, destroyed buildings, and prowled the clubs at night.” (Id.)

When Devine explains his reasons for robbing Prindiville’s bank Brody asks, “How is stealing a ton of money going to make that better?”  “I don’t know,” Devine replies.  “Maybe it’s just the guy at the Fed.  I’m angry at him.”  (38.)  Brody agrees to help his best friend. 

Next, Devine recruits the two insiders who are key to executing the theft—a mixed race-couple who “looked like photographs from an ad in Vogue.” (23.)  The husband, Trimble Young, is an electrician.  He’s a “beautiful sort of man,” and white.  The wife, Charity Scott, is a sergeant of the guards.  An Army veteran, she’s fit and trim, and black. 

Charity’s and Trimble’s jobs are such that Trimble could be working in the vault at a time when Charity is in charge of everyone who is guarding the money.  This possibility violates the Fed’s rule against spouses working in any assignment that might compromise security, so Prindiville tells the couple that one of them will have to resign. 

Charity and Trimble sue for unlawful discrimination, alleging that the bank has failed to make a reasonable accommodation out of racial animus.  Their case is assigned to Devine.[17]  

Devine first meets Charity and Trimble at a settlement conference in chambers.  When she speaks, “there [is] an audacity in her eyes.” (23.)  She is “precisely the kind of person who, if God were paying attention, would never end up at the mercy of a despicable fool like Redding Prindiville.”  Trimble, on the other hand, hardly ever speaks; his chosen role in life is to watch Charity “adoringly.” (33.)  

Devine instantly recognizes that Charity and Trimble can help him get revenge against Prindiville, but only if they remain employed at the bank.  He helps them bluff the bank into a settlement that will prolong their employment for at least another year or two—enough time to plan and execute the theft.  The settlement is in the form of an enforceable consent decree. 

After the consent decree is entered, Devine meets with Charity covertly and describes his plan to rob the bank; he does not include Trimble in this sales pitch.  “Trimble would say yes if she said yes.  He was hers, body and soul.”  (51.)  “I’m in,” she says.  She, in turn, recruits Trimble, but, at Devine’s request, keeps Devine’s identity a secret from him. 

D. The theft and its aftermath

About halfway through the novel, Devine and his accomplices pull off the theft, netting $73 million, but Trimble’s face is badly burned during the diversionary fire.

A wily detective (Tony Plymouth) suspects Devine and his accomplices and shares his suspicions with Prindiville.  Without telling the detective, Prindiville arranges for someone to break into Devine’s home and search for incriminating evidence.  The burglar steals a model that Devine and Brody used to plan the heist; he also plants a bug that records an incriminating conversation between the two best friends. 

Meanwhile, Trimble’s burn heals, but there’s damage to the nerves in his face and a disfiguring scar.  He becomes addicted to painkillers; at work, he is reduced to part-time hours.  He is angry at Charity and Dave for getting him involved in a deal where they had promised that “nothing can go wrong.” His marriage buckles under the strain.

Charity wants to meet with Devine to discuss her fears that Trimble might betray them.  Because Detective Plymouth has begun snooping around, Devine does not want to be seen in public with Charity.  To provide cover for a meeting with her, he instructs her to file a motion to enforce the consent decree even though there is no actual or threatened violation of the decree.  The motion serves as a pretext for holding a series of settlement conferences in chambers at which the parties agree to meet separately with the judge. 

In the meetings with the bank’s representatives, Devine keeps up the charade that he is attempting to mediate a dispute governed by the consent decree, but in his meetings with Charity, he abandons that charade and discusses the problems presented by Trimble.  The problems are never resolved.

Plymouth continues to track Devine and his accomplices relentlessly. As he closes in, Young shows signs that he might turn state’s evidence.  Brody steps in to protect his best friend by murdering Trimble and then killing himself.  With this murder-suicide, Brody eliminates himself and Trimble as potential witnesses against Devine. 

Prindiville then confronts Devine with the incriminating (but illegally-obtained) evidence and demands $50 million as his price for keeping silent. Devine agrees to pay the price. Prindiville sets up an elaborate procedure for Devine to deliver the cash and receive, in exchange, the incriminating evidence, but Devine, with help from Charity, outwits Prindiville and grabs the evidence after paying only $4 million. 

E. The main characters’ poetically just fates

Poetic justice is the literary device that tragedians use to convey the moral of their story—they reward virtue and punish vice in especially appropriate ways. The fates of the five main characters are poetically just.

Brody’s and Young’s fates: Dave Brody and Trimble Young pay the ultimate price for their involvement in Devine’s scheme. Their deaths also serve as punishments to their surviving partners, Devine and Scott, who are deprived of Brody’s friendship and Young’s consortium, respectively.

Scott’s fate: After Trimble’s death, Charity Scott moves to the Caribbean. When the statute of limitations expires, she flies back to Chicago, retrieves her money, and then leaves the country for good, settling in Trinidad.  Losing one’s spouse and living in exile abroad, alone, are poetically just punishments for robbing a bank.

Prindiville’s fate: Prindiville takes the $4 million he extorted from Devine and moves back home to Vermont, where he buys himself the nomination for governor of Vermont, but loses the election. “The voters met him, they knew him, and they walked away from him.” After losing the election he opens a law office in Burlington and begins “campaigning for the next federal judgeship that opens” there. (369.)

Prindiville is responsible for the chain of events leading to the robbery and the deaths of Brody and Young. He began those events when, for the sake of advancing his own career, he falsely accused Ellen of letting her ambition blind herself to her fiduciary duties. Having his political ambitions thwarted in his home state is an apt punishment for that earlier offense.

Devine’s fate: When Devine went on the bench, he had “just two close friends, Ellen and Dave.” (329.) Losing Dave is a harsh but fit punishment for breaking the law to avenge Prindiville’s ill-treatment of Ellen.

Devine is rich beyond his wildest dreams, but he takes no pleasure in his wealth. Once or twice a year he puts $100,000 in an envelope and gives it anonymously to one of the “undeserving losers” in his courtroom or someone else in need. “It helps a little, giving money to people,” he tells himself, “but I’m still alone.” (361.) 

Interestingly, Devine’s punishment does not include losing his judgeship. 

F. The pity and fear aroused by the story’s tragic elements

A tragic story is meant to arouse us to pity and fear. Money to Burn arouses us to pity Devine, because grief over his wife’s death has incited him into a law-breaking act of vengeance that has left him more lonesome than ever.

Devine’s fate arouses us to fear for ourselves. We, too, might someday lose a loved one, feel overwhelming grief, and be incited to an action that will leave us more lonesome than ever. 

III. Judge Devine at work—“do[ing] the job exactly as I see fit” 

More than one-third of the book (about 148 of the 371 pages) describes Devine at work in his courtroom or in chambers, as he makes his way through the 29 cases that are sprinkled throughout the narrative.[18]  Twenty-one of the cases are described briefly, as Devine, following the classical model of the adversary system,[19] plays the role of the detached magistrate, passively listening to the parties and resolving, in a non-partisan way, the issues that they choose to present.

The other eight cases are described in more detail, as Zagel shows us how Devine deals with “cases you have to decide the wrong way because the law is foolish.” (38.) Devine takes a different tack in these eight cases, playing a more aggressive, inquisitorial role[20] so as to avoid “perpetrat[ing] the errors that the law requires.” 

Devine’s approach to these eight cases is informed by a Machiavellian view of his authority and independence as a federal judge:

I have been given extraordinary power over the lives of human beings and, since I have a job for life, I can do the job exactly as I see fit because, short of conviction after trial before the United States Senate on charges of impeachment by the United States House of Representatives, no one can fire me.  (181) [emphasis added]

Now, the threat of impeachment is not much of a constraint on a judge who would boast that he can do the job exactly as he sees fit because no one can fire him. Since 1789, more than 3,141 persons have been appointed as Article III judges;[21] only 13 have been impeached by the House of Representatives—less than one-half of one percent.  Of those 13, only seven were removed by the Senate, an average of one removal every 31 years.  Four others were acquitted by the Senate; two others resigned after being impeached.[22]

The court of appeals is the only real constraint on a judge who would boast about the nearly limitless power inherent in a life-tenure appointment. Litigants whose cases are assigned to such a judge’s calendar can only hope that the judge conducts proceedings in a way that preserves their right to appeal in a meaningful way. 

A federal trial judge who respects litigants’ right to appeal would conduct proceedings in accordance with three norms, identified below in Section A.  In Sections B through I, these norms are applied to the eight cases in which Devine intervenes[23] to avoid “foolish” results. 

These critiques use the terms “activist,”[24] “result-oriented behavior,”[25] and “result-oriented decision”[26] as they are defined in Result-Oriented Judging

A. Norms for Judge Devine (and for every other federal trial judge)

As a trial court judge, Devine occupies the bottom rung on the Article III ladder.  Consequently, every litigant who loses in his court has an absolute right to appeal.[27]  Effective appellate review requires that the true grounds of every decision he makes be spread on the record; if it isn’t in the record, it can’t be reviewed.[28] 

The importance of the record to an effective appeal implies a set of norms that Devine (and every other trial court judge) should follow: [29]

  1. Devine (and every other federal trial judge) should publicly declare, on the record, the true factual and legal grounds of every ruling made on the way to a final judgment.
  2. If Devine (or any other federal trial judge) has any off-the-record interaction with a party, lawyer, or witness that affects the adjudication of any material issue, the judge should describe that interaction for the record.
  3. If Devine (or any other federal trial judge) forms any off-the-record mental impression, conclusion, opinion, or legal theory that affects the adjudication of a material issue, that, too, should be put on the record. 

B. United States v. Massachusetts Slim—Establishing Devine’s gift for judging character

Massachusetts Slim is a white collar criminal who has entered a guilty plea to a mail fraud charge. At sentencing, Devine notices a subtle gesture by Slim that escapes everyone else’s attention. Devine’s interpretation of the gesture leads him to quintuple the sentence he had in mind when he walked into court.

Slim’s sentencing hearing serves a larger purpose—it signals the audience to accept Devine as an authoritative judge of character.

In the course of the novel Devine passes judgment on at least 34 persons—not just the lead characters in the main plot (Ellen, Prindiville, Brody, Scott, Young, and Detective Plymouth), but also the lawyers and litigants in the unrelated cases that Zagel uses for the purpose of explaining American judges to us. Having the audience accept Devine as an authoritative judge of character is essential to the success of the novel’s pedagogical purpose. 

Slim’s case is described at pp. 8-13.

1. Statement of the case

Slim had been involved in dozens of frauds, but a lazy prosecutor had agreed to a quick plea bargain of one count of mail fraud, with a sentencing ceiling of five years. In Devine’s view, a more industrious prosecutor would have investigated and indicted dozens of frauds and then bargained for no less than a ten- or fifteen-year ceiling on sentencing. Nevertheless, Devine recognizes he “can only sentence for what has been proved,” so he puts the prosecutor’s “incompetence” out of his mind as he contemplates the sentence he will impose.

Devine reads the pre-sentence report, which includes a “cleverly written report by [Slim’s] own psychiatrist that said nice things about him but described, in fact, a manipulative man without a conscience or a scruple.”

In other words, Devine concludes, Slim is a sociopath.[30]

Devine’s negative assessment of Slim’s psychiatric state doesn’t influence his thinking about an appropriate sentence, at least not initially. As he walks into court, he tentatively decides on a sentence of one year “for what has been proved,” rather than a longer sentence that would punish Slim for being a sociopath.

At the sentencing hearing two of Slim’s victims testify. Tim and Kathy are a husband and wife who were once “close friends” of Slim. They invested their life savings with him and recommended him to friends, who did likewise. As a result of Slim’s fraud, “[t]hey had lost not only their money but also their friends; everyone who might have supported them during this time was blaming the two of them for bringing Slim into their lives.” Nevertheless, they are not outraged at Slim and do not ask Devine to be harsh; they “just wanted to tell their tale.” Devine acknowledges that “[i]f they, who knew Slim, were not outraged, then he might not be that bad a man.”

Next, Slim addresses the court. He offers no excuses, takes full responsibility for his actions, and promises to “work hard to pay everyone back, even if it takes the rest of my life to do it.” Then, in a gesture that Devine characterizes as “a little piece of theater,” he turns to the victims and apologizes. In Devine’s eyes, Slim’s gesture reinforces the conclusion Devine had reached after reading the pre-sentence report—that Slim is a liar and sociopath.

Slim’s new wife speaks last. Devine sizes her up as “honest but not innocent.” She was a wealthy widow with two young sons when she first met Slim at a shelter for battered women, where they both were volunteers. The man she describes appears to have turned himself around—he confessed his crimes to her at the outset of their relationship and expressed remorse for them; he became an attentive substitute father to her sons; and he insisted on signing a prenuptial agreement waiving any claim to her estate. She concludes with a plea for a short sentence:

He is the love of my life.  He has always told me that he had been a bad man.  He is not a bad man now.  He is a good man. I need that good man with me and my sons as soon as I can have him back. (emphasis added)

Nothing in Slim’s wife’s presentation gives Devine any reason to question her judgments that Slim “is a good man” and that she and her sons “need that good man…as soon as I can have him back.” Her judgments are not clouded by naiveté, as Devine himself recognizes—he describes her as “honest but not innocent.” Nor are they clouded by financial dependence on Slim: he is broke, and she is independently wealthy. Nevertheless, Devine rejects her plea for a minimum sentence and imposes the five-year maximum, even though he himself had a one-year sentence in mind when he walked into court.

In an inner dialogue that concludes the episode, Devine reveals why he upped the sentence from one year to the five-year maximum—He “knew [he] ought to keep the sociopathic and coldly calculating Slim away from her for as long as [he] could.” The maximum sentence, he tells himself, was “a blessing to her.”

2. Judging character

In this episode three people pass judgment on Slim’s character—his wife, his psychiatrist, and Judge Devine. The psychiatrist and the wife, who know Slim far more intimately than Devine, both see some good in Slim and say so on the record. Devine, on the other hand, sees Slim as an especially clever sociopath who is able to conceal his sociopathic personality from his wife and his psychiatrist—but not from the all-knowing Judge Devine.

No information is presented that would cause us to question Devine’s judgments regarding Slim. We are meant to accept those judgments as authoritative. 

3. The activist (but covert) intervention

The government doesn’t offer any expert opinion that Slim is a sociopath, nor does it ask for a finding that he is one. The government’s stance conforms to the federal policy that a defendant’s “[m]ental and emotional conditions are not ordinarily relevant in determining” his sentence.[31]

Ignoring this policy, Devine decides that Slim is a sociopath, and that his status as a sociopath should affect his sentence. He does not, however, notify either the government or the defendant that this issue will affect the sentence. 

4. The non-reviewable finding

The trigger for the adverse findings is the gesture that Devine characterizes as “a little piece of theater” signifying that “[Slim] lied. He didn’t mean a word of his apology.” The findings that Slim is a liar and a sociopath are made silently.[32] Consequently, Slim and his attorneys have no opportunity to challenge those findings or to seek appellate review of them. 

To the extent that there is any circumstantial evidence on the issue, it tends to negate any inference that Slim is a sociopath: he expresses remorse, accepts responsibility, and recognizes a moral obligation to make restitution.

5. Conclusion

The sentence imposed on Slim is result-oriented behavior because it is the product of conclusions formed off-the-record—that Slim is a sociopath, that he has fooled his wife into believing that he has reformed, and that the wife needs to be protected from being victimized by Slim. Because these conclusions are off-the-record, they cannot be reviewed by the court of appeals. 

C. Scott v. Federal Reserve Bank—The civil suit that propels the main plot

Scott v. Federal Reserve Bank introduces the married couple who will become Devine’s accomplices in crime—Charity Scott and Trimble Young. On three separate occasions Devine abandons his role as a neutral arbiter and intervenes in the Scott case in order to advance his vengeful scheme against Prindiville.

The Scott case is described at pp. 22-28; 32-35; 45; 51-60; 80-83; 109-10; 112-14; 223-26; 235-36; 251-53; 267; and 343-46.

1. Statement of the case

Charity and Trimble are in violation of the Fed’s rule against spouses working in any assignment that might compromise security. Prindiville tells the couple that one of them will have to resign. Charity and Trimble sue for unlawful discrimination, alleging that the bank has failed to make a reasonable accommodation out of racial animus. The discriminatory animus, they allege, arises from whites and blacks alike who disapprove of Scott’s and Young’s interracial marriage. 

2. The three interventions

At three different junctures Devine intervenes in Scott for a corrupt purpose—exploiting the litigants to advance a private agenda.

The first intervention occurs at the initial settlement conference, when Scott confesses to the weaknesses in her case and confides to Devine that she’s “trying to bluff them into some kind of deal we can live with.” (24.) Devine promises, “I will try to help your bluff.” (Id.) He succeeds in bluffing Prindiville into accepting a consent decree that extends the plaintiffs’ employment indefinitely. The consent decree ensures that Charity and Trimble will remain available as inside accomplices for the robbery Devine is planning.

The second intervention occurs after the consent decree is entered, when Devine meets secretly with Charity and recruits her to the scheme. The meeting is an ex parte communication because it concerns the same subject matter as the consent decree in the Scott lawsuit, namely, Charity’s and Trimble’s employment at the bank.

The third intervention occurs after the theft, when Devine instructs Charity to file a motion to enforce the consent decree in order to create a cover for more ex parte meetings.

3. Conclusion

Conspiring with a party off-the-record to harm another party violates all norms of judicial behavior. Devine’s misconduct in Scott is off the charts. 

D. United States v. Younkers—The only intervention that is arguably non-partisan

Younkers is charged with murdering a civilian secretary at the Great Lakes Naval Station. His case is described at pp. 115-17. This case is the only one of the eight where Devine’s intervention is arguably non-partisan.

1. The trial

Younkers admits that he killed the victim, but he has entered an insanity plea, claiming he was suffering a blackout at the time. He has a history of stays in mental hospitals to back up this defense.

The prosecutor has evidence of motive, in the form of a series of angry letters accusing the victim of getting Younkers fired from his job. The inept prosecutor, however, does not know how to get the initial letter admitted into evidence. Devine interrupts the direct examination, asks four questions that establish an evidentiary foundation for the letter, and receives it into evidence.

Devine “helped the prosecutor three more times in the trial,” though the details of these judicial boosts are not described. The jury convicts. 

2. The debate over the proper scope of judicial interrogations

Federal judges have limited inquisitorial powers, [33] including the power to “interrogate witnesses, whether called by [the judge] or a party.” Fed. R. Evid. 614(b). The Federal Rules of Evidence do not explicitly constrain the scope or manner of judicial interrogations. Nevertheless, as with every other aspect of the judicial office, the power to interrogate witnesses must be exercised “impartially.”[34]

Locating the line where an impartial judicial interrogation crosses over to advocacy for one side or the other is a challenge. Judicial interrogation that merely seeks to clarify evidence that the parties’ lawyers have already developed is generally accepted as proper.[35] Beyond this agreement lies a great divide.

Some commentators oppose judicial interrogation that elicits new testimony or develops new lines of inquiry; to them, doing so “runs afoul of basic principles underlying the adversary system.”[36] Others see no problem with the practice.[37]

The situation presented in Younkers—a prosecutor’s inept effort to lay a foundation for the admission of evidence—is not uncommon. Some courts believe that a judge has a duty to remedy any such breach in the evidence.[38] Others believe that even if the prosecution is ineffective or incompetent, “it is not the trial judge’s function to step into the shoes of the prosecution to assist.”[39]

3. Conclusion

Devine’s initial intervention in Younkers is activist—that is, it is an exercise of his inquisitorial powers—but it does not open a new line of questioning; it only completes the foundation for evidence the prosecutor was attempting to offer. The questions posed during the intervention are neutral and objective. Devine’s motive for laying the foundation—allowing the jury to hear critical, relevant information that they would not otherwise hear—is not intrinsically partisan.

Consequently, the initial intervention is neutral activism, not result-oriented. Zagel does not disclose the particulars of the three subsequent interventions. For the sake of discussion, we will assume that these interventions were also instances of neutral activism. 

E. United States v. Serena I—The judge becomes a prosecutor

William Serena is charged in three separate fraud cases, only two of which are detailed in the narrative. Rick Mason is the prosecutor in all three cases. In Devine’s eyes Mason “could do a good job only in a strong case with no unusual problems.” (64.)

Serena I is a securities fraud case in which the victim is a widowed grandmother; its proceedings are described at pp. 63-64; 66-68; 75-80; 85-86; 88-90; 92-95; 97-98; 100.

1. The rejected plea bargain

On the morning that jury selection is set to begin in Serena I, Mason presents Devine with a plea bargain that would leave Serena subject to a sentence ranging between eight and fourteen months for all three cases—substantially less than the maximum possible sentence. Mason justifies the bargain by pointing to evidentiary problems in two of the three cases.

Devine, who “value[s] what [he] see[s] in people’s eyes in [his] courtroom” (67), looks at the defendant and then at Tony Plymouth, the detective who investigated Serena for two years. “Plymouth seemed very alert, an officer who cared about his case.” (64.) Devine sees that Plymouth “looked briefly at Serena and his nose crinkled up as if he had caught a whiff of rotting fish.” (Id.)

After thinking about the plea overnight, Devine decides that he will reject the plea bargain and “see if I was right about what I saw in the faces of Serena himself and Tony Plymouth.” (67.)

2. The trial

The key witness in Serena I is Lois Kreutz, the elderly victim of the securities fraud. On the eve of her testimony, she kills herself and leaves a note that links her suicide to her despondency over the fraud perpetrated by Serena. The note may be admissible in evidence as a dying declaration, but Mason overlooks this possibility. He reports Kreutz’s death to Devine, but not the suicide note. He asks Devine to reinstate the previously rejected plea bargain.

Ignoring the plea bargain request, Devine instead asks if there is a suicide note. After reviewing the note’s contents and thinking about the case overnight, he offers an unsolicited explanation of why the note might be admissible as a dying declaration; then he rejects the plea bargain.

The rules of evidence require Devine to hold an evidentiary hearing outside the presence of the jury to determine whether the dying declaration is sufficiently reliable. At this hearing Mason is conducting a competent direct examination of Detective Plymouth when Devine interrupts him, takes over the examination, and elicits details establishing that the deceased victim was a “decent, tolerant person who would give a reliable dying declaration.” (94.) These details were the kind Devine “had always looked for as a prosecutor.” (Id.)

The trial resumes. Mason follows Devine’s suggestion and offers the suicide note into evidence. Devine receives it. The jury convicts. 

3. Conclusions

The first intervention: Devine’s initial intervention in Serena I—alerting the parties to the potential admissibility of the suicide note as a dying declaration—saves the prosecution from having to dismiss the case for lack of evidence. This intervention was an exercise of Devine’s inquisitorial powers, so it was activist, but it was not result-oriented behavior because: (a) it takes place on the record and in open court, (b) the party adversely affected by the intervention (Serena) has a timely opportunity to take countermeasures, and (c) the court of appeals, if asked, can effectively review the propriety of the intervention.[40] 

The second intervention: Devine’s second intervention occurs during the hearing on the admissibility of the suicide note, when he interrupts prosecutor Mason’s direct examination of Detective Plymouth. Unlike the inept prosecutor in Younkers, Mason is conducting a competent examination, but he is not eliciting the details that Devine “had always looked for as a prosecutor,” so Devine takes over the examination and draws out those details himself.

This intervention is result-oriented. Devine takes over the interrogation, not for the sake of securing the admission of relevant evidence that otherwise might not reach the jury, but to enhance the persuasiveness of the prosecution’s case. The improper purpose behind Devine’s intervention crosses the line separating neutrality from advocacy, making it an abuse of his inquisitorial powers. 

F. United States v. Serena II—The judge conspires with a detective to enhance a defendant’s punishment

Serena II is an insurance fraud case; its proceedings are described at pp. 101-09; 110-12; 122; 124-25.

1. The ex parte meeting between the judge and the detective.

After the conviction in Serena I but before sentencing, Devine meets with Detective Plymouth in chambers. Devine says to the detective: “Give me Serena’s story. Just between us, I like the tale of the hunt.” (102.) Plymouth dutifully recounts what he has learned during a two-year investigation, including the details underlying the indictment in Serena II, which charges Serena with staging an automobile accident in order to collect insurance proceeds.

Devine declares that Serena is “the equivalent of a murderer” because he triggered the events leading to Kreutz’s suicide. He complains that he can’t impose an equivalent sentence unless Mason takes at least one of the other cases to trial and gets a conviction.

Plymouth, in turn, complains that Mason does not want to take either of the other fraud cases to trial for fear of losing. Devine gives Plymouth a strategy for persuading Mason to take at least Serena II to trial. 

2. The trial

Plymouth follows Devine’s strategy and persuades Mason to go to trial in Serena II.  The jury convicts. 

3. The sentencing hearing.

Under the sentencing guidelines, Devine can impose a sentence ranging between thirty and thirty-seven months for the convictions in Serena I and II

At the sentencing hearing, the prosecution moves for upward departures that would bring the sentence to 300 months (25 years).  The grounds presented in support of the prosecution’s motion track the grounds that Devine and Plymouth discussed during their ex parte meeting in Devine’s chambers.

Devine grants the prosecution’s motion and sentences Serena to 25 years, which is 21 years and ten months longer than the maximum sentence that could have been imposed under the rejected plea bargain. 

Afterwards, Devine comments to himself: “I was pleased with the hearing.  A reasonable approximation of justice was done in the courtroom, and I was the proud perpetrator.” (125).

4. Conclusion

Devine’s ex parte strategy session with Detective Plymouth is blatantly result-oriented.  It is covert behavior that takes place off-the-record, so the party adversely affected (Serena) cannot take timely countermeasures, nor can the court of appeals review it.  The intervention also violates the ban on ex parte communications in Canon 3A(4) of the Code of Judicial Conduct. [41] 

G. United States v. Aranow—The judge punishes a venal lawyer

Seth Aranow is an export officer at the Department of Agriculture.  He stole official documents from government files to back up a story about official misconduct that he leaked to the Washington Post.  The Justice Department sues him to get the stolen documents back. 

The case against Aranow is described at pp. 251; 253-54; 261-62; 269-70; 274-77; 359-61. 

1. Statement of the case

Aranow is responsible for clearing large-scale agri-product shipments to Third World countries who pay with foreign-aid funds.  Obeying an oral instruction from a superior, Aranow cleared a shipment of impure soy-based formula to West Africa.  A dozen babies later died from the impurities; many more became gravely ill.  Aranow told the Washington Post that the government knew that the formula was tainted but authorized its shipment anyway as part of an arms trade with one of the African nations. 

The prosecution, headed by Alfred Dodd Pullman, the talented and ambitious son of a prominent Congressman, puts on a strong case.  In desperation, Aranow seeks to subpoena a certain file not knowing what it contains, but hoping to find something helpful.  In fact, the file contains information exculpating him and implicating the president’s (and Pullman’s) party in a politically corrupt deal. 

Devine orders Pullman to deliver the file to chambers so that he can screen it before deciding whether to turn it over to the defense.  Pullman, knowing full well the damaging contents of the file, asks for, and receives, a delay in producing the file so that he can consult with his superiors over alleged “diplomatic ramifications.” 

Using his father’s connections, Pullman arranges to meet with Devine’s mentor, Seventh Circuit Judge Golden, for advice on how to “handle” the file.  Pullman tells Golden that the file contains diplomatic secrets that, if revealed, would ruin sensitive relationships in Africa.  He clumsily suggests that if Devine were to quash the subpoena, Golden and Devine would be rewarded in the form of consideration for future Supreme Court appointments. 

2. Devine’s off-the-record intervention

Golden and Devine are offended by Pullman’s corrupt overture, but they choose not to report him to his superiors at the Justice Department or to the attorney disciplinary authorities.  Instead, they collude to punish Pullman in their own private (and unreviewable) way. 

At Devine’s request, Golden arranges for one of his former clerks, now a Justice Department lawyer, to “mistakenly” deliver the file in question to Devine’s chambers, where Devine “mistakenly” reads the file and learns the seamy facts.  In court, Devine explains how he “mistakenly” read the file, puts a sanitized version of the seamy facts in the record, and tells Pullman, “I’m sure you will agree, Mr. Pullman, this case is over.”  Pullman agrees and dismisses the suit. 

Devine then calls Pullman to an off-the-record side bar and berates him for destroying Aranow’s reputation and career because the prosecutor needed a “fall guy for political purposes.”  He tells Pullman:  “Now when you go back to Washington you are going to be the fall guy.  Find another line of work ….” 

In other words, if Pullman doesn’t resign from the Justice Department, Devine will blow the whistle on the scandal hidden in the file and on Pullman’s corrupt overture to Golden and Devine. 

3. Conclusion

Pullman’s punishment—loss of his job—may be appropriate for a government lawyer who is guilty of attempted bribery, but Devine and Golden cross two baselines on their way to imposing it. 

First, they violate the ban against ex parte communications by secretly contacting a junior member of the government’s legal team (Golden’s ex-law clerk).  Second, they solicit that junior lawyer to breach his duty of loyalty to the Department of Justice by having him “mistakenly” send the sensitive file to Judge Devine’s chambers.  Inducing this breach of loyalty is essential to the entrapment of the misbehaving prosecutor. 

Devine’s activism crosses over the line to result-oriented conduct.  It is covert and off-the-record, so the party adversely affected (Pullman) has no chance to take countermeasures and the court of appeals cannot review it. 

 H. Brace Corp. v. Brace—The judge plays Solomon

Howard Brace is the CEO and patriarch of a family-owned engineering company.  He rejects as unworkable a new computer component designed by Wallace Brace, his son.  Wallace quits to form his own firm to make and market his invention.  The family company sues to enforce a non-compete agreement. 

The lawsuit is described at pp. 291-92; 294-95; 297-99; 315; 326.

1. Statement of the case

The case is tried without a jury.  Devine thinks well of the litigants and their lawyers.  On the last day of trial he announces that he will issue his ruling the following day. 

While mulling over the evidence Devine remembers the father’s strange demeanor in the courtroom and speculates that he has a physical ailment that has not become apparent to anyone else.  He recalls that the company’s by-laws authorize the directors to require that the father undergo a medical exam at the company’s expense. 

Devine also remembers that the son’s lawyer had argued that the directors had breached their duties by failing to insist on a medical examination for the father’s fitness to serve as CEO. Finally, Devine remembers that the son’s lawyers signaled their belief that the case could be settled if the father were removed from it.  

Devine believes that the parties would be better served by a settlement than by a ruling, so he intervenes to steer the case in that direction.  Instead of ruling as promised, he tells the parties that he will hold an additional hearing in five days, even though he doesn’t need to hear any more evidence to make up his mind.  Knowing that lawyers never ignore a federal judge’s suggestion “when the federal judge is going to decide what a trade secret is worth,” he suggests that the directors consider having the father submit to a medical examination. 

Devine’s manipulations work.  The directors send the father to the Mayo Clinic, where the doctors discover a benign tumor that may have been impairing his ability to articulate certain thoughts.  While the father is away at the Clinic, the litigants settle, after which father and son reconcile.  When Devine learns about these outcomes he says to himself, “I had been wise.” (326.)

2. Conclusion

The settlement is the result of a series of events triggered by a deceitful ruling—Devine’s announcement that he would hold another day of trial, even though he did not need to hear any more evidence.  This ruling is result-oriented because Devine omits to disclose the true grounds for it, which is to create an artificial break in the proceedings so that the directors will have a chance to act on his “suggestion” that they require Howard Brace to submit to a medical exam. 

This ruling, it is worth noting, fits Sissela Bok’s definition of intentional deceit, [42] since Devine means for the litigants to believe that he needs to hear more evidence, when in fact he doesn’t.    Since the deceptive message is verbalized, it also fits Bok’s definition of a lie.[43] 

The Brace case ends with a win-win outcome, but the good outcome doesn’t excuse the lie that brought it about. [44] 

I. United States v. Chalani—The judge coerces a lawyer into betraying his client

Mitchell Lang, who had previously represented the defendant in Serena I and Serena II, now represents Reza Chalani, who stands accused of advance-fee loan fraud.  The Chalani case goes to trial after the Young/Brody murder-suicide.  Devine laments that “[t]he correct and proper judge in me is broken beyond repair.” 

The Chalani case is described at pp. 365-68.

1. Statement of the case

In mid-trial Devine authorizes a search warrant that is served on Chalani in the courtroom.  Knowing that the search will turn up evidence that he is a multiple murderer, Chalani flees Chicago that same afternoon. 

In the days that follow Lang coyly avoids admitting or denying whether he knows of Chalani’s whereabouts, but Devine suspects that he does.  After a week Devine calls Lang and the prosecutors to chambers for separate meetings to discuss whether to resume the trial in absentia

During his private meeting with Lang, Devine injects himself into the prosecutor’s case by scheming to get Lang to give up his client.  He tells Lang that he is going to order Lang to reveal Chalani’s whereabouts, and that when Lang refuses, he’ll hold Lang in contempt and lock him up in the holding cell behind the courtroom, where there is no telephone.  He points out to Lang that it will take a few hours to get an appellate court order authorizing Lang’s release on bond.  During those few hours, Devine promises, he will sign a warrant to search Lang’s office for clues to Chelani’s whereabouts, even though he knows the warrant would be legally insufficient, and that Lang is unlikely to have kept any information about Chelani’s whereabouts in his office. 

Devine threatens to issue a legally insufficient warrant because he is certain that Lang “would have papers and objects that he and some of his unforgiving criminal clients would never want law enforcement to see, even if they could not be used in court.”  Since the holding cell where Lang would be temporarily jailed doesn’t have a phone, he won’t be able to alert anyone to remove sensitive items in advance of the search. 

The threat works.  Lang discloses Chelani’s whereabouts.  Devine then instructs Lang to call in an anonymous tip to the FBI as to Chelani’s whereabouts.  An hour later, the FBI reports that Chalani has been shot to death resisting arrest.

2. Conclusion

Devine’s intervention in Chalani is another extreme instance of result-oriented conduct.  His meeting with Lang is off-the-record.  His threat to issue and enforce a warrant lacking probable cause is calculated to affect the outcome of the case and to prevent meaningful review of that outcome by the court of appeals.

J. The real-life events that inspired Money to Burn’s episodes of “off-kilter” judicial behavior

In July 2002 Zagel told a reporter that “all of the off-kilter or possibly biased behavior by judges described in the novel represents things he has seen or heard” during his career.  While the plot about the robbery is pure fiction, “the rest is on the money, said Zagel.  Even if many of the instances of unusual judicial behavior are very rare in real life, they do happen.”[45]

K. The scorecard for the “honest and fair judge”

In a 2002 interview with CNN anchor Leon Harris, Zagel described Devine as “always an honest and fair judge.”[46]  Here is a scorecard summarizing how this honest and fair judge handled the 29 fictional cases that Zagel created to “describe and explain American judges:”[47]

The bottom line: Devine’s interventions eviscerate the right to a meaningful appeal in six of the 29 of the cases on his docket, or 21% of his caseload.  

When Devine’s interventions are measured against standards set by Judge Richard Posner,[48] they are “unprincipled” and “result-oriented” because (among other reasons) Devine omits to declare on the record the character judgments that trigger them. 

IV. Using poetic justice to justify result-oriented judging

Zagel wrote Money to Burn for a pedagogical purpose—to “describe and explain American judges.”  Zagel’s explanation includes eight instances where Devine intervenes in a case to steer it to a particular conclusion.  Analyzing the poetic justice achieved in those eight cases will help decipher whether Zagel approves or disapproves of Devine’s result-oriented style of judging. 

A. The single case where Devine has a bad motive for intervening

The Scott case is the only one of the eight cases in which Devine has a bad motive for intervening.  All three of the interventions in Scott are motivated by his desire to extract revenge against Prindiville.  None can be justified as a a good-faith effort to avoid “perpetrat[ing] the errors that the law requires.” (184.)

Devine and the plaintiffs with whom he conspires all suffer losses that are consequences of Devine’s interventions.  Their poetically just punishments invite readers to condemn result-oriented behavior when it is motivated by a personal agenda. 

 B. The seven cases where Devine has a pure motive for intervening

Devine has a pure and virtuous motive for intervening in seven of the eight cases—he wants to avoid “perpetrat[ing] the errors that the law requires.” (184.)  Six of the cases involve bad guys; Devine’s interventions ensure that fitting punishments are inflicted on all of them:

In a seventh case, Brace Corp. v. Brace, there are no bad guys, only a family of good and decent people squabbling over the family business.  Devine’s intervention facilitates a settlement that reconciles the entire family and avoids entry of a court judgment that would tear the family apart. 

The poetically just outcomes for the litigants in Younkers, Massachusetts Slim, Serena I, Serena II, Aranow, Brace Corp., and Chalani invite readers to praise result-oriented behavior that is motivated by a judge’s benign desire to avoid “perpetrat[ing] the errors that the law requires.” 

V. Conclusion

Zagel’s description of Devine’s courtroom work “lets us in on the many ways a federal judge can change (and even subvert) the course of justice from a sitting position.  Some of it is reassuring; other parts are frankly a little scary.  A judge with a personal agenda: Can such a thing be possible?”[49]

/s/ John P. Messina


[1]  Zagel made the complaint in an essay he and a co-author contributed to a symposium on federal judicial independence.  James Zagel & Adam Winkler, The  Independence of Judges, 46 Mercer L. Rev. 795, 800-02 (1995).  Zagel blamed the stereotype on three sources.  First, he traced its roots to the writings of the legal realists, whom he criticized for spreading the belief that “judges are…political and that law is chosen and made, not discovered and found.”  Second, he blamed the New York Times and the Washington Post.  They reiterate the stereotype, he argued, every time they report a major court decision and include in the story “the presumed political leanings of the judges” and the names of the presidents who appointed them to the bench.  Third, he blamed the makers of “mass market fiction and film.”  They perpetuate the stereotype, he claimed, through their habit of “portraying the possibility of political corruption of the judge” in order to create “dramatic tension.” 

[2] The protagonist’s surname is from an Old French root word meaning god-like, an allusion to the common complaint that some federal judges think they are God.

[3] Jerry Crimmins, “Novel fiction has bits of truth from Chicago courts,” Chicago Daily Law Bulletin p. 1, 7/9/02. 

[4] Dick Adler, “A federal judge hands down a smart, sharp caper story,” Chicago Tribune 7/14/02.

[5] Money to Burn 181. Subsequent page references to Money to Burn appear in the text.

[6] See CNN.com Transcripts, When Politicians Go to Prison, p. 2 (aired July 31, 2002).  In this interview Zagel described Devine as an “honest and fair judge” because Devine’s criminal conduct occurred off-hours and did not involve bartering over the outcome of a case. 

[7] Id.

[8] The poetic justice of Devine’s adjudications is discussed below in Section IV.

[9] “Result-oriented” has the meanings defined in J.P. Messina, Result-Oriented Judging: A Process-Oriented Definition  §I (2010) (“Result-Oriented Judging”)

[10] The disclosure that Devine has a life-long rule about not telling “the whole truth” emerges after a bantering exchange with the Federal Reserve Bank of Chicago’s public relations director, who has arranged for him to take a tour of the bank:

“It’s good to meet you, Judge,” the bank’s public-relations director said as she handed me a blue plastic nameplate.  “You might be surprised to know you are the first judge who ever asked for a tour.  Tell me why you’re interested in the Federal Reserve, and then I’ll know what to show you.”  I clipped the nameplate to my right lapel so that everyone who shook my hand would know I was “Hon. Paul Eamon Devine.” 

“I’m trying to figure out how to rob the place,” I told her.  “We haven’t had a pay raise in a long time.”  I waited a beat for the bank officer to laugh and then joined her.

I was telling her nothing but the truth.  That is a good operating principle in lawyers and in certain kinds of lives, in particular the life I had always led.  It worked out well as long as you understood that the rule is “speak nothing but the truth,” not “tell the whole truth.” 

(4.) [emphasis added]. 

[11] When a good trial lawyer or storyteller spins a tale, he usually begins with important information about a character or the main plot.  Because an audience tends to retain that which it hears first—the primacy principle—putting important information at the beginning makes it easier for the audience to understand what will follow.

[12] The seven cases are discussed below in Sections III-B, C, and E-I. 

[13] See Result-Oriented Judging §III-B.

[14] Posner defines a result-oriented decision as one that omits to declare on the record the true grounds on which it rests.  R. Posner, The Federal Courts: Challenge and Reform 311-12 (Harvard University press 1996)

[15] See note 5, above.

[16] Chicago Daily Law Bulletin 7/9/02.  Zagel’s wife, Margaret Maxwell Zagel, is General Counsel and Managing Principal at Grant Thornton LLP.

[17] Scott and Young’s civil suit is discussed below in Section III-C.

[18] Four of the 29 cases are described retrospectively, as part of the back story.  The other 25 cases are on his current calendar as he plots the bank theft and works through the aftermath.

[19] Under the classical model of the adversary system, judges are passive—they listen to the evidence chosen by the parties and the witnesses rehearsed by them. Resnick, Managerial Judges, 96 Harv. L. Rev. 374, 381 (1982). 

[20] “In an inquisitorial system, the judge defines the issues, investigates the facts, decides which witnesses to call and conducts all the questioning.” Pinard, Limitations on Judicial Activism in Criminal Trials, 33 Conn. L. Rev. 243, 251 (2000).  The American version of the adversary system includes some inquisitorial powers. G. Lilly, An Introduction to the Law of Evidence 9 (2d ed. 1987).  See discussion in Result-Oriented Judging §III-A.

[21] Email from Steven Saltzgiver, Federal Judicial Center (April 30, 2007). 

[22] See Appendix A for a chart identifying the federal judges who have been impeached and summarizing the grounds of impeachment.  The chart was created by the Federal Judicial Center and is available on line at http://www.fjc.gov/history/home.nsf/page/topics_ji_bdy!OpenDocument&Click(accessed August 24, 2007)

[23] “Intervention” is a neutral term; it means any departure from the strictly passive, neutral role that is assigned to judges by the classic model of the adversary system. It includes the exercise of inquisitorial powers, whether exercised fairly or abusively.  It also includes off-the-record conduct that is intended to affect the outcome of the case but is never put on the record. 

[24] “Activist” is a neutral term describing Devine’s exercise of the inquisitorial powers delegated to trial judges by the Federal Rules of Evidence. 

[25] “Result-oriented behavior” describes: (a) on-the-record abuse of inquisitorial powers, exercised with the intent to influence the outcome of the case; (b) any off-the-record behavior meant to affect the outcome of a case but, because it is off-the-record, is non-reviewable; or (c) any mental impression, conclusion, opinion, or legal theory formed off-the-record and applied to the adjudication of a pending case but, because they is off-the-record, is non-reviewable.

[26] “Result-oriented decision” refers to a ruling wherein Devine, for the sake of promoting acceptance of the ruling by its intended audience, intentionally omits to disclose (a) the true grounds of his decision, or (b) any facts or issues relevant to a neutral, objective, and non-partisan understanding of the underlying controversy.

[27] For the sake of judicial economy, the right to appeal is deferred until entry of either a final judgment or an interlocutory decision that is so immediate and irreparable in its effect that it is the equivalent of a final decision. 28 U.S.C. §§1291, 1292(a). 

[28] E.g., International Business Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975).

[29] See generally Result-Oriented Judging §III.

[30] “Sociopath” refers to a person who has been diagnosed with an antisocial personality disorder.  A person afflicted with this disorder displays “a pervasive pattern of disregard for and violation of the rights of others and inability or unwillingness to conform to what are considered to be the norms of society.”  http://www.medterms.com/script/main/art.asp?articlekey=39219

[31] Guidelines Manual, USSG §5H.1.3, p.s.

[32] The silent nature of the finding appears to violate Fed. R. Crim. P. 32(i)(3)(B, which provides: “At sentencing, the court:…must, for any disputed portion of the presentence report or other controverted matter, rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing;…”

[33] See Memorandum 6.1, p. 5,  for a description of a federal judge’s inquisitorial powers.

[34] Code of Conduct for United States Judges, Canon 3.

[35] Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64 Va. L. Rev. 1, 54 (1978) [“Saltzburg”].

[36] Id. at 55, 54-61.

[37] Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403, 517 (1992); Damaska, Structures of Authority and Comparative Criminal Procedure, 84 Yale L. J. 480, 524n.113, 549 (1975); Marcus, Above The Fray Or Into The Breach: The Judge’s Role In New York’s Adversarial System of Criminal Justice, 57 Brook. L. Rev. 1193, 1205 (1992). 

[38] People v. Yut Wai Tom, 53 N.Y.2d 44, 422 N.E.2d 556, 564 (1981).

[39] Pinard, Limitations on Judicial Activism in Criminal Trials, 33 Conn. L. Rev. 243, 284 (2000), citing United States v. Fernandez, 480 F.2d 726, 737 (2d Cir. 1973). 

[40] The manner in which Devine alerted the parties to the theory for admitting the suicide note into evidence would be acceptable even to commentators who oppose a broad power of judicial interrogation. E.g., Saltzburg, supra note 26, at 62 (observing that a “trial judge who believes that opening an area to inquiry would be useful to a ‘good’ decision on the merits may so indicate to counsel for both sides.” [emphasis added]) 

[41]  Canon 3A(4) provides: “A judge should accord to every person who is legally interested in a proceeding … full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding.”

[42] Bok defines intentional deceit as a “message meant to mislead [others so as] to make them believe what we ourselves do not believe.” S. Bok, Lying: Moral Choice in Public and Private Life 13 (Pantheon Books 1978).

[43] Bok defines a lie as “any intentionally deceptive message which is stated.” Id. [emphasis in original]. 

[44] Compare Devine’s reliance on deceit to induce the Brace settlement with the open tactics that the late Judge Nicholas Bua used to induce settlements when he sat on the United States District Court for the Northern District of Illinois from 1977 to 1991. 

Judge Bua’s ability to induce settlements was legendary.  His primary tools were his firmness in setting trial dates and his unwillingness to grant extensions, except in the most extraordinary circumstances.  The prospect that parties would be put to their proofs on a date certain tended to make them more malleable to settlement.  The tactics that Judge Bua used to make them more malleable—setting trial dates and denying motions to continue those dates—were in the form of orders issued openly and entered on the docket.  Consequently; the parties would have a timely opportunity to respond to the orders, and the court of appeals could effectively review the orders. 

[45] Chicago Daily Law Bulletin 7/9/02.

[46] CNN.com Transcripts, When Politicians Go to Prison, p. 2 (aired July 31, 2002).

[47] Chicago Daily Law Bulletin 7/9/02.

[48] R. Posner, The Federal Courts: Challenge and Reform 311-12 (Harvard Univ. Press 1996).

[49] Dick Adler, “A federal judge hands down a smart, sharp caper story,” Chicago Tribune 7/14/02.