A district judge: neither a tabula rasa nor an expert

United States v. Modjewski, No. 13-3012 (7th Cir. Apr. 13, 2015).

 The book co-authored by the district court judge. Note who authored the foreword.

The book co-authored by the district court judge. Note who authored the foreword.

Andrew Modjewski pleaded guilty to transporting and possessing child pornography. At sentencing, he called Dr. Lisa Rone, a clinical psychiatrist, who testified that Modjewski posed a small risk of reoffending, and that he wasn’t a pedophile. 

After the parties finished examining Dr. Rone, the district judge asked the witness quite a few questions. Most of these questions probed Dr. Rone’s opinion that Modjewski wasn’t a pedophile.

The district judge sentenced Modjewski to 15 years in prison, somewhat lower than the Guidelines sentence. Referencing her own book on child exploitation and trafficking, the judge said that she thought it was “much more accurate” to say that Modjewski was a pedophile. 

On appeal, Modjewski argues the district judge should have recused herself. The Seventh Circuit says that the judge’s skeptical but relevant (and I would add civil) questioning cannot itself be grounds for recusal. Nor can the judge’s knowledge about child exploitation be grounds for recusal. That would be punishing the judge for being well-informed. 

What is problematic, the Seventh Circuit acknowledges, is the district judge’s own diagnosis of Modjewski as a pedophile. It’s one thing to reject the psychiatrist’s own opinion. It’s quite another for a district judge to come to contrary conclusion based on nothing but her own views. The judge didn’t say that she herself was an expert on the diagnosis of pedophiles. And there certainly wasn’t a hearing—and there couldn’t really be a hearing—on the judge’s own qualifications. (If the judge wanted to appoint an independent expert, the Federal Rules allow for that. In fact, the Seventh Circuit’s own Judge Posner has encouraged district judges to use this power more freely.)

Still, the Seventh Circuit concludes that the district judge’s unsupported opinion cannot justify reversal. The judge repeatedly said that she wasn’t basing her sentence on a finding that Modjewski was a pedophile, so her opinion didn’t affect the outcome.