Outside Counsel

The Department of Justice has stated that it will automatically appeal sentences that deviate from the federal sentencing guidelines, and has instructed the US Attorneys to report such sentences to Washington. Wouldn't you know it, the judge in the Western District of New York that is in hot water on this one is none other than the Honorable John T. Elfvin. Judge Elfvin is always in some sort of trouble: his personal life broke out in an embarassing scandal some years ago, and there was a pretty ugly lawsuit that came out of that. He was the judge who presided over the Attica litigation. That lawsuit took nearly thirty years to resolve; when the jury was charged and sent out to deliberate, Judge Elfvin went on vacation, telling the lawyers that if they needed him, he would be reachable by phone. One of the raps on him is that he is slow, and that's true-- decisions do not issue rapidly forth from his chambers. There are a lot of stories. And yet, for all of that, I think he is a pretty good judge. I have never been able to detect any hint of bias in him; he runs a tight courtroom, where professionalism is the norm. The proprieties are observed with him, and courtesy is expected. He is good on the law-- when he decides something, in my experience, he is thoughtful and usually right. I should mention, I think, that he and his wife are big supporters of the arts and cultural life in Buffalo; they were, very quietly, major sponsors of the Masterworks from the Phillips Collection exhibition that was just at the Albright-Knox-- something that I did not know until I heard it on the recorded tour, because it was not on any of the printed promotional materials. This sentencing thing is just like him: one guy is a rich, politically well connected cat who tried to dodge about a million bucks in taxes; the other is a chump kid who sold some amphetamine to an undercover agent. Neither of these people pose any real risk to anyone, neither is very likely to benefit from a lot of time in stir. Of course I believe that judges should follow the law, but I also believe that judicial discretion is important in any system that aspires to be a system of justice. For whatever it is worth, I also think that the sorts of sentences that get handed out in the US are grotesque, but that's not really the point. Judge Elfvin just lets it all roll off his back. He has life tenure, and I think he stopped caring about what people say about him a long time ago. There aren't a lot of judicial heroes out there, and he may be a flawed one, but I respect him.