CONFUSION IN THE COURT - HARD-WORKING JUDGE SHABAZ SHOWS
SIGNS OF SLIPPING

During his tenure on the federal bench, U.S. District Judge John
Shabaz has forged a reputation for being in complete control of his
courtroom.

While criticized for dealing out harsh sentences, he's known for his
keenness of mind, his unparalleled work ethic, his ability to get to
the core of an issue.

But some attorneys say Shabaz's legendary capabilities are not always
evident now, his intimidating presence diminished.

Federal judges have their job for life, and Shabaz is 25 years into
his appointment. At age 75, no one could fault the hard-working judge
for slowing down. But several attorneys say he's also prone to
slipping up. Confusion in the court: Hard-working Judge Shabaz shows
signs of slipping Photo by David Sandell/The Capital Times Federal
Judge John Shabaz.

"I don't know if it's the result of aging," says one, "but he just
isn't mentally sharp anymore, or focused."

The same attorney adds, "He just doesn't have the same imposing
presence he used to have."

Incidents reported by the attorneys included Shabaz losing track of
what sort of hearing he is presiding over, repeating himself, and
having difficulty conducting routine courtroom procedures.

Two attorneys reported procedural errors that could lead to different
outcomes for their clients. They attributed the errors to lapses by
Shabaz, but neither attorney would allow the situations to be printed,
fearing the circumstances would be too recognizable.

The attorneys spoke only on the condition that their names not be
printed, fearing that their statements might harm the treatment of
their clients in court. U.S. Western District prosecutors, through
First Assistant Prosecutor Stephen Sinnott, declined comment.

But the defense attorneys' concerns were borne out by a reporter's
direct observation.

At a recent court hearing - attended at random by the reporter -
Shabaz, conducting a plea hearing, repeatedly confused the defendant's
name with his attorney. His voice was halting and at times trailed
off. The next day his difficulty enunciating was more pronounced. At
one point he misspoke, as if he were giving jury instructions.

"I've been asking jurors now for so long I can't get you straight," he
said by way of explanation.

A short time later attorneys, court officers and the defendant watched
anxiously as the judge simply nodded off mid-sentence. He awoke
seconds later and resumed his questioning of the defendant.

A week later, however, he conducted three hearings back to back,
without a hitch.

The Capital Times sought comment about Shabaz's recent court
performance from eight local criminal defense attorneys who appear
before him regularly. One did not return several voice mail messages.

Five of the criminal defense attorneys, in independent interviews,
said Shabaz is of late "not focused on what's happening," has
exhibited a "deterioration in what was his normal ability to handle
hearings," "loses track of where he's at," "isn't mentally sharp
anymore" and asks attorneys to pick up some of the slack, "like
explaining things to their clients that normally he would do."

"It's a lot more noticeable in the last six months or so," an attorney
said of Shabaz's tendency to lose track at hearings. "I think he does
this almost all the time now."

One defense attorney, Chris Van Wagner, maintains that Shabaz is still
"sharp as a tack."

Another attorney, who says he hasn't noticed a decline in Shabaz's
fitness for his job, nevertheless said he has perceived a change.

"I just noticed he was being a little nicer," he says.

'Wake-up call': Talking with Shabaz in his spacious fifth-floor office
at the Federal Court Building downtown, he exhibits none of the lapses
described by attorneys. He looks trim and healthy for his age. His
manner is pleasant. He is intelligent and alert.

But news of the attorneys' observations and an account of his dozing
off during a hearing dealt a visible blow.

"Now that's a wake-up call," he says. "I haven't heard that before,
and I didn't believe that was the case."

Shabaz said that some of the attorneys' concerns about his tendency to
repeat himself could be a result of his stepped-up efforts to ensure
that defendants who are about to give up their right to a trial by
making a plea understand the implications of their actions.

"Now as far as wool-gathering, I might be thinking about what I'd
rather be doing at that particular time, lecturing a prisoner of his
rights over and over again," he says. "But I do it. I've done that
more, recently, than before."

While not acknowledging any courtroom lapses, Shabaz doesn't deny them
either, and he vowed to put to rest any concerns about his fitness for
the job.

"It's sad to hear," he says. "But it isn't going to be that way
anymore. But if it was, I'll just put on the old attentive gown, if
that indeed is what is necessary. But I'm not familiar with the incidents."

He says if there were incidents, they didn't imperil the cause of
justice in his court.

"The fact is that I do believe that I'm on top of my cases," he says.
"If indeed there is a lapse now and then, I of course regret that. I
believe it certainly hasn't impaired the just treatment of cases."

No name, please: The attorneys who spoke to The Capital Times about
Shabaz's courtroom lapses did so only on the condition of anonymity.
Some admit to having run-ins with Shabaz in the past, raising
speculation that they were settling scores. But they say the
publication of their names in connection to a story critical of a
sitting judge could harm their clients.

"I wouldn't care about me," says one. "But I represent people he has
life-and-death control over."

A UW legal scholar, who also spoke to The Capital Times on the
condition of anonymity because the scholar regularly writes
recommendations for judicial clerkships, says if their observations
are valid, the attorneys have reason for concern.

"It's very difficult for a lawyer to make any type of public statement
about a sitting judge when that sitting judge is going to rule on the
lives and futures of our clients," the scholar says. "No one wants to
say anything bad about the judge, because the judge has power. They
don't want to hurt their clients. I don't want to hurt my students."

If the attorneys' concerns are legitimate, the scholar says, the
attorneys "are really kind of trapped in a situation that would be
very difficult to handle."

According to one attorney, no one wants to approach the judge about
his shortcomings.

"Everybody's kind of afraid to say something to him," he says.
"Everybody's afraid of him. The U.S. attorneys are afraid of him. The
marshals are afraid of him."

No one interviewed for this article spoke about Shabaz's ability to
write opinions or his other written work, which is difficult to
assess, because it's unclear how much of that work he does himself. As
a federal judge, he's allowed a staff of one judicial assistant and
two law clerks. According to U.S. Western District Court Clerk Theresa
Owens, the distribution of work varies from judge to judge.

The scholar says federal judges who lose the ability to carry out
their duties can pose a problem that is difficult to resolve.

Federal district judges, the scholar notes, are appointed for life and
can be removed only by congressional impeachment.

But impeachment is a rarity. Only 13 have been impeached since 1789,
and only seven actually have been removed from office.

"I would think that other judges would talk to him and try to get it
through to him that he would need to retire," the scholar says,
speaking generally of federal judges whose competency comes into
question. "I can't picture that turning into an impeachment situation."

But the scholar says federal district judges are uniquely insulated.
They operate independently of other judges. They rarely sit in on each
other's court proceedings.

There is only one other judge in Wisconsin's Western District, Barbara
Crabb. Although she is the chief judge for the district, her title
gives her administrative authority over such offices as the district
magistrate, the court clerk, the probation office and the court
reporters. She has no oversight of Shabaz.

Asked if she had heard any reports of courtroom lapses by Shabaz, she
says, "Oh, I think I have heard some," she says. But she adds that
courtroom lapses are not unique to Shabaz.

"I know I've had some," she says. "As I say, he works himself very
hard."

Federal judges are also less visible to the public than their state
counterparts. Federal cases rarely draw electronic media coverage.
Unlike state court, cameras are not allowed.

"With a federal district judge, he's running the court on his own,"
the scholar says. "He doesn't have immediate colleagues around him.
And so people might not know this or might not be able to do things to
keep people from being hurt by the situation."

In appeals courts, judges work together as a panel on the same cases,
"so they can kind of pick up the slack for each other, kind of keep
the person from causing damage."

There are no such safeguards in federal district courts.

"If that person is not able to do the work properly it would be a huge
problem," the scholar says.

Not stepping down: Shabaz says he has no immediate plans to retire or
take senior status, which has a lighter workload.

"You think about it," he says. "But I believe I still have a position
to fulfill. I believe I can still contribute to the system of justice."

He acknowledges he's considered retirement, or moving to senior
status. But he's not yet ready for such a move.

"As far as thinking about it," he says. "I think about it every
morning at 4:30, 5 o'clock, when I awake. Every morning I say,
'Goodness, gracious. I'm going to keep doing this?'" Shabaz said. "By
7 o'clock you don't think about it anymore. You get the dogs fed. You
get the kids to school. You get the breakfast and the lunches made and
you're out there and you get vibrant and ready to roll.

"But you do think about it at times."