In United States v. Heinrich, No. 19-3035 (3d Cir. Aug. 18, 2020), the Third Circuit holds that the district court failed to exercise discretion by assigning a law clerk to inform the lawyers of the ruling by phone, then failing to docket a written explanation.
The defendant plead guilty on a child pornography conditioned on the right to appeal the exclusion of his proposed expert psychological testimony. The district court followed an unorthodox procedure. “After a pretrial hearing on the applicability of Rule 704(b), the District Judge’s law clerk conducted a telephonic status conference, ‘advis[ing counsel] that the court was intending to grant the government’s motions to exclude defendant’s expert testimony.’ …. The law clerk explained that the basis for the exclusion was Rules 403 and 704(b) and that a written opinion would be forthcoming. No opinion or order was ever docketed. Notably, the District Judge did not participate in the telephone status conference. The call went unrecorded and has not been transcribed.”
The Third Circuit vacates the order and issues a mandate calling on the district court to explain its rationale. Exclusion under Fed. R. Evid. 403 requires a balancing of probative value against undue prejudice, and thus a weighing of facts and possible inferences. The panel notes that, for review purposes, “we have a strong preference that a district court explicitly engage in some [Rule] 403 balancing on the record.” Without such an analysis, a panel must glean from the record whether such a weighing took place, or – absent that – engage in its own weighing of the factors.
The panel chooses in this case to remand the issue to the district court, but observes that the procedure that the judge followed was unacceptable. Not only did the “record before us lacks any meaningful discussion by the District Court of Rule 403,” but “most importantly, there simply could not have been an exercise of discretion here because the District Judge failed to issue any ruling excluding either the proposed expert report or any testimony. District judges have broad powers, some of which they may properly delegate to a law clerk, who serves as a ‘judicial adjunct.’ …. But a law clerk’s ‘duties and responsibilities are to assist [a] judge in his work, not to be the judge.’ …. Problems arise when a law clerk engages—whether through his own initiative or at the behest of his or her judge—in judicial tasks that are nondelegable.” In support of its decision, the panel quoted Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593 (7th Cir. 1999), a case in which the judge improperly assigned his law clerk to conduct court-ordered mediations.
“In this case, the District Judge’s law clerk conducted a one-hour-and-fifteen-minute unrecorded and untranscribed telephone conference where he advised counsel that the Judge intended to exclude the proposed expert report under Rules 403 and 704(b). The law clerk also stated that an ‘opinion to support this ruling’ would be forthcoming …. Since this conference call did not involve the District Judge, and because no formal ruling, order, or opinion was ever docketed, we are left in the unenviable position—indeed, impossible position—of attempting to review an adjunct-presented non-ruling that caused the Defendant to plead guilty rather than proceed to trial.”
The panel also notes in a footnote that the government and defense counsel bore some responsibility as well, by not insisting on a written order. “We emphasize that it is also the responsibility of counsel to ensure that the record is accurate and complete. Here, the parties should have insisted that the Court issue a ruling excluding the proffered expert evidence, if that was the District Judge’s intent.”