by Michael B. Skinner · Wednesday November 4, 2009 11:42 am PERMALINK
It can be difficult to get a case remanded to a different judge. Usually, the courts are concerned about attempts at judge-shopping and are willing to give trial judges multiple cracks at fixing their errors before they take the drastic step of sending the case to a different judge.In People v Farrell, the Court of Appeals had remanded the case for resentencing where the trial judge sentenced the defendant above the guidelines, relying on some factors that are already accounted for in the sentencing variables. On remand, the judge again imposed an above-guidelines sentence, and again relied on the same improper factors. It isn't clear to me that the trial judge was thumbing his nose at the Court of Appeals; the Court of Appeals had to make some inferences to deduce that the judge was relying on the same improper factors. Which is why it surprised me that the court sent the case back to a different judge. I have seen cases where the Court of Appeals remanded multiple times, to judges who appeared more intransigent than this judge, without changing judges. Does the Court of Appeals favor intransigence over stupidity, remanding to a different judge more often in cases where the original judge doesn't understand than in cases where the judge refuses to comply? Someone do a study and let me know.
