Foreword: The Seventh Circuit as a Criminal Court: The Role of a Federal Appellate Court in the Nineties (original) (raw)
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Chi.-Kent L. Rev., 1981
The Judicial Business of the United States Courts of the Seventh Circuit 14 (1979). 2. In the twelve-month period ending June 30, 1979, the Seventh Circuit disposed of 757 appeals after hearing or submission. 1979 Annual Report of the Director, Administrative Office of the United States Courts A-3. 3. Id. Collateral attacks on criminal convictions totalled 31 for federal prisoners and 42 for state prisoners. Id. at A-10. 4. The average reversal rate for all circuits in private civil appeals is 18.9%, almost twice the 10.4% reversal rate in criminal appeals. The First Circuit, which reverses in 21.7% of all criminal appeals (and only 15.9% of all private civil appeals), is the only circuit which reverses more than twelve percent of its criminal appeals. Id. at A-2. 5. Id. at A-3. 6. 7TH CIR. R. 35 (formerly rule 28) purports to authorize the Seventh Circuit to dispose of appeals by "unpublished orders," which may not be cited as precedent in any other cases. See generally Meites & Flaxman, Civil Liberties: Employment Discrimination, Due Process, Immunities and Exhaustion of Remedies, 56 CHI-KENT L. REV. 73, 73-4 (1980). 7. Although the Seventh Circuit's Annual Report does not differentiate between cases decided by published opinions and unpublished orders, statistics collected by the Clerk of the Seventh Circuit show that from January, 1980 through the end of September, 1980, 417 of the 729 decisions (or 57%) were by unpublished order. This is consistent with a count of the decisions of the Seventh Circuit which reveals that of the 440 decisions of the Seventh Circuit, 236 (or 53.6%) were rule 35 unpublished orders. One hundred and seven (or 24.3%) were decisions in criminal appeals, 72 (or 67.2%) of which were decided by unpublished order. In the same period, 164 of 333 civil appeals (or 49.3%) were decided by unpublished order. 8. See notes 44-158 in/ra and accompanying text. CHIICAGO KENT L,4W REVIEW ling factor in assessing fourth amendment claims. 9 Other highlights' 0 of the court's 1979-80 term include the creation of a new standard for review of a district court's post-verdict grant of a judgment of acquittal I and a refusal to fashion standards for compensation of appointed counsel under the Criminal Justice Act.' 2 REISSUANCE OF "UNPUBLISHED ORDERS" AS PUBLISHED OPINIONS A virtually invisible highlight of the 1979-80 term is the use of Seventh Circuit rule 35(d)(3)1 3 by institutional litigants-namely, the United States Attorney and the Illinois Attorney General' 4-to obtain reissuance of unpublished orders as published opinions.1 5 The invisibility of this phenomenon is the result of the Seventh Circuit's practice of refusing to disclose the basis upon which an unpublished order was reissued as a published order. With few exceptions, 1 6 the granting of a motion to publish is shown in the published opinion by a footnote which states: "This appeal originally was decided by unreported order on [date of unpublished opinion]. See Circuit Rule 35. The panel has decided to issue the decision as an opinion." Cases decided in unpublished orders do not always involve wellsettled principles of law. For example, in United States v. Klein ,' 17 the court was confronted with the question of whether the rationale of Terry v. Ohio' 8 was applicable to investigatory detentions of prop-9. See notes 159-92 infra and accompanying text. 10. This article does not attempt to analyze each of the criminal law-related cases decided by the Seventh Circuit in its 1979-80 term. 11. See notes 194-210 infra and accompanying text. 12. See notes 211-37 infra and accompanying text. 13. 7TH CIR. R. 35(d)(3) authorizes "any person" to request reissuance of an unpublished order as a published opinion. 14. A Lexis search of Seventh Circuit opinions which had originally been announced as unpublished orders and then reissued as published opinions reveals that of the total of 17 of such cases from August, 1979 through August, 1980, the United States Attorney had been counsel in 10 of those cases, and the Illinois Attorney General in four. With the exception of United States v. Hubbard, 618 F.2d 422 (7th Cir. 1980), where the motion to publish was made by the non-party Prison Law Monitor, the motion to publish in each case involving an institutional litigant appears to have been made by that party. 15. It is difficult, if not impossible, to determine the number of cases in which a motion to publish is denied. Such an inquiry would require the mammoth undertaking of checking the docket sheet of each appeal decided in an unpublished order, because the Seventh Circuit does not keep separate statistics of this phenomenon. 16. On rare occasions, the Seventh Circuit discloses that the unpublished order has been reissued as a published opinion on a motion. See, e.g., United States v. Price, 617 F.2d 455 n.* (7th Cir. 1979). In even fewer instances will the court disclose the identity of the party who had requested reissuance of the order as a published opinion.
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