In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:
This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.
The opinion is twenty-two pages long and clearly discusses the issue in more detail. The Second Circuit cases that the court disagreed with are: United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007). The court disagreed for a number of reasons, including:
- "The first is that under settled law if a party does not move to recuse a judge on actual bias grounds, review is only for plain error.";
- "The second reason that we reject Rodriguez’s position, and the Second Circuit’s decisions on which it is based, is that they substantially undermine the important interests served by the contemporaneous objection rule. As we have explained, “The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception.” United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). Requiring an objection at trial “fosters finality of judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if the first one misses.”;
- "The third reason we reject Rodriguez’s position is that it is demeaning to both judges and attorneys. Judges know that it is the role and duty of attorneys to represent their clients zealously and object to what they perceive to be errors or potential errors. Many objections have as their premise that the judge has violated, or but for the attorney’s intervention would violate, some law, rule of procedure, or right of the attorney’s client. That is the stuff of which objections are made. To suggest that judges, whose solemn duty it is to apply the law fairly and impartially to all parties before them, would vindictively respond to an attorney’s objection by punishing the client is demeaning to the judiciary. And to suggest that lawyers, who perceive a valid basis for objection, would cower in their seats, fearing retribution from the bench if they do object, is demeaning to the bar. We reject any vindictive judge or cowardly counsel exception to the contemporaneous objection rule."
After discussing a number of other issues, the Eleventh Circuit discussed the Supreme Court's opinion last year in Caperton v. Massey. Caperton was previously discussed on this blog HERE, HERE, and HERE. I only single out the discussion about Caperton as Caperton received a significant amount of attention. The court stated:
The Supreme Court has decided that in at least some situations the probability of actual bias is enough to violate due process. In Caperton v. A. T. Massey Coal Co., ___U.S.___, 129 S.Ct. 2252 (2009), the Court held that a state supreme court justice was required to recuse himself from a litigant’s case where that litigant had made significant contributions to the justice’s campaign for office. Id. at 2256–57. The Court’s holding, however, was narrow. See id. at 2265. It noted the “extreme facts” of that case and limited its holding to the “extraordinary situation” where the “probability of actual bias rises to an unconstitutional level.” Id. There is no probability of actual bias in this case. In fact, Rodriguez concedes that there was no actual bias. So, she has failed to meet the second requirement of the plain error rule.