Wed, 13 Aug 2008

Heroes - Judge Stern

Judge Herbert J. Stern was a US District Judge for New Jersey between 1973 and 1987. In 1979, he was named US Judge for Berlin for it's one sitting - United States v. Tiede (86 FRD 227). This court existed by virtue of Berlin's formal status as "occupied", and was convened because of West German reluctance to prosecute.

In Robert M. Cover's Violence and the Word (Yale Law Journal, V95: 1601, 1986), there is an excerpt of his sentencing of skyjacker Hans Detlef Alexander Tiede. At this point, Stern has already fought a protracted battle over whether a jury trial should be granted and whether the U.S. Constitution was to govern the proceedings. It is a rare case of cracks emerging in what appears usually to be a smoothly coordinated mechanism of punishment.

"Gentlemen [addressing the State Department and Justice Department lawyers], I will not give you this defendant. . . . I have kept him in your custody now for nine months, nearly. . . . You have persuaded me. I believe, now, that you recognize no limitations of due process. . . .

I don't have to be a great prophet to understand that there is probably not a great future for the United States Court for Berlin here. [Stern had just been officially "ordered" not to proceed with a civil case brought against the United States on an unrelated matter.] . . .

Under those circumstances, who will be here to protect Tiede if I give him to you for four years? Viewing the Constitution as non-existent, considering yourselves not restrained in any way, who will stand between you and him? What judge? What independent magistrate do you have here? What independent magistrate will you permit here?

When a judge sentences, he commits a defendant to the custody — in the United States he says, 'I commit you to the custody of the Attorney General of the United States' — et cetera. Here I suppose he says, I commit to the custody of the Commandant, or the Secretary of State, or whatever . . . I will not do it. Not under these circumstances. . . .

I sentence the defendant to time served. You . . . are a free man right now."

I have to admit, I tear up a little bit at "I will not do it." That's principle.

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