Smalkin to take senior status on bench

Chief judge cites health in move, which creates 2nd U.S. court vacancy

August 27, 2002|By Gail Gibson | Gail Gibson,SUN STAFF

Baltimore's chief federal judge said yesterday that he plans to retire to senior status because of health concerns, creating a second opening on the local bench to be filled by the Bush administration.

U.S. District Judge Frederic N. Smalkin, known for his ultra-no-nonsense style in the courtroom and for his 1987 decision to vacate former Gov. Marvin Mandel's federal fraud conviction, said he will remain in his current post until a successor is appointed.

Smalkin, 56, did not elaborate on his health problems. He said in an interview that his condition is not life-threatening and joked that he would not be carried out of the courthouse on a gurney, "although I'm sure there are some lawyers who would like to see that."

In a statement, he called it a "distinct privilege" to have served 26 years as a federal judge.

"I believe the time to leave active status in the judiciary is before one becomes a liability to the institution he has loved and served, and this is the right time for me," Smalkin said.

As a senior judge, Smalkin will have a considerably lighter workload. Judges on senior status are not in the normal judicial rotation and typically hear cases at their discretion or by invitation from other judges.

Smalkin's decision creates the second opening on Baltimore's federal bench under President Bush. Judge William M. Nickerson, 68, announced plans to retire to senior status last year; Baltimore Circuit Court Judge William D. Quarles is expected to be nominated by the White House for that post.

Judge Benson E. Legg, who was appointed to the Baltimore bench in 1991 by President George Bush, is expected to become the court's next chief judge, Smalkin said.

One possible candidate to fill Smalkin's judicial seat is Baltimore attorney Richard D. Bennett, a partner in the white-collar criminal division at Miles & Stockbridge and a former U.S. attorney for Maryland. Bennett is active in Republican politics and served as state GOP chairman during President Bush's 2000 campaign.

Bennett declined to comment yesterday on his interest in the post, but he praised Smalkin.

"He's a wonderful guy and a terrific judge, and he's been the backbone of that courthouse for a long, long time," Bennett said.

A former military lawyer, Smalkin was selected by the federal bench in Baltimore in 1976 to serve as a magistrate judge, overseeing routine bail hearings, pre-trial motions and discovery issues. Ten years later, nominated by President Ronald Reagan, he became the first magistrate judge in Maryland to become a trial-level district court judge.

On the bench, Smalkin is known to show little patience with unprepared attorneys or rambling witnesses. U.S. Attorney Thomas M. DiBiagio dryly noted at his swearing-in ceremony last year Smalkin's "direct and unambiguous" style but said that Smalkin had provided support to him as a young prosecutor.

After a trial marked by some crucial mistakes, DiBiagio said, Smalkin abruptly stopped any finger-pointing and saved the prosecutor's fledgling career. "I will be forever grateful for his generous use of discretion," DiBiagio said in his remarks.

Yesterday, Smalkin's colleagues called him skilled and patient.

"He is just a fine judge and a wonderful colleague," U.S. District Judge J. Frederick Motz said.

U.S. District Judge Catherine C. Blake, who works closely with Smalkin as the court's administrative judge, recalled first appearing before Smalkin when he was a magistrate judge and she was an assistant federal prosecutor.

"I regret the fact that his health is forcing him to retire," Blake said yesterday. "I believe he is a dedicated, efficient and hard-working judge."

Smalkin has overseen hundreds of criminal and civil cases, but he is remembered chiefly as the judge who in 1987 reversed the fraud convictions of Mandel and five co-defendants. Smalkin based the decision on a U.S. Supreme Court ruling that held, in effect, that the government had to show that money had changed hands in order to sustain the conviction.

Because the government failed to do so in the Mandel case, Smalkin ruled, Mandel and his co-defendants had been improperly convicted.

"A final answer to the question of petitioners' guilt or innocence, in any broader sense than that, must await the judgment of history," Smalkin wrote.

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