Mayer Brown Partner Gets New Judge in Refco Trial

Susan Beck

The American Lawyer

June 17, 2009

A lot of unexpected things can happen during the course of a trial. Getting a new judge, however, usually isn't one of them. But that's what happened to Mayer Brown partner Joseph Collins, who is on trial facing criminal charges that he was an accomplice to the massive fraud that destroyed brokerage firm Refco in 2005. On Monday, five weeks into the trial, U.S. District Court Judge Robert Patterson certified that he was ready to step in and replace district court Judge Leonard Sand. Sand, who was born in 1928 and has been on the bench since 1978, had recently taken ill and was unable to continue presiding over the case.

Collins was Refco's lead outside lawyer for more than a decade and faces up to 30 years in prison for allegedly helping to hide Refco's $2.4 billion accounting fraud. Collins, represented by William Schwartz of Cooley Godward Kronish, asserts he was duped by his client. We wrote about Collins' indictment in this 2008 American Lawyer article, and the New York Law Journal covered the opening arguments.

Rule 25 of the Federal Rules of Criminal Procedure provides that an ill judge may be replaced midtrial if the new judge certifies that he has familiarized himself with the record. In a court filing Monday, Judge Patterson certified that he had read 2,282 pages of the trial transcript and listened to a summary of the trial from both the prosecutor, Christopher Garcia, and the defense lawyer (presumably Schwartz).

Professor Peter Henning of Wayne State University Law School says the substitution of a new judge in a criminal case doesn't happen often. "It can be grounds for an appeal, but that would be very difficult to win," he says. "Unless you can show something pretty glaring has happened, it's unlikely." The federal rules allow the new judge to decide whether he or she is familiar enough with the case to step in. "It tends to be more of an issue posttrial, when a new judge comes in for the sentencing." He adds that the new judge can revisit the previous judge's rulings and make a different decision.

It's not clear if either side will ask Patterson to reconsider any of Sand's rulings.

We left messages with prosecutor Garcia and Cooley's Schwartz but did not hear back as of Tuesday.

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.