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Posner's Internet Research Alters Case: Did He Cross the Line?

Another Seventh Circuit judge is in hot water these days, and no, it's not for forgetting a case for a few years this time. Judge Posner, perhaps one of the highest profile judges in the federal courts, minus only those on SCOTUS, came under fire after he did his own Internet research on a case -- and citing Wikipedia in the process.

The case involved a prisoner suing pro se after prison officials took away his medication. His suit was originally tossed out, only to be revived in part because Judge Posner did his own research to show that a genuine factual dispute existed, relying on information that wasn't submitted by the parties or present during trial. As Judge David Hamilton noted in his dissent, that goes beyond the "permissible boundaries" of an appellate court.

Evidence Is Evidence, Right?

The case was fairly straight forward, until it wasn't. Jeffrey Allen Rowe, a prisoner in Indiana, was diagnosed with reflux esophagitis, or gastroesophageal reflux disease (also known as heartburn). GERD allows stomach acid to back up into the esophagus, resulting in inflammation and tissue damage. Rowe needed Zantac to control his GERD, but prison officials took it away and only allowed him to use the drug at meal times -- unless he wanted to buy his own pills from the commissary. Rowe filed a Section 1983 suit, but was denied counsel and a medical expert.

Of course, pro se plaintiffs aren't always effective court room advocates -- just look at this Lawyerist round up of handwritten pleadings if you want a reminder. Thankfully, Rowe had Judge Posner on his side. Posner searched the web for information on GERD and Zantac, information neither Rowe nor the prison had provided. That information made it into his opinion.

Posner cited Wikipedia, WebMD, the National Institutes of Health, and other online sources throughout his opinion. It's not just for background either. Posner relies on that Internet info to determine that refusing Rowe access to Zantac between meals would leave him suffering.

A Neutral Decision Maker?

Did Posner's research cross a line? Judge Hamilton seemed to think so, saying that Posner's research "turns the court from a neutral decision-maker into an advocate for one side." It's not the first time Posner has gone outside the record either. As Josh Blackman notes on his blog, Posner is often a "flagrant" offender, who has even ruled based on experiments he conducts on his own. Take, for example, the time he made his clerks dress up in protective gear to see how long it would take, despite evidence provided by the parties.

Of course, Posner says he's just doing his job. "In a case of such dramatic inequality of resources and capabilities," Posner wrote, the adversarial process should not be "an unalterable bar to justice." Sounds dangerously European to me.

The third judge on the panel? The fuss wasn't even necessary, she noted. Judge Ilana Rovern ruled for the plaintiff as well, but said nothing more than the record was needed to make that decision.

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