BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."
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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.
Has chief judge taken flight? "Borno State Governor, Ali Modu Sheriff has described the way Bayelsa State Governor, Diepreye Alamieyeseigha, faked his identity to jump bail in London as the most shameful practice an elected political office holder could be involved in. He spoke on Sunday as news broke that Bayelsa State Chief Judge, Emmanuel Igoniwari has probably fled Yenagoa for his community in Ogbia Council for fear of insecurity. Another source said he is in Abuja...Other perceived enemies of Alamieyeseigha have relocated to Abuja, Lagos and Port Harcourt...." More (Daily Independent Nigeria 11.28.2005).
Scalia holds forth, 'off the record.' Justice Scalia held forth last week before an audience of a hundred journalists and other business types last week after the host told the audience that his expostulations were "off the record." Lloyd Grove of the New York Daily News got around the stipulation by writing a piece on 11.23 titled What you might hear if Scalia held court:
Who knew that Antonin Scalia does a hilarious sendup of schoolkids visiting the Supreme Court? Well, if he did, it would be a killer. "The Constitution is a living document, the Constitution is a living document," the very conservative associate justice -- a self-described "originalist" who joined the high court in 1986 -- might bleat as he rolled his eyes.
Grove said that Scalia "might have" said, "The press is the only business that is not held responsible for its negligence." And to that one might add, speaking hypothetically, of course, that Justice Scalia himself enjoys much greater protection than the press gets for its expostulations: he enjoys absolute judicial immunity from suit , not just immunity from liability, for his "judicial acts," including all expostulations in his dissents -- but not immunity for his non-judicial acts. Thus, if Nino hypothetically played a practical joke on an audience member last week, causing physical injury, it'd be "too bad Nino."
Nino redux: more public appearances in offing. At the cocktail party following his performance, Nino might have said to Grove, "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you -- and I agree." Id.
Reining in supreme court justices' expense account spending? "The chief justice of Pennsylvania's Supreme Court has suggested revising the rules that govern expense accounts for the state's top judges, according to a published report. Chief Justice Ralph Cappy wrote in an Oct. 21 e-mail that his proposed changes are intended to make the justices' spending more consistent and transparent to the taxpayers who foot the bill, The Patriot-News of Harrisburg reported Sunday...Cappy's e-mail was sent about a month after the Patriot-News reported that the seven justices had spent more than $164,000 in travel, food, lodging and auto expenses in the past year. That included $300 dinners, $1,766 for picture framing, $65 for alumni association dues, 34 car washes for one justice's vehicle, and a conference in the Bahamas...." More (NEPA Times-Leader 11.28.2005). Earlier related entries and comments: New courthouse furniture carries $1 million price tag - Justice loses retention election - Will pay raise & expense account scandals affect retention elections in PA? - Reining in those wild-spending judges - More on the revelations about PA Justices' expense accounts - Should government pay for judge's trip to attend Christian law seminar? - High court justices' expense accounts under scrutiny. Comment. In a 2001 piece titled Government records online (scroll down), I argued, as I have on other occasions, for greater transparency/accountability, on the internet, of expense-account spending by judges & other matters:
In Minnesota the court system is spending millions of dollars (I think too much) to develop a state-of-the-art statewide computer system that, I think, holds great promise for openness in government, provided the ordinary people -- you and I -- insist that the system be used for it. I foresee, for example, citizens demanding that the court put its financial books and accounts online -- specifically, the detailed budget, not just the "lite" version the public and legislators are shown. This would include the name and salary of every court employee, the unit-by-unit amounts spent on this or that, the expense-account filings of each judge, the daily calendar of each judge, etc., etc.
BurtLaw's tips/rules for judges, Tip # 43: Don't judge by eye alone. "Prime lamb producers who think they can judge the breeding value of a ram by eye at a sale are naive, delegates at Hybu Cig Cymru's autumn conference in Powys were told. Dewi Jones, managing director of the Aberystwyth-based Innovis technology company, said 70% of appearance of a tup carefully prepared for sale was down to feeding. He claimed that buying overfed rams without reference to their flock history encouraged inefficiency within the sheep industry. 'Don't expect to be able to judge a ram at sale time, you need to get under the skin of the flock selling him,' said Mr Jones, the former manager of sheep research at the Welsh Institute of Rural Studies...." More (Farmers Weekly Interactive UK 11.28.2005). Comment. The bio of Coach Bill Belichik, infra, contains similarly-useful bits of information, information that, on the surface, seemingly has nothing to do with being a good common law judge.
China's long march toward an independent and accountable judiciary. "As a teenager, Li Huijuan first saw a judge as a character in a television soap opera. She grew up in southern Henan Province in the city of Nanyang, where she watched dramas about judges in ancient China. Their passion for justice was scripted, but it inspired a young girl. 'I saw these images of judges and lawyers defending the people,' she said. 'I thought it was glorious.'" Today's (11.28.2005) NYT has a great piece -- A Judge Tests China's Courts, Making History -- about how Judge Li Huijuan, a modest but idealistic young judge, set off a national debate in Chinese legal circles about the independence of judges to declare, inter alia, that a provincial law is invalid to the extent it conflicts with applicable national law. Comment. The piece is interesting in many ways, including as an illustration of the application of Emerson's views on quotation and originality in the context of children growing up to metaphorically "quote" their parents in creative ways:
She was one of three children, and her father was a government official who oversaw local markets to ensure that merchants and vendors abided by city rules and regulations. To curry favor with her father, vendors often visited the family's apartment at night, banging on the door with offers of gifts or bribes. "My father never accepted," Judge Li recalled. "He lectured them and drove them out. I think I have the same stubbornness in my character. My parents taught me to be a straightforward, honest person."
For another fascinating illustration, see the review in yesterday's Times of David Halberstam's The Education of a Coach, about Coach Bill Belichick of the New England Patriots, whose career "quotes" in an original way that of his father, Steve, who died last week, a long-time assistant coach at Navy who specialized in scouting upcoming opponents.
Judge of year? Some say it's Mary Yu. Nice portrait of a Seattle trial judge who's not above taking lots of time, nearly an hour on the day before Thanksgiving, to politely get a seemingly uncooperative defendant -- a fellow human being, you know -- to sign routine paperwork and submit to fingerprinting. More (Seattle Times 11.26.2005).
Does trial judge keep list of disfavored cops? "A [PA] district attorney [Jeff Leber] is accusing a judge [Annette Easton] of keeping a list of disfavored law enforcement officers, and he wants her removed from all criminal cases that involve them, according to court records...Easton on Friday night referred all questions to her attorney, Samuel Stretton, who accused Leber of 'harassing' Easton and other district judges...." More (Tallahassee Democrat 11.26.2005). Comment. We don't know the facts but don't doubt as a generality that many trial judges keep "lists" of a sort, mental or in writing, on which cops and which prosecutors and which defense attorneys who regularly appear before them are reliable, honest, trustworthy, smart, stupid, etc. If, for example, a hypothetical cop's search warrant affidavits prove to be unreliable, it's naive to think judges won't catch on and won't weigh that unreliability in the balance in the future when presented with applications based on the cop's representations of fact.
Judge as consumer protecter -- in re the jury duty phone scam. "While the scam hasn't necessarily hit this area yet, [Missouri] Circuit Court Judge Kenneth W. Pratte is cautioning people to be aware of it. Bogus calls are circulating the country from individuals posing as officers of state and federal courts in an attempt to steal personal information that can be used for identity theft...." More (Daily Journal 11.26.2005). Comment. I guess even new fashions in scamming & skullduggery take their time in reaching out-of-the-way places like MO. We alerted our readers to this trendy scam on 08.03.2005. See, Latest phone scam: Why didn't you show up for jury duty?
A confusion of Anderson's? The Duluth News-Tribune (11.25.2005) seems to think the next Chief Justice of the MN Supreme Court will be Associate Justice G. Barry Anderson, who is one of three Anderson's currently on the court in this Land of 10,000 Anderson's (hmm, should we be troubled that 42.856% of the judges currently on the court are "Andersons"?). The story, in which Justice G. Barry Anderson cooperated, calls him the "leading candidate." We have no inside information and don't know if there's anything to the story, although we think the Anderson in question was foolish in cooperating in the story. It would not surprise us if Gov. Tim Pawlenty picked one of the Anderson's. He even married an Anderson -- Judge Mary Elizabeth Anderson Pawlenty, a/k/a First Lady of MN. The best thing "G.. Barry" has going for him is he was a recent pick, 2004, by Pawlenty to serve as associate justice. New justices, previously and recently picked by the governor, always have an advantage, it seems, over other more experienced members of the court appointed by earlier governors. Witness Gov. Carlson appointing newcomer & Carlson appointee Kathleen Blatz as Chief to replace Chief Justice Sandy Keith, witness Gov. Perpich appointing newcomer & Perpich appointee Keith to replace Chief Justice Peter Popovich, witness Gov. Perpich appointing newcomer and Perpich appointee Popovich to replace Chief Justice Doug Amdahl, witness Gov. Quie appointing newcomer and Quie appointee Amdahl to replace Chief Justice Sheran.... We think, however, if it's to be an Anderson, he has the wrong one. The right one is Associate Justice Paul Anderson. See, Who will/should the governor appoint to fill MN's chief justice vacancy?
Prairie kid, one-room schooler, first female justice gets libe named after her. "As a child growing up on the Kansas prairie, Rosalie Wahl was starved for books. Miles from any library, she read her mother's copy of Little Women over and over...." It paid off. She was the first woman to serve as a justice of our state's supreme court (we're talking MN) and now Lake Elmo, where she's lived for many years, is naming its new library after her. More (Minneapolis Star-Tribune 11.25.2005). We knew of Rosalie Wahl when we used to listen to her argue cases at the supreme court for the MN State Public Defender's Office and we've known and admired "Justice Wahl," which is what we have always called her, ever since Gov. Perpich named her to succeed Justice Harry MacLaughlin when he was appointed to the federal district court. She did a lot of good things as judge, including write what we have called "far and away the most objectively beneficial criminal law decision of the Minnesota Supreme Court in the last 30 years," State v. Scales, 518 N.W.2d 587 (Minn 1994), reviewed here. I've always liked the line from E. B. White's Charlotte's Web: "It is not often that someone comes along who is a true friend and a good writer." To the many people she has mentored, including me, Justice Wahl is both -- plus, she's a good reader & has a library named after her to prove it. Oh, yeah -- one tiny other matter: like us, she's opposed the war in Iraq from the start.
Judge reprimanded over delays in deciding cases. "He could have been removed from the bench or suspended without pay. Instead, Butler County Common Pleas Judge William Shaffer, who admitted to lengthy delays in deciding some divorce and child custody cases, will be allowed to remain on the bench without interruption with only an official reprimand...." More (Pittsburgh Post-Gazette 11.25.2005). Comment. It's my opinion that cases like this are just the tip of a very big iceberg called Delay. Only the most-obviously slow get caught and penalized. Much delay is hidden and much of it is attributable not so much to individual judges as to systematic problems. We know of a referee in a large metropolitan district where some divorces seem to take forever and cost a zillion who said "we" think a bit of delay is good in divorce cases. Certainly, there are some lawyers who share in the blame, knowing a cash-cow when they see one and using every trick in the book to drag things out to their own profit. I used to think the late Chief Justice Peter S. Popovich of the Minnesota Supreme Court was a bit cliched in repeatedly using in his speeches that old phrase "Justice delayed is justice denied." But as the years have gone by I am more and more proud that I was able to work closely with him and I believe more and more that he was one of the best to ever hold the office. He put his finger on a very real problem and, had his tenure not been cut short by our ridiculous mandatory-retirement law, might well have done something about it. Further reading. Burton R. Hanson, "The Voices of a Judge -- The Judicial Opinions of Chief Justice Peter S. Popovich of the Minnesota Supreme Court," The Judicial Career of Peter S. Popovich (MN. Justices Series No. 10, 1998), on file at the MN State Law Library, the MN Historical Society, and the Library of Congress.
New courthouse furniture carries $1 million price tag. "New furniture for the Northampton County Courthouse will cost $1 million, including a $15,000 conference table and judges' chairs listed at $825 each. 'I guess it does strike me as rather astounding for an office chair,' County Council President J. Michael Dowd said, although cautioning that he cannot say whether the prices are appropriate. 'It strikes me as rather astounding for a chair I would put in my house.' The furniture purchases, which also include jurors' chairs that cost $598 each, are part of a $43 million expansion and renovation of the courthouse...." More (Centre Daily Times PA 11.25.2005). Comment. We recently reprinted a 2001 essay we wrote on this sort of thing titled Reining in those wild-spending judges (click on link to read).
New top judge for the cheapskates, er, Scots. "The Queen has approved the appointment of a new Lord President of the Court of Session in Scotland -- Scotland's most senior judge. Lord Hamilton will take over from Lord Cullen of Whitekirk. The Lord President is the head of the Court of Session and as Lord Justice General, head of the High Court of Justiciary...." More (The Scotsman 11.24.2005).
What if disciplinarians need discipline? Three judges were appointed to serve on a disciplinary panel investigating allegations that Santa Barbara, CA Superior Court Judge Diana Hall, a lesbian, improperly failed to report a $20,000 campaign contribution from her partner, Deidra Dykeman. Now a new panel will be appointed because a former Monterey County Court Clerk, Crystal Powser, has alleged, in an unrelated case, that one of the panelists, Monterey County Superior Court Judge Michael S. Fields, had prejudged the case. According to a report in the San Jose Mercury News today, 11.24.2005, Powser declared, in part, that "Judge Fields said that they already decided she (Judge Hall) was guilty of all three allegations" and "He also made fun of the fact that her girlfriend's name was Dykeman and that he wasn't sure which one was the man or which one played the woman part." It should be noted that we haven't heard Judge Fields' version of what, if anything, he said to Powser. He says he can't ethically comment at this time. Notes. a) We remembered the name "Crystal Powser" from an earlier entry, Mom defends judge son, says he's innocent, involving allegations by Powser against another judge in the same court, Richard Rutledge. b) The "unrelated case" referred to in today's entry is one alleging that yet another Monterey Superior Court Judge, Robert O'Farrell, conspired with Judge Fields "to fix the assignment of cases and the outcome of hearings." More (The American Chronicle 11.23.2005). Comment. Sounds like a lot of allegations -- against Judges Hall, Fields, Rutledge & O'Farrell -- none of which we can assume to be true.
Judge picks sites for relatives of 09.11 victims to view trial. "A federal judge [Leonie Brinkema] has selected six [federal courthouses as] sites for survivors and relatives of victims of the Sept. 11 terrorist attacks to watch [on closed-circuit television] the death penalty phase in the case against Zacarias Moussaoui, the only person charged in the United States in the 2001 plot...." More (Boston Globe 11.23.2005).
Commission seeks removal of judge. "The State Commission on Judicial Conduct has recommended that a controversial New York City judge [Laura D. Blackburne] be removed from the bench for helping a robbery suspect in her courtroom elude a detective by allowing him to exit through a back door...." More (N.Y. Times 11.23.2005). Comment. One spur-of-the-moment decision, perhaps a lapse in judgment, by a busy trial judge and -- poof! "You're off the bench!" More and more, as I survey decisions by judicial conduct commissions on a daily basis, I'm coming to the conclusion that some of them seem to think the standard to which a judge must be held is absolute, unwavering perfection. But where is the perfect judge? I've never met him. Judges make mistakes, as we all do. See, e.g., next item. And I must say that I doubt if many judges make it to the finish line without having done something that, if it had seen the light of day, might have caused the ethics folks to have conniptions. Perhaps Judge Blackburne made a mistake. Perhaps she should be disciplined in some way. But removed? Come on, judges, say it, say it after me, "There but for the Grace of...."
Judge admits mistake. "More than three months after Lake Superior Court Judge Diane Ross Boswell incorrectly freed Leslie Paul McGuire from custody, the judge acknowledged her mistake Tuesday and sentenced McGuire to prison. The judicial mea culpa may have come too late for Joan 'Twin' Harris, an East Chicago woman McGuire is accused of killing while on Boswell-ordered probation...." More (Gary IND Post-Tribune 11.23.2005).
Judge Walter Mitty dreams: 'I'm a judge of jaw-droppers.' "One day in 2000, he was idly flipping through a copy of the Guardian, the British newspaper, on a seat in a Mexican coffee shop when he was caught by a help-wanted ad: "Guinness World Records requires adjudicator...." The man's name is Stuart Claxton and he's the North American Researcher and, more importantly, "Adjudicator" for Guinness World Records (Globe & Mail 11.23.2005). "On a typical workday, [Adjudicator Claxton] might get roasted by the searing heat from the world's longest wall of fire. Or have to prod rulers into a 60-tonne birthday cake. Or watch snowmobilers try to ride out as far as they can across a Saskatchewan lake before their machines sink...."
Judge has nasty cold. "Tarrant County Judge Tom Vandergriff was hospitalized in Arlington over the weekend with high blood pressure and cold symptoms, relatives and county staff members said Tuesday...'He had a rather nasty cold and congestion that caused his blood pressure to rise,' [his son] said. 'He probably would have been released sooner, but the people weren't available over the weekend to do the tests.'" More (Dallas-Fort Worth Star-Telegram 11.23.2005). Earlier. Blogger Hanson May Have Summer Virus.
Annals of judicial conduct proceedings - "the ADD defense." Last May we posted a piece about a Seminole County Florida judge named John Sloop who raised an "ADD defense" to a judicial conduct charge resulting from his "it's not my problem"-attitude when informed by jailers that the 11 people he had ordered jailed had been wrongly told to go to a different courtroom and that it wasn't their fault when they did not appear in his courtroom on time. More. Now as his hearing approaches we learn nore details of his defense from a sworn statement filed with the commission: "The ADHD so clouded his judgment, he sa[ys in the statement], that he ignored warnings from three people -- two of them judges -- who told him the arrests were the result of a mix-up. Instead, he took a lunch break to eat popcorn, then left the building to get parts for a trailer. Once he returned, he continued to ignore the problem and began his afternoon hearings." The 11 people spent eight hours in jail as a result of the mixup and his failure to remedy the problem. It appears that Judge Sloop was privately "rebuked [by the commission on an earlier occasion] for failing to control his anger and promised he'd never cause another problem that would require commission action." More (Orlando Sentinel 11.22.2005).
Annals of judicial tyranny. "During the Iranian revolution...[Fisk] watched Sadegh Khalkhali, the nation's chief justice, as he coolly sent hundreds to their deaths in half-day 'trials.' Mr. Fisk writes: 'He stood now, this formidable judicial luminary, in the sunny courtyard of Qasr prison, brandishing a miniature pink plastic spoon, smacking his lips noisily and tucking into a large cardboard tub of vanilla ice cream. For a man who had just ordered the first public execution in Tehran for 15 years, he was in an excellent frame of mind.'" From Ethan Bronner, A Foreign Correspondent Who Does More Than Report, a review of Robert Fisk, The Great War for Civilisation (N.Y. Times 11.19.2005). Read on....
CM longs for 'speedy and hassle-free' trials of criminal defendants. "West Bengal Chief Minister Buddhadeb Bhattacharjee today called for setting up special courts for speedy and hassle-free trial of sensitive criminal cases...[He said] that the state, with the rest of the country, had been caught in a 'vicious circle' of economic and cyber crimes, besides those related to militancy, religious fundamentalism, prostitution, gun running and smuggling of narcotics. 'But what we really need is setting up of special courts for in-camera trials....'" More (IndLaw.Com 11.21.2005). Comment. People in power tend toward what they think is the easy solution to crime problems. Take, for example, our own President.... That is why Thomas Jefferson's line that "Eternal vigilance is the price of liberty" ought to be one of the sacred tenets of our secular republic.
Judicial house not in order? "[Panayiotis Athanassopoulos,] the new head of the [Greek] Union of Judges and Prosecutors [said,] 'The inspection mechanisms of the justice system have, for a number of reasons, been ineffective in detecting the extent of corruption...Athanassopoulos was appointed...after the organization’s previous leader, Achilleas Zisis, resigned last month. Zisis, the Supreme Court vice president, was also suspended last month after being charged with multiple counts of dereliction of duty and with breaching the law on declaration of assets. Zisis is the highest-ranking judge to be embroiled in allegations of corruption since claims about graft in the judiciary began emerging at the start of the year. Since then, 11 judicial officials have been sacked, 24 had charges filed against them and 31 others are under investigation...." More (Kathimerini 11.21.2005).
Double pay hike for court clerks? Here's our choice of quote-of-the-day: "[A]s our colleague Howie Carr points out, you can’t swing a dead cat in a court clerk’s office [in Massachusetts] without hitting a former rep[resentative]." It's in an editorial in today's (11.21.2005) Boston Herald questioning a "sweet double pay raise" that was "[t]ucked in a Senate bill passed last week [authorizing] a pay hike for trial court judges, assistant DAs, sheriffs and the clerks." Although Mass. law apparently sets court clerks' pay at 75% of judges' pay, the raise would put the clerks' salary at $105,000+ or 81%. Pamela Wilmot, the director of Common Cause in Massachusetts is quoted as saying, "Certainly the responsibility of a clerk is not 81 percent that of the judges, nor is the education level required." Comment. This is par for the course in Massachusetts. According to a 2004 Common Cause report titled Reforming the Courts, "Between 1998 and 2001, the legislature [in Massachusetts] mandated the creation of 416 positions never requested by the judiciary. Over the four-year period, the positions cost the Commonwealth $50.1 million; Massachusetts taxpayers continue to bear those costs." The report speaks of "rampant patronage" (as in legislative hiring and rewarding of favored court personnel), "inequitable allocation of resources," legislative "shield[ing of] patronage hires from lay-offs," a "balkanized structure [that] contributes to cuts being administered unevenly" with "[v]ulnerable and low-paid employees essential to the day-to-day functioning of many courts...being laid off, and even basic court services...being dramatically curtailed," "[l]egislative micro-management," "legislative interference in the day-to-day management of the courts," and the hiring, by the legislature, of "[c]ourt administrators without the appropriate management expertise." More.
'Spooked judges.' "National Ethics Commission coordinator Jose Joaquin Bido yesterday complained of the 'performances with political influences by some judges at the time of hearing a case related to the illegal use of government funds. He said that there are also 'spooked judges,' who act with fear of retaliation in the hearings of a case when the ones implied are personalities with great political and economic influences...." More (Dominican Today - Dominican Republic 11.21.2005). Comment. I've known and worked with a large number of judges. While some judges in this great land arguably might be said to lack courage at times, I can't say I've ever known one I would describe as being "spooked."
Judge will quit to run for D.A. "State District Judge Vickers Cunningham will announce today that he is stepping down from the bench, and sources close to him said that he will seek the Republican nomination for Dallas County district attorney...." More (Dallas Morning News 11.21.2005). Comment. Just the other day I wrote:
What we're seeing is "Government by Prosecutor" -- federal prosecutors with huge budgets and lots of time targeting state judicial systems all around the country, prosecutors prosecuting executive branch officials, prosecutors targeting congressmen, prosecutors running for the U.S. Senate (e.g., in MN), prosecutors running for governor (e.g., in MN), prosecutors being named judges in inordinate numbers, etc., etc. I guess, as usual, I'm in the minority, but I'm sorta sick of it all.
And now, add to the list "judges running to be the D.A."
Press release: 'W&M law faculty to serve on judicial futures commission.' "What will society look like in 10-15 years, and how can Virginia courts adapt to meet its needs? Virginia Supreme Court Chief Justice Leroy R. Hassell, Sr. recently charged a group of more than 100 lawyers, educators and business people from across the state, including four faculty members at William and Mary’s Marshall-Wythe School of Law, with looking into the future and finding an answer. The group, called 'The Commission on Courts in the 21st Century -- To Benefit All, to Exclude None,' is divided into five task forces -- Judicial Functions, Structure of the Judiciary, Technology and Science, Judicial Administration, and Public and the Courts...Virginia became the first state in the U.S. to conduct a futures commission in 1987 when it released a report anticipating increased use of alternative dispute resolution and more reliance on technology, among other things...." More (William and Mary News 11.21.2005). Comment. I don't put much stock in commissions like this, partly because of the way they're typically run. But you can bet that many other supreme courts will follow VA's lead on this and establish similar commissions. State supreme court justices are as prone to trendiness and fashion as so-called "ordinary people" are. BTW, my favorite utterance on fashion is by Thomas Wolfe, the great novelist (1900 - 1938): "She who is whored by Fashion will be whored by Time." Tough words, but in my opinion, true.
Judge appoints information officers. "District Judge S N Dhingra has appointed information officers in all district courts in the capital to fulfill the mandate of the Right to Information Act 2005...." More (WebIndia123 11.20.2005). Comment. We're not sure of the mandated role of these "information officers." In many states, the supreme courts have hired "information officers" to serve primarily a "p.r." role. I have opposed that as a waste of taxpayers' money. If the courts were serious about providing real information to the public, they would strive for real openness, not faux openness, which typically goes by the name of "judicial outreach." Some of my ideas for real openness are set forth in an essay I wrote in 2000 titled Judicial Independence and Accountability as well as in entries throughout this blog.
Judge takes stand against crucifix, winds up in jail. "An Italian judge who refuses to hear cases because there are crucifixes in the nation's courtrooms was convicted Friday of failing to carry out his official duties and sentenced to seven months in jail. Judge Luigi Tosti has declined for months to hold court in Camerino in central Italy, insisting religious symbols have no place in a court of law. He said Italy's constitutional provisions on human rights back his argument...." More (Seattle Post-Intelligencer 11.19.2005).
Judge Joan Lefkow's journey. "A few days ago, Joan Lefkow was walking down a Chicago street flanked by federal marshals when a panhandler walked up to her and said, 'God bless you, Judge Lefkow.' It has been nine months since U.S. District Judge Joan Humphrey Lefkow's name and face made relentless news, but what happened to her the night of Feb. 28 still haunts her days and stirs the souls of strangers...." More (Chicago Tribune 11.20.2005).
County court temporarily located in state capitol. "[S]everal [Marion C]ounty judges and their staffs toured the Capitol on Thursday and Friday, getting to know their way around the building in which they will hear cases and handle other court business for at least the next month...The Marion County Courthouse was severely damaged Nov. 12 when...a man drove up the steps, rammed his pickup through the front glass doors, fired a shotgun and set fires in the building. A three-hour standoff that ensued ended when a police officer shot the suspect...." More (Salem Statesman-Journal 11.19.2005).
Judge and commissioners in ongoing dispute over office at courthouse. There's been an ongoing dispute in Russell County, GA, over whether the county probate judge, Al Howard, should vacate his office space in the courthouse. One of the commissioners who voted to seek an injunction against the judge is a fellow named Ronnie Reed. Judge Howard has filed a motion claiming Reed is ineligible to hold office because of a 30-year-old burglary conviction. "Court documents show Reed completed his sentence and satisfied all requirements for a return of his voting rights in Georgia," but the judge says Reed never actually got his rights restored, which is a prerequisite to holding office. More (Columbus Ledger-Enquirer 11.19.2005). Earlier: "A majority of the commission members said the move is necessary to comply with an order by the Alabama Supreme Court for all courthouses to be secured. Howard said the move is political payback...." More (Columbus Ledger-Enquirer 08.31.2005). Comment. It's always amusing to outsiders to observe people squabbling over who has the better digs, etc.
'Naked rape of our Temple of Justice and our Judicial Shrine.' "Justice Edmond Ssempa Lugayizi has asked to be removed from the treason case involving Forum for Democratic Change leader Kizza Besigye and 22 others, Principal Judge James Ogoola revealed yesterday...[T]he disclosure came as another blow to the independence of the Judiciary, which is still bleeding from Wednesday's siege of the High Court by commandos from the army's Black Mambas Urban Hit Squad. [Ogoola] condemned the siege...describing it as a 'naked rape,' 'defilement,' 'desecration,' and a 'horrendous onslaught' on the judiciary...A contingent of what the judge described as 'some 30 heavily armed commandos' took control of the Court premises seeking to re-arrest Besigye's 14 co-accused who had been granted bail...'Not since the abduction of Chief Justice Ben Kiwanuka from the premises of Court during the diabolical days of Idi Amin had the High Court been subjected to such horrendous onslaught as witnessed last Wednesday,' Ogoola said...." More details (Uganda Monitor 11.19.2005).
Former 'hanging judge': If I'm ombudsman, the conviction rate'll increase. "A former 'hanging judge' and current associate justice of the Sandiganbayan anti-graft court said on Friday that if he would be chosen Ombudsman he would not hesitate to hand down the death penalty to grafters and plunderers.
'If I will be given a chance to become Ombudsman the conviction rate will surely increase. There will be no place for grafters and plunderers in government. Even [the] death sentence should be imposed if evidence warrants,' Diosdado Peralta told members of the Judicial and Bar Council (JBC) that had been interviewing candidates for the post to be vacated on November 30 by Simeon Marcelo. Peralta, a former Regional Trial Court judge in Quezon City, has a 90 percent conviction rate. He also meted the death sentence to 44 accused in the 20 cases he handled as RTC Judge...." More (INQ7.Net 11.19.2005). Comment. And the next guy said, "If I'm appointed ombudsman, I'll see that the grafters and plunderers are not only executed but that they're condemned to hell." And the guy after him said, "If I'm appointed, I'll see that everybody gets convicted."
Former judge candidate charged with perjury. "A former district justice candidate charged with perjury is described as a 'Boy Scout' by his attorney who said the charges wouldn't have been filed elsewhere. Thomas A. Kuhns Jr., 56, of Reynard Drive is charged with five counts of perjury involving his nominating petitions for the spring primary election. An Allegheny County detective alleges Kuhns submitted notarized petitions as correct when in fact six of those people named hadn't signed the petitions...." More (Pittsburgh Tribune-Review 11.19.2005). Comment. That'll teach him not to run for judge. Archimedes of Syracuse (not Syracuse, New York), who lived from 287 B.B. to 212 B.C., said, "Give me a place to stand and rest my lever on, and I can move the Earth." I say, "Give me an unlimited budget and two years to investigate, like Patrick Fitzgerald had in the investigation that led to the indictment of Scooter Libby, and I could dig up enough to prosecute anyone in particular of something or other." What we're seeing is "Government by Prosecutor" -- federal prosecutors with huge budgets and lots of time targeting state judicial systems all around the country, prosecutors prosecuting executive branch officials, prosecutors targeting congressmen, prosecutors running for the U.S. Senate (e.g., in MN), prosecutors running for governor (e.g., in MN), prosecutors being named judges in inordinate numbers, etc., etc. I guess, as usual, I'm in the minority, but I'm sorta sick of it all.
Mall beats courthouse as place for government offices. "Rock County Supervisors endorsed a plan Thursday to auction off the former Rock County Courthouse in Beloit. The county board had directed the General Services Committee to market the building as part of a plan to move the county's Beloit agencies to the mall. The courthouse, vacant since 2000, had long been an option for housing Beloit offices for Human Services, Veterans Services and the University of Wisconsin Extension currently renting space on Broad and Short streets...." More (Beloit Daily News 11.19.2005).
Judge settles sexual harassment claims by two women. "A Plymouth County judge [Juvenile Court Judge Robert F. Murray] has settled sexual harassment claims with two female court employees, but he still faces potential disciplinary action by the Massachusetts Commission on Judicial Conduct, which has been investigating the matter in secret for months, judiciary officials said yesterday. The state yesterday paid a court officer and a court clerk a total of $250,000, including attorney fees, to settle their claims...''The settlement does not affect the judicial conduct proceeding,' said Joan Kenney, a spokeswoman for the courts...." Details (Boston Globe 11.19.2005).
Lawyers boycott courts over murder of two judges. "Police in Bangladesh stepped up a nationwide hunt for potential suicide bombers as militants threatened more attacks and lawyers boycotted courts in protest at the killing of two judges this week. Police, who said they were hunting around 2,000 potential bombers, many of whom had trained in Afghanistan, detained six suspects and seized several bombs...." More (Gulf Times 11.19.2005).
Comment: Who's the judge -- what relevance? Speaking in generalities, of course, appellate judges like to know, among many other things, the name of the trial judge whose ruling they are reviewing. I don't think I need to explain why. If you've half a brain, you can figure it out. Similarly, when I read a story in the local paper today, 11.18.2005 that our fine Minnesota Supreme Court has reversed a pre-trial order suppressing so-called other-crime evidence in a pending criminal prosecution, I was persuaded to read the opinion when I saw that the two judges in dissent were Justices Alan Page and Paul Anderson. Why? Simple: they're the two best judges on the court and, moreover, in the prevailing political climate it takes a bit of judicial courage for appellate justices to stand as they did in a case like this. So, I read the majority opinion and the dissenting opinion. Here's a link to them -- read them yourself: State v. James Douglas McLeod (Minn., 11.17.2005) (C.J. Blatz did not take part). In this case, my little rule-of-thumb steered me correctly. Speaking as one who was the court's resident criminal law specialist for nearly 30 years, I offer my own experience-based opinion: the dissenting opinion not only is correct, it makes mince-meat of the majority opinion. According to the news report, the defendant will be represented at trial by Bill Mauzy, who -- also in my humble opinion -- either is the best criminal defense attorney or one of the best in Minnesota.
Does 'paltry' pay of $232 a day to deputy judges destroy their independence? "The 'paltry' $232 a day paid the province's  Small Claims Court deputy judges has destroyed their independence, says an Ontario Superior Court judge who has ordered the province to set up an arm's-length commission to study their salaries...." More (Toronto Star 11.18.2005). Comment. Hmm, despite their "paltry" pay in some jurisdictions, despite the "fact," sworn to by numerous bar association types, that some judges are paid starvation wages, good lawyers apparently are still willing to give up their law practices & serve as judges. I guess I don't understand what the relative "paltriness" of one's pay would make one less independent. People at all economic levels are expected to, and do, act honorably in their jobs. I've never met a judge whose independence was in any way affected by the relative modesty of his pay when compared with the pay of others. My view: vote to give judges fair monetary compensation if they "give good weight," but don't base one's decision on a pay raise request without considering all the facts, including what hidden or special benefits, if any, the judges receive. Moreover, don't be fooled by foolish arguments, such as "I could be making more if I were an attorney with a corporate law firm" or "If you don't pay judges more, they'll start accepting bribes." For my admittedly idiosyncratic, eccentric views, see, 'I could be making lots more if I were Michael Jordan' at BurtLaw's Law & Judicial Economics at BurtLaw's Law and Everything Else. For my specific views on judicial independence, see my essay on Judicial Independence and Accountability. For an example of how public anger can erupt over judicial pay raises and expenses account abuses, see Justice loses retention election.
Judge releases contents of mayor's laptop. "A judge on Thursday granted a newspaper's request to make public gay-themed material from Spokane Mayor James E. West's City Hall laptop computer, but placed restrictions on the release of images from a gay-oriented Web site...'Clearly the public has the right to evaluate the mayor's performance,' [Judge Richard] Miller said...Attorneys for The Spokesman-Review newspaper went to court to seek release of the files. West fought release of the computer's contents, contending they were private and that the Internet sites were accessed during off-work hours. The city allows employees to make limited use of city equipment to access the Internet for private reasons. The mayor faces a recall election Dec. 6 over allegations that he abused his office by offering a City Hall internship to an 18-year-old man he met in a Gay.com chat room...." More (Guardian Unlimited 11.18.2005). Comment. The day will come when we'll look back on cases like this as we look back on the Salem witch hunt and Sen. Joe McCarthy's modern-day witch hunt. Next thing you know, Senator Ted Kennedy, or some "news" organization, will be shamelessly demanding access to the hard drive of Judge Alito's computer to see if there's anything that might be used against him. Readers interested in the related issue of monitoring of judges' computer use at work should read a) my extended 2001 entry titled "Foes of monitoring of judges' computer use win first round" at Court Gazing II at BurtLaw's Law And Everything Else (scroll down), expressing the view that "[T]hose who see no problem with such monitoring are wrong, and that time and experience will demonstrate this"; and b) my comments following the entry titled Judge removed for viewing porn on court-owned computer, which I conclude by saying, "The short of it is, I don't think the analysis courts are using in cases like this will or ought to pass constitutional muster." Update. Spokane voters 'recall' mayor (ABC News 12.07.2005).
Three judges resign from board of advocacy group amidst questions. "Three judges have resigned from the board of a group that advocates for abused and neglected children in court in the wake of a state investigation into alleged conflicts of interest of another judge on the board...The resignations come after the State Commission on Judicial Conduct investigated a 2004 claim that a judge's service on the Texas CASA board represented a conflict of interest because CASA receives state funding and the group's volunteers could appear before the judges...." More (Austin American-Statesman 11.18.2005). Comment. One wouldn't think it would take an investigation for judges to realize the risks of serving on such a board.
Judge convicted of tampering with a record. "A longtime Harris County justice of the peace [Betty Brock Bell, 56] will spend the night in the county jail after a jury determined today she illegally used her dead mother's name to obtain handicapped parking placards...Bell's punishment has not been determined. Jurors will continue hearing evidence today in the sentencing phase of her trial...Because Bell has been convicted of a felony, the county attorney is empowered to seek her removal from office...." More (Houston Chronicle 11.18.2005). Comment. It's amazing how often judges' careers are ended over piddly-diddly, foolhardy mistakes, such as diddling around trying to get preferential parking. It's called being human and having feet of clay. See my comments and links following The 'Spring Break Judge' writes book of 'spring break tales.' Update. Judge gets two-year sentence, execution stayed (Houston Chronicle 11.21.2005). Boy, they're tough on people in Texas.
Reality show wannabe removed from bench. "A Los Angeles judge who appeared on a television reality show pilot to arbitrate an erotic dancer's claim against a San Diego adult club was removed from the bench Wednesday for ethical breaches...[One of the breaches involved] Ross appear[ing] in two pilot episodes for a reality show called Mobile Court, which decided small-claims cases at the scenes of disputes. The show never aired, but sitting judges are forbidden from arbitrating disputes outside the public court system. Other TV judges, such as Judge Judy [Scheindlin], are retired. In an episode entitled 'Beauty and the Beast,' an erotic dancer who appeared under the stage name Angel Cassidy claimed that a security guard, known as 'Wolverine,' had cheated her out of prize money by disqualifying her from a wet T-shirt contest. Ross ruled inside a Los Angeles strip club with 'zebra carpet, neon, mirrors, pole' and asked the plaintiff for details of the contest, the commission said in its ruling...." Judge Ross hasn't announced whether he'll seek review by the California Supreme Court. More (L.A. Times 11.17.2005). Comment. Here's a link to the commission's ruling. Inquiry Concerning Judge Kevin A. Ross. The ruling also addresses other claims of breaches, finding in Judge Ross' favor on some of them.The ruling is worth a read by any judge who engages in so-called "community outreach" activities. Update. Here's a link to another story about the commission's decision. this in Law.Com on 11.18.2005.
More on former law clerk's allegations against judge. Yesterday we linked to the New York Daily News' report of allegation against a N.Y. judge named Rios by a dismissed former law clerk named Judith Memblatt who has sued him for wrongful termination and filed an ethics complaint against him. Those allegations form the basis of a bid by a convicted murderer named Johnson for a retrial. Was judge in bed with an assistant D.A.? Today, 11.17.2005, the New York Times has a piece on the matter that differs from that in the Daily News. It says, in part:
Although [the female prosecutor in question] left the Queens district attorney's office in 2000, before Mr. Johnson's case came before Justice Rios, Ms. Memblatt claims that his affair was "an open secret" in the district attorney's office and that Justice Rios regularly curried favor with prosecutors to keep them from exposing him. Ms. Memblatt, who is suing Justice Rios for wrongful termination, also said that the judge suggested improvements in the prosecution's case during Mr. Johnson's trial.
Mr. Johnson's attorney is quoted as saying he's certain Johnson will get a new trial, promising "lots of lurid testimony [apparently at the hearing on the motion] about sex and corruption in the Queens courthouse." A spokesperson for the D.A.'s office is quoted as saying that motion is "a rehash of allegations" by "a disgruntled former court system employee." The judge and the former prosecutor apparently aren't commenting.
The latest on MN judicial speech case. The National Law Journal has a piece today, 11.17.2005, titled High Court May Review Judicial Elections that could as well be titled "High Court May or May Not Review Judicial Elections." The piece mentions that "Texas attorney Thomas R. Phillips...partner in Houston-based Baker Botts' Austin, Texas, office...has taken on the appeal in the Minnesota case...Dimick v. Republican Party of Minnesota, No. 05-566, in which he represents the Minnesota Board on Judicial Standards and asks the U.S. Supreme Court to grant review and reverse the 8th Circuit ruling...." "James Bopp of Bopp, Coleson & Bostrom in Terre Haute, Ind., who...represent[s] the Republican Party of Minnesota" is quoted as saying, "I just think the problem here is there are a lot of state supreme courts and the [American Bar Association] out there that just haven't come to grips with the fact that [Republican Party of Minnesota v. White, 536 U.S. 765,] destroyed the foundation of their extremely intrusive and burdensome regulatory schemes...The foundation was judicial elections are different in some fundamental way, so the First Amendment didn't apply. The Supreme Court has destroyed that foundation." Comments. a) It will be interesting to see if the Court grants review. b) I've written on the matter a number of times and some of those entries are set forth here: Blatz blazts politicization of judicial campaigns. c) I'm curious who's paying Mr. Bopp's fees and the other costs of pursuing review. As a Minnesota taxpayer, I hope public funds haven't been and aren't being squandered.
Former law clerks rally o/b/o Judge Alito. "From 500 applications a year, Alito hired clerks who were diverse in their politics and background, including, three years ago, a former research scientist from Britain named David Loretto. Now an associate in the New York office of Baker Botts, Loretto said that ever since Bush announced Alito as his nominee to replace retiring Justice Sandra Day O'Connor, friends have told him they had no idea that he had clerked for such a conservative judge. His answer: 'Nor did I.' Loretto described himself as 'extremely liberal,' but insisted that Alito's conservatism was not evident to him, either through conversation or in his rulings...." More (N.Y. Law Journal 11.16.2005). Comment. There's an old saying, that "No man is a hero to his valet." Law clerks are a sort of "judicial valet," helping their judges in numerous ways, most typically in reading the briefs, reading the record, researching the law, writing memos with recommendations, writing draft opinions (but not in testing the judge's food). The intensity and quality of the relationship varies, depending on the judge and the clerk. One, of course, has to avoid giving too much weight to the near-unanimous testimonials of his former clerks, since law clerks tend to think the individual judge they worked for is the best -- and one can't discount their self-interest in being able to say, "I once clerked for Supreme Court Justice Alito." Still....
Mystery of judicial blogger is solved. "Soon after The New Yorker magazine disclosed on Monday that [the] author [of the popular blog, Underneath Their Robes,] was not, as the blog claimed, a female lawyer [named 'Article III Groupie'] at a big firm with a taste for gossip and luxury goods, but rather a male federal prosecutor in Newark, the site disappeared behind a password-protected virtual wall...." More (N.Y. Times 11.16.2005). According to the Times piece, the U.S. Attorney's Office is "investigating." But "Judge [Richard] Posner, who contributes to a blog, said government employees should be free to blog. 'If he does it on his own time and does not compromise his official duties in some way, I don't see the problem,' the judge said in an e-mail message. 'We have free speech too, don't we?'" Comment. Indeed, we do have free speech, and we practice it here in this much more modest blog -- as we have practiced it since becoming one of the pioneer law bloggers back in 2000 -- openly, boldly, under our own name. Moreover, we can honestly say that we have never felt the slightest need or temptation to present ourself as anything other than what we are, a red-blooded, all-American he-man, the kind of irresistible guy nice women come up to in the grocery store and say, "You look like Clint Eastwood" or "Are you a Kennedy?" or "Has anyone told you, you look like Hal Holbrook?" or "Didn't you run for something?"
Was judge in bed with an assistant D.A.? In 2004 a state supreme court (trial) judge in New York, James Rio, fired his legal assistant, Judith Memblatt. In complaints filed with the state's commission on judicial conduct and in a $10 million wrongful termination lawsuit in Brooklyn Federal Court Memblatt alleged that Rios had had a sexual relationship with an assistant D.A. Now a criminal defense attorney, Ronald Kuby, is seeking a new trial for his client, Tyrone Johnson, alleging that, as paraphrased by a newspaper report, Rios "had an 'improper sexual relationship' with [a named female] assistant district attorney that led the judge to help prosecutors win a second conviction against...Johnson in 2003." More (N.Y. Daily News 11.16.2005). Comments. a) This is wrong? Since when? We seem to recall a female judge in The Practice who had a sexual relationship with a defense attorney who appeared before her. And wasn't there a female defense attorney in Philly who...? See, "Romancin' wit de judge" at BurtLaw's Court Gazing IV (scroll down). b) Moreover, even conceding that this sort of thing may be wrong under certain hypothetical circumstances, these are only allegations at this point.
During the proceeding on several occasions, Mr. Schulman sighed, i.e. exhaled audibly in a long, deep breath, while others were addressing the Court. (One witness characterized it as “harrumphing.”) Mr. Schulman was also fidgeting and on several occasions turned around, with his back toward respondent, apparently to reach for his personal belongings on a chair behind him. Respondent believed Mr. Schulman’s conduct to be disrespectful and disruptive, and on one occasion respondent gazed at him silently but intently. Court Officers Ross and Seibt warned Mr. Schulman about his conduct several times.
The court reporter, Eric Fuchsman, did not record or describe in the minutes of the hearing any of the conduct of Mr. Schulman or the court officers throughout the hearing. It is Mr. Fuchsman’s practice not to take down, in the minutes, conduct by any of the parties, individuals or court officers present during a hearing.
While Mr. Delcol was addressing the court, Mr. Schulman sighed again and shook his head. At the time, respondent believed that Mr. Schulman’s cumulative behavior was disrespectful and disruptive. Respondent therefore declared Mr. Schulman in summary contempt and imposed a five-day jail sentence.
Respondent acknowledges that the transcript addresses the contempt determination in the following manner:
Mr. Delcol: …That we resisted --
Respondent: Mr. Schulman, you make another sound you are going – hold Mark Schulman in summary contempt. He’s sentenced to five days at the Nassau County Correctional Center.
Mr. Schulman: I didn’t say a word.
Respondent: Quiet. Ten days.
Mr. Teeter: Your Honor, with all due respect --
Respondent: Twelve days.
See, also, In the Matter of Duane A. Hart, a Justice of the Supreme Court, Queens County (Censured for misuse of contempt power). Comment. Without commenting directly on this specific case, because I don't know all the facts, I will say that, personally, I've never admired the hold-them-in-contempt "style of judging," if you can call it that. More often than not, in my opinion, a judge who holds someone in direct contempt for something like a spectator's cell phone going off risks creating an image of courts that leads ordinary people to legitimately view courts with contempt. Although not directed at this specific type of situation, I like what Prof. Steve Lubet of Northwestern University Law School said about a federal judge down in Galveston, Texas named Samuel Kent who received favorable publicity for obnoxious behavior toward attorneys appearing in his courtroom: "There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back." More (Jewish World Review 08.16.2001). I don't think "bully behavior" by anyone, including a judge, has any place in or out of court. Whereas The Soup Nazi (Episode 115 SeinfeldScripts.Com) may be able to get away with "bully behavior," as long as the soup-masochists keep coming back, a common law judge ought not be allowed to get away with it. Indeed, it's BurtLaw Rule-of-Thumb #139 for avoiding discipline: Avoid using the contempt power altogether. The rule is a corollary of another rule, one we like to call, in our clever way, The Golden Rule, an obscure little rule that prompted us to oppose from the very outset the Bush Administration's nice little plan to allow the use of torture in interrogating and summary justice in trying "enemy military detainees" in its "War on Terror."
The 'Spring Break Judge' writes book of 'spring break tales.' "Making out with palm trees. Mistaking police cars for taxi cabs. Rolling a stolen restaurant barbecue down the road, flames shooting up from the chicken cooking on the grill. Such spring break hijinks have earned municipal Judge David Colwell's morning-after docket the reputation as one of the best shows in town." Now the South Padre Island, Texas judge has self-published a 98-page book titled Spring Break: A Judge's View from the Bench. More (Fort Worth Star-Telegram 11.14.2005). Comment. If we receive a review copy, we expect the book to occupy a special place on the bookshelf right next to Justice Cardozo's Nature of the Judicial Process. Judge Colwell seems to be the right guy for the job of spring-break judge. He understands that college kids on break just wanna have fun. I have long maintained that judges, too, just wanna have fun but don't get adequate opportunities. I suggest we expect them to be better than the rest of us & that "being better" all the time ain't fun & leads to harmful Freudian repression of the fun instinct. All that repressed fun builds up & eventually erupts, with horrible societal or at least judicial consequences. Thus, day after day, in this very blog, we read of this-or-that judge being punished for doing crazy or outrageous or "inappropriate" things, all unbecoming of a perfect person, judicial equivalents of things like raising one's voice with the kids at home or tripping over one's dog. The "Judicial Mardi Gras" is my answer. See my proposal for a "Judicial Mardi Gras" in "On judicial swimsuits and the Rules of Judicial Conduct -- part II" (scroll down) at BurtLaw's Law & Swimsuits.
Maker of livestock-feed grinders wants J.A.I.L. for judges. Some South Dakotans are trying to get a statewide initiative on the ballot that its supporters say would make South Dakota state judges more accountable to the public by abolishing absolute immunity of judges for judicial acts. According to a piece written by "Chet Brokaw" (relative of Tom?), the leader of the movement is "[William] Stegmeier, owner of a company that manufactures livestock-feed grinders, [who] turned in 46,800 signatures last week to put the proposed state constitutional amendment on the ballot in November 2006. That is about 13,000 more than needed. The state is still verifying the signatures." More (Seattle Post-Intelligencer 11.14.2005). We first noted the J.A.I.L. movement in 2002 at our Law and Everything Else blawg. The S.D. intiative is inspired by a national single-issue group seeking a "Judicial Accountability Intiative Law" (the group's slogan is an unfortunate acronym-based one, J.A.I.L. for Judges) creating "special grand juries to investigate complaints against judges." I don't agree with the complainants' assessment of the problem or their proposed solution, but I have been arguing publicly since 2000 that, while judicial independence is a necessity, you can't expect to have it or to have public support for it without significantly greater judicial accountability. I am a friend of the judiciary. The judiciary ignores the criticisms and suggestions of responsible people like me at its own peril. More.
Justice Thomas wants quick, less intrusive confirmation process. "Federal courts are being held hostage by the abortion issue, Supreme Court Justice Clarence Thomas said Friday in advocating a briefer, less intrusive confirmation process. Speaking to law students at The University of Alabama, Thomas said former clerks and other lawyers often tell him they're not interested in federal judgeships because of the potential for bruising confirmation battles...." More (Decatur Daily 11.13.2005). Comment. In particular, we assume, he would like Senators to refrain from allowing testimony like this: Testimony of Prof. Anita Hill, 10.11.1991. In other words, no nonsense about Coke cans, size of his gavel, etc. :-)
Forty judges charged with corruption. "Authorities in Serbia have brought criminal charges against 40 judges in an effort to fight corruption. Justice Minister Zoran Stojkovic made the announcement to reporters on 12 November in Belgrade. He said Serbia's judiciary was plagued with corruption, and that the 40 judges came from across the Balkan country and included the heads of some courts...." More (Radio Free Europe/ Radio Liberty 11.13.2005). Comment. Glad we don't have that problem here in the U.S. (Note: Don't read the next item.)
Mayor of NYC critical of city's judges. "Most judges in this city are dedicated, competent jurists. But some are unquestionably not qualified -- and others made it onto the bench because of shady back-room deals. Some judges have been selected because they paid off a local political leader or agreed to hire a particular law clerk. Once on the bench, some issue corrupt decisions based on whom they know or who bought them a box of cigars...." -- NYC Mayor Michael Bloomberg in an opinion piece, My New Mission (N.Y. Daily News 11.13.2005).
Letters, we get letters -- 'Dear Judgie, Would you be so kind....' "State Rep. Jerry McPeak, D-Warner [OK], defended Saturday his writing a judge on behalf of a longtime friend convicted of sexually abusing two girls. McPeak recommended a suspended sentence for former Warner School Board member Mike Thompson, who also is a former Muskogee and Broken Arrow businessman. McPeak's letter to Tulsa County Associate District Judge Caroline Wall said that incarcerating Thompson, 58, would be a malfeasance of justice...Thompson was found guilty of four counts of sexually abusing two girls who are the daughters of a woman Thompson had dated...." More (Muskogee Phoenix 11.13.2005). Comment. I've done no scientific empirical research but I have a strong impression based on reading thousands of records on appeal, including many, many such letters made part of the records, that as a rule-of-thumb these letters do no good in persuading a judge to be lenient in sentencing. In fact, they may be counter-productive. Thompson, for example, received four life prison terms! (Boy, they're tough in OK.) In the right case, however, the right kind of character testimony at trial (as opposed to letters at sentencing) can do a world of good. An example is the trial circa 1975 in D.C. of Nixon adviser, John Connally of Texas, on criminal charges arising out of the so-called milk-money scandal, when his defense attorney, Edward Bennett Williams, called a number of prominent character witnesses, including Coretta Scott King and Billy Graham; Connally was acquitted.
Judge sics police on son. "The Chairman of the Jammu and Kashmir Accountability Commission Justice R P Sethi, today directed the police to register criminal cases against persons, including his son Anil, who has been charged with taking bribe to ensure that a case pending with the Commission is decided in favour of the accused...'My reputation is spread to the Supreme Court as an honest and upright judge. I will not tolerate anybody maligning my image,' a disturbed Justice Sethi said insisting 'I want a thorough probe in this case.'" More (The Hindu 11.13.2005). Comment. I suspect if I were a judge I'd resign before I'd sic the police on my own son. This is not a criticism of Judge Sethi. It's "just me." As for my use of the word "sic," consider this:
Sic in this sense is originally a dialectal pronunciation of seek. It is first attested in the middle of the nineteenth century. This word sic has only three meanings, and they're closely related. The first is 'to attack', usually used as an imperative ("Sic 'em!") to a dog. The second is 'to incite (a dog) to attack' ("I sicced my dog on him"). The third sense is the figurative use of sic to mean 'to cause to pursue', as in "I sicced my lawyer on him."
Word of the Day. The word is one from the country of my youth. When he was a little kid, my late friend and public school classmate, Bruce Eberley, son of Doc Tobias "Tobe" Eberley, had a huge police dog named Carlos. Bruce's mom, Marge (Marjorie), had been an army nurse during WWII & his dad an army surgeon. If my memory is correct, Marge had bought Carlos to protect her as she walked back & forth from camp hospital to living quarters. Carlos provided the same service in civilian life to young Bruce, following him around & protecting him. Everyone knew enough not to try hurt Bruce cuz all it would have taken was a "Sig-em, Carlos" from Bruce to set Carlos into action. Bruce pronounced it s-i-g, not s-i-c, "explaining" that Carlos was trained with German commands. Fact is, I don't believe Bruce ever "sigged" Carlos on anyone. One May day in 1952, shortly before the end of third grade, Bruce, who was eight-and-a-half at the time, was in a boat fishing with his mom, an avid sportswoman, on one of our 15,000 lakes when she was struck by what I recall being told was a sudden, immediately-fatal heart attack, causing her to fall into the water. Bruce couldn't pull her in but held her body in the water next to the boat for a period of time before help arrived. In my opinion, Bruce never really recovered from that blow. A genius, he was an under-performer in school. Did the school fail to understand what was behind his malaise? One teacher, that great motivator, Leon Brockmeyer -- tenth grade world history teacher, legendary football coach, my track coach & one of the fathers of my spirit -- did understand & brought out the best in Bruce in his class. After high school Bruce made his way out to the Corvallis, Oregon area, found his niche & found his girl but, tragically, died in a gun accident circa 1980, I believe shortly before they were to be married. I still think about Bruce frequently and still miss him, though years have passed since he died. My friendship with him taught me that there's always a reason when kids don't meet society's expectations or don't perform as IQ tests say they should perform. Go ahead & be a siccer-of-dogs (of whatever variety) on kids (of whatever age), if you want. For myself, my friendship with Bruce taught me not to do that.
Rove blasts judges. "Karl Rove...denounced liberal judges Thursday for engaging in 'judicial imperialism' and told conservative activists that reform of the federal judiciary was on the way, led by the Supreme Court's new chief justice, John Roberts...[Speaking at a Federalist Society gathering,] Rove excoriated state courts around the country and singled out the Massachusetts Supreme Judicial Court, the highest court in that state, for having upheld same-sex marriage. But [he] reserved his harshest language for the federal judiciary, which he said was 'fundamentally out of touch' with mainstream America...." More (San Francisco Chronicle 11.11.2005). Comment. I thought the official GOP/Federalist line has been that judges aren't supposed to be "in touch" with what people want or to let public opinion guide their thinking. Isn't the point of the "dead Constitution" folks, fundamentalists like Justice Scalia, that the only thing a judge is supposed to be "in touch" with is the text? But, of course, with guys like Rove it's not really about anything but manipulating public perceptions in the hope of winning votes. Read on...
Romney rips judges. "Governor Mitt Romney leveled an unusually personal attack yesterday at the Supreme Judicial Court for legalizing same-sex marriage in Massachusetts, telling [the Federalist Society gathering] that the justices issued the ruling to promote their values and those of 'their like-minded friends in the communities they socialize in'...[His] comments did not sit well with some back in Massachusetts, who said Romney's remarks were politically motivated and unfair to the justices. Romney also took heat yesterday when he did not swiftly disavow the remarks of Federalist Society member Gerald Walpin, who introduced Romney...'Today, when most of the country thinks of who controls Massachusetts, I think the modern-day KKK comes to mind, the Kennedy-Kerry Klan,' Walpin...said to hearty laughter. 'One person who has been victorious against that tide in Massachusetts is Massachusetts Governor Mitt Romney.'" More (Boston Globe 11.11.2005). Comment. Gov. Willard Mitt Romney (R. Mass.), b. 1947, has impressive academic credentials (B.A., Brigham Young; joint MBA-JD, Harvard Law), & somehow managed to get elected in a state some have filed away under the stereotypes of "liberal" & "Democrat." Also, he has going for him the fact that his brother was a classmate of mine at the law school. :-) But, like his father, former Republican Gov. Geo. Romney of Michigan (who knocked himself out of the Presidential sweepstakes by saying he had been "brainwashed" into supporting the Viet Nam War), he keeps stumbling over his own feet, as he did, for example, earlier this year in twice making judicial appointments that proved embarrassing. It's no secret he wants to be President and from this it's clear he'll follow the Rove playbook if it will help him.
Judging judges. "An inspector will monitor the scoring of [boxing] judges at the Melbourne Commonwealth Games tournament -- but the glacial pace of reform in the corrupt sport has not satisfied IOC president Jacques Rogge, who has accused international boxing chiefs of 'betraying athletes'...In Melbourne to check facilities for next year's Commonwealth Games, Durrani, secretary of the influential Referees and Judges Commission, which appoints officials to bouts, said: 'We will appoint one person from an independent panel to sit behind the judges to stop them favouring a certain boxer. These neutral people will sit and watch the judges to stop them continuously pressing a computer key.' Boxing's computerised scoring system, where a boxer receives a point if three judges almost simultaneously press a key, can be manipulated by a judge continuously pushing one button...." More (Sydney Morning-Herald 11.11.2005). Comment. Roy Masters, the reporter of the above-linked piece, says that "some of the scoring in Athens [at the Olympics] had the intellectual consistency of rolling a pair of dice." Sadly, even in our great system of deciding disputes in the great common-law tradition, the behavior of judges and jurors alike is so unpredictable and so unreliable that one sometimes is tempted to say that the decisions of similar issues on similar facts have "the intellectual consistency one associates with multiple rolls of dice."
Judge insulted by defendant tacks on five days to life sentences. "Already sentenced to 99 years in prison, followed by two consecutive life sentences, Stephen Terry Bolden  yelled in open court that the judge [Russell County GA Circuit Judge George Greene] was being 'real rude' to him. That got Bolden another five days behind bars for contempt of court...." More (Columbus Ledger-Enquirer 11.10.2005). Comment. If I were a trial judge for 20 years, I would hope that at the end of those 20 years I could say that I never once used the contempt power. For more on my views on contempt, see, Judge jails fellow because cell phone rang in court.
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