The Daily Judge
© 2006 Burton Randall Hanson
      Archives - 08.26.2006 - 09.10.2006
"All the news that gives judges and lawyers fits."
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.

    Sitting judges don't like alphabetized judicial election ballot. "Some Baltimore judges aren't happy about an alphabetized ballot. The three sitting Baltimore Circuit Court judges running in Tuesday's primary are worried voters might simply check off the first three of the six names on the ballot. The judges -- Gale Rasin, John Themelis and Barry Williams -- are urging people to vote from the bottom up [because] the three challengers -- Emanuel Brown, Nicholas Del Pizzo and Rodney Jones -- will be listed first on the ballot...." More (WJZ-TV - MD 09.09.2006). Comment. Sitting judges have well-known advantages in elections. Witness the fact that, according to the story, "A sitting [Baltimore Circuit J]udge has not lost to a newcomer in 24 years." Despite that, challenged judges around the country always seem to run scared. A little fear of the voters (their bosses) is okay, in our opinion -- it helps keep them on the straight and narrow. We agree, though, that an alphabetized ballot isn't any fairer than one that lists incumbents first. Minnesota has met the problem thusly:

The provisions of the election laws requiring the alternation of names of candidates must be observed as far as practicable by changing the order of the names on an electronic voting system in the various precincts so that each name appears on the machines or marking devices used in a municipality substantially an equal number of times in the first, last, and in each intermediate place in the list or group in which they belong.  However, the arrangement of candidates' names must be the same on all voting systems used in the same precinct.

Minn. Stat. 206.61, subd. 5. But, unfortunately, section 204B.36, subd. 5 provides: "If a chief justice, associate justice, or judge is a candidate to succeed again, the word 'incumbent' shall be printed after that judge's name as a candidate."

    One Boston judge steps down, another is reborn:

 Harvard-Law-prof-turned-judge, Robert Keeton, resigns. "U.S. District Judge Robert E. Keeton[, 86], who presided over many high-profile cases, helped craft federal rules on civil and criminal procedures and served as the 'go-to guy' for fellow judges, has retired after 27 years on the bench...His colleagues on the bench said Keeton was unfailingly gracious in giving his time to colleagues in search of advice on legal questions or complex issues. 'He was the go-to person on all legal issues in this court,' said U.S. District Judge William G.. Young . 'You could call him at home or in his chambers, and he would stop what he was doing and would refer you to the appropriate law.'" More (Boston Globe 09.10.2006). Comment. Judge Keeton, co-author of the Keeton-O'Connell no-fault automobile insurance plan, was my insurance law prof in a small class in a Sunday-school-size room seemingly carved out of the attic of beautiful old Austin Hall at Harvard Law School. Judge Young, a classmate of mine, was a fellow resident of the fourth floor of Joseph Story Hall, the dorm where I resided during 1964-1965, my first year.

 Right back at you, Boston -- Judge Maria Lopez returns triumphant. "Six years after TV video of her infamous outburst on the bench thrust her into controversy, former Superior Court Judge Maria Lopez is back in a black robe -- and in front of the TV cameras...The syndicated show Judge Maria Lopez debuts Monday on 210 television stations nationwide, including Boston's TV38. Lopez, 52, resigned from her Superior Court judgeship in 2003. She made headlines in 2000 when TV cameras captured her shouting at prosecutor David Deakin to 'sit down now' after she handed a light sentence of house detention to [a man who] had confessed to kidnapping and attempting to rape an 11-year-old Dorchester boy...While Lopez’s fiesty and brash behavior was unwelcome in the courtroom, TV honchos are banking on it to make Lopez a star...Lopez has also launched her own production company called, appropriately, Sit Down! Productions...." More (Boston Herald 09.08.2006). Comment. I posted a longer entry on Judge Lopez last fall. See, Judge Maria Lopez to become latest TV judge.

    A threat to 'skin judges alive.' "A Basque separatist prisoner on trial for threatening to kill a judge told the presiding judge that he would shoot him and 'skin him alive,' risking yet another jail sentence...." More (Gulf News 09.10.2006).

    Courts rethink security of judges' signature stamps. "The case of a former Idaho Falls prosecutor sent to prison for using a judge's signature stamp to create false orders is leading court officials around the state to rethink the security of such stamps. Burt Butler, 7th Judicial District trial court administrator, surveyed his colleagues in [Idaho] to see how they handle the stamps. He found that court officials have no consistent method of keeping track of the stamps, or of who uses them...." More (KTVB-TV 09.08.2006). Further reading. See, Fake judicial stamp racket is uncovered and Paralegal accused of stealing judge's stamp to clear self in forgery scheme.

    Judging food without tasting it -- like marrying in the 1950's? "Stephanie McSparrin let go of a secret Thursday while she judged baking goods during opening day of the 2006 Garfield County Fair. 'It’s more about how it's cooked than taste,' said the family and consumer science specialist with Oklahoma State University Extension Service. As she carefully sliced a bread loaf, McSparrin said judges like herself rely heavily on what they see and feel before tasting the entry. 'You look at coloration. You want a bread that doesn’t have big tunnels and holes. That indicates it hasn’t been kneaded properly. You want baked items that have an evenness and tenderness,' McSparrin said...." More (Enid News & Eagle - OK 09.08.2006). Comment. Here's a piece we posted in 2001 at our original law blog, BurtLaw's Law and Everything Else, on the subject of whether and to what extent a judge of a baking/preserving competition ought to taste the food being judged:

 The jam&jelly judging controversy. So you don't believe a judge of a county fair's jam&jelly competition would not even taste the entries? Here's a posting by a woman on an internet bulletin board: "I too have entered canned items in the County Fair and won ribbons. As far as the jellies and jams...they were never opened or tasted [but were] judged on sight only. I did not feel this was fair as they all looked alike in the jars to me...." Answering one such posting, another person wrote: "I want to tell you the other side of the story. Years ago, I worked as a home economist for a gas utility and was invited to judge a county fair's food entries, cakes to be exact. Had to taste everything. Never been so sick or sick of sweets in my life. And it was an open judging. When I commented that one sheet cake wasn't done--there was still liquid batter in the middle, for cryin' out loud and there was a great crater in the center--the baker chewed me up one side and down the other right in front of God and the world. I was polite to her, which only made her the madder. It wasn't my most pleasant experience....I did make sure I had a prior engagement the next year during that fair's run!" Yet another wrote: "Yes most people are shocked and so was I when I found out that they don't open and taste the canned goods. But I know that our fair has about 100 different canned goods catagories, and each one is entered an average of about 50 times. Can you imagine tasting 50 different jars of grape jelly, 50 jars of strawberry jam and so on. I was surprised to learn what all they look for when they look over those jars. The produce has to be the right distance from the lid, jellies must be clear, the colors must be fresh and bright. The jars that win the ribbons were put up with care to detail." A web publication that gives advice to entrants in the Evergreen County Fair in Washington State seems to say that at that particular fair almost everything but taste matters. But at other fairs apparently taste does matter. As in common-law judging, there seem to be different schools of thought as to the proper role of the judge, the information to be considered in reaching decisions, etc. Those who don't think a jam&jelly judge should taste the jams&jellies are "strict constructionists" (the term in law for those who believe in excluding the personal tastes of the individual judge as much as possible from the decision-making process). Those who want the jam&jelly judge to actually taste the jams&jellies want not only to preserve some degree of freedom for the individual judge but to encourage creativity on the parts of entrants. (08.27.2001)

For more on this, see, BurtLaw's Dog Judging, Jam&Jelly Judging, Etc. Those of us who are Norwegian Lutherans who came of age in small-town Minnesota in the 1950's were sorta told -- at home, at Saturday morning church-basement confirmation, at Luther League -- that we would be wise to choose our spouses without "tasting the pudding." Moreover, we were warned to beware of "damaged goods," i.e., food that had already been tasted by someone else. So we sorta get what some food judges are talking about when they say don't even taste the food (see, below). We know that one can learn a lot of important stuff about a potential spouse if one postpones, at least for a reasonable while, the "tasting." And at least some of us are not sorry we were taught that lesson.

    Judge chides mayor's wife for recording part of trial. "The Denver mayor's wife was scolded by a judge and had her tape recorder confiscated by sheriff's deputies Thursday after she recorded part of the Raul Gomez-Garcia murder trial.
Denver District Judge Larry Naves halted testimony midafternoon, sent the jury out of the courtroom and demanded to know who had a tape recorder. Several seconds passed with no reply. As Naves ordered deputies to point out the offender, Helen Thorpe, wife of Mayor John Hickenlooper, tentatively rose from her seat. She identified herself as a journalist and said she was unaware that recording devices were barred from Colorado courts...." More (Rocky Mountain News 09.08.2006). Comment. The rule is that people must get permission before recording in court. Someday, maybe, we'll look back on that as a silly rule. Court proceedings are public and the rule ought to be that recording is generally allowed without permission, with the burden being on the court to justify announcing a ban on recording in a particular matter.

    FBI says its investigation of courthouse uncovered no corruption. "No officials at the Hillsborough County Courthouse will be charged with any crimes at the conclusion of a lengthy investigation into possible corruption. Carl Whitehead, special agent in charge of the Tampa office of the FBI, said: 'I am very confident that we have conducted a thorough and exhaustive investigation into [certain] allegations. We were not able to substantiate those allegations. I believe the public should feel comfortable and have a sense of confidence that they can deal with their state court system. I have no information that would indicate otherwise.'" More (Miami Herald 09.08.2006). Comment. Read the rather-lengthy article for details.

    Detectives raid ex-judge's home. "Police have raided the Sydney home of former Federal Court judge Marcus Einfeld as part of an investigation into evidence he gave to avoid paying a $77 speeding fine...NSW Police set up Strike Force Chanter to investigate whether he gave false evidence in the case...'Computer equipment was seized and is undergoing forensic investigation,' [a spokesperson] said...." More (The Age 09.08.2006). Comment. For more details in this case, see, our prior entries, with embedded links: Latest on controversy surrounding ex-judge -- Ex-judge may have made big mistake in contesting traffic ticket - latest allegations relate to evidence provided by legal secretary turned prostitute, ex-judge's lawyer's relations with her, etc. -- The mystery of the two Professor Brennan's.

    Building industry's ads hammer away at judge. "The building industry is airing television and radio ads statewide that portray state Supreme Court Chief Justice Gerry Alexander as a geriatric judge who is no longer fit for the job. 'When it's your time, you know it. You're tired, you get sloppy, you make mistakes,' says a radio ad that began airing last week. 'Take Chief Justice Gerry Alexander, he's been a judge since Nixon was president. In recent years, Alexander has not only lost a step or two, he's done real damage.' [The industry] is backing Alexander's opponent in this year's election -- Bellevue property-rights attorney John Groen...On the campaign trail, Groen has made an issue of Alexander's age. Under the state constitution, judges are forced to retire at age 75. If re-elected, Alexander would have to step down in 2011 -- a year before his term expires. [Gruen said] that if Alexander is forced into retirement, whoever is governor at the time would get to appoint a replacement. He predicts people will start 'jockeying for position with the governor,' undermining the notion of an independent, nonpartisan judiciary...." More (Seattle Times 09.07.2006). Comments. a) The industry, for obvious reasons, wants a so-called property-rights advocate on the court. There's nothing wrong with the industry's wanting that or with its making the judge's decisions on property-rights cases an issue in a judicial election. Politicians and interest groups -- including labor unions and bar associations (attorney "unions") -- have long tried to further their views by exerting influence on governors and others (including members of so-called independent, nonpartisan judicial appointment commissions) involved in appointing judges.  b) I've never been an admirer of the strategy of running against a sitting judge who is nearing retirement age and then arguing that the judge won't be able to serve out his term. It suggests a not-particularly-brave disposition and is remindful of the behavior of those animals that chase after a herd of grazing animals, killing and feasting on one of the very young or one of the older members of the herd, in other words, one who isn't as fleet of foot as the others. When I ran for a seat on the state supreme court in MN in the general election in 2000, I didn't target the justice I perceived would be easiest to beat. Instead, I ran against the chief justice, who I perceived would be not only the most difficult to beat but who was in fact virtually unbeatable. Believe it or not, some of us run for reasons other than winning or personal aggrandizement or promoting an agenda. c) While it ought not surprise anyone that a challenger and his supporters have made a sitting judge's "old age" an issue, it could (and we hope will) backfire. i) It ought not surprise anyone, because the polity still isn't advanced enough to raise hell with the stereotypical, discriminatory thinking that has found form and acceptance in provisions and laws mandating retirement of judges at a certain age. For an essay on this that I wrote and posted on my campaign blog in 2000, see, BurtLaw on Mandatory Retirement of Judges. ii) As I said the other day in a posting linking to some opinion pieces on the Washington races -- see, Opinions: Hands off the courts, governor, interest groups -- tactics and arguments like those represented by the example at hand make it easier for the voters because they betray, in a pretty stark way, an arguable unfitness for judicial office on the part of the candidate who employs them or who doesn't reject them. Mr. Groen, the challenger, says he can't comment on -- i.e., can't reject or disown -- the industry's ads, which of course is nonsense.

    Those 'impartial' and 'nonpartisan' judicial selection commissions. "[TN] Governor Bredesen said Wednesday that he doubts the current judicial selection process produces the most qualified candidates for the state Supreme Court. He also said he was upset with 'the level of game-playing' in the process that produced a second slate of candidates to fill a vacancy on court...." More (WMC-TV - TN 09.07.2006). Comment. The process used? A judicial selection commission.

    Incumbent judge with poor ratings doesn't survive primary. "Palm Beach County Circuit Judge Arthur Wroble on Tuesday became the first judge in 22 years -- and is likely only the second circuit judge in county history -- to be bounced off the bench by voters. And while courthouse watchers said they doubted Wroble's defeat signals it's now open season on the judiciary, most said it should be a warning to judges that their seats are not as safe as in year's past. 'I do not believe it's going to be a trend, but if there's another judge on the bench who's doing as poorly as Judge Wroble it will happen again,' said attorney Kenneth Lemoine, who also lost in the four-man race. High-profile attorney Robert Montgomery...said judges should be aware they are being watched. 'It's healthy. It's not a bad thing,' he said. 'Back in the old days nobody would think about running against a sitting judge. Bad things would befall you if you did.' Just like other elected officials, judges should be accountable to voters, he said...." More (Palm Beach Post 09.07.2006). Comment. We posted an extensive entry on the candidates and their positions in this primary battle a few weeks ago. See, 'I'll be a policeman again, but in the courthouse.'

    'Bubba judges' up to 'same old tricks'? "The courthouse transgressions that riled Chief Justice R. Fred Lewis of the Florida Supreme Court were of the redneck kind. These were the doings of good ol' boy judges who said to hell with public records law and dispensed VIP country-club justice for local pols, fellow judges and the monied folks who grease county politics. Bubba judges caused the divorce records and the files of potentially embarrassing civil suits to vanish into secret dockets -- illegal secret dockets. But who had the gumption to tell some damn judges they were breaking the law? Chief Justice R. Fred Lewis...." From an opinion piece by Fred Grimm. More (Miami Herald 09.07.2006). Comment. The piece, which goes into "past matters," as well, introduces us to the term "supersealing" of public records: "A supersealed document is not only sealed from public access but excised from the public docket." Grimm alleges judges reserved it only for "special friends."

    Assessor claims judge wielded machete. "They work in the same Hinds county office building, but they were complete strangers during a frightening encounter in the backyard of a Clinton home. A startled Hinds County Chancery Judge [William Singletary] grabbed a machete, he says because he feared for his life and property. A Hinds county employee [field tax assessor Bob Merritt] has filed a criminal complaint and says he was just doing his job...[Merritt] said he was measuring the dimensions of a garage on...Singletary's property when the judge walked up behind him and threatened his life...The judge denies ever putting the machete to Merritt's neck and says he could not see any employee badge that would signify that this person had a reason to be in his backyard...." More (WLBT-TV - MS 09.07.2006). Comments. a) Mississippi has one of the so-called "castle laws," which makes it easier for a homeowner to claim self-defense when using force against a trespasser. Because of that law, some doubt that the complaint filed by Merritt will go anywhere. b) That a judge working in his garage rationally might fear a seeming trespasser ought not surprise us, especially since the act of turning courthouses into armed fortresses of not-much-solitude arguably has increased the likelihood of attacks on judges occurring outside the courthouse, including at home. For an unrelated yet related story, consider this posting from October of 2005:

    Judge attacked outside home. "Last night [Monroe County Court Judge John] Connell...[went] outside to close his shed around 10:30pm when someone hit him on the head with a blunt object.  The judge didn't see his attacker and police haven't found the object. Connell is now recovering at home...Earlier in Connell’s career he was attacked inside his chamber, when a man tried to stab him...[I]t was because of the 1988 attack that widespread changes were made at the Hall of Justice, including metal detectors and a single point of entry...." More (10NBC.Com 10.10.2005). Comment. The attack appears to be unrelated to the fact Connell is a judge, but it illustrates that turning a courthouse into a fortress does nothing to foil an attack on a judge, or anyone else, outside the courthouse. As fellow Harvard Law classmate, District Court Judge Jack Nordby, has said, "If somebody is determined to kill a judge, it's not as if he would have to do it in a courthouse." The View From The Bench (MN Law & Politics - transcript of taped conversation of former U.S. District Court Judge Miles Lord and Judge Nordby). Sadly, more & more courthouses are becoming fortresses & their owners, the people, are being made to feel less & less welcome. See, Building courthouses with security in mind, and How about a courthouse surrounded by & filled with flowers?

Update. Assessor withdraws complaint (Jackson Clarion-Ledger 09.08.2006). Later: Assessor files complaint (Jackson Clarion-Ledger 09.16.2006).

   'Fall season' begins with a play about retired judge. "[Playwright Greg Nelson's new play,] The Fall, open[s] tonight at Great Canadian Theatre Company. The Fall begins with the death of the fictional jurist Harry McKay, a leading intellectual and an activist judge who was one of the prime authors of the Charter of Rights and Freedoms. However, McKay has a hidden and somewhat unsavoury past...Nelson says the play is...'very much a personal story about a father and son. The father just happens to be a Supreme Court judge.' In a story that moves between past and present, actor Robin Wilcock plays both Harry McKay and his son, David, who discovers that 'his father is not what he thought he was.'" From a preview by Catherine Lawson. More (Ottawa Citizen 09.07.2006). Comment. It has always seemed to me that each person is a different person to each person who knows him. Son David should not be totally surprised to discover that his dad the judge wasn't just a dad or just a boring judge, just as the grown kids in Robert Waller's The Bridges of Madison County shouldn't have been surprised to find that their mom, Francesca, had some passion in her soul. Those who like Nelson's The Fall or Waller's Bridges, might like  BurtLaw's The Food Courts of Madison County, a totally fictionalized movie "treatment," with a somewhat similar theme based very loosely on the decisions  (and not at all on the parties) in two important, precedent-shattering restaurant-permit cases that I noted a while back :

The movie will have everything going for it. It's to be set, of course, in Iowa -- the summer of 1995 (which, by the way, is when lots of frustrated married women were seeing The Bridges of Madison County multiple times, wishing they could connect with a guy like Clint Eastwood -- or me). The kids of the couple in the movie are grown. Hubby, Dickster, who is a small town judge, heads for the state fair to serve as celebrity judge of the jam&jelly competition. Wife Frannie, who's Swedish and has forgotten more than hubby will ever know about jam& jelly, is irked with him for always having to be the star -- even in her areas of expertise. To spite him, she decides to stay home alone on the family's hobby farm with the dogs. Hubby isn't concerned she'll do anything wrong. Nor is she concerned he'll do anything wrong. Bob Kinky, who has plans to open a nude juice bar in the area, drives into the ditch near Rosamunde Bridge. Frannie rescues him, then... (continued here).

    Judge wants help in renovating office. "District Judge Lee looking for help in renovating his office area in conjunction with the County Commission and a state-funded program. He wants to modernize and carpet his office and court room area to the tune of about $41,000, $10,000 of which would be funded by the county." More (Devil's Lake Journal - ND 09.07.2006). Comment. Don't ask us for help. We'd urge the judge to "make do." On the perils to a judge's career of not "making do," see, my posting titled Annals of judicial chambers makeovers, which includes our popular 2001 piece titled "Reining in those wild-spending judges." On the subject of judicial cosmetic makeovers (including use of hair extensions), as opposed to chambers makeovers, see, our piece titled Judicial extensions?

    Retired judge crashes into store. "A retired San Joaquin County Superior Court judge [Rolleen McIlwrath] crashed a car into a Radio Shack store Monday, officials said Wednesday...." A police officer, who didn't ticket her, says it appears to have been a "'foot on the gas instead of on the pedal' kind of thing."  More (Stockton Record - CA 09.07.2006). Comment. The good judge retired in 2002. We hope she didn't have to retire because of some ill-conceived mandatory retirement law. See, our entry today titled Building industry's ads hammer away at judge, including the embedded link to our 2000 essay on the subject. And we caution readers against the stereotypical assumption that only retired people or "older" people have this sort of accident. I remember watching my late mom, then in her 40's, inadvertently press the old "foot-feet" (small-town MN word for accelerator or gas pedal) when her red Buick four-holer's gear shift was in "reverse" rather than, as she thought, "drive" -- "Boom" was the sound when the car's tail hit the front of dad's car, parked behind hers. Not only is it a scientific fact that older judges are not more prone to such accidents (well, we made that up), but it seems incontrovertible that an older judge who is not retired more likely will be sitting in chambers on a Monday than driving to the nearest Radio Shack, exposing himself to the risk of an accident. Cf., Judge filmed shopping during work hours will quit (and embedded links).

    Judges called out of retirement to help with vets' claims. "At the urging of a Senate committee, the U.S. Court of Appeals for Veterans Claims has recalled two retired judges to help wade through the backlog of cases. Sen. Larry Craig, R-Idaho, the Senate Veterans’ Affairs Committee chairman who had urged calling in help, said he commended Chief Judge William Greene Jr. for asking two judges to return. 'His decision is a victory for veterans who would otherwise wait too long for a decision to be reached,' Craig said. 'Veterans shouldn’t have to wait and wait and wait to receive a final determination.' A July hearing of Craig’s committee focused on the problem created by the doubling over the last two years of cases pending before the court. Craig warned that the backlog of cases was approaching 7,000 and could reach 10,000 within five years...." More (ArmyTimes.Com 09.07.2006).

    Judging Justice Roberts. "Roberts, true to his word, has not articulated any judicial ideology or agenda since joining the Court. And yet, for those who hoped that he would stake out a moderate position on the Court, the signs from the first term have not been encouraging. 'I’m surprised that he hasn’t shown more moderation,' [Prof. Cass] Sunstein told the HPR in an interview. Sunstein explained that while Roberts has only served on the Court for a few months, 'All early signs, thus far, are of a predictable ally of [Justice Antonin] Scalia and [Justice Clarence] Thomas.' He also noted that Roberts 'seems to be a fan of clear, simple rules, as Justice [Sandra Day] O’Connor certainly was not.'" More (Harvard Political Review 09.07.2006). Read on...

    Software helps judges mete out sentences. "The job of a criminal judge at a district court in a city in Shandong Province has become easier with the introduction of a software system that helps with sentencing...The recent case of local farmer Li Jiaxin, who was charged with wilful and malicious injury after he used a knife to injure the face and an arm of his victim, demonstrates the system's use. The victim was slightly injured after which Li Jiaxin delivered himself to police and paid compensation of 17,800 yuan (US$2,200). When using the software to sentence the criminal, the judge imputed the crime for which the sentence was half-a-year imprisonment. Then the victim's injury level was entered and the software showed that another three-months' imprisonment should be added. When the facts that Li Jiaxin surrendered to police and that he paid compensation on his own initiative were imputed into the software, the computer said that 20 per cent of the sentence should be knocked off for each act. It took 3 minutes to use the software to conclude that Li Jiaxin's penalty should be 5.4-months in prison. But because the criminal used a knife to injure his victim and it was a serious crime, the judge decided to give a six-month sentence to Li...." More (People's Daily - China 09.07.2006). Comment. The creators of the software do not appear to contemplate programmed decisionmakers, that is, literally-robotic judges. That is where the U.S. seems to be far in the lead, particularly in the legislative sphere. Thanks to "creative" reapportionment, most Congressional seats in most states are "safe" seats for one party or the other, which has led to top-down politics. Currently we've got basically a majority consisting of a bunch of Republican representatives who have shown almost no independent judgment on any issue that really matters. As I've said before, one could get the same votes by programming robots to vote the party line as developed by the people at the top. Might this robotic approach work in the judicial sphere? If we all agree that the words and intent of the Framers are "clear" and not subject to "interpretation," then perhaps any well-programmed robot could sit on the U.S. Supreme Court and interpret and apply the Constitution. And if we can do that, why have nine justices, when all nine properly-programmed robots would agree with each other in deciding every case? This all prompts me to link to a good poem by W.H. Auden that I first read as a student in Freshman English taught by the wonderful & beautiful then twenty-something Elizabeth Breeland Rogers during the 1961-1962 school year at S.M.U. It's called The Unknown Citizen. Are you one?

    Judge says AWOL juror cheated on his assignment. "The court-ordered report [on the history of jury service that] Brandon Dickens had to write after ducking out of jury duty has not passed muster. Livingston County Circuit Judge David Reader said Dickens' paper was plagiarized from the Web...." The judge ordered Dickens to rewrite the report and tacked on an extra day to the three days in the courthouse that he originally ordered. More (Chicago Sun-Times 09.05.2006). Comment. When a judge signs his name to an opinion written by his law clerk, it's called judging; when an ordinary bloke does that, it's plagiarism. Further reading. a) Mark Twain on "unconscious plagiarism" involving Justice Holmes' dad. b) Holmes' dad on unconscious plagiarism. c) Judicial election issue: Did justice lift quotes in applying for judgeship?

    Latest on supreme court scandal. "Now it is up to the state Supreme Court to decide whether its former chief justice must answer a legislative subpoena.
Connecticut Attorney General Richard Blumenthal on Tuesday appealed to the state's highest court to reverse Superior Court Judge Dennis Everleigh's ruling last week and require that former Chief Justice William Sullivan testify before the Legislature's Judiciary Committee...." More (Connecticut Post 09.06.2006). Comment. The "scandal" involves, inter alia, retiring Chief Justice William Sullivan's deferring release of an opinion dealing with access to court records for a political purpose. We've posted a number of entries on it: Legislators subpoena former chief justice; More fallout in CT court scandal; The 'Judges Protection Council'?; CT Supreme Court mess: lawmakers to ask justices to testify; Latest on uproar over C.J.'s deferring opinion's release; and Outgoing C.J. admits holding up decision to help colleague succeed him. BTW, we argued for greater real (as opposed to faux) openness of courts in an essay/position paper we wrote in 2000 in connection with our general election campaign for state chief justice in MN. See, BurtLaw on Judicial Independence and Accountability.

    Changes in Japan's courts. "In addition to being the highest profile corporate law case in years, the trial of former Livedoor Co. President Takafumi Horie is a showcase for recent legal reforms. The legal changes are aimed at speeding up Japan's ponderous courtroom machinery and increasing the role of the public in the legal system. Former Livedoor Co. President Takafumi Horie and his attorneys leave the Tokyo District Court after the first day of his trial on Monday. The reforms were evident in the trial's first session on Monday...." More (Japan Times 09.06.2006).

    Israeli forces raid Palestinian judge's house. "Israeli forces raided today Al Khalil city south of the West Bank the house of Sheikh Tayseer Al Temami the senior judge of the Palestinian Supreme Judiciary Council and searched it...." More (Bahrain News Agency 09.06.2006).

    Judicial and Life Lessons while dee-jaying. "[Eric] Smith, a Superior Court judge in Palmer, [Alaska,] is a familiar face to Valley residents looking for lower bail or a divorce. But about once a month, and three times this month, he'll trade his judicial robes for disc jockey headphones and fill in for his best friend, Jim Stratton, the regular host of the KNBA Arctic Cactus Hour. The format is alt-country, country-tinged rock, rock-fused country...In the sound booth with Smith, conversation stems from the music and moves into topics like his children and his job. A Bob Dylan line about doing things twice reminds him of the trouble of retrying a criminal case when his ruling is overturned...." More (Anchorage Daily News 09.06.2006). Comment. This story reminds me of a legal lesson I learned during my days as a deejay, back when I was a junior in high school, in a small town in western Minnesota. I left school at 1:55 p.m. everyday and worked as a top-40 rock'n'roll deejay (The Rockin' Rand Show) from then until the station went off the air, which varied depending on the time of year. (I also worked most of Saturday and all day on Sunday). The man who ceded the control room to me when I arrived from school on weekdays smoked cigarettes. I'd hang my coat in there & sit down right after he finished the hourly news and start spinning platters. That was the year I quit the varsity basketball team because I didn't like the crew-cutted coach, who, among other things, kept trying to get me to cut my not-very-long hair real short (I guess so I'd look like him). It was also the year the best guy on the team, a lifelong friend of mine and the most natural, all-around athlete I ever knew, was caught smoking in the movie theater, by a teacher who coached another sport, and was ruled ineligible. If we both had remained on the team, the team might not have been great but it would have been better than it was (or so I think). Anyhow, one night I went back to the school after signing off, after playing the obligatory recording of Perry Como singing "The Lord's Prayer" (I'm not kidding) and some band playing our National Anthem, and after closing up the station. I was wearing my smoke-saturated jacket when a coach of one of the several team sports (not the varsity basketball coach), a coach I'll call "X," grabbed me gently by the arm and asked in an accusatory tone if I'd been smoking. No, I said. But he persisted, trying to get me to confess to something I hadn't done. I'm an honest guy and if he'd asked me if I'd smoked with my older brother and his pals in the bushes along a country road not far from my house back when I was 8 years old, I'd have said yes. I'd probably have added that the brand I'd smoked was the brand sophisticated folks liked, "Parliaments," in the flip-top box (my bro's friend, Virgil, got a bang out of little "Pruit," my nickname, smoking "Parliaments"). But I hadn't been smoking and I persisted in denying I had been. (Interestingly, this coach was the same guy, whom I'd liked, who'd chastized me for truthfully answering a basketball referee's question -- "Did you touch the ball?" "Yes" -- a year or two earlier in a non-varsity game against a team from another school.) Teachers and coaches come to know that they can only go so far with certain kids, the ones who are lucky enough to have strong, active parents who give a damn and will fight for their kids. Faced with my denials and knowing full well I had strong, active parents who gave a damn, Mr. X could only do nothing -- nothing but train his investigative eye on someone else or, better yet, go back to coaching and otherwise being a nice guy, things at which he was good. Any lesson for coaches and teachers to draw from this story? Yeah: boys and girls have memories. They remember kind acts by teachers who teach and motivate and encourage. And they remember bad things, too. (From a 4th of July essay posted by me in 2001 at BurtLaw's Law & Kids.)

    The Rule of Law at racetracks. "Josh Van Oort ...resigned as the [Prairie Meadows] track's paddock judge =- the person that oversees horses being saddled prior to a race -- this month after stewards suspended him pending a hearing on two counts. They charged that he helped saddle horses after he was warned not to when the track was short of valets. They also charged that he acted improperly by trying to arrange replacement jockeys on July 29. Van Oort, 26, turned in his license in hopes of getting a stipulation that the charge wouldn't go on his record so he can work at other tracks. He insists, though, that he did nothing improper. And he's getting support from track workers and trainers...." More (Des Moines Register 09.06.2006).

    Neighbor vs. judge. "Some neighbors fight over a barking dog. Other neighbors dispute a property line. But on Southwest Corona Avenue, the next-door neighbors are running against each other for a Multnomah County judgeship, and the race could end up in court before the voters decide anything. Leslie Roberts and incumbent Youlee Yim You have known each other for nearly 15 years. But Roberts, 58, has asked the secretary of state to drop You, 42, from the ballot for not meeting the residency requirement to be a judge...[A]ny decision [by the secretary] likely will go right to the appeals court. The problem has ruffled the Multnomah County court, where five judges have endorsed You...." More (Oregon Live 09.06.2006). Comment. Two women who are neighbors and apparently long-time friends.... You was appointed in July, selected over Roberts. Roberts, who believes You doesn't meet a three-year state residency requirement, filed against her for the election. Here's what Roberts is quoted as saying about You: "Youlee You is a lovely person. We wanted her to be our neighbor. I want the best for her. I just don't think she's doing the best for herself right now." Hey, there's no reason friends can't run against each other. In 1932, when my mom and dad were courting (they met in 9th grade in 1926 and married in 1936), their fathers (my grandfathers), Otto (NMN) Herfindahl and Robert Gornelius Hanson, ran against each other in a good-natured race for county commissioner in Swift County. They came in one-two in the primary, defeating four other candidates, and Grandpa Otto defeated Grandpa Bob in the general election. I also remember some spirited Norwegian Whist games involving the two of them during the Christmas Eve celebrations at our house in my youth. Two of Grandpa Otto's favorite expressions were "Philadelphia lawyer" and "That's one for Boston." Who knows but what he subliminally influenced me to go to HLS in Boston (well, Cambridge) and become a Philadelphia (well, Minneapolis) lawyer. Update. Judge You resigns, won't fight court ballot challenge (Oregonian 09.12.2006).

    Caught on tape, judge pleads guilty, awaits sentencing. "All the *** I've pulled. I've pulled every **** thing in the book. See back when I first started, you didn't have to worry about that. They didn't have no court judiciary and all that ****. I've granted girls divorces in the morning and ****** them that afternoon." From the FBI tapes of conversational statements made by former judge, Thomas Austin, who pled guilty to federal extortion charges for "regularly sentenc[ing] traffic violators to [a driving] school and then collect[ing] the profits." More (WATE.Com 09.06.2006). Earlier. Ex-judge says wife's affair with woman left him distraught; Ex-judge pleads guilty to extortion; Judge to plead guilty in extortion case, resign; Judge charged in diversion program kickback scheme.

    Pointers on judging porkers. "'For [porker] breeding stock, I start from the bottom up,' Craig told [a reporter]. 'That means a strong set of nipples -- preferably around 14 -- a good, long body and good legs.'" The "Craig" referred to is Al Craig, 69, of Essex, MA, who travels around the country to some of the best state fairs judging livestock, including "porkers." More (Salem News piece, reprinted in Pryor Daily Times 09.06.2006). Comment. There is some evidence that men start from "the bottom up" in choosing mates: "WHR [waist-hip ratio of a woman] is considered to be factor in [her] attractiveness. Women with a 0.7 WHR (waist circumference being 70% of the hip circumference) are often rated as more attractive by men regardless of culture, race, religion or ethnicity. Such diverse beauty icons as Marilyn Monroe, Twiggy, Sophia Loren, Kate Moss, Salma Hayek and even the Venus de Milo all have ratios around 0.7, even though they have significantly different weights." WHR is believed to be one of a number of "cues" that indicate "mate potential and fertility." More (Wikipedia 09.06.2006). We suspect that, for good or ill, there is evidence suggesting people -- judges and jurors -- rely on similar cues in part in judging witness credibility at trial. We haven't read Malcolm Gladwell's Blink but wouldn't be surprised if it touches on this.

    44-year-old judge dies of cancer. "Silvia E. Cano-Garcia, a state district judge for almost four years, died Monday after a five-year battle with cancer. She was 44...." More (El Paso Times 09.05.2006).

    Annals of specialized courts: 'Conversion courts.' "Chief Sephardi Rabbi Shlomo Amar and Rabbi Haim Druckman, Head of the Conversions Authority, began accepting applications last week for ten new rabbinic judge positions for the conversion courts. However, sources familiar with the inner workings of the Conversion Authority said that there was no need for new judges...'Even the existing judges don't have anything to do,' said [a] judge who preferred to remain anonymous...." But some argue the judges are needed to serve specific segments of the population. And: "A senior source estimated that the appointments were designed to put pressure on the existing judges to produce more converts by being more lenient in their acceptance criteria." More (Jerusalem Post 09.05.2006).

    Annals of life after the bench. BP, the petroleum company, BP has hired a former federal district judge, Stanley Sporkin, to act as ombudsman to investigate complaints made by company employees. More (Washington Post 09.05.2006).

    Other options for a newly-retired judge? How about addressing a Labor Day picnic dominated by politics and sweet corn? More (Duluth Tribune 09.05.2006).

    Opinions: Hands off the courts, governor, interest groups. a) The governor of Washington, Christine Gregoire, is participating in a solicitation to raise funds for a political action group that is trying to influence voters in the contested supreme court elections. Justice Richard B. Sanders, who has served on the Washington Supreme Court since 1995, doesn't like it: He opines: "Even in a state which elects its judiciary, [Washington,] 70 percent of all sitting judges began their judicial career with an appointment from the governor. Gov. Gregoire, I think you've already had plenty of influence over who sits on the courts. Hands off these elections. This is the time the people, not the governor, decide who sits on our courts." More (Seattle Times 09.05.2006). b) About the messages of the interest groups, Julia Stronks opines: "The best sources of information about judicial candidates are the bar associations and practicing lawyers. Bar associations are not politically neutral, but they are better than we are at assessing the intellectual acumen and judicial temperament of judicial candidates." More (Seattle Times 09.06.2006). Comment. It should come as no surprise that Ms. Stronks is an attorney. Bar associations, of course, are "interest groups," too. What sort of "information" will you typically get from bar associations and lawyers? Almost invariably, it'll be: "You should vote for the sitting judge." I have it as a cardinal rule: always beware of specialists who say, "We know what's best for you," especially when they wind up offering themselves as your saviors. I like the advice of Justice Sanders. He says that the governor, who gets to appoint replacements, should stay on the sidelines. He doesn't say she doesn't have a right to tell the voters what she thinks. He just says she shouldn't. Here in MN the "judicial power elite" had it both ways for years: bar associations and politicians were allowed to endorse candidates in judicial elections (which was convenient, since they invariably endorsed the sitting judges), but challengers couldn't say what they thought and political parties couldn't endorse anyone because that would make elections "political" and amount to politicizing of the judiciary. SCOTUS's judicial-free-speech jurisprudence, of course, changed that. I'm not troubled by the changes. They make it easier for the voters. Just vote for the candidates who don't solicit contributions, who reject endorsements and reject as well ads disparaging the other candidates, who don't spend big bucks to get your vote, who stand quietly, who don't run scared, who aren't trying to sell you something. Vote for the seemingly disinterested ones, who typically are the best ones. Use your own good judgment. Hint: the "best ones" I'm referring to aren't always the sitting judges.

    Threats to kill judges = actuality of 5 years in prison. More (WHO-TV - Iowa 09.06.2006). Related. Man who threatened judge gets 4 years (Youngstown Vindicator - OH 09.06.2006).

    When judges fire a court employee. "A federal judge [John T. Copenhaver Jr.] recently denied the Motion to Dismiss filed by one retired and six current Kanawha Circuit judges, allowing a wrongful termination case concerning an alleged racial slur to proceed against them...The case, filed in 2002 and having since been reviewed in Kanawha Circuit Court and the U.S. Court of Appeals in Richmond, Va., alleges that the judges' firing of [Earl D.] Osborne, who worked as the Home Incarceration Supervisor of the Kanawha County Home Incarceration Program, was unlawful...In explaining why the judges' motion [to dismiss on the ground of judicial and qualified immunity from suit] was denied, Copenhaver calls the firing 'a supervisory act' instead of one performed in the judicial capacity...." More (West Virginia Record 09.06.2006).

    A judge in Vegas. "So there I was at the Business Inn at exactly 7:00 o’clock in the evening. And as I entered the Chairman’s Hall where the dinner was to be held, little did I anticipate that I would be in for a surprise. You see, I was expecting that the honoree would probably be an American in the true sense of the word, i.e., as in a Caucasian. But, lo and behold, Judge Moss turned out to be a full-blooded Filipino. In fact, she is as Bacoleña as 'piyaya' and 'mascuvado' can be. Oh boy was I floored at the fact that this local girl, whose family used to reside at 6th Street, is now a judge in a court of law right in the gambling capital of the world, Las Vegas , USA . Yes, Todits! This homegrown lass is the presiding judge of the Family District Court of Las Vegas. And she’s only 39 years old. Wow, this is no ordinary feat." From Jose Paolo Ariola, A Bacoleña Judge in Las Vegas (Bacolod Sun-Star - Philippines 09.06.2006).

    The history of a corrupt supreme court judge. "After yesterday's arrest of Peruvian Supreme Court judge Eduardo Palacios Villar for pocketing a S/. 2,000 Soles bribe (US$ 620), more details surfaced today. The judge was stopped by police in his own office with S/. 100 and S./ 50 bills which were handed to him by the ex-police sergeant major officer Willy Ipanaqué Lescano in exchange for his judicial influence...." More (Living in Peru 09.05.2006).

    Second annual 'Escape from the Judge.' "Even the overcast skies and strong winds coming off the water couldn't dampen the spirits of the 139 swimmers who took to the water early Sunday morning for the second annual Escape from the Judge, as the second leg of the Skaneateles Labor Day Race Weekend kicked off. The one-mile swim starting from the deck of the Judge Ben Wiles tour boat (stationed on the waters by the Skaneateles Country Club) has been one of the most popular events of the race weekend since it started last summer. The Wiles holds just over 100 passengers, this year to accommodate the demand of participants, extra boats were added...." More (Auburn Citizen - Finger Lakes Region, N.Y. 09.04.2006). Comment. The boat is named for the grandfather of the owners of the Mid-Lakes Navigation Co., owner/operator of the boat; Baby Let's Cruise (Syracuse New Times Summer 2004).

    The financial costs of the death penalty. "Defense costs [paid for by the state] in a potential capital murder case have topped $1.1 million over the past year and a half, and the case is still months away from trial. Yakima County Prosecutor Ron Zirkle has yet to decide whether to seek the death penalty against two men charged with aggravated first-degree murder in the 2005 shooting deaths of 21-year-old Ricky Causor and his 3-year-old daughter, Mya...." More (Seattle Post-Intelligencer 09.04.2006). Comment. And the financial costs are separate from the moral costs.... Further reading. A 2004 congressional campaign essay/position paper I wrote on Crime and Punishment.

    The system: deals, deadlines, few trials. "At 8 o'clock in the morning the single-file line grows to 52 people waiting to shuffle past the sheriff's security checkpoint and into the monolithic stone courthouse. More arrive by the minute. Except for an infant too young to know the paralytic effect of dread on one's spirits and the occasional beep-beep of the metal detector, the aging lobby is hushed. Conversations pass in murmurs or, often, through tense glances or the squeeze of hands. It is a Monday in Los Angeles County Superior Court in Norwalk...." More (L.A. Times 09.04.2006).

    Judge says the system has collapsed. "Free State Judge Arrie Hattingh -- the same judge who blamed 'Africa time' for the delay in DNA test results -- has attacked the 'laxity and incompetence' at the heart of on the criminal justice system, insisting it has completely 'collapsed.'" More (Legal Brief - South Africa 09.04.2006).

    The judge with double duties. "Rick Varner continues to do some private work as an accident reconstructionist for police and prosecutors while serving as a district judge. But that’s not a problem in Pennsylvania as long as there is not a conflict of interest with the judicial duties, Harrisburg attorney James G. Morgan Jr. said. Morgan is solicitor for the state’s district judges...." More ( Johnstown Tribune-Democrat 09.04.2006). Comment. We've gotten so we're not surprised at anything.

    Judges say sweet-onion marmalade is the best marmalade! "Masham-based Rosebud Preserves was named Yorkshire champion for its sweet onion marmalade in the Great Taste Awards, which are seen as the Oscars of the food and drink world. Carricks Fish, from Bedale, came in as the runner-up in the region's own category after being chosen as reserve Yorkshire champion for its oak smoked kipper fillets...." More (Yorkshire Post Today 09.04.2006). Comment. The Brits take judging of marmalade and other items of food and drink as seriously as they take common-law judging:

The Great Taste Awards involve more than 150 judges who decide which entries are of a high enough standard to be given gold, silver and bronze accolades. Regional judging take place at the Speciality and Fine Food Fairs in Edinburgh and Harrogate. That is followed by eight days of judging in London during July, when every entry is decanted, where necessary cooked and then blind-tasted by teams of experts. The second stage of judging takes place a few weeks later to identify the major trophy winners and the Great Taste Awards Supreme Champion.

That "sweet onion marmalade" would win a marmalade competition there but would never win "here" says something about the subjective nature of all judging, no matter how much some would like to convince the world that judging can be a simple matter of disinterested application of some objective verbal formulation to a given set of facts. Read on...

    Leonard Levy, Pulitzer-winning constitutional law historian, is dead. "Professor Levy called ['Originalism'] a disservice to the grand, open-textured phrases in the Constitution, formulations that he said required fresh interpretation by each new generation. 'The framers,' he wrote, 'had a genius for studied imprecision.' The New York Times Book Review picked his Original Intent and the Framers’ Constitution as one of the 16 best books of 1988, praising its 'rigorous scholarship and vigorous wit.' The book demonstrated, the editors wrote, that 'judges must go right on interpreting the spacious words of the Constitution as they have always done.'" More (N.Y. Times 09.01.2006). Comment. Justice Holmes used to complain about newspaper puff pieces written in his praise, saying the authors never got him or his decisions right, praised him for the wrong reasons, etc. In 1980 Levy said something similar -- about SCOTUS: "Two of my books have been cited 10 or 12 times each [by SCOTUS] and not once accurately, significantly or responsibly." Id.

    Question the judgments but not the judges? According to an interesting, well-written opinion piece by Peter Mwaura in The Nation (Nairobi), Kenya's Chief Justice, Evan Gicheru, wrote a memo saying it had come to his attention that "some judges are using the services of strangers from without the Judiciary as research assistants" (emphasis supplied by us) and that "[t]hese strangers conduct research and sometimes write draft judgments for the judges they work for." The chief's memo continued: "The impropriety of this kind of conduct cannot be over-emphasised as it goes contrary to all known rules and regulations of the confidentiality and safety of government documents and equipment." Mwaura then quotes "Justus Munyithya," the vice-chairman of the Law Society of Kenya, as saying, "A]ll judgments written by the research assistants should be set aside and the judges involved suspended immediately and a tribunal set up to investigate their conduct as they have proved to be incompetent." Mwaura argues a) if the complaint is that the research assistants are strangers (presumably in the sense of not being court employees subject to court ethics, etc.), "this is something that can be solved administratively"; b) if the complaint is that judges shouldn't use research assistants to write opinions or help in writing them, then the complaint is wrong. More (All Africa 09.02.2006). Comment. Judges in the U.S. typically use law clerks (a/k/a "research assistants") as "judicial valets," helping their judges in numerous ways, most typically, on an appellate court at least, in reading the briefs, reading the record, researching the law, writing memos with recommendations, writing draft opinions. There is nothing inherently wrong in an appellate judge using a law clerk to help him in this way, so long as the judge merely uses the clerk's labors as a supplement to, rather than a substitute for, doing these same tasks himself. Each judge has an obligation that comes with the office never to delegate the judicial functions. The ultimate judicial function is to decide contested issues in contested cases and controversies. But "deciding" is not, as some people, including judges, seem to think, the mere act of voting "yes" or "no" on contested issues on the basis of other people's (lawyers' and law clerks') arguments and work product and then turning it over to a law clerk to "write up" for the judge's editing, approval, and signature. No, the only way a judge can truly "judge" and "decide" is to do the dirty work himself, even as his assistant independently does the same work alongside him. Robert Trent Jones, Sr., the famous golf course architect, said that it was down in the dirt -- literally -- that he did both the prosaic spade work and the visionary creative work that helped him turn ordinary brown fields into championship-green masterpieces. Former Dean of Duke Law School, Paul Carrington, was getting at this when he wrote:

The primary work of the appellate court is not creative or even particularly intellectual. The personal quality most required for the work is not intellect but care. Care is what is required to read tiresome transcripts and to listen to tedious arguments based on the details of the record in order to ascertain whether a trial judge has strayed from the true path of the law so far as to rest a decision on a clearly erroneous factual determination. Or whether an administrative agency has committed a substantial error 'on the whole record' before it. The importance of this work has been sadly underestimated. It is the essence of the idea of a government of law.

Paul Carrington, "Ceremony and Realism: Demise of Appellate Procedures," 66 A.B.A. Bar J. 860 (1980). Sadly, too many judges are busy "being" judges than "doing" the daily drudge work that is necessary to responsibly exercising judgment in a way that is consistent with the oath and office of judge. Too many of them are good at going on spring & fall "tours" outstate, holding court in high schools, attending bar functions, reading books to kids in primary school (a la President Bush on 09.11.2001), etc. This, of course, is all in contrast with the way things used to be, in the days before courts hired "press information officers," in the days when judges didn't mind their anonymity, when they read the records themselves, when they wrote their own opinions, and when they called them as they saw them without fear of or anticipation of the political or personal consequences. The late Justice Wm. O. Douglas said to Eric Sevareid in a CBS-TV interview, "We don't need law clerks." Despite what I've said thus far, I don't agree with him. I think judges do need them -- they just need to use them properly. And there are many ways to do so. Further reading. Emily Bazelon and Dahlia Lithwick, Defending the Supreme Court Law Clerk (Slate 06.13.2006); Richard Posner, The Courthouse Mice (The New Republic 06.12.2006)[(reviewing Artemus Ward and David L. Weiden, Sorcerers' Apprentices (2006), Todd C. Peppers, Courtiers of the Marble Palace (2006)]; Stuart Taylor and Benjamin Wittes, Of Clerks and Perks (The Atlantic July 2006).

    Thief steals judge's identity. "A Macomb County [MI] Circuit Court judge who often hears sad tales from crime victims and punishes culprits has become a victim herself for the second time. Judge Mary Chrzanowski recently had her identity stolen, with a suspect ringing up a $5,800 phone bill and $500 in credit-card charges. The thief gained her Social Security number and birth date and opened accounts with a Syracuse, N.Y., address...This is the second time Chrzanowski has been a crime victim in her judicial career. Her home was burglarized in the late 1990s...." More (Macomb Daily - MI 09.03.2006). Comment. Judge Mary Chrzanowski should not be confused with Judge Susan Chrzanowski, the Macomb County MI judge who was the subject of our 02.06.2002 posting titled "Romancin' wit de judge" at BurtLaw's Law and Everything Else, Court Gazing IV (scroll down). Further reading on Mary: Prosecutor who's running for judge explains rift with judge (Detroit Free Press 05.16.2006). Further reading on Susan: In re Chrzanowski; T. Henderson, A Deadly Affair (2001).

    Judge is murdered. "The two suspects pulled up on a black motorcycle outside a bar known as El Bunker along Avenida Roosevelt, on the seedy side of this capital's [Lima, Peru's] generally gloomy downtown. It was [Judge Hernan Saturno Vergara's] favorite watering hole, a place to kick back after a draining day supervising drug cases at the Palace of Justice, two blocks away. He had sent his bodyguard home, apparently feeling secure in such familiar environs. The motorcycle riders were hit men for hire...." More (Houston Chronicle 09.03.2006).

    Fake judicial stamp racket is uncovered. "Police on Saturday claimed to have unearthed a fake judicial stamp racket here and arrested a stamp vendor in this connection...At least 461 fake stamps of Rs five denomination were seized from his possession, police said. The fake stamps were used in vakalatnamas filed in all the court in the state...." More (Times of India 09.03.2006). Further reading. Paralegal accused of stealing judge's stamp to clear self in forgery scheme.

    Judges accepted discounted or free college football tickets. "Thirty judges accepted free or discounted tickets to University of Texas football games during the past five seasons, according to records obtained by the Austin American-Statesman under the Texas Public Information Act. The recipients included members of the state's highest civil and criminal courts, and federal trial and appellate judges. The judges typically attended pregame receptions with free food and beverages, including beer and wine...The face value of tickets during the past five years has ranged up to $175 for the Rose Bowl contest...But an ordinary fan wishing to sit near where the judges watch games at Royal-Memorial Stadium -- between the goal and the 50-yard lines -- might have to contribute hundreds or even thousands of dollars...for the right to purchase tickets at face value...Highly prized tickets...can fetch a couple of thousand apiece on Internet resale sites...." More (Austin American-Statesman 09.02.2006). Comment. It would be interesting to know what per cent of judges, state and federal, have accepted free tickets -- or, say, reduced-rate or free memberships in exclusive (sometimes discriminatory) dining clubs, free golf green fees, free law books from a law book publisher, free dinners, etc. -- at some point during their tenure. I'd bet the per cent would be high rather than low. Further reading. a) Annals of judicial romance (allegation that trial judge "accepted free luxury box tickets to a Cardinals game at Busch Stadium from a prominent trial lawyer who has appeared before the judge in cases, some resulting in verdicts or settlements worth millions of dollars"). b) Those 'free' tickets (MI Supreme Court publicly censures judge who accepted college football tickets from an attorney during a court hearing). c) The judge and those free football tickets. d) "How, pray tell, do two tickets weaken judicial integrity, when judges and justices across the state routinely accept campaign contributions of far more value directly; financial favors that help ensure they get to keep their jobs?" More (Lansing State Journal - Opinion 08.09.2006).  Update. Ticket recipient recuses in UT case (Austin American-Statesman 09.07.2006).

    Malcolm Gladwell on zero tolerance for discretionary justice. "Somewhere along the way...we forgot the value of discretion in disciplining the young...[M]aking a fetish of personal accountability conveniently removes the need for institutional accountability...To acknowledge that the causes of our actions are complex and muddy seems permissive, and permissiveness is the hallmark of an ideology now firmly in disgrace. That conservative patron saint Whittaker Chambers once defined liberalism as Christ without the Crucifixion. But punishment without the possibility of redemption is worse: it is the Crucifixion without Christ." From 'No Mercy': Malcolm Gladwell on Zero Tolerance (New Yorker - Issue dated 09.04.2006). Further reading. Malcolm Gladwell is the author of The Tipping Point and Blink, both best-sellers. He maintains a blog (Gladwell Blog) and a website where he posts his past New Yorker articles (Malcolm Gladwell website). Comment. We typically urge less-harsh treatment of everyone from Minnesota kids who bring plastic Nintendo guns with them to school to judges who veer slightly off the boring straight-and-narrow path they are expected to follow. See, e.g., my comments on a judge's conduct at Judge charged with reprising Michael Douglas' role in 'Traffic'? As to the boy with the plastic Nintendo gun & our schools' stupid zero-tolerance policies, see entry dated 04.27.2002 titled Zero-tolerance nonsense (scroll down) at BurtLaw's Law & Kids. We even urged probation with home-confinement rather than prison for Judge Roland Amundson, the former judge of the MN Court of Appeals, when he was convicted of a serious property offense -- see, entry dated 06.08.2002 titled Wish list (scroll down) at BurtLaw on Crime & Punishment, an opinion that subjected us to national ridicule (a slight exaggeration) by an extremely popular conservative blogger (whom we nonetheless like). (We can take it -- & we can dish it out.) Judge Amundson now thinks, as we do, that our lock-them-up-and-throw-away-the-keys sentencing laws are a big mistake. More (N.Y. Times 01.13.2006). It's one reason we have advocated, as Frank Lloyd Wright, the architect, did, sending all judges and legislators to jail -- if only for a night or two. See, Should we send all judges and legislators to jail? Like Judge Amundson, people who spend time behind bars or have a relative or friend behind bars tend to stop thinking of people in trouble with the law as "others" or as "them" but as "us" and they start to see the folly of our unnecessarily-harsh and counter-productive sentencing policies. Further reading. I've held these views all my life and I've never been ashamed of them, although I've not always been free to express them. Here's a link to a campaign position paper on Crime and Punishment I posted on my campaign website in my 2004 anti-Iraq-war primary campaign against entrenched incumbent Republican Congressman Jim Ramstad. See, also, BurtLaw's Law and Kids (in particular, you might enjoy scrolling down and reading the piece titled "My 'Felonious' Past." For an example of what can happen when a judge deviates from the rigid approach, read on...

    Annals of judicial independence -- a judge's retirement. "A judge who sparked outrage when he sentenced a sex offender to two months in jail said Friday he will retire. Vermont District Court Judge Edward Cashman didn't mention the case that had made him a target of heated criticism from lawmakers, editorial writers and national cable news commentators...By retiring, Cashman can avoid the six-year legislative review Vermont judges are subject to. His term expires in April, and he told Chief Justice Paul Reiber in a letter that he will step down then...'Now in my mid-sixties, [he wrote,] I must face the reality that I am no longer a young man. The prospect of another six years of the intense effort and attention needed to properly perform this function may exact a cost my family and I are no longer willing to pay.'" More (Washington Post 09.01.2006). Our postings. Under fire, judge imposes longer sentence -  Regarding embattled judge: what transcript shows he really said - Outcry over judge's sentence prompts governor to suggest he resign - Supporters rally to defense of 'soft' Vermont judge. Comment. Repeating what we said earlier, the rage on the part of many people over the judge's sentence/statements reminds me of a New Yorker cartoon of some years ago (possibly by George Booth, if memory serves me correctly) depicting a minister being physically tossed out the front door of his church by his congregants; on the church sign is the title of the sermon: "Was Mary Magdalene a prostitute?" My brother, as a young man in the mid-1950's, gave a talk to a youth group at a rural church near my hometown in which he said, in so many words, that "Mary Magdalene was, of course, a prostitute." The elderly minister, Rev. N. J. Njus, who spoke English with a very thick Norwegian accent and always walked ahead of his wife, old-country-style, took offense and said so. I was, of course, amused and for years teased my brother about it. Further reading: Mary Magdalene Saint or Sinner? (Time 08.11.2003 - reproduced at DanBrown.Com).

    Man uses banner next to highway to air grievance against judge. "Thundarr Blackstar doesn't want members of the public to pick up his legal tab, and he's letting them know it -- every time they drive past the former Caldor Plaza. The 43-year-old father from Greenville has hung a 20-foot-long, 10-foot-high banner from the side of a trailer parked next to Route 211. The banner condemns Orange County Family Court Judge Andew P. Bivona for assigning a lawyer to represent Blackstar, at a trial that could end in the termination of his parental rights...." More (Times Herald-Record 09.02.2006).

    Judge is 'compulsorily retired' over refusal to deliver verdict. "A judge in Sikkim has been 'compulsorily retired' by the state High Court following his refusal to deliver the verdict in a graft case against former Chief Minister Nar Bahadur Bhandari. An order issued by the department of personnel on August 31 said district and sessions judge (south and west) B. C. Sharma had been 'compulsorily retired from service with immediate effect in public interest' on the recommendation of the High Court...." More (Zee News 09.02.2006). Comment. Judge Sharma, who had been hearing the case for nine years, simply said he had personal difficulties that made him unable to deliver the verdict. Not sure what he meant.

    Bar actually recommends two judges not be retained. More (KWMU 09.02.2006). Comment. Results of a survey of lawyers concerning retention elections of St. Louis judges. It's rare for it to happen in retention states but the bar actually has recommended against retaining two judges.

    Law firms and judge-shopping in notorious judicial hell-hole. "A law firm that has specialized in filing class actions in Madison County[, ILL,] has put Chief Judge Ann Callis on notice that it might challenge the constitutionality of a rule she implemented to prevent "shopping" for judges in such cases...A party in a lawsuit is entitled to one automatic change of judge. Before the new rule, plaintiff attorneys in class actions had successfully argued that each member of a class is entitled to an automatic change of judge. The new rule states that only one automatic change of judge will be allowed in a class action...." More (Belleville News-Democrat 09.01.2006). Further reading. Annual 'Judicial Hellhole' list - Annals of judicial cyber-dating and 'judicial hellholes' - Annals of judicial romance - Latest news from a judicial hellhole - Internet-dating judge resigns - Judge shopping in Madison County - Two different judges sign order in same case at same time - Opinion: judicial elections tame judicial egos - Judges of Madison County - "Hellhole" reputation thing of past? - Judge in ILL's 'judicial hellhole' resigns - Pickets of Madison County?

    Five arrested for throwing rocks at judge's house. "Milton police are trying to determine why a Suffolk County judge’s home was seemingly marked for vandalism early yesterday morning by five men who were arrested later with a loaded handgun in Cohasset. 'We’re not going to come out and say they were targeting court personnel because we just don’t know that,' Milton Deputy Police Chief Paul Nolan said yesterday...One of the suspects told investigators the 1 a.m. rock assault in Milton 'had to do with court matters.'" More (Boston Herald 09.01.2006).

    Home video haunts judicial candidate. "Of all the signs we saw today we found one that touts the word Integrity, it's on the sign for Tampa lawyer Jesse Dominguez, and he's running for Judge. Dominguez has experience with campaign signs, that's him [seen in this home video] throwing away the campaign signs of Bill Jennings who was running for Hillsborough State Attorney in 2000. Dominguez was supporting Mark Ober...." More (Tampa Bay's 10 09.01.2006). Comment. We say, Don't be too hard on the guy. Even if he did something bad, which he disputes, good people sometimes do bad things. In 2004 a 32-year veteran of the Minnesota House of Representatives, Minneapolis DFLer Phyllis Kahn -- by all accounts, a good public servant -- pleaded guilty to misdemeanor theft for taking campaign brochures left on some New Hope doorsteps on behalf of Republican house member Lynne Osterman and replacing them with pieces from Osterman's DFL opponent, Sandra Peterson, whom Kahn was supporting. The district court judge ordered the apologetic and remorseful and embarrassed Kahn to pay $200 in prosecution costs but deferred imposing any other sentence for a year and agreed to dismiss the misdemeanor case if Kahn committed no similar offense in the interim. (San Jose Mercury-News, 09.23.2004). To my knowledge, Ms. Kahn has not re-offended. For my musings on that case, see my mini-essay Political lawn signs -- law & etiquette (entry dated 10.08.2004) at my political opinion website, BurtonHanson.Com. For a more recent case, involving a judicial candidate, see, Judicial candidate charged with theft. Update. Federal judge voids political sign ordinance (Kansas City Star 09.04.2006).

    A focus on Minnesota judges -- some of whom make only $100 a day! "[Baking judge, Glenda] Cramer, a retired home-economics teacher from Minneapolis, said she usually takes just a bite from each dish to note texture and flavor. Some judges, she said, are known to carry around a spit cup. In other cases, a judge might snub a dish or entry solely on appearance...." More (St. Paul Pioneer-Press 09.01.2006). Comment. This is the time of year when one comes across articles that focus on the original reality show judges, the highly-experienced specialist judges who award the various colored ribbons at county and state fairs around the country. One might argue that for the many, many people who enter and/or attend these competitions, these judges are more important than our common law judges. Despite the importance of these judges, no Cardozo has come forward to address in a scholarly way the nature of the county and state fair judicial process. [If you are unfamiliar with the literature of common law judging, that was an allusion to B. N. Cardozo, The Nature of the Judicial Process (1921).] Too bad, because we suspect common law judges have much more to learn from fair judges than vice-versa. In any event, this is a good little piece, worth a read. We learn from it, e.g., that "Pay ranges from about $50 for a half day of judging canned goods to about $400 a day for horse shows." We note, for whatever relevance it may have, that despite their relatively modest pay, these judges keep coming back year after year, never complaining that they're impoverished, never threatening to quit judging if they don't get a raise, etc.

    Plans for world's biggest courthouse. "Justice Ministry Technical Affairs bureau chief Haydar Çiftçi said on Thursday a courthouse planned to be constructed in Kartal would be the biggest such building in the world, noting that all courts on the Anatolian side of the city will be housed there. He said the building would be based on the plans of architect B. Haldun Erdogan...Çiftçi said that when completed the building would have 360,000 square meters of enclosed space. 'The planned building will be the biggest one in the world....'" More (Turkish Daily News 09.01.2006). Comment. Without commenting specifically on this project, we note our belief in the generality that to a small mind, bigger is always better in everything but minds.

    The 'Sitting Judges Protection Society'? Four sitting judges and two challengers are vying for four seats on the Baltimore County Circuit Court. One of the two challengers, Arthur Frank, circulated materials stating: "Bring Justice Back to Baltimore Courts - People's Choice for Judge - Arthur Frank," with "Judge" and "Frank" in large letters. Four people, some or all of whom may be tied to the sitting judges, who are running as "mates," complained to a group that calls itself "Maryland Judicial Campaign Conduct Committee Inc." (MJCCC), which represents itself as an "independent, bipartisan" body formed to rule on complaints filed against this or that judicial candidate. The complaints apparently argued that Frank's ad might mislead voters into thinking he already is a sitting judge. The MJCCC reportedly "censured" Frank for the ad. Frank has modified his materials to emphasize that he's not a sitting judge, but he doesn't concede that voters likely were misled by the original ad. Moreover, he has made it clear what he thinks of "MJCCC": "The establishment created a committee to protect the establishment. Some people who are sitting around called it the sitting judges' protection committee." More (Baltimore Jewish Times 09.01.2006). Comment. I don't know about Maryland, but in my experience "establishment bar association types" are usually behind these unofficial but official-sounding truth-in-judicial-campaigns "watchdog" committees that have been established in various jurisdictions to protect voters from being "misled." The types who establish these committees typically oppose the so-called politicization of judicial campaigns but think nothing of claiming "bipartisan" support for their own preferred candidates, which invariably are the sitting judges. Moreover, they seem to believe voters aren't intelligent enough to decide who to vote for without their supposedly neutral, independent and unbiased recommendations. Frankly, in this instance, we don't see how intelligent voters -- and we always presume voters are not stupid -- would be misled by Mr. Frank's original ad. BTW, one of the sitting judges is quoted saying: "My running mates are high caliber, skilled honorable people and frankly I think that's one of the problems that Mr. Frank has had. It's that nobody has complained about us." Again, we don't know what the ethics of such a statement are in Maryland (perhaps that state's standards are lower), but in some jurisdictions sitting judges running in elections are not allowed by the "ethics folks" to run as "running mates" or as a team or to otherwise campaign together or endorse each other. That's the risk one takes in questioning the other guy's ethics -- you shouldn't be surprised if someone comes right back at you.

    Appellate court says political bosses can't pick judges. "In a stunning blow to political party bosses, a federal [court of appeals] ruled last night that the process [in N.Y.] for selecting state supreme court justices [which is what trial judges are called in N.Y.] is unconstitutional and ordered an immediate halt to back-room wheeling and dealing...Brooklyn Federal Court Judge John Gleeson had ruled in late January that party bosses' control over so-called judicial conventions was unconstitutional. Yesterday's ruling upheld that decision...." More (N.Y. Daily News 08.31.2006). Earlier. In late January U.S. District Court Judge John Gleeson "struck down the system that has given state political party leaders a stranglehold over the way top trial judges across New York State have been elected for decades." The judge "found the system unconstitutional and ordered it halted immediately." See, Federal judge halts rigging of judicial elections, linking to NYT story. Later Judge Gleeson stayed his order that party primaries must be used to nominate candidates to the 25 positions that are open in this year's elections. Latest on those 'rigged' judicial elections. See, also, our earlier posting on the motion to stay the order. Update on federal judge's decision halting rigged judicial elections.

    'Greatest judge' dies. "Former Appeal Court president Lord Cooke [Robin Brunskill Cooke] of Thorndon, [age 80,] one of only a handful of New Zealanders to be conferred with a British life peerage, has died...Former prime minister Sir Geoffrey Palmer, who appointed him Court of Appeal president, once described Lord Cooke as 'the greatest judge New Zealand has produced.'" More ( 08.31.2006). Comment. This is an interesting obituary, worth reading. He appears to be one of the "fathers" of the New Zealand Supreme Court: according to the obit, "Despite his membership of the Privy Council, Lord Cooke became an advocate for severing ties with London and establishing New Zealand's own Supreme Court."

    Ye olde necessity defense. A tent-dweller, at the end of a 60-day fast to attain spiritual perfection, broke into a house. "It was just before Christmas and there were presents under the tree. After entering the home, 'he pulled out all kinds of food, boiled water, ‘ate hot things because I was so cold...I found the remote control to the television set and turned it on. I opened all the presents to find chocolates.’ He also raided the cupboards, ate chili, cream cheese, tortillas and drank tea...‘It all looked so good I ate it all...This was the animal in me trying to survive.’ [The judge] said that when the homeowner found [him], sleeping, there was wrapping paper and bags all around him, as well as feces and vomit...." Held, defendant's mind was extremely troubled as a result of fasting and the defense of necessity excuses his act of breaking, entering, etc. More (Whistler Question 08.31.2006). Comment. This case is a good one for the law school criminal law casebooks. Here in Minnesota, as in Canada, "necessity" sometimes prompts one to break and enter. Late in my mother's life, back in the late 1980's, my late brother, who was caring for her, was driving her on a Minnesota country road on a very cold winter day. (Those trips on the country byroads of her memory eased her mind.) I guess his car broke down. Anyhow, they walked to a nearby farmhouse not then occupied and my bro broke the window and entered, using the phone to call for help. He also notified the owner, either directly or through law enforcement. The defense does have its place. He never had to use it because no charges were brought. He paid to have the window repaired.

    Supreme Court's 'girl crisis.' More (Slate 08.31.2006). Comment. Dahlia Lithwick chimes in on the NYT piece yesterday regarding the drop in the number of female law clerks at SCOTUS. For our take, see comments and links at Women suddenly scarce among SCOTUS clerks.

    Judicial ethics in MN. a) "A Dakota County [MN] judge [Rex Stacey] did nothing improper when he handled a ticket for the husband of a court employee in chambers, a three-member panel of the Board of Judicial Standards has found...." More (Minneapolis Star-Tribune 08.29.2006). Will the panel's determination be rejected by the full board? Read on... b) "A retired Dakota County judge [Thomas Murphy] who handled a ticket for a court employee's son should be publicly reprimanded and removed from the roster of retired judges eligible for judicial assignments, the Board on Judicial Standards has recommended...The board's recommendation is in opposition to a finding last month by a three-member panel...that Murphy did nothing improper in handling the case...." More (Minneapolis Star-Tribune 08.31.2006). Comment. When we first linked to a report of the complaints against the two judges, we cautioned readers on the importance of keeping an open mind and not rushing to judgment. See, MN judges deny knowingly 'fixing' tickets for clerk. We continue our advice. It's possible the supreme court will see things differently. BTW, the supreme court justices themselves have been the subject of recent complaints, one filed with the campaign finance board, a couple filed with the board of judicial standards. a) Minnesota's he-said/she-said controversy: Is somebody necessarily lying? b) Updates on MN's he-said/she said controversy involving senator, justices. c)  Mn Bd. to investigate all seven supremes. d) MN Board of Judicial Standards says supreme court did no wrong. e) Board dismisses complaint filed over judges' controversial winter retreat. f) Did MN judges use public funds for lessons on how to get re-elected?

    Aliases, disguises o.k.'d for witnesses in trial. "Two Israeli security agents expected to testify at the trial of two men accused of fund-raising for the Palestinian militant group Hamas may wear disguises and use aliases on the witness stand, a judge ruled Tuesday. The courtroom will be cleared of everyone but the jury, attorneys, the defendants and their families while the Israeli agents testify, U.S. District Judge Amy St. Eve ruled...." More (Chicago Sun-Times 08.30.2006). Comment. I suppose there is a proverbial "continuum" from a) a witness appearing as he is to z) a witness being disguised to appear as he is not. Somewhere in the middle is buying new duds for a defendant, making him appear to be an accountant when really he's a dude. Dress-for-Success consultants say that a brown suit increases the chances a witness will be believed. Should we expect disguise consultants as the next trend in pre-trial preparations in high-profile cases? And should we expect other witnesses making equal-protection claims that they too should be allowed to wear disguises? Me? Next time I testify I want to wear that Justice Holmes outfit I saw at the costume store when I was trying to figure out what costume to wear at the annual Faux Judges Costume Ball.

    Women suddenly scarce among SCOTUS clerks. "Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply. Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today...." More (N.Y. Times 08.30.2006). Comment. Overall, only a third of the total applicants to serve at the Court are women, although their numbers in law schools are equal to those of men. Why? We don't know. Justice Scalia has had the fewest number of female clerks among recent justices. There are many conceivable explanations for that. Some speculate it's because few female applicants meet some test he might have of ideological purity. On any appellate court, there are justices preferred by applicants and justices whom applicants do not want to serve. Might it be that fewer women apply to serve or want to serve as one of his clerks? Possibly. But let's suppose instead that Scalia is flooded with applications from women who are as objectively qualified as the male applicants. Might he have a reason other than "ideological purity" for hiring mostly guys? One that wouldn't influence me but might influence him is a variant of the "revelation" that the addition of female judges makes an appellate court a "happier" place. See, Female chief says female judges make courts 'happier' places to work. The variant would be that there's a direct relation between the number of female law clerks in chambers and the happiness of the judge in chambers. Would it be ludicrous to suggest that Scalia, fully aware of this, is not looking for happiness but good old fashioned gravitas, which he falsely assumes comes from hiring men instead of women? More likely the poor guy just doesn't realize what the Chief Justice of Canada was indirectly getting at: that instead of running around the world in search of happiness (see, Does Scalia have 'Go Fever'?), he could find it in chambers by simply hiring more women -- and get plenty of gravitas at the same time. Moral: That which we want and need is often easier to obtain and closer to home than we realize.

    Does Scalia have 'Go Fever'? "Justice Antonin Scalia was the Supreme Court’s most frequent traveler last year, with 24 expense-paid trips that took him as far as Ireland, Italy, Turkey and Australia. Law schools and legal groups paid for most of Justice Scalia’s travel, although Italian heritage organizations, Time Warner, the Roman Catholic Diocese of Louisiana and the Juilliard School also covered trips...." More (N.Y. Times 08.30.2006). Some earlier postings on judicial retreats and junkets. a) No belt-tightening for New Orleans judge traveling on public's money. b) Revelations about those junkets for federal judges. c) Judicial 'Educational' Junkets. d) Judges huddle in high style on taxpayers' money. e) Judicial junk-science junkets. f) The 'Wacky Courthouse' playground as alternative judicial retreat. g) Will Senator's response to junket exposé affect judicial junkets? h) Three Senators want to end judicial junkets. i) Judicial privileges. j) Some judges are more judicious in spending. k) Judges of troubled court head for the beach for 'education.' l) The annual convention of the state chief justices. m) Did MN judges use public funds for lessons on how to get re-elected?

    Judge hints at corruption in judiciary. "A Fiji High Court judge says it would be naïve to believe that judicial corruption does not exist...Justice Nazhat Shameem made the comment when she addressed the UNDP organized regional 'Seminar on Public Service Ethics and Accountability' in Suva last night...." More (Radio New Zealand International 08.30.2006).

    Judicial ethics in NJ. "A New Jersey judge facing a Supreme Court hearing on charges he made inappropriate comments to jurors and about other judges is asking that two members of the court recuse themselves due to alleged bias. Superior Court Judge Wilbur Mathesius filed a motion on Aug. 23 urging that Chief Justice Deborah Poritz and Justice Jaynee LaVecchia not participate in his disciplinary case because they have criticized him in the past...." More (Law.Com 08.30.2006). Earlier. Panel urges judge's suspension for controversial remarks.

    SCOCAN to get $8M TV-friendly facelift. "The Supreme Court of Canada is seeking an $8-million facelift of its walnut-panelled courtroom to bring it into the computer age and make the nine judges and their proceedings look better on television. The court will make a final appeal to the federal Treasury Board this fall for special funding to fix the chamber's dim lighting, poor acoustics, outdated audiovisual and translation equipment, and its lack of computer capability that forces judges and lawyers to shuffle through mounds of paper during hearings...." More (Ottawa Citizen 08.30.2006). Comment. The court's deputy registrar is quoted as saying that "[o]ne of the biggest shortcomings [ of the court] is the 15-year-old audiovisual system, which gives the most senior judges in the country a 'blueish tinge' in hearings that are televised on the Cable Public Affairs Channel (CPAC)." Sadly, SCOTUS doesn't allow any broadcasts of its hearings. I'd settle for black-and-white.

    Judicial candidate dies in highway accident. "[Clyde Angle, 58, a] Republican candidate for Cole County circuit judge was struck and killed following a traffic accident in Boone County, authorities said...Angle had been driving south [on U.S. 63] when his vehicle went off the highway and down an embankment, patrol Sgt. Paul Reinsch said. He got out of the vehicle and made it back up to the side of the road where he was struck by two southbound vehicles, Reinsch said...." More (Kansas City Star 08.30.2006). Comment. When I was "standing" for the position of Chief Justice of MN in the general election in 2000, I was invited by an editor in Duluth to drive up there for an interview preparatory to their announcing the paper's preference. I declined, partly because I didn't want the paper's endorsement (nor could I have obtained it, since papers in MN endorse the incumbent 99% of the time), but also because I think it's silly to go out and try very hard -- and maybe risk one's life -- to get oneself elected. As I said, I "stood" but did not run.

    Annals of judicial secrecy. Some links from today's articles (08.30.2006) give a hint of the problem: a) Judge unseals some files in Astor case (Washington Post 08.30.2006). b) Judicial silence needs unsealing (Seattle Times 08.30.2006). c) Judge rules for U in open-records suit over Bobby Knight's firing (Indiana Daily Student 08.30.2006). d) Judge denies issuing gag order (NETV 08.30.2006). e) Eighth Circuit says names of lawyers who loaned money to judge must be made public (Kansas City Star 08.30.2006). f) Judge won't unseal evidence in porn case against Karr (San Francisco Chronicle 08.30.2006).

    Annals of courthouse recycling. "Eagle Bank's Silver Spring branch has relocated to Silver Spring's old court house building...." More (Washington Business Journal 08.30.2006). Further reading. See, comments and links at Courthouse to be recycled as community theater.

    Latest on controversy surrounding ex-judge. "Amid a saga over a $77 speeding fine that involves a deceased American academic, a prostitute and a Sydney solicitor, former judge Marcus Einfeld has finally admitted to breaking a road rule. The retired Federal Court judge was today fined $75 after pleading guilty to disobeying a no-parking sign at Bondi Junction in January this year. Mr Einfeld is the subject of an unrelated police investigation into claims he lied to a court to avoid a speeding camera fine. He initially opted to contest the parking fine but changed his mind, instead submitting a written guilty plea to Waverley Local Court, claiming he parked his car illegally because he has difficulty walking distances...." More (The Australian 08.29.2006). Earlier. Here are links to our prior postings, with embedded updates. Ex-judge may have made big mistake in contesting traffic ticket - latest allegations relate to evidence provided by legal secretary turned prostitute, ex-judge's lawyer's relations with her, etc. -- The mystery of the two Professor Brennan's.

    Judicial elections: judge is questioned about family's ties to KKK. "[District Court Judge] Terri Willingham Thomas, the Republican nominee for Place 3 on the Alabama Court of Civil Appeals, has come under scrutiny because her parents were linked to the Klan as late as the 1980s...Democratic Party Chairman Joe Turnham has asked Thomas whether her parent's past ties will affect her ability to rule on the bench. He also has asked Thomas to disclose her campaign contributors so voters can determine whether she has ties to extremist groups...Thomas responded to Turnham by challenging voters to review what she described as her longstanding record of racial equality. 'I treat everyone fairly and with respect,' she said. 'I'm not my brothers, I'm not my sisters, and I'm not my parents and I'm not my cousins. I'm not my grandparents. I am me, and I am fair. I am not prejudiced at all.'" More (Montgomery Advertiser 08.29.2006).

    Judge says his son is under investigation. "A Weld County judge who had a computer taken from his west Greeley home Friday said his son is the subject of a criminal investigation...." More (Greeley Tribune - CO 08.29.2006).

    Ex-judge says wife's affair with woman left him distraught. "A former Roane County judge captured on videotape taking thousands of dollars in kickbacks is blaming his estranged wife's affair with a woman for his foray into public corruption. Thomas Alva Austin, 58, who pleaded guilty earlier this year to forcing kickbacks from men he handpicked to head up a traffic school and probation office, contends it was his second wife's fling with a woman that drove him over the legal edge...." More (Knoxville News-Sentinel - TN 08.28.2006).

    Judge is charged with pointing gun at another motorist. "Columbus' Municipal Court Judge Haywood Turner is free on bond after he allegedly pointed a gun at another motorist while driving...." More (Columbus Ledger-Enquirer - GA 08.28.2006).

    Hindu justice - Minnesota style. Last spring two young men, ages 19 and 20, smashed some statues in a new Hindu temple in a Minneapolis suburb just a few months before the temple's planned opening. The damages: $200,000. The two men were caught and recently pleaded guilty to first-degree criminal damage to property pursuant to an agreement calling for a stay of imposition of sentence, with probation conditioned on their serving some time in jail, meeting with the Hindu community, performing community service at the temple, submitting to chemical dependency analysis, and making restitution. After five years, they may be eligible to have the convictions reduced to misdemeanors. This last Saturday the boys formally apologized and asked the members of the temple for forgiveness. Dr. Shashikant Sane, chairman of the temple's board, accepted the apologies and forgave them. Sane spoke for about 40 minutes on Hinduism, telling the boys that his religion distinguishes between evil acts and evil-doers and that it looks upon the boys as divine human beings who have it in their power to make good out of bad, creating their own destinies. More (Minneapolis Star-Tribune 08.27.2006). Comment. I believe Dr. Sane, who is a radiologist, is the husband of one of my favorite people, Dr. Kumud Sane, who was pediatrician for my kids. I got to know her well starting in 1975 during the many times I accompanied the kids on their childhood appointments for "well-child care," ear infections, etc. I'm not the least bit surprised by this story. The Hindu community has set a wonderful example for those of us in the Christian community who seem to have forgotten the most basic of all Christian teachings, namely, that love and forgiveness are the only forces that can transform the World.

    Justices: high pay and power, no training. "They hold one of the state's highest-paid elected offices and make decisions that affect lives and bank accounts. But Maricopa County justices of the peace don't need any legal training...'The qualifications for justice of the peace should be more than being able to fog a mirror, but they're not,' said Lex Anderson, a longtime Peoria justice who is retiring in December after 20 years on the bench...Lawyers who practice in these limited-jurisdiction courts say a few of the bad justices are habitually late, keeping full courtrooms of litigants waiting for hours. Others are so disorganized they stack up piles of papers and cases for weeks without ruling. Some let their egos and bad tempers control the courtroom...." More (AZ Central 08.27.2006).

    Judicial branch slip-up exposes employees' personal info. "For eight days last spring, an unsecured document containing names, birth dates, Social Security numbers, home addresses and other personal information on some 1,500 employees of the state judicial branch was posted on a state computer server.
Fortunately, no unauthorized employee copied or downloaded the file, which was on a state password-protected FTP (file transfer protocol) site...The state courts' FTP site is used mainly for court employees to download computer programs and patches for existing programs...About 100 people, nearly all court personnel, have access to the site...." More (Santa Fe New Mexican 08.27.2006).

    Paralegal accused of stealing judge's stamp to clear self in forgery scheme. "A Jefferson County judge says he'll be the 'most vocal victim ever,' after a private paralegal has been charged with stealing his stamp [in an attempt] to dismiss her own criminal charges. Venetia Denny of Dora is accused of forging District Judge Robert Cahill's initials on court files last month and using an official hand stamp to indicate her six pending criminal charges were dismissed...Denny was caught after a clerk realized Cahill never uses that stamp to dismiss cases...'When I saw her, I said, 'Honey, you've picked the wrong fat judge and his family to pick on,' Judge Cahill said...." More (Times Daily 08.27.2006).

    Judge arrested on another drug charge. "Pickens County District Judge Ira D. Colvin was arrested Saturday morning after a grand jury indicted him with possession of methamphetamine. Colvin has been charged with methamphetamine possession twice in less than two weeks...Colvin’s latest drug charge stems from the Aug. 15 discovery of methamphetamine in his office in the Pickens County Judicial Center...." More (Tuscaloosa News 08.27.2006). Related. Judge held on meth charge.

    Order in court, not robe room. "A federal judge repeatedly held proceedings in her robing room in defiance of an appeals court ruling ordering her to stop the practice...In January 2005, the 2nd Circuit Court of Appeals found Manhattan Federal Court Judge Shirley Wohl Kram had improperly held the sentencing of one drug dealer and taken the plea of another behind closed doors in her robing room. The panel took the highly unusual step of ordering Kram to redo both in open court...Yet three months later, while Kram was overseeing the extortion trial of six defendants, she was again holding conferences in her robing room, according to court records. She allowed a court reporter to take notes, but barred defendants from participating, according to several attorneys who were there...." More (N. Y. Daily News 08.27.2006).

    Inmate charged in murder-for-hire plot against judge. "An inmate has been charged with trying to hire someone to kill the judge who sent him and his two attorneys to jail...." More (Daily Press - VA 08.26.2006).

    Did judge 'cross line' for his clerk? "Southern District of Florida Judge Shelby Highsmith and a U.S. Marshals Service deputy are drawing criticism for intervening in a personal dispute involving the judge's clerk and her daughter at a downtown Miami store. The incident is raising eyebrows in the legal community as well as questions about whether Highsmith may have violated judicial canons by misusing his judicial powers. Both Highsmith and an unidentified deputy showed up at the store during the incident, flashed their government identifications, and began questioning store employees and asking for their addresses...." More (Law.Com 08.26.2006). Comment. Long story. Worth reading.

    Courthouse to open waiting room for kids. They've opened a children's waiting room in the Madison County Courthouse in downtown Edwardsville, Ill. "Associate Judge Barbara Crowder...said the courthouse had only a small room available, so it will be limited to use by children waiting to talk to public defenders in child abuse or neglect matters or to judges in child custody cases...[S]everal counties have similar rooms and that some have expanded them for use by any and all children who have to be at the courthouse for some reason...." More (Alton Telegraph - ILL 08.25.2006).

    Judicial secretary is hailed as 'great worker, friend.' "In her career as a judicial secretary, Caroline Bantle has had one simple philosophy -- treat each case as though it involves your family member or your friend...[In] 1977...she accepted a position as a traffic clerk in Livingston County District Court. 'That opportunity led me to substituting for the judicial secretaries in their absence and typing transcripts in my 'leisure' evening and weekend time,' she said. 'My dream was always to be a secretary and when opportunity knocked, I became a judicial secretary,' Bantle said...A typical day has Bantle dealing with a number of attorneys needing a scheduling change or guidance and handling media calls inquiring about particular cases on the day's docket...." More (Livingston Daily Press and Argus - MI 08.25.2006). Comment. Another candidate for our Judicial Secretaries' Hall of Fame

    Judge detains five over ringing cell phones. "Lake County Criminal Court Judge Diane Boswell detained and questioned a row of spectators when a cell phone rang for a third time in her courtroom. She later ordered two people to serve community service for contempt of court. When no one admitted having the ringing phones Wednesday, the judge ordered all five people in the row to sit in chairs reserved for jail inmates. The AP reports that the three people were charged in contempt of court after they initially refused to say whose phone rang...." More (All Headline News 08.25.2006). 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."

    Court suspends judge. "The Mississippi Supreme Court has suspended Hinds County Justice Court Judge Ivory E. Britton for 30 days without pay, ordered him publicly reprimanded and to pay $1,118 in court costs. The high court said Britton, a Justice Court judge since 1993, violated court rules by using information gained outside the courtroom to make decisions in cases...." More (Jackson Clarion-Ledger 08.25.2006).

    Laptop court. "There was nothing extraordinary about the brief court business, a handful of people in custody for misdemeanors appearing by camera before a judge. Judge John Sandberg didn't wear his robe but admits he ''had to make my room look neat.'' He was 1,200 miles away in a hotel room in Oklahoma - not a courtroom in Davis County. Laptop computers and tiny cameras are saving time and money and improving safety in Utah's court system. With Internet access, Justice Court judges can conduct routine hearings from virtually anywhere at any time...." More (Salt Lake Tribune 08.25.2006). Related. Cf., Judge committed error in delaying verdict to attend ballgame ("With the BurtLaw Porta-Courthouse, the judge could have had his ballgame and received the verdict. With our wireless digital technology and our instantly-inflatable, soundproof "courtroom," the judge could have set up shop on a ramp, received the verdict remotely, polled the jurors, thanked them for their service, and returned to his seat in under 15 minutes. The cost? Only $1,999.99.").

    He finally worked up courage to harass his secretary. "After seven years of prolonged glances and unsatisfied desires, vice president of finances Scott Winters threw caution to the wind Monday, finally declaring his feelings and intentions for secretary Anna Davis through a series of suggestive gestures, inappropriate remarks, and anatomically accurate drawings...'I cannot tell you what a relief it is to finally get this off my chest,' said Winters, who said he has never believed in lust at first sight, but had been infatuated with Davis since he first laid eyes on her cleavage...." More (The Onion 08.23.2006). Comment. For our admittedly minority viewpoint on this hot-button topic, see, our extended comments and citations following our posting titled Commission says judges can't socialize with courthouse hoi polloi.

    Also in The Onion. "The decision to set his résumé in default-font Times-New Roman 'deeply, personally, and irrevocably' offended a prospective employer of Seth Hershey Monday. 'I look for quality, pedigree, and competency in the résumés that cross my desk, but I don't care if you founded the Harvard School of Business -- if you're going to use a crap typeface like this, you might as well send me a finger painting in your own shit,' said HealthBest South Associate Vice-President Dick Scottsfield shortly after hurling the document across his office in disgust...." Type font offends boss (The Onion 08.23.2006). Comment. We can't imagine a judge -- or, for that matter, anyone in the judicial system -- trying to lay down the law on the use of a particular typeface on, say, inter-office memos, nor can we imagine anyone throwing a hissy fit over someone's failure to comply with such a nonsensical directive. But, or so we're told, it does happen.... A court, of course, may, for good reason, decide that all slip opinions use a particular typeface.

Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?

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Affiliated Web sites

   U. Mich. L. Library's Alito links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Samuel A. Alito, Jr. They are categorized and are arranged in reverse chronological order within each category.

   U. Mich. L. Library's Roberts links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by John Glover Roberts, Jr.  They are categorized and are arranged in reverse chronological order within each category.

   Slate's list of Judge Roberts resources. Slate has created a John Roberts Roundup, a regularly-updated page of links to some of the better web postings relating to Judge Roberts. Click here.

   U. Mich. L. Library's Miers links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Harriet Ellan Miers.  They are categorized and are arranged in reverse chronological order within each category.

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