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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 has devoted his entire professional career to the public interest. 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 (archived here), contained a personal campaign weblog, possibly the first campaign blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a public interest political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.
Judge believes spelling still matters. "An angry judge has branded a prosecution worker an 'illiterate idiot' after spotting several spelling mistakes in an indictment. Judge David Paget was reading a list of charges drawn up by Crown Prosecution Service staff at Wood Green Crown Court in north London when he spotted errors...." One of them: "greivous bodily harm" instead of "grievous bodily harm." More (BBC News 08.12.2008). Comments. a) Perhaps the judge was using his office and the occasion to weigh in on the recent debate in the British press over one academic's suggestion that maybe it's time for proponents of correct spelling to give up on spelling matters like "'i' before 'e.'" Compare, Alexandra Frean, 'I' before 'e' except after 'c'. Or maybe not - Time to give up on spelling, says academic (UK Times - Education Supplement 08.07.2008), with Vivian Cook, We mustn't give in to those who can't spell (UK Times 08.08.2008). While the judge had a right to remind the prosecution that correct spelling and usage matter to him and that filing a pleading or submitting a brief containing misspellings reflects badly on the attorney whose name the document bears as author, I think he committed "grievous" error in referring to the unidentified misspeller as an "illiterate idiot." In doing so, he committed a common mistake in basic judicial reasoning: taking one minor fact about a person and improperly generalizing from it. Would he like it if other people employed the same sort of reasoning in assessing him? The truth is that a lot of recent law school graduates (some of whom served on law review) as well as highly-paid veteran lawyers and, yes, even well-known judges don't spell well. Neither did Robert Frost, who wrote some of the finest poems in the English language. He was not an "illiterate idiot." Neither are most of the other otherwise seemingly well-educated misspellers. b) A couple years ago I posted an entry jokingly titled Ought a judge be removed because of his bad handwriting? What prompted my comments was an order filed by a Mississippi judge directing the clerks of court in four counties under his jurisdiction to refuse to accept any pleadings or motions not bearing legible signatures. The judge's name was not typed on the order and his signature was illegible. The obvious point of my posting was that judges who live in glass houses ought not throw stones at others. In my comments I said, only partly in jest, that "it wouldn't bother us if some judge issued an order giving himself a Cardozian 'roving commission' to direct all elementary schools everywhere to reinstitute the teaching of the old Palmer Method of teaching good penmanship." Similarly, it wouldn't bother me if schools did a better job of teaching spelling -- and lots of other basics, including common logical fallacies, like that employed by Judge Paget in concluding that the misspeller was an "illiterate idiot." Further reading. And the award for 'Worst Judge' goes to.... (on logical fallacies, with links to some of the common ones); Judge threatens journalists with contempt for misspelling his name, etc.; Gotti sings 'Happy Birthday' to judge, mom sends praises to another judge (containing a little ditty about the spelling of "Justice" that I wrote for a proposed Broadway musical "inspired by" the feel-good courtroom scene involving Gotti).
Protesting student athletes use courthouse lawn as practice field. "Last Friday, the Cumberland County School Board made the surprise announcement that schools would not open as scheduled due to budget issues.That means all school activities, including athletics, are postponed indefinitely...Locked out of their normal fields and gymnasiums, players have decided on a new practice location: the courthouse lawn. 'We basically made this our practice field,' said Stone Memorial High School student Jesse Lowe. 'If they're not going to let us use ours, we'll use theirs.'" More (WBIR - Knoxville 08.12.2008). Comment. Hats off to the student athletes. The American Revolutionary Spirit is still alive in Cumberland County, TN. Further reading. See, comment on courthouse picketing vs. residential picketing at 'Batman' stages protest atop roof of judge's house.
'Batman' stages protest atop roof of judge's house. "Former Army sergeant Tim Line spent almost 36 hours over the weekend dressed as Batman, camped in the wind and rain on top of the home of one of the country's most senior judges. Fencing contractor Mr Line, 45, a member of the Fathers 4 Justice group, accidentally disturbed a bee hive during the roof-top protest but escaped without being stung...." More (This Is Bristol 08.11.2008). Earlier. "Protester on judge's roof. 'A judge could face police questioning after claims he aimed a gun at a member of Fathers 4 Justice who was staging a protest on his roof. Judge David Tyzack was accused of brandishing the weapon at a campaigner who climbed on top of his country residence dressed as Father Christmas...Judge Tyzack admits holding the gun, [but] he insists it was because he believed an 'injured bird' had landed on his roof....'" Rooftop protester accuses judge of aiming gun (This Is London 11.29.2006). Comment. I have no problem with peaceful, civil, nonthreatening picketing outside a courthouse, but I do have a problem with picketing outside a judge's residence. a) Regulations governing courthouse picketing must be "precise" and "narrowly drawn," Cox v. Louisiana, 379 U.S. 559 (1965), since peaceful, civil, non-threatening picketing outside a courthouse in protest of this or that is protected by the First Amendment. Thus, a law that on its face prohibited the carrying of signs or placards on the public sidewalks outside the U.S. Supreme Court was declared unconstitutional as applied in United States v. Grace, 461 U.S. 171 (1983), since the law wasn't needed to protect the court building and grounds, maintain proper public order, or insulate the judicial decisionmaking process from impermissible lobbying. b) Engaging in acts of rudeness and incivility -- as in picketing a judge's home, which is what the British group has urged, or sitting atop the roof of a judge's house, as Mr. Line reportedly did -- strikes me as a misguided strategy for winning sympathizers and achieving change. Did I say it's rude and uncivil? Yes. I think it's rude and uncivil to picket the home of a judge or any other public (or private) figure, and also rude and uncivil for reporters to camp out outside a person's home. In my view, picketing that targets the home of a particular person generally doesn't warrant First Amendment protection. Everyone, even a public figure, is a private figure once he enters his home, which is his castle, and everyone deserves the protection of the law against improper intrusion into that castle and upon the moat of privacy surrounding it. Frisby v. Schultz, 487 U.S. 474 (1988) (upholding content-neutral ban on targeted residential picketing); 9th Circuit upholds Calif. county's residential-picketing ordinance (First Amendment Center 10.09.2006). Further reading. Harry Kalven, Jr., "The Concept of the Public Forum: Cox v. Louisiana" (1965 S. Ct. Rev. 1 (1965); "Picketing the Homes of Public Officials" (34 U. Chi. L. Rev. 106 1966). For a good summary of the constitutionality of content-neutral bans on targeted residential picketing, see, Eugene Volokh, Funeral Picketing (Volokh Conspiracy 07.24.2006).
SCOINDIA suggests flogging of 'babus' to get them to work. "'In this country you need huntering (flogging) to make you work,' the Supreme Court on Friday said while venting its anger on babus and top police officials for their failure to respond on an issue related to punishing errant cops who refuse to register FIRs on public complaints...." More (The Hindu 08.08.2008). Comment. The term "babu" has multiple meanings. It can mean, simply, "Mr." But some in India use it in reference to superficially-educated clerks and bureaucrats who, if they can get away with it, don't do what they're hired to do.
Ex-judge in MN pleads guilty. "A former Hennepin District Harvey Ginsberg Judge pleaded guilty Monday to stalking harassment for allegedly threatening a St. Louis Park boy last year...." More (Star-Tribune 08.12.2008).
Annals of divorce. Two brief excerpts from an entertaining and revealing piece -- by Kathleen O'Brien, McGreevey divorce: A double-barreled smack-down from the judge (N.J. Voices at NJCom 08.10.2008) -- about the divorce ruling in the case of the McGreevey's, the former N.J. governor, who is gay, and his spouse, Dina, who is not:
a) "For those scoring at home, Dina spent $500,000 to get an award of $100,000. Jim $500,000 to save $200,000. (He had reportedly offered a settlement of $300,000.)"
b) "Here's the latest -- the last? -- little doozy from the divorce ruling. During the trial, Dina testified that in order to look the part of the state's First Lady, she spent about $40,000 a year on clothing and accessories for herself and her daughter. Turns out Jim actually asked the court to count all those St. Johns suits as a marital asset and to compensate him for their value. Question: Wouldn't it have been faster to e-mail Letterman's joke writers directly?"
Comments. I won't comment on the McGreevey case, or on the parties, their attorneys, or the judge. I will say that far too many contested divorce cases take far too long to try and decide and cost way too much in terms of money and personal anguish to the parties and their children. Who's at fault in the generality of such cases? a) Lawyers share much of the blame. Back in 2001, Simon Carr wrote in the UK Independent, "The ability of divorce lawyers to drive a wedge between an amiably separating couple is well known. It's how fees are generated. There's no money in a three-letter correspondence. (I say no money: there's £600.) Having watched a friend go through the full gruelling marathon, it remains amazing that this legal practice is still legal." Simon Carr, Who do we hate more, lawyers or politicians? (UK Independent 10.29.2001). I don't doubt there are many people in this country who might think he's describing our lawyers, not British ones. Such lawyers know a proverbial cash-cow when they see one and use every trick in the book to drag things out to their own profit. b) But lawyers aren't the only "villains" in the divorce game that fosters so much of the disrespect for our civil justice system. Speaking generally, I think courts share a good deal of the blame. Much of the court delay in these cases is hidden and is attributable not so much to individual judges as to systematic problems in some districts. We know of a referee in a large metropolitan county where some relatively simple contested divorces seem to take forever and cost a zillion who said "we" think a bit of delay is good in divorce cases. I was told once by a former judge, who knew what he was talking about, that a contested divorce which judges might take four years to decide in that district would be decided, easily, within six months by judges in another county in the state with a large population. c) But much of the blame is also attributable to individual judges who don't seem capable of working efficiently, moving things along, etc. d) I used to think the late Chief Justice Peter S. Popovich of the Minnesota Supreme Court was a bit cliched in repeatedly using in his speeches that old phrase "Justice delayed is justice denied." But as the years have gone by I am more and more proud that I was able to work closely with him, and I believe more and more that he was one of the best to ever hold the office. He put his finger on a very real problem and, had his tenure not been cut short by our unwise, unfair and discriminatory mandatory-retirement law, might well have done something about it. e) The typical response from the judiciary to questions about delays is, "We need more money, more judges." But I worked within the system for nearly thirty years, and, frankly, I don't think a lack of money is the problem. f) I think it would be wise for legislators to get into the act of creative "divorce reform" rather than leaving it to lawyers and judge. In my opinion, the bench and bar have never been very good at self-reforming and self-policing in general -- and certainly not in this specific area. Perhaps because they benefit from keeping things the way they are, one rarely hears any fresh ideas for reform from divorce lawyers. Experience also suggests one shouldn't expect divorce judges to produce any meaningful ideas for change. Many of them used to practice divorce law and, in my opinion, as a class they are too prone to assume that things just are the way they are and that not much can be done but spend more money and hire more judges and law clerks. g) While the legislative branch may be in a position to effectuate some creative and wise changes, one shouldn't expect them to do so. When last did wisdom motivate and imagination guide our legislators, in MN or elsewhere? In summary, I'm not sanguine that our policymakers, judges & lawyers have it in them to improve the dreadfully expensive, inefficient & unfair divorce processes that prevail in MN and in most states. Further reading. For an extended piece I wrote on this topic a few years ago, with links to some creative recommendations for legislative reform from a fellow in New York named Mark Greene who later was an unsuccessful candidate for Mayor of NYC, see, my comments at Other divorce tales.
Herein of SCOMN budget woes, 'p.r.' specialists, and Thoreauvian economics. Two related items, same source:
a) "In a June speech to the Minnesota State Bar Association, [SCOMN 's new C. J., Eric] Magnuson[,] pulled no punches in assessing the court system's financial health. 'Let me be blunt: Our situation is serious,' he said. 'If this were a hospital room, this is the point where we would close the door, look each other in the eye, and soberly walk through our options.'"
b) "'Here's what happens when we have funding shortages: The cases don't go away, they just pile up,' says John Kostouros, communications director for the Minnesota Judicial Branch. 'We don't have the ability to control our workload. All we can do is manage it.'"
a) If the court system is in such dire straits that it has to cut juror pay in half [see, my recent posting, MN judiciary's grand money-saving idea: cut jurors' pay in half], then one trusts that those in charge have i) instructed all the many judges and their many lawyer assistants, etc., that they no longer will be reimbursed for bar memberships and professional subscriptions, attending bar conferences and seminars, and taking trips to conventions, and ii) eliminated unnecessary expenses connected with engaging in community outreach and other "p.r." programs and trimmed unnecessary staff positions connected with such programs (such as court "p.r." positions) from the budget, etc. I don't know whether they've done i) but they obviously haven't done ii).
b) As readers of my blogs know, I've been long critical of the court's hiring and use of a "p.r." (or "press relations aide" or "communications director," whichever term is in vogue), especially given the court's seemingly never-ending claims that it's always short of money. See, e.g., my comments in Items 7/"Denials" and 19/"The court's p.r. man responds and tries to squelch publication" in my 2006 posting titled Leading senator accuses MN's chief justice of 'outright fabrication'). Indeed, in my campaign blog (see, e.g., blog entry for 10.22.200) and in my essay on judicial independence and accountability during my 2000 noncampaign for a seat on SCOMN, I ridiculed the relatively new fad among SCOMN justices of making personal appearances, giving frequent speeches, etc., as part of their judicial outreach efforts and faux openness. Here's an excerpt from the essay:
And since there's no idea that can't be pushed to its logical, even foolish extreme, and since even justices are human and therefore take well to the idea of uncritical attention and acceptance, something few elected officials get, why not come up with some variations on the court's outstate "traveling dog-and-pony show" (as a justice of the more traditional mold humorously referred to it after retiring)? Why shouldn't individual justices start visiting schools, and not just occasionally but often? Why shouldn't individual justices make public appearances at community events? Why shouldn't individual justices give more speeches? Why not send court employees to the law firms -- well, at least the big ones -- to talk to the firm's attorneys about court procedures? Hey, some of the justices could even go on a three-day "spring tour" to some part of the state? Indeed, that term, "spring tour," actually is the term the court's public relations person or "court information officer" gave, presumably with approval, to the three-day swing of multiple appearances in southwestern Minnesota late this last spring by my opponent and one other court colleague who is facing opposition. And then, of course, there are numerous bar meetings, functions and conventions to attend both in Minnesota and outside of Minnesota, because it's important that the court maintain good relations with "the bar." And so it has come to pass that our justices admittedly are making "hundreds" of "public appearances" around the state each year....
c) I'm not surprised to see that the practices referred to in my 2000 essay continue. Consider this, from the court's website today:
To request an appearance by Minnesota Supreme Court Chief Justice Eric J. Magnuson, please submit an Appearance Request Form. To request an appearance by another justice or judge, please include the following information when making your request to Communications Specialist [emphasis supplied] Lissa Finne....
Appearance Request Form - Chief Justice Eric Magnuson
Chief Justice Magnuson receives numerous requests to speak at events. To help us determine which requests can be accommodated, please fill out this brief form. Email to email@example.com; fax to 651-297-5637; or mail to [Communications Director] [emphasis supplied] John Kostouros, Court Information Office, Minnesota Judicial Center, 25 Rev. Martin Luther King, Jr. Blvd, St. Paul, MN 55155.
Event Location Address:
Facility Contact Information (name and phone number):
Chief Justice's Arrival Time:
Will there be a podium and microphone?
Expected number of people attending:
Are you expecting news media at your event? If yes, which media? Will a press release be sent out?
Suggested topic, speech guidelines or background information on event.
d) Call me a fuddy-duddy from the School of Thoreauvean Judicial Economics (one who remembers a former chief justice who thought nothing of surprising members of the public by answering his own court phone himself) but I don't see why a court "p.r." officer and two assistants to the "p.r." officer (the Office's webpage, which I recommend taxpayers visit, calls them "communications specialists") are needed to coordinate things like this. One would think underutilized (and sometimes underappreciated) court secretaries could do the task just as well (hey, maybe better?). Moreover, does it even make "p.r. sense" in hard times for the court to employ a presumably-well-paid "p.r." guy to be out there trying to convince the public that the court system is even more short of money than ever before? Or, to put it differently, can't C.J. Magnuson & Co. speak for themselves?
Memo from Justice Holmes on courts' hiring of 'P.R. reps.' "But, after all, we all of us have our notions of what is best. I learned in the regiment and in the class the conclusion, at least, of what I think the best service that we can do for our country and for ourselves: To see so far as one may, and to feel, the great forces that are behind every detail -- for that makes all the difference between philosophy and gossip, between great action and small; the least wavelet of the Atlantic Ocean is mightier than one of Buzzard's Bay -- to hammer out as compact and solid a piece of work as one can, to try to make it first-rate, and to leave it unadvertised." O.W. Holmes, Jr., Address at the 50th Anniversary of Graduation at Harvard College on June 28, 1911. Comment. I love that phrase: "and to leave it unadvertised."
How'd I miss this one? -- MN judges are afraid of bloggers. "[T]he pernicious blogger...has struck fear deep into the hearts of some of the state's judiciary. One of the judges' concerns I have heard raised about cameras in the courtroom is the specter of the 'unshaven blogger' coming in with cell phone camera at the ready. Apparently the judges are worried about being made to look sinister or downright ridiculous by a slip of the tongue or out-of-context snippet of dialogue winding up as a video posted on a blog or YouTube...." Mark Cohen, Judges wary of the 'unshaven blogger' (Minnesota Lawyer Blog 02.26.2008). Comment. So, they're afraid of getting "caught on tape"? I say, Welcome to the 21st Century. There are aspects of the Caught-on-Tape and Everything-is-Open Era that I don't like. But we're talking about public matters, and in such matters our society's default position ought to be "Let the sun shine in." See, "Sunshine and fresh air as judicial disinfectants" and "Let the sun shine in" at BurtLaw's Law and Everything Else - Court Gazing V (scroll down).
An interview with a top judge (of livestock). Andrew Wegner, An Interview With a State Fair Livestock Judge (OnMilwaukee.Com 08.10.2008). Comments. a) The name of the highly-qualified and very-experienced judge interviewed is Kim Brock. Maybe I shouldn't say it, but after reading this interesting piece, I can't help wondering aloud whether top livestock judges aren't better-trained and more-experienced than a lot of our top common law judges. This guy's credentials are pretty impressive. b) For some reason, his discussion of the "ideal pig" calls to mind the common law judge's concern with the "reasonable man" of legal lore. See, Comment, The Reasonable Man, 1992 B.Y.U. L. Rev. 479, 487 (1992). Back issues of the Brigham Young Law Review may be read at any good law library. They are also available online via some online databases of law reviews.
Slain judge's widow accepts $5.2 million settlement. Fulton County, GA, using insurance and pension fund money, has agreed to pay the widow of Judge Rowland Barnes, who was slain during Brian Nichols' escape, around $5.2 million under settlements announced earlier this week. More (Atlanta Journal-Constitution 08.08.2008).
Judge finds self in trouble for being a 'nice guy.' "Yesterday, a favor from a social event three years ago came back to bite Philadelphia Municipal Court Judge James M. DeLeon, who was accused by the state Judicial Conduct Board of issuing a 'stay-away' order to help the Romanian consul general to Philadelphia, who had complained [at the event] about a bothersome neighbor. Problem was that DeLeon, 61, a judge for 20 years, issued the order 'ex parte' -- without notifying the neighbor, holding a hearing, or recording the action on the official court record...." More (Philadelphia Inquirer 08.08.2008). Comment. The judge won't contest the allegation of wrongdoing. Related. New law in CA requires judges to explain denials of restraining orders.
'Merit selection' in FLA. GOP Governor Crist of FLA, who's been in office only a year and a half, gets to pick two new justices of SCOFLA (doesn't rhyme with "scoflaw" except maybe in a crime novel by Carl Hiaasen) in the next couple months and two more next year when two judges face mandatory retirement. In other words, it'll be a Crist Court -- and this is so despite so-called "merit selection." "Merit" selection is never really that. In FLA it used to mean selection by the guv from finalists selected by a elite panel of three bar association types, three political types picked by the guv, and three folks picked by those six. But that system produced "activist" judges, according to Jeb Bush, W's bro, who got his pals in the legislature to change the commission selection process. "The governor now appoints all nine members of the nominating commission, although the bar recommends candidates for four positions. The commission then recommends up to six candidates per vacancy to the governor, giving him more latitude in selecting new justices." More (Fort Mill Times 08.08.2008). Further reading. C.J. Gerard Brennan's tips on picking judges (Australian Business 08.08.2008).
Working on vacation. Judicial Service to use legal vacation to clear backlog (My Joy Online - Ghana 08.08.2008). Comment. In many of the 28+ years that I worked for the state supreme court, primarily on criminal appeals, I'd spend a week or two with my family every summer up in northern Michigan, on a forested beach house on a lovely bay of Lake Michigan near Harbor Springs called Little Traverse Bay. Typically, I'd spend a couple hours each morning working on cases I'd brought along (typically I'd bring along the files in ones I projected to be easier), reading transcripts and briefs, and dictating my draft memorandum on the case, for finalizing later, back at the office. So I don't have great sympathy for the judges having to work a bit during their "legal vacation." But judges and their hard-working aides do need vacations. There were some years when I worked for the state supreme court that I took no vacation. It's not a good idea. Justice Brandeis used to say he could do a year's work in eleven months, not twelve. The system ought to be set up so each judge can use her vacation time without the system breaking down. If a judge doesn't take a vacation now and then, she'll break down. The cases of judicial breakdown monitored and featured in these pages are testament to that.
Ex-judge dies at 102. "Jesse William Curtis Jr., a retired federal judge who held judicial positions in Southern California for 37 years and was a descendant of jurists dating back to the early 19th century, died Tuesday in Irvine, his family said. He was 102...He retired [in 1990 at age 85] largely in protest of the 1987 federal sentencing guidelines, which he considered too rigid for the diverse criminal cases that came before him, said his son Christopher Curtis...." More (San Francisco Chronicle 08.08.2008). Comments. a) Judges tend to live long. b) I agree with him about sentencing guidelines, with which I have extensive on-the-job experience. Their promise has not been fulfilled, in MN or elsewhere.
Chasing Kozinski. Cyrus Sanai, the fellow who likes to report on "things Kozinski," followed the 9th Circuit judges, including Judge K., who is the "Chief Judge," to their annual "conference," this year at Sun Valley, and has filed an interesting report: "Though Sun Valley is primarily a ski resort, the summers put the 'Sun' in its title. The days were in the high 80s, the nights chilly with an uninterrupted view of the stars. The conference has been repeatedly held in Sun Valley, and Associate Justice of the United States Supreme Court Anthony Kennedy reminisced about organizing one of them when he was a 9th Circuit appellate judge. (The primary criteria for picking a location appear to be tanning and golf. Last year's location was Hawaii, and next year's is Monterey.)" Full posting at Cyrus Sanai, Ninth Circuit Court Retreats to Idaho - Legal insiders point everywhere but at themselves during a sun-filled non-examination (L.A. Weekly 08.05.2008). My relevant Sanai-Kozinski postings. Judge K and his nemesis both attend judicial conference at Sun Valley, Idaho; Sir Burton rises to defend Chief Judge Kozinski over porn postings. For links to some of my many postings on judicial expense accounts, judicial junkets, etc., click here.
Quote-of-the-Day (Dahlia Lithwick on Bush Justice). "The whole point of a system of checks and balances is that the branches strive and fight for supremacy, like a batch of alpha primates. Perhaps the only thing that's unexpected is that as scandal piles atop scandal, it becomes plain that for years, as the [Bush] administration secretly cut the judiciary out of the picture, they somehow truly expected that someday they would be thanked for it." Dahlia Lithwick, Blank Checks and Imbalances - It was always all about the judges (Slate 08.01.2008).
Kangaroo court finds Bin Laden's driver guilty of war crimes. "Kangaroo court" is my term for Bush's constitution-flouting military tribunal. The split decision yesterday by the first tribunal, in the so-called Hamdan case, isn't surprising. It sorta looks fair if the guy is acquitted of some charges, especially if he's given a seemingly lenient sentence. I like the title of today's NYT editorial: "Guilty as Ordered." Here's the opening paragraph: "Now that was a real nail-biter. The court designed by the White House and its Congressional enablers to guarantee convictions of high-profile detainees in Guantánamo Bay, Cuba -- using evidence obtained by torture and secret evidence as desired -- has held its first trial. It produced...a guilty verdict." The military tribunals system is, as the editorial concludes, "a stain on the United States." More (NYT 08.07.2008). Comment. Someday an objective historian, if there is such a breed, might at least entertain the argument that prosecuting Osama bin Laden's driver for conspiracy to commit crimes against humanity in connection with bin Laden's ordering the attacks on 09.11 is akin to holding Kay Summersby, Ike's English driver and purported lover in England during his tenure as Supreme Allied Commander of the Allied Expeditioary Forces, somehow accountable for Ike's approval of the still-controversial (even among the Allies) fire-bombing of civilians in cities like Dresden (see, Kurt Vonnegut, Jr.'s, novel, Slaughterhouse Five) in the weeks preceding the surrender of the Nazis in 1945. Compare, "Salim Hamdan -- Osama bin Laden's driver -- is convicted in the most historic session of traffic court ever." Stephen Colbert, Osama bin Laden's driver guilty (Colbert Report - Episode #04102 08.07.2008). Further reading. Here's a link to some of our prior postings on Bush-league, a/k/a kangaroo, courts. Update. Robert Ambrogi, Is the Hamdan sentence a sham? (Legal Blog Watch 08.08.2008).
Pointing fingers after Wisconsin's recent judicial election. The excellent Minnesota Lawyer Blog, edited by Mark Cohen, reprints a piece from Wisconsin Lawyer noting that Justice Butler, who lost his seat in the election, claims "A seat on the court was bought" by business interests. More (Minnesota Lawyer Blog 08.05.2008). But Charles J. Sykes, in a piece titled Bad Justice - Don't Blame the Voters for the Ugly Election for the High Court (Wisconsin Policy Research Institute), says "not so fast." Commenting on the "ads" by which the voters and the election were supposedly "bought," he says that both sides -- Butler's side and that of Judge Gableman -- were guilty of placing ads that were "sloppy, dumbed down, and off-putting." But he says that the proposed "reforms" (e.g., blaming and punishing the voters by taking away their role in judicial selection and blaming the interest groups) in Mr. Sykes' words, "miss the point," which is that "The fault here lies not with the public or even the 'interest groups,' but rather with the justices themselves. When judges act like politicians, the judicial selection process -- elected or appointive -- becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices." He reminds us that Justice Butler, defeated in this election, had run against incumbent conservative Justice Sykes four years earlier and lost 2-1. But when President Bush appointed Justice Sykes to the federal appeals court, Governor Doyle appointed Butler, the liberal Sykes had trounced, to replace her. According to Mr. Sykes, "Butler's appointment swung the court from conservative to liberal, and the new justice quickly made his mark, most dramatically on a case involving the constitutionality of gambling." Specifically, "In 2003, the Supreme Court ruled 4-3 in Panzer v. Doyle that [Doyle's Indian gaming] compacts were illegal, and violated the state constitution. A year later, Butler replaced Sykes on the court and the majority flipped," in effect overruling the precedent set in 2003. In Mr. Sykes' view, "In Wisconsin, as it turned out, the electorate was the only check remaining on the out-of-control court," and the voters checked the court in defeating Butler. Concludes Mr. Sykes, "Th[e evidence] suggest[s] that despite the elitist sneers, the voters knew perfectly well what they were doing when they called a halt to Wisconsin's runaway high court." See, also, Dan Pero, The Loser Lament of 'Loophole Louie' (American Courthouse 08.06.2008). Comment. Sykes and Pero are, I believe, "conservatives." I, on the otherhand, am what I like to call a liberal Eisenhower Republican (see, some of my postings at Sometimes Left But Always Right), anti-Iraq-War from the start, big on civil liberties, against our excessively-harsh criminal sentencing laws, a believer in a "living Constitution," etc. Nonetheless, I come out pretty much where Sykes and Pero come out on judicial elections. I've posted numerous relevant pieces: see, e.g., Why SCOMN's novice chief should listen to SCOWIS's more experienced chief; Challenger judge beats SCOWIS justice 51%-49% in contested election; WSJ on the 'why' of judicial elections -- with reference to Wisconsin; Election of judges as a check on corruption and as guarantor of judicial independence from other branches of government; More on the big money behind 'judicial reform'; The campaign to deprive MN voters of a role in judicial selection.
More on the fallout from the voters' choice in Wisconsin. Writes Dan Pero: "The Chicago Tribune had a thumbsucker over the weekend on the politicization of America's judiciary that pushed the usual storyline: Americans are 'largely clueless' about the judiciary, providing an opening for 'special interest lobbies' to have undue influence over the judicial selection process." Relying on Charles Sykes' above-cited piece, Pero disputes the premise of the Trib piece. Pero also writes:
The Tribune's reporter, Tim Jones, also fell for the old line that groups like Justice at Stake, the Brennan Center and the Wisconsin Democracy Campaign are just non-partisan watchdogs. In fact, as I've pointed out many times, these groups are part of a highly-coordinated, well-funded campaign financed by hedge fund billionaire George Soros to end the democratic right to vote for judges in states across the country and give that power to a tiny, unelected, unaccountable commission of legal elites.
Latest on Pakistan judicial-political crisis. "The question of reinstating senior judges sacked by President Pervez Musharraf under emergency rule in November remains central in Pakistani politics. Lawyers have now begun a nationwide protest over the issue after months of squabbling between politicians. How serious are the latest protests?" BBC News offers this summary update: Q&A: Pakistan's Judges (08.06.2008).
New law in CA requires judges to explain denials of restraining orders. "A San Pablo woman's request for a restraining order against her estranged husband, and a Contra Costa County judge's rubber-stamp rejection of it, have led to a new state law requiring judges to explain their reasons for denying protective orders in domestic violence cases...." More (San Francisco Chronicle 08.06.2008). Comment. The problem, as I see it, is not the legitimate use of restraining orders. It's the unjustified overuse of them as a tool, including their routine use of them by some nasty divorce lawyers, that has even caused domestic conflict rather than reduced it. That's why some judges have been denying some of the requests. But a judge, of course, if only to protect himself, ought to explain in writing, however briefly, any denial. Further reading. For a female "anti-feminist" critique of the misuse of restraining orders on flimsy evidence, see, Phyllis Schlafly, One Brave Judge Resists Feminist Agenda (Town Hall 08.06.2008) ("Feminists want courts to uphold a woman's right to kick a man out of his home based on a woman's unverified accusations...Too often, the order serves no legitimate purpose, but is just an easy way for one spouse to get revenge or the upper hand in a divorce or child custody dispute."). For a news report of the controversial judicial ruling that prompted Ms. Shafly's expostulations, see, Ruling: Too easy to get restraining order (Daily Journal 07.14.2008).
Eight appellate judges are summoned in bribery probe. "An investigative body formed by the [Philippine] Supreme Court to look into allegations of bribery at the Court of Appeals will summon eight justices and a businessman to shed light on the issue, a spokesman for the high tribunal said Wednesday...." More (Inquirer 08.06.2008).
Wanting to be a senator, he hedges bet by seeking court appointment. "State Senate candidate Robert Murphy has applied for the judicial position from which he resigned in June to run for the Legislature... A Democrat, Murphy faces former Oklahoma State University President Jim Halligan, a Republican, in the Nov. 4 general election...Murphy said he believes that he will win the Senate race and will withdraw himself from consideration for the judicial post if he is elected. He denied that applying for the judicial position is a contingency plan...." More (Tulsa World 08.06.2008).
Quote-of-the-Day (Brian Dickerson on advantages of incumbent judges). "If you go through life without being injured, divorced, robbed, sued or accused of a crime, you may never have reason to wish Michigan's judges were more accountable to the public, or even to their peers. But you might just as easily find yourself standing in a courtroom, wondering how it is that some wackadoo in a black robe got to be the most important person in your life." -- Brian Dickerson, in a column in the Detroit Free Press (08.06.2008), lamenting the fact that so many incumbent judges in Michigan run unopposed, something he attrributes in part to "factors [that] discourage qualified attorneys from challenging even the most incompetent judicial nincompoops," factors such as the provision in the state constitution that "allows incumbent judges to identify themselves on the election ballot by title (Michigan Supreme Court Justice Joe Schlabotnick, for example), while their challengers' names appear unadorned." Related. See, Censured Michigan judge, Norene Redmond, after railing against 'good old boys,' wins big primary victory against four opponents (Detroit News 08.06.2008); For our earlier posting on Judge Redmond's "railing against 'good old boys,'" click here.
A book of one judge's separate opinions. "A compilation of 53 opinions on European Court judgments by Judge Giovanni Bonello has been published in a book called When Judges Dissent - Separate Opinions of Judge Giovanni Bonello at the European Court of Human Rights. The book is edited by Mario Schiavone, published by the Institute of Maltese Journalists, with the help of the Strickland Foundation, and printed at Progress Press." More (Times of Malta 08.06.2008). Comment. The judge was a human rights activist on the European Court.
Judge bans man from pub for killing wife when she denied him pub money. "A judge has told a Glasgow pensioner that stopping him going to the pub was a 'more meaningful' sentence than a prison term for killing his wife. Edward Flaherty, 74, was convicted of strangling 69-year-old Ina Flaherty with a tie after she refused to give him money to go out drinking...." The judge, Lord Matthews, said, in part:
I have read and considered a number of reports from experts. It is plain to me that if I were to impose [the typical] sort of sentence you would be released in a very short time because prison would not be able to cope with your [demented mental] condition. Sentencing you would just be a token gesture. I am anxious to impose a sentence that restricts your liberty. You still go to the pub where you went with your wife. That must annoy her relatives. Not being able to go there will be a more meaningful disposal than a prison sentence which will not last long....
The judge then proceeded to order Mr. Flaherty confined to his home for a year during the hours his pub is open. More (BBC News 08.05.2008). Comment. If you think the one-year ban on visiting his pub excessively harsh, consider the fact that the judge also could have banned Mr. Flaherty from playing golf!
The attempt to stack the courts in Michigan. Dan Pero at American Courthouse has two interesting postings on the rather outrageous attempt by some Democrats in Michigan to push through a "reform" initiative that, among other things, amounts to an attempt to "stack the courts." Click here and here. For my detailed posting describing the outrageous attempt at grabbing power, see, A coup d' judiciaire masquerading as 'reform'?
What if a Saudi judge is caught with marijuana? "Hamad Salim bin Naif, who served as head of a sharia court in Saudi Arabia, was arrested along with his Moroccan wife after police raided their room in a Dubai hotel on Friday and found four grams of hashish in his possession, the Khaleej Times reported...Four years in prison is the usual sentence for possession while trafficking carries the death penalty...." More (Melbourne Herald-Sun 08.04.2008). Further reading. "A British couple arrested in Dubai for having intercourse on a beach face six years in jail after DNA tests reportedly proved they had 'full sex.'" More (Melbourne Herald-Sun 08.04.2008). Comment. Judicial burnout is often expressed in peculiar conduct or misconduct that is wholly atypical for the judge. If you've been reading these pages and the "Court Gazing" sections of my other blawg, you know of what I speak. Some judges seem to benefit from letting down their hair and having a little fun every now and then. One might call it a "misconduct preventative." Such judges who like to have that "fun" out of the jurisdiction might want to avoid having it at that next judicial retreat in Dubai, the sun-and-fun capital of the Middle East. ("When in Dubai, do-do-do as Du-bai-ins do"). But where, oh where, can a judge go, have a little of the aforesaid "fun," and not have to suffer any adverse consequences? Several years ago we suggested two novel ways of preventing in-jurisdiction misconduct by judges (only partly with tongue in cheek) in "On judicial swimsuits and the Rules of Judicial Conduct -- part II" at BurtLaw's Law and Swimsuits -- specifically, i) a formalized annual "Judicial Mardis Gras" or, if you will, "moral holiday," and ii) a variant on that idea, a "Judicial Safe Place" on some privately-owned judiciously-governed Caribbean island, a program that would be modeled after that adopted by St. Paul, Minnesota, in the 1920's, when it was "notorious as a safe haven for gangsters." It should be noted that we long ago also suggested that many cases of judicial burnout might be prevented simply if court systems allowed for three-month or six-month "judicial sabbaticals" or "timeouts" every x-number of years. Misbehaving kids benefit from "timeouts." Why not judges? For an example of Lord Falconer struggling to deal with the matter of judicial burnout in the UK, see, 'Career breaks' for judges -- a misconduct preventative? Related. Should a judge lose his job for smoking pot? Consider, in this respect, that "A Nebraska judge has ruled that a prison secretary shouldn't have lost his job for smoking pot while he wasn't at work." More (KPTM FOX 42 Omaha 08.04.2008).
The supporting cast in a daily drama. "The Manhattan Criminal Court building has featured a long parade of marquee malefactors, like Robert E. Chambers Jr. or Remy Ma, whose misdeeds have been exhaustively reported by the city's newspapers and radio and television stations. But relatively little attention is paid to the supporting cast, who number in the tens of thousands. So for the last few months Steven Hirsch, a freelance newspaper photographer, has been photographing and interviewing some of the unheralded defendants who pass through the court system and posting the results on a Web page...." More (NYT 08.03.2008). Comment. The blog is called 'Courthouse Confessions.' It's worth visiting and viewing and reading. The blog's pics are first-rate. And the stories or "confessions" are first-person accounts. Check out Nina Montanez and her story -- and the pics and stories of many others. BTW, the blog reminds me of the terrific APR program, The Story, hosted by a gifted North Carolina-based broadcaster, Dick Gordon, and heard nationally on public radio stations (in the Twin Cities on week nights at 9 p.m. here on KNOW 91.1 FM). The underlying egalitarian premise of both Courthouse Confessions and The Story is that ordinary people -- you and I -- are potentially just as interesting (and maybe as worth knowing) as Paris or Lindsay. It's a thought I had when I first started keeping a personal journal back in the 1960's, that the everday events of my life -- my interactions with the people in my life and my thoughts and ideas and stories (as well as some of those of others) -- might be as interesting, if only to myself and my descendants, as those of some guy whose name was briefly writ large in lights and made a lot of money. The idea ain't novel: I got it from reading the journals of Thoreau and Emerson, who got it from reading other people's journals. A spinoff idea of mine from the 1960s was that there ought to be a series of "Proletarian Biographies," of ordinary people. That's sort of what Hirsch and Gordon are doing -- giving us glimpses through stories and/or pictures into the lives of ordinary people -- "proletarians" or "peasants," if you prefer -- like you and me. I commend their work.
He says he has 'no respect' for the judges. "The book jackets are off for the literary spat of the year. Scotland's most high-profile publisher has launched a withering attack on the judges of the prestigious Man Booker Prize. Canongate's Jamie Byng said he has 'no respect' for the selection panel after they failed to include his favoured contender in the longlist for the £50,000 prize...." Details (The Scotsman 08.03.2008).
Judges receive gifts of plasma TVs, Mercedes-Benz autos from Mugabe. The expensive TVs, cars, etc., are all in addition to the free farms, stolen from white farmers, that many judges reportedly have received. Of course, in confiscating their farms and chasing the white farmers out, Mugabe started Zimbabwe on the racist and self-defeating (as all racism is) path from being the "breadbasket" of Africa to being one of its many sad examples of countries in deep, deep trouble. More (UK Telegraph 08.01.2008).
Judge who called defendants 'troublemakers' is removed from case. "Ninth District Judge Thomas Yeager has ordered that Judge J.P. Mauffray Jr. be [removed] as the presiding judge in the remaining five cases of the defendants who have become known as the Jena Six...." The LA Supreme Court appointed Yeager to decide the issue. More (Shreveport Times 08.02.2008).
Did judge try influence nephew's case? "A Douglas County[, Nebraska] judge is being accused of meddling in a case involving his nephew, who received a lighter sentence than what a prosecutor had offered before the judge got involved. On Friday, the state's Commission on Judicial Qualifications filed a rare formal complaint with the state Supreme Court against Jeffrey Marcuzzo, saying the judge's actions left the impression he influenced the proceedings on his nephew's behalf...." More (Beatrice Daily Sun 08.02.2008).
Should a judge be held in contempt if his cellphone goes off in court? "What do you do with a judge whose phone goes off in court? And what if the judge is the Acting Chief Justice of Australia? For Michael Kirby, the answer was simple as Bill Gummow fumbled around inside his judicial robe during a High Court special leave hearing in Sydney yesterday. 'I think we should arrest this person,' Justice Kirby said...." More (The Australian 08.02.2008).
Pick to be new Aussie chief is an 'orchid.' Richard Ackland, in the Sydney Morning Herald, waxes rhapsodic about the new chief, Bob French, who hails "from the boondocks of Western Australia," saying, "Compared with the cactus-like, dry-as-dust figures of recent elevation, this fellow is a positive orchid." He describes French as "an engaging, friendly, media savvy and popular sort of fellow" who is also "bright, smart and insightful." But he wonders if the selectors know what kind of judge French is. He quotes Attorney General Robert McClelland saying that French is "'a black letter lawyer' who sticks by the letter of the law." But he contrasts this with quotes from a speech French gave at a conference in Sydney titled "Judicial Activists - Mythical Monsters?" in which he said that "judicial activism" is "a meaningless rubric." More specifically, French said in that speech: "The meaning of legislative words are not like rocks lying around on the ground waiting to be picked up. They are the products of interpretation. That interpretation is legitimate when it is principled and invokes criteria which...are broadly understood." More (Sydney Morning Herald 08.01.2008). Earlier. The Next Chief Justice Pageant; Judicial selection in Australia. Comments. a) I like this "Richard Ackland," the author of this piece: he has 30 years' experience in legal journalism and currently is editor of both Justinian and Gazette of Law & Journalism, as well as contributor to SMH. b) Judicial confirmation in America has become a rite, similar to a New Testament confirmation of faith or an Old Testament bar mitzvah, with the confirmand expected to utter formulaic phrases like "I see my job as judge to interpret and apply the law, not make the law" and otherwise recite "the Creed." Most judges have been so cowed by fear of being called "judicial liberals" that they mouth the accepted phrases -- "Judges shouldn't legislate," blah, blah -- even though the phrases, when used to self-describe every judge in America, have become meaningless. Although it may seem at times that all judges and judge wannabe's say the same stuff, in fact there are a few who have been gutsy enough to say something different. Canada's Chief Justice Beverley McLachlin is one example. See, entry titled Chief Justice urges judges to go beyond letter of law, and our comments thereto, as well as a neat picture of her (she's quite photogenic). c) Justice Frankfurter said once (while vacationing in England), "There are, as you well know, periodic newspaper crime waves in the United States. Popular feeling is excited to fluctuate between being sentimental and being harsh." Our papers have long experience in creating "newspaper crime waves" and in manipulating popular feeling. Of late, some newspapers have been doing their worst to "excite" popular feeling "to fluctuate between being sentimental and being harsh" with respect to judges. While it's low for newspaper publishers, local TV news shows, and talk radio blatherers to sensationalize judicial decisions, misdeeds, etc., or to routinely characterize judges as "activists," it's lower in my opinion for a President or other politician to use that old bugaboo, judicial activism, to stir up his base. Stirring up one's "base" -- maybe even having a "base" -- is inherently base. Perhaps that's why good people, myself included, generally don't do well at politics or any of the many other things in our contemporary consumer culture that have become just a subcategory of "sales/marketing." d) Dahlia Lithwick asked awhile ago (Slate 08.23.2005) if anyone believed in a 'living Constitution' anymore. Click here. I'm one of those who do. I think Justice Holmes and his disciple Justice Frankfurter (that so-called judicial conservative) also did:
[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." [Holmes, J., Gompers v. United States, 233 U.S. 604, 610 (1914)]
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. [Holmes, J., Towne v. Eisner, 245 U.S. 418, 425 (1918)]
[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. [Holmes, J., State of Missouri v. Holland, 252 U.S. 416, 433 (1920)]
[I]t is a well-known saying that men are subdued by the medium in which they work. And men whose daily work is the nice use of language in conveyances and contracts and legal instruments of every variety, where the rules of the game provide that nothing is included in the scope of the document unless expressly mentioned, instinctively forget what the statesmen of 150 years ago at Philadelphia and the statesmen of their own profession did not forget -- that a Constitution is a great instrument of government -- not a conveyance, not a contract, not even a statute. That is why when a great lawyer does triumph over his absorption with words and with the limited outlook of individual interests -- when he adds vision to his technical skill, then he is a statesman indeed...Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government makes all the difference in the world. [Draft of the Constitution Day speech on September 17, 1937 (by Felix Frankfurter, with the assistance of Thomas Corcoran)]
Judge K and his nemesis both attend judicial conference at posh resort. "The cocktail party at the 9th U.S. Circuit Court of Appeals Judicial Conference [at Sun Valley, Idaho] had a nervous moment Monday when a Beverly Hills, Calif., attorney and critic of Chief Judge Alex Kozinski was escorted from the outdoors reception after getting too close to the chief judge...." More (National Law Journal via Law.Com 07.31.2008). Earlier. Sir Burton rises to defend Chief Judge Kozinski over porn postings. Further reading. The 9th Circuit's press release states:
The event, also attended by members of the federal bar, judiciary staff and other government officials, is scheduled for July 28-31 at the Sun Valley Inn and Lodge.The conference is held annually pursuant to Section 333 of Title 28 of the United States Code 'for the purpose of considering the business of the courts and advising means of improving theadministration of justice.' In addition to attending various business meetings, attendees participate in a rich educational program focusing on important developments in law, economics, science and other fields ofstudy. This year's conference also includes a review of Ninth Circuit cases before the Supreme Court of the United States.
Friends chuckle during funeral of Judge Jason Morse Berkman. Judge Berkman, who was suffering from Alzheimer's disease, died the other day, at 87. Who was he? He was the municipal court judge in Miami who, "escorted by armed officers, viewed Deep Throat, the Miami-made porn classic, at the Sheridan Theater," then "declared it lacking in redeeming social value, and fined the exhibitor $500." The Miami Herald has a nice piece about him. It quotes Miami-Dade County Court Judge Amy Karan, who was a law partner, as describing him as a "loving soul" who was "so happy, so mellow," a "settler" of cases: "If you wanted a fighter, you went somewhere else." And what would he do in "bursts of whimsy"? He "might hop up on his desk with a cigar and sway to The Mills Brothers or Mack the Knife, Karan said." The Herald says friends chuckled at his funeral Tuesday as admirers recounted stories such as the time a spectator in court disrobed and "bolted up the aisle -- as women shrieked." More (Miami Herald 07.31.2008).
Judge describes NH city as 'dangerous and disgusting city to live in.' "Saying Manchester has become a 'dangerous and disgusting city to live in,' Hillsborough County Superior Court Judge Gillian Abramson yesterday said a prison sentence was necessary for the female mastermind of a botched home invasion burglary...." More (Manchester Union-Leader 07.31.2008). Comment. The official city webpage describes Manchester as "Birthplace of your American Dream."
Ex-judge is censured for fling with public defender. "The state's Judicial Conduct Commission has censured a former Federal Way Municipal Court judge who resigned after having a sexual encounter with a public defender who routinely appeared before her. Judge Colleen Hartl quit Dec. 19, less than a week after hosting a holiday party at which she drunkenly told other court employees that she had slept with public defender Sean Cecil. She showed her guests a text message in which Cecil complimented how she looked in tight jeans...." More (Seattle Post-Intelligencer 08.02.2008). Earlier. Public defender admits 'single intimate encounter' with judge who resigned. Further reading on law and love. Read on....
Judicial conduct alert! DA allegedly had sex in courthouse! "WJAC News was alerted to this story by a phone call from a viewer. They alleged the Bedford County District Attorney Bill Higgins had engaged in a sexual relationship inside the courthouse. County commissioners confirm they are investigating the allegations. Meanwhile, the Attorney General's Office and a judicial code of conduct board have all been put on alert...." It appears that the AG views the act or acts, with a woman the DA first met at a GOP committee meeting, as consensual and noncriminal; the county commissioners have no jurisdiction to discipline the DA, since he's an elected official. More (WJAC-TV - PA 07.31.2008). Further reading. I expound at length on the matter of courthouse sex in my posting titled Prosecutor, judge: sex in chambers, showering together at courthouse. See, also, Judge resigns and prosecutor is fired over 'romantic relationship.'
When the truth is 'caught on tape.' "The availability of cheap digital technology -- video cameras, digital cameras, cellphone cameras -- has ended a monopoly on the history of public gatherings that was limited to the official narratives, like the sworn documents created by police officers and prosecutors. The digital age has brought in free-range history. Hundreds of cases against people arrested during the 2004 Republican National Convention collapsed under an avalanche of videotaped evidence that either completely contradicted police accounts, or raised significant questions about their reliability. The videotapes were made by people involved in the protests, bystanders, tourists and police officers...." When Official Truth Collides With Cheap Digital Technology (NYT 07.30.2008).
Censured judge facing primary challenge rails against 'good old boys.' "Eastpointe police and the Macomb County Prosecutor's Office have filed a joint complaint with the Michigan Judicial Tenure Commission about Norene Redmond -- a judge with the 38th District Court who already has been censured once by the state Supreme Court for her behavior on the bench...." Redmond, depicted here, faces five challengers in the primary on 08.05. The complaint apparently was filed a couple months ago. I checked the commission's site; unless I missed it, it doesn't mention this complaint. Perhaps someone leaked it? It's not clear from the story in the Detroit Free Press, which reports that "Redmond, reached Wednesday at the courthouse, said the complaint is unfounded and politically motivated." Here's a quote from her: "The good old boys have come out into the sunlight with this quote-unquote surprise that is nothing more than a dirty election-eve tactic. This is the dirtiest political trick I've ever seen, and it's nothing more than an effort to fix the election. The timing is reprehensible." More (Detroit Free Press 07.31.2008). See, also, the report in the McComb Daily (07.31.2008), which gives more details of the complaints that the police have about Judge Redmond's conduct. Earlier. Censured judge has five challengers in primary; SCOMICH disciplines judge for harshness, rudeness; Annals of raging judges. Comment. We have no opinion on who the voters should choose on 08.05, Judge Redmond or one of the challengers. But this instance serves as an example of why true contested judicial elections are superior to fake one-candidate "retention" elections. In a Missouri-style retention state it is possible for a cabal of politicians, ideologues, lawyers and other members of the power elite who are in control of the appointment machinery to keep on selecting clones of those judges who are not retained by the electorate. In a retention state, the people can knock down an Energizer-brand bunny rabbit but the cabal can ensure the rabbit will be replaced by an identical Energizer-brand bunny rabbit. Not so under the Minnesota Plan, with its system of true contested elections. If an appointee in Minnesota is or morphs into an Energizer-brand bunny rabbit, candidates of a different disposition can step forward and give the people a chance to not only remove the Energizer-brand bunny rabbit but also select a more-appropriate replacement. Further reading. BurtLaw on the Campaign to Deprive Minnesota Voters of a Role in Judicial Selection. Update. Redmond wins big, 41.4 percent in a field of five primary candidates (Detroit News 08.06.2008).
Judge sends 'judge' to prison. "Former NBA referee Tim Donaghy was sentenced to 15 months in prison yesterday in New York for setting off a gambling scandal that tarnished the league's reputation and raised questions about the integrity of its officiating...." It all took place in federal court in Brooklyn. More (N.Y. Post 07.30.2008).
Judge blows up at fed prosecutors: 'You can indict a ham sandwich.' With federal prosecutors urging harsh punishment of former Mayor Sharpe James of Newark, U.S. District Court Judge William Martini "all but exploded in anger," and "warned the prosecutors against trying to 'intimidate' him into levying a harsh penalty by making him look 'light' on corrupt officials. Martini called the prosecutors' behavior 'a discredit to me as a judge.' More than that, Christie's hard line gave Martini an opening to start questioning major aspects of the case and to say things from the bench that you almost never hear judges say, like: 'You know you can indict a ham sandwich if you want to.'" More (Star-Ledger 07.30.2008). Comment. This is yet another example of the feds exercising their "roving commission" to remake state government to their liking. My general view? I believe in classic federalism, with the feds generally sticking to their sphere, using their limited resources to focus on things like terrorism, corruption by federal officials, etc., all the while generally letting the states police their own houses. Further reading. Report: Allegations of Selective Prosecution in Our Federal Criminal Justice System (United States of House of Representatives Committee on the Judiciary Majority Staff 04.17.2008).
Judge is caught removing opponent's campaign signs. "[Dana Fortinberry, a] Clarkston judge caught on camera Tuesday morning pulling out her opponent's campaign signs, said she had every right to remove them because they were on private property without the owner's permission. But her opponent[, Joseph Fabrizio,] insists the signs were on the publicly owned easement beside Citation Drive in Independence Township, and plat records appear to back his account...A witness said Fortinberry stopped her silver Jeep about 8:45 a.m. -- court starts at 8:30 a.m. -- removed the signs and dumped them in the nearby woods...." More (Detroit Free Press 07.30.2008). Comment. Without reference to this little dust-up, I think it's generally true that state judges, who typically are appointed by (and are often pals of) the governor, don't like the fact that attorneys can run against them when their terms are up. They'd prefer the Ozark State Plan (a/k/a the Missouri Plan), beloved by college political science professors, which throws voters the "sop" of Soviet-style one-candidate "retention 'elections'" -- which, of course, aren't really "elections." See, this essay in which I express in detail my views on the campaign by bar association types, judges, and self-styled "good-government types" to deprive MN voters of a say in judicial selection. If one were a standup "judicial comedian," one might say, unfairly perhaps, that the best reason for eliminating judicial elections is that it will help keep our incumbent judges law-abiding by eliminating the reason for judges to go around pitching their opponents' lawn signs. :-) Which is to say that this is not a "first." See, Candidate for judge is accused of pitching opponent's lawn sign (WFTV - Orlando 07.28.2006). See, also, Judicial candidate charged with theft of lawn sign. In 2004 a then 32-year veteran of the Minnesota House of Representatives, Minneapolis DFLer Phyllis Kahn, 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). 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.
Annals of courthouse voyeurism. "A security guard who used high-tech surveillance equipment in a federal building to watch women undress has pleaded guilty to felony voyeurism...." More (Seattle Post-Intelligencer 07.30.2008). Comment. Do we support surveillance cameras in courthouses despite their occasional misuse? Yes, but it seems to us that surveillance cameras, in the name of security, are everywhere in courthouses except where they are most needed. Surveillance cameras are hidden all over our courthouses these days. But "surveillance" cameras are most needed in the courtrooms, cameras that specifically are needed so that the press, and the people, who own the courthouse, may "suveil" those who are ultimately accountable to the people in the people's pursuit of fair, even-handed, open justice. But we don't just want press cameras in the trial and appellate courtrooms. We want "people's surveillance" cameras. More at Do we support cameras?
Judges and names. "Everyone needs a hobby. Mine is Fun Name Change Cases. I first got hooked 15 years ago, when I read about Michael Herbert Dengler, who wanted to change his name to 1069...." Eugene Volokh, Talula Does the Hula From Hawaii - And other names so weird that judges forbade them (Slate 07.30.2008). Dengler, BTW, tried the change in both ND and MN (yes, both). See, Petition of Dengler, 246 N.W.2d 758 (N.D. 1976), and Application of Dengler, 287 N.W.2d 637 (Minn. 1979).
Memo to judges who are also bosses. "In what is being called a breakthrough discovery in worker-administrator relations, a study released Monday in the Journal Of Occupational Science found that not being a total asshole supervisor may be linked to improved worker spirit...." Study: Not Being An Asshole Boss May Boost Employee Morale (The Onion 07.30.2008). Comment. For our views on "bully broads" & on men who are bullies (we don't like any of them & have been known to stand up to them), see, our 2001 entry titled Are you a 'bully broad'? Wanna get ahead? (scroll down) at BurtLaw's Law & Women.
Ex-judge is reprimanded for calling crack a 'Black man's disease.' "Former Beaufort County Magistrate Peter Lamb was publicly reprimanded for several errors -- including calling crack cocaine addiction a 'black man's disease' -- by the state [South Carolina] Supreme Court on Friday...." More (Hilton Head Island Packet 07.29.2008). Comment. Hmm. One of the main arguments against the harsher sentences for crack cocaine possession/sale vs. cocaine possession/sale was that the harsher sentences had a disparate and unfair impact on black people. I'd wager if you polled judges in America, asking them if crack cocaine possession/sale had been more associated with black people, the vast majority would say yes. Further reading. Bill Clinton admits error by acknowledging devastating impact of his crack cocaine laws on black people (USA Today 03.04.2008); Crack epidemic (Wikipedia 07.29.2008) ["Research by two prominent economists from the University of Chicago, Steven Levitt (co-author of Freakonomics and winner of the 2003 John Bates Clark Medal) and Kevin Murphy (winner of the 1997 John Bates Clark Medal) suggest that crack was the most prominent factor contributing to the rise and fall of social ills in the African American and Latino communities between 1980 and 2000."]. The following is from a report of the Sentencing Project titled Crack Cocaine Sentencing Policy:
Approximately 2/3 of crack users are white or Hispanic, yet the vast majority of persons convicted of possession in federal courts in 1994 were AfricanAmerican, according to the USSC. Defendants convicted of crack possession in 1994 were84.5% black, 10.3% white, and 5.2% Hispanic. Trafficking offenders were 4.1% white,88.3% black, and 7.1% Hispanic. Powder cocaine offenders were more racially mixed.Defendants convicted of simple possession of cocaine powder were 58% white, 26.7%black, and 15% Hispanic. The powder trafficking offenders were 32% white, 27.4% black,and 39.3% Hispanic. The result of the combined difference in sentencing laws and racialdisparity is that black men and women are serving longer prison sentences than whitemen and women.
Query: Might a magistrate in South Carolina be excused for not being aware of all the facts and for speaking a bit loosely and saying that crack cocaine was a "black man's disease"?
Report: AG Gonzales' top aide politicized hiring of immigration judges. An internal Justice Department report released yesterday concerning hiring practices of the Justice Department under AG Gonzales refers to what the NYT calls "pervasive evidence of political hiring for some of the department's most senior career positions, including immigration judges, assistant United States attorneys and even senior counterterrorism positions...." More (NYT 07.29.2008). Comment. No surprise there. I think the average American would be stunned if he knew the extent of favoritism, discrimination, bias, etc., in governmental hiring of and appointing people to so-called nonpolitical positions. Here's a sad little secret: Democrats do it, too. And here's an even sadder secret: so-called merit-based appointment processes are not Simon pure -- which is one of many reasons we oppose current attempts in MN to deprive voters of their historic role in judicial selection.
New law for appointing top judges in Israel. "The Knesset yesterday passed the second and third readings of a controversial bill to overhaul the way Supreme Court judges are appointed...." The law has the effect of a) reducing the influence of Supreme Court representatives in the appointment process and b) increasing the likelihood that "only non-controversial candidates...or those receiving the help of political deals" will make it past the judges appointment committee. More (Haaretz 07.29.2008).
Annals of court clerk fraud. "[Olga Avila, a] former Miami-Dade court clerk has pleaded guilty to 27 counts of official misconduct and other charges related to her allegedly promising quick divorces to people she met at the courthouse...." Her modus operandi was to charge couples $670, pocketing the difference between that and the $394 filing fee. Pursuant to the plea deal, she's getting two years' worth of house arrest, then two years' of probation. More (Miami Herald 07.29.2008). Comment. She was no novice but a supposedly-loyal 16-year veteran of the office. The original counts numbered 52. If you multiply that number by her profit per case, you get some idea of the amounts that prosecutors believe were involved. Surprisingly or not, depending on one's view of human nature, we come across stories of court clerk fraud fairly frequently -- and, occasionally, of court clerk involvement or alleged involvement in other crimes. Read on....
Veteran court clerk arrested on charge of accessory after the fact. "A 20-year Indio court clerk was behind bars Monday, accused of being an accessory to a murder allegedly committed by her husband...." The arrestee is Carol Avina, 45, described by fellow employees at the Larson Justice Center as a "wonderful lady." She is charged with helping her husband flee the jurisdiction after the murder. More (The Desert Sun - CA 07.29.2008).
Judge steps aside from fox hunt case after his vote as MP is revealed. "A High Court judge has removed himself from a case involving a hunt because he had expressed anti-hunting views in his previous career as an MP. Mr Justice Cranston was due to hear an application by the Sussex-based Crawley and Horsham Hunt for an injunction against a group of hunt monitors. It emerged in court on that he had backed the hunt ban as a Labour MP...." More (BBC News 07.29.2008). Comment. The judge said he didn't recall the vote and maintained he could preside fairly, but he agreed to step aside after being requested to do so.
NYC tabloid says good riddance to 'dictator-jurist.' "First, the good news: After 25 years of having to cater to the whims of dictator-jurist Helen Freedman, New York City may finally regain operating control of its homeless shelters -- which the judge has overseen in her role as self-appointed homeless czar. Now, the bad news: Freedman, a Manhattan Supreme Court justice, last week was elevated to the Appellate Division by Gov. Paterson...." More (N.Y. Post - Editorial 07.28.2008). Comment. I post this item not because I know anything about the merits of the opinion expressed but because it illustrates the kind of approach New York City tabloids often take when they disagree with a judge's decisions or conduct.
Popular 'Tootsie Pop Judge' returns after cancer treatment. "Lawyers describe [U.S. Disatrict Court Judge Bernard] Friedman as a fair judge who comes to court prepared and ready to make decisions. He's also one of the court's outgoing and popular judges. Occasionally he walks the hallways of the courthouse passing out Tootsie Roll Pops because it gives him an excuse to talk with prosecutors, lawyers and court employees...." Friedman, diagnosed a year ago with mantle cell lymphoma, is back at work in Detroit. More (Detroit Free Press 07.26.2008). Comment. I'm aware of judges giving out candy canes to court employees at Christmas, but this is the first reported sighting I'm aware of, of a judge giving out Tootsie Pops. I'm a fan of Tootsie Pops and occasionally loaded up the office candy jar with them when I worked as a research attorney/advisor at the state supreme court here in MN. A female work friend who was a connoisseur of Tootsie Pops claimed if the Tootsie Pop wrapper had a star on it, it meant good luck. Others said it meant you got a free one (and apparently some small town five-and-ten cent stores with penny candy counters actually would give you a free one if you brought in a wrapper with an Indian shooting an arrow at a star). Further reading on penny candy and five-and-ten cent stores. See, my 11.14.2001 entry titled "Plan to make snacks last through opening credits fails" at BurtLaw's Law and Kids (scroll down).
Judge trying knife case pulls out his own knife. In England it's generally a crime to carry a knife in public if its blade is longer than three inches. Judge Roger Connor, trying a stabbing case at Oxford Crown Court, pulled out his own pocket knife, with a blade less than three inches long, because he questioned the defendant teen's claim he opened his knife with one hand, something the judge said he can't do with his knife. Now a "co-founder of the Mothers Against Murder and Aggression campaign group" is demanding the judge be fired: "Enough is enough -- we need to get tough on knives in this country and our judges should be handing out tough sentences, not brandishing their own." More (FOX News 07.26.2008). Comment. It's not the knives, per se, that are the problem in the UK but the culture of using knives there, especially in Scotland. When I was growing up in the 1950's in a small town in western MN on the eastern edge of the Great American Prairie, most of my pals and I carried pocket knives in the summertime. We used them often -- in playing "stretch," in "mumblety peg," in whittling, in making willow whistles, in carving initials on trees (especially birch trees). I know of no instance in which any of us ever used our knives in any fights. And there were fights. If two guys fought, they usually wound up wrestling in the dirt, with one guy eventually "giving up." It never dawned on me in any of my fights to pull out my pocket knife and use it as a weapon. Why? Because the "culture" wasn't a knife-use-in-fights culture. I don't recall carrying my pocket knife to school, but if I had it would have been absolutely unthinkable that I would have been subject to adverse consequences for doing so.... Why? Because knives were not viewed as weapons. Further reading. See, my essay titled "My Felonious Past" at Law and Everything Else in the section titled BurtLaw's Law and Kids (scroll down to "My Felonious Past").
Ex-judge, Ronald Reagan, gets 48 months in prison for child porn. "A former Sevier County judge and prominent attorney pleaded guilty today in federal court to possessing child pornography. Ronald Ray Reagan, 59, of Seymour admitted in a one-count information that he possessed 104 images of child pornography on a computer he kept at his law office...." More (Knoxville News Sentinel 07.24.2008).
Was judge a 'media-obsessed, unprincipled fool'? "By all accounts, the judge in the case, the late Judge Laurence J. Rittenband (he died in 1993) was a media-obsessed, unprincipled fool who bent the rules to make himself look good. The assessment is confirmed by a spectrum of observers, including reporters, Roger Gunson, the assistant district attorney who prosecuted the case, and Polanski's attorney, Douglas Dalton...." From a piece in the Globe and Mail on a documentary titled Roman Polanski: Wanted and Desired, which is about the guilty plea 30 years ago of film director Roman Polanski for having sex with a 13-year-old and his subsequent flight from California to France. (07.25.2008).
Amy Winehouse's hubby calls judge 'an old b*****d.' "The husband of singer Amy Winehouse called his trial judge[, Judge David Radford,] an 'old b*****d' in a letter to a friend welcoming his impending prison sentence...." More (Telegraph 06.22.2008).
Annals of 'tired and hungry' judges. Back in 2006 we posted a link to a news story reporting that Magistrate Kubashni Padayachee had released a number of suspects at the end of the normal working day because she was tired and hungry, had shopping to do, etc. See, Tired, clockwatching judge, with shopping to do, releases suspects. Now the Magistrate's Commission has decided not to discipline her, saying the dismissals were within the scope of a magistrate's discretion. More (IOL 07.21.2008).
Do judges who err go 'straight to hell'? "Many kids [in my generation] refused to read law because we were told that if a judge, even if by an error, gives a wrong judgement, that judge will go straight to hell to spend eternity...[S]ince none of us kids wanted to make that dreadful journey, we thought the best way to start would be to shun the legal profession. In those days...[w]e respected judges...But that was before I grew up and lost my innocence...The judiciary in Nigeria does not have credibility anymore even in the eyes of the ordinary Nigerian. The members of the judiciary today are placed in the same respectability quotient as devious policemen and customs officers...." -- Sam Nda-Isaiah, Judges and Divine Responsibility (Leadership Nigeria - Op/Ed 07.21.2008). Comment. As a kid I never believed that judges who erred would go straight to hell, but I did believe that if I stepped on a crack in the sidewalk I'd break my mother's back -- hence my care in walking. Now it turns out (numerous studies have confirmed this) that adherence by kids to the old admonition is a good indicator of vocational aptitude: a) those who follow the admonition religiously tend to make good (though somewhat obsessive) judges; b) those who are careless about cracks tend to wind up as defendants in slip-and-fall cases; and c) those who look for cracks and deliberately step on every one of them tend to wind up as personal injury lawyers pursuing slip-and-fall cases.
History of political campaign blogging. Some credit the Howard Dean presidential campaign in 2004 with maintaining the first campaign blog. Others cite as the first campaign blog one maintained by a congressional candidate in 2002. Actually, one has to go back earlier, to 2000. I was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000. I began planning my first law blog, BurtLaw's Law And Everything Else, one of the pioneering law blogs, in 1999, but I delayed starting it until after the 2000 general election. My 2000 campaign website, the no-longer-extant VoteHans.Com, contained a personal campaign blog (weblog or web journal), i.e., a blog actually written and maintained by the candidate, not by some staffer. I like to think it was the first campaign blog (a/k/a weblog or web journal), although it's quite possible someone else independently came up with the idea and executed it contemporaneously in 2000 also. Because most "web archivers" were not in business in 2000, there has been no web record of my campaign website and campaign blog. For archival purposes and in the public interest, I have reproduced and reposted as near as I can, given software changes, the backed-up contents of what was VoteHans.Com as it appeared in 2000. Here are the links: Campaign Home Page; Campaign Journal; Earlier Journal Entries; Even Earlier Journal Entries; Earliest Journal Entries; Endorsements and Contributions; Mandatory Retirement of Judges; Judicial Independence and Accountability; Questions and Answers; BRH Speech; Emerson for Judges; Quotations for Judges; MN Const. Art. VI; About BRH.
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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.