The Daily Judge

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.

Another Thomas to be judge. "Mr. Bernard's School of Hair Fashions Inc., 711 Lisbon St., announces that Patty Thomas of Oxford has been selected as a judge for the student competition being held at their annual celebration banquet. Students from Bernard's will be competing in four categories. The judging will be held Aug. 4...." More (Sun-Journal - ME 08.06.2007). Comment. The only advice we can give her is this: Never forget that while scientists seem to agree that hair is dead by the time it emerges from the skin, hair styling is not a dead art but a creative living art that, like all art, is capable of transforming the ordinary into something beautiful and alive, even permanent, and that it is not Clarence Thomas' or Nino Scalia's balding, crabbed "dead constitution" but the silver-locked, wonderfully-styled Oliver Wendell Holmes, Jr.'s "living constitution" of hair, in all its stylistic fullness and Olympian tonsorial glory, that you as judge -- as an honored 1977 graduate of Pierre's School of Cosmetology with years of experience in perming, coloring and styling -- are expounding. Pay attention to roots, by all means, but don't limit yourself thereby to the hair styles worn by Martha Washington and Abigail Adams. And whatever you do, don't applaud the hair styles of Nino Scalia or Clarence Thomas or Sam Alito. Holmes' style, even in hair, was better.

Annals of judicial hobbies, of gardening and collecting 'black Americana.'

a) Mississippi Circuit Judge Billy Joe Landrum, gardener. "His friend, John Parker, called him one day and asked if he wanted to ride to a Franklinton, LA nursery with him. Landrum, the 18th Judicial District's Circuit Judge for the past 21 years, checked his docket, saw a blank page and went with Parker. 'I saw all these beautiful nurseries and plants,' he said. He came back with crepe myrtles, and azaleas Mexican petunias." Since then -- for the past four-and-a-half years -- and under the tutelage of his friend, Landrum has been devoting his spare time off the bench to growing things in his four acre garden that is situated in the front and back and on the sides of his house -- innumerable flowers, shrubbery and fruit trees which bear plums, peaches, pears, cherries, apricots, nectarines, lemons, bananas,...about 200 stalks of sugar cane" and a half-acre devoted to vegetables. More (Laurel Leader-Call 08.06.2007). Comment. Among Robert Frost's poems that bear on the not uncommon creative judicial task of resolving antinomies is his much-loved Two Tramps in Mud Time, with the oft-quoted ending:

My object in living is to unite

My avocation and my vocation

As my two eyes make one in sight.

Only where love and need are one,

And the work is play for mortal stakes,

Is the deed ever really done

For Heaven and the future's sakes.

I wonder if the good judge with the brown gavel wielded by a green thumb has ever thought about planting some flowers at the courthouse? See, How about a courthouse surrounded by and filled with flowers? Might Mr. Stephens' flowers lead to better government? Airports, subways, museums, courthouses ("It's perhaps worth asking also whether a few hundred dollars spent on planting & tending flowers outside a courthouse might be more cost-effective in promoting courthouse civility & safety than a few hundred thousand dollars in increased spending on building up more & more layers of security.") Another soul-less public building?

b) Minnesota Supreme Court Justice Alan C. Page. "This couldn't be Kenwood, that bastion of stately gentility, could it? This living room strewn with Ku Klux Klan 'dolls' made by Dallas schoolchildren, slave chains and branding prods, a handheld fan for the Pickaninny Restaurant and a 'Coon-Jigger' toy from Alabama? Could these symbols of vile racism possibly have a place in polite society? You'd better believe it, Alan and Diane Sims Page insist, if only as a reminder of how impolitely American society has treated people of color over the centuries. 'It is our history. It is who we are,' said Alan Page, a former Minnesota Vikings star and a justice on the State Supreme Court...." More (Minneapolis Star-Tribune 08.05.2007). Comment. In my opinion and that of not a few other people, Justice Page, who was elected rather than appointed, is the best justice on the court, as currently constituted. True, the court has seen better days, but I think he'd hold his own with any of the many fine justices who've served on the court, with many of whom I was privileged to work for nearly 30 years. He's also, by far, the most popular public figure in MN. He could run for any public office and win handily.

Black people in (mostly) white Minnesota courts. "Arthur Guess, 39, a law clerk in the Ramsey County courthouse who is Black, says few of his peers are people of color. Guess has been a clerk to Judge George Stephenson, one of four Black judges in the county...for about a year and a half. In the judges' chambers, there happen to be several people of color employed (including Guess and a court reporter), which Guess has found to be otherwise abnormal. By contrast, the vast majority of those who arrive as customers to the St. Paul courthouse every day are minorities, he said...." More (Minnesota Spokesman-Recorder via Twin Cities Daily Planet 08.06.2007). Further reading. See, my comments at Thinking about mostly-white jury pools on a snowy white day in MN.

Ex-judge loses suit against accountant for bad advice in accepting judgeship. "The former District Court Judge Terry Christie has sued his former accountant, claiming that due to his bad advice he stopped practising as a barrister to become a judge and, as a result, lost more than a million dollars in income in the 10 years he was on the bench. In dismissing his case, the NSW Court of Appeal has concurred with an earlier ruling which found that due to 'Mr Christie's personality and character...he] would still have taken the appointment' regardless of what advice he had been given...." More (Sydney Morning Herald 08.06.2007). Comment. I'm thinking of suing one of my damned mentors for a) mentoring me and b) giving me a "Take this guy!" letter of recommendation. If he'd mentored someone else and given me a bad recommendation, I'd have taken a different career path and.... And after I win that suit, I may sue that woman who, if she hadn't smiled at me in a beguiling way all the time and....

'Is the fellow who did that fit to be a judge?' "Studies have found that, for some reason, an enormous mental gulf separates 'cold' emotional states from 'hot' emotional states. When we are not hungry or thirsty or sexually aroused, we find it difficult to understand what effects those factors can have on our behavior. Similarly, when we are excited or angry, it is difficult to think about the consequences of our behavior -- outcomes that are glaringly obvious when we are in a cold emotional state...." -- From a piece in the Washington Post by Shankar Vedantam that tries to shed light on questions such as "Why would Bill Clinton, a Rhodes scholar, six-time governor and president of the United States at 46, have an affair with an intern in the Oval Office?" More (Washington Post 08.06.2007). Comment. I've tried, in my cool emotional blawg state, as observer of judicial conduct on and off the bench, to be a voice of calm reason and restraint, linking to stories about judges caught in embarrassing situations but generally recommending forgiveness and understanding, my eccentric, heretic thinking being that their troubles might even make them better judges. See, e.g., my comments on judges who've been caught viewing porn at a) Judge apologizes, gets reprimand for viewing porn on court computer and b) My eccentric views on putting a scarlet letter on judges who view porn. See, also, my comments at Commission seeks removal of judge ("Where is the perfect judge?...I doubt if many judges make it to the finish line without having done something that, if it had seen the light of day, might have caused the ethics folks to have conniptions."). One of my favorite quotes about judicial "goodness" and "badness" is this one by Sir Thomas Noon Talfourd: "Fill the seats of justice with good [people], not so absolute in goodness as to forget what human frailty is...." In my opinion, based on nearly 30 years of working with judges and many more years observing them, I've never seen any significant positive correlation between a judge's performance as judge and a judge's level of perfection in his personal life. In fact, I think a case can be made that "perfect" people don't make very good judges, that the better judges are those who have lived a little and learned from their mistakes. Indeed, some of the main mentors I had growing up were some old professional men who had failed in one way or another in their personal lives -- most typically as alcoholics -- but had thereby developed a genuine quiet humility about themselves and a deeper, richer understanding of human nature that allowed them to look at life with quiet eyes. See, Frances Shaw, Who Loves the Rain. They're the ones I'd choose to follow through any storm, and at their hearth fire keep myself warm. I'd rather be judged by any one or all of them than by some perfect man -- or, for that matter, by John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito. Further reading. Norah Retracks, The Perfect Man ("My perfect man would encompass the following; a brain, eyes, mouth, ears, hands, a heart, buttocks, and a penis...Pretty simple right? Not so much; let me explain in detail what each of these mean.") (ThisIsByUs). The Perfect Man ("Jokes from Nashville, TN" About.Com). Burtlaw on Pied beauty, pied lawns, pied dogs, pied politics [and pied judges] (BurtonHanson.Com - entry dated Sunday, 05.08.2005 - scroll down).

Going back to go forward: saving an old courthouse. "In its 100-plus years, Wharton County's courthouse had been plastered over, added to, subtracted from, and reconfigured so extensively that many townsfolk thought the best thing to do was tear it down and start over. But there were some in the town, which traces its history to Stephen F. Austin's first settlements, who wouldn't let go of the past easily. Rather than letting the three-story, Second Empire/Italianate courthouse be reduced to rubble, they agitated, educated and finally enlisted the help of the Texas Historical Commission to give the old building new life. Now restored to its 1889 grandeur, but outfitted as a 21st century government center, the courthouse was rededicated in ceremonies Saturday morning on the courthouse square...." More (Houston Chronicle 08.04.2007). Comment. Justice Holmes, in one of his wonderful and wonderfully-brief speeches (his "occasional" speeches were as wonderful as they were relatively few, compared with those of some judges today, whose many speeches are as bad as they are frequent), said, "We do not save our traditions, in our country. The regiments whose battle-flags were not large enough to hold the names of the battles they had fought vanished with the surrender of Lee, although their memories inherited would have made heroes for a century." Oliver Wendell Holmes, Jr., The Soldier's Faith (Memorial Day Speech to Graduating Class at Harvard College, May 30, 1895). Ever the lover of the competing idea or thought, he also wrote: "We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them." The Path of the Law, 10 Harv. L. Rev. 457 (1897) (Amazing speech delivered at dedication ceremony at Boston University Law School, 01.08.1897). We can revisit the past through books, through old speeches, etc. One of the ways legal scholars do that is to visit a place like the Manuscript Division of Langdell Library at Harvard Law School, my alma mater. When I was a student there, the curator was Erika Chadbourn, wife of James Chadbourn, the great Evidence professor whose standing-room-only classes I attended in addition to those taught by my assigned evidence teacher. Sheldon Novick, one of Holmes' biographers, who benefited greatly from her help in researching the biography, described her as "a gentle and determined representative of the visible past." Dartmouth Library Bulletin (Nov. 1990). Preserving/restoring our grand old county courthouses -- many built, like the Wharton Courthouse, circa 1889 -- is one great way that we make it possible for all of us, including our descendants, to revisit the physical past. Even better, when we are thus able to continue to use the courthouses as originally intended, and not just as museums, we at the same time are provided an opportunity to not only revisit the physical past but visit a place where history is living and ongoing. Texas has been at the forefront of preserving/restoring county courthouses. Other states have only to emulate Texas in this. Further reading and links to some of our relevant postings and comments. County board votes to demolish historic 1884 courthouse.

Minnesota is again asked to let the sun shine in on courtrooms, trials. "Media lawyer Mark Anfinson has petitioned the [Minnesota] Supreme Court for a rule change to allow video and photos to be taken in courtrooms. The court has sent the request to an advisory committee. Times have changed since the idea was shot down in the 1990s, Anfinson argues. For one thing, recording and photo technology is less obtrusive today. For another, other states have not experienced the problems that were foreseen here. And only a few states limit recording and photo devices as Minnesota does, Anfinson said...." More (Minneapolis Star-Tribune 08.05.2007). Comment. I hate to say it, because I love the institution of the Minnesota Supreme Court, which I served loyally as a trusted aide for nearly 30 years, but in recent years the ideas that have come out of the court (and in some cases followed by foolishly by courts in other states) haven't been ones we Minnesotans ought to be proud of, ideas that include:

a) faux openness in the form of "community outreach" programs (such as taking the court on the road, what one justice described after leaving the court as "a dog and pony show");

b) stifling the free speech of lawyers (like myself) who have had the audacity to do what the MN Constitution contemplates, run for judicial office (an anti-free-speech policy that SCOTUS decided was unconstitutional, a decision that in turn has met only grudging acceptance from the SCOMN);

c) enthusiastically approved, in a terribly flawed decision, mandatory retirement of judges at age 70, a policy I began publicly criticizing in an essay in 2000 (a policy that is increasingly being seen by enlightened reformers for what it is, unjustified, antidemocratic, invidious discrimination);

d) setting the national trend of requiring judges and lawyers to take, in partial fulfillment of their mandatory continuing education requirement, courses on eliminating gender, racial, and cultural bias/discrimination (but not age discrimination, see c), above) in the courtroom, a requirement that, although perhaps well-intended, in practice has had the effect of, as one commentator (Katherine Kersten) put it, "seek[ing] to dictate how lawyers think about complex political and moral questions" and has amounted to, as another commentator (Walter Olson) put it, instituting a "compulsory chapel" requirement;

e) directly or indirectly encouraging the movement to deprive voters of their historic right to directly elect judges (the tried-and-true Minnesota Plan) and replace it with the plan long favored mostly by college political science professors, the commission plan with its yes-or-no style retention elections (the so-called Missouri Plan, which many in Missouri, which doesn't have a judiciary with near as fine a history as Minnesota's, are now saying isn't working and ought to be replaced) (see, my comments and many embedded links on both the Minnesota Plan and the Missouri Plan at Annals of judicial selection);

f) spending taxpayer dollars to hire a court public information officer (a/k/a "p.r." person);

g) inaugurating the "tradition" of the annual "state of the judiciary" speech (one of the sadder of many primarily "p.r." developments in appellate courts in recent years);

h) shooting down ideas such as letting press cameras into the courtroom, ideas that would lead to greater real (as opposed to faux) openness and accountability.

Do we support cameras? Yes. 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. As a starter, we believe that the U.S. Supreme Court (and all state supreme courts and federal appellate courts) ought to allow videotaping and live but unobtrusive TV coverage of all oral appellate arguments. Indeed, we believe these courts need to provide Internet video and audio streaming of arguments, both "live" and in archived form. More. Gratifyingly, some courts, including the MN Supreme Court, have taken this first step. Eventually, as costs come down, stationary webcams could be placed in all public courtrooms with internet video and audio streaming of all trial court sessions.

Why do courts resist such ideas? Perhaps because it's human nature to resist changes. A great example of enlightened change in MN that at first was resisted took place back in 1994 when I was working at the supreme court. That was when the court, in the historic decision in State v. Scales, 518 N.W.2d 587 (Minn 1994), exercising its inherent judicial supervisory power, under the separation-of-powers doctrine, to insure the fair administration of the criminal justice system, prospectively ruled: a) that all custodial interrogation of a crime suspect -- including the giving of information about rights, the obtaining of any waiver of those rights, and all questioning -- must be electronically recorded when feasible or when the interrogation occurs at a so-called place of detention, and b) that suppression of statements made in response to interrogation is required if the violation of the recording rule is substantial under the surrounding circumstances. The Scales decision served three main purposes (as well as many other important ones). It served the prophylactic purpose of helping to ensure police comply with Miranda and other constitutional restrictions on police investigative techniques, thus benefiting at least arrestees. It also dramatically reduced the need for extensive pretrial evidentiary hearings to resolve suppression issues of a factual nature (and also provided an accurate record for appellate review), thus benefiting the entire court system. Finally, it gave prosecutors a persuasive record of defendants' confessions for use at trial, at least when the confessions were obtained during custodial interrogation. I've discussed this decision in great depth at BurtLaw's CaseLaw. Notably, for our purposes, when the court first released the decision, police officers and prosecutors literally howled like Chicken Little that the sky had fallen. Among the common fears was that police use of recorders would inhibit suspects and decrease the likelihood of obtaining statements. A year later these same officers were trumpeting the virtues of the case. Indeed, one St. Paul homicide detective has been quoted as saying, undoubtedly with some hyperbole, that the Scales decision is the best thing that ever happened to him. Not only were the officers trumpeting the virtues of the case, they found it was to their advantage to go beyond the requirements. Thus, now, many intelligently-run police departments in Minnesota routinely provide their officers with portable recorders for use in the field, thereby increasing the likelihood that in the future reasonable judges will be skeptical of any claim that recording of interrogation in the field was not feasible. Moreover, these same police departments have made it a practice to regularly record, often on videotape or on digital video media, all station house interrogations, custodial or not.

What the court did in Scales was make the sun shine in on police interrogations. Everyone benefited. What the court needs to realize is that our entire justice system will benefit if the sun is allowed to shine in on courts as well. Further reading. See, in general, my 2000 essay titled BurtLaw on Judicial Independence and Accountability. Update. "In a state that has long prided itself on openness in government, it is a sad comment that one branch of government, a branch that should be consumer-oriented, is not only fearful of scrutiny, but is able to insulate itself from public accountability...." - From a fine op/ed piece by Bryan Leary, a public defender and outstanding former law clerk at the MN Supreme Court. More (Star-Tribune 08.16.2007).

Anonymous judge in 'Chilli Hot Stuff' case, lambasts immigration courts. "When Judge J first began working in immigration more than two decades ago, she did so with a sense of pride. She wanted to be involved with a part of the law that really meant something to people's lives. 'I was excited,' she admits. 'It was important to people and it made a difference. It mattered.' Or so she thought. Now, she has reluctantly arrived at a very different point of view. After 20 years in immigration, Judge J has discovered nothing but chaos, confusion and a shambolic structure that doesn't work...." Indeed, she says the courts are "criminally unjust." This is a long, detailed article. More (This Is London 08.04.2007). Background. For background on Judge J's involvement in the "Chilli Hot Stuff" case, see, Annals of judicial internet dating, which includes links to earlier postings about this scandal (as well as to other postings on judicial romance, judicial dating, and judicial cyber-dating).

Judge agrees to suspension over tardiness, blaming others. "Northeast Valley Judge Jacqueline McVay has agreed to be suspended for two months without pay for habitual tardiness and a demeaning attitude toward staff... Clerks in the Northeast Regional Court Center said that McVay would blame them for her tardiness and rebuke them in public...." More (AZ Republic 08.04.2007).

President offers olive branch to judges -- in form of 25% pay hike. "Pakistan President Pervez Musharraf has sanctioned a hefty 25 per cent increase in the salaries of superior court judges in an apparent attempt to win back judiciary which in recent times has given a string of verdicts against government in politically sensitive cases. The salary of Chief Justice Iftikhar M Chaudhry, reinstated last month by the Supreme Court after he was suspended by Musharraf in March, has been increased to Rs 133,250 per month...." More (The Hindu 08.04.2007).

Judge is admonished for vouching for character of defendant in another court. "A Seattle Municipal Court judge was admonished Friday for vouching for someone's good character to a judge who was going to pass sentence. Judge Fred Bonner acknowledged that he wrote a letter about the defendant on judicial letterhead and, when later told it may have been improper, 'openly acknowledged that the act occurred and recognized its impropriety,' according to the Commission on Judicial Conduct...." More (Seattle Post-Intelligencer 08.04.2007).

Judge says football is masculine sport, not one for homosexuals. "A Brazilian judge [Judge Manoel Maximiniano Junqueira Filho] faces [possible disciplinary] action for homophobia after giving a judgment in which he said football was a masculine sport, not a homosexual one. The judge is reported to have said no-one who had watched the golden era of Pele and others in the 1970s could ever consider having a homosexual idol...." More (BBC News 08.04.2007).

Annals of court watching -- 'Christian court watchers.' "John Becknell enters the courtroom and finds his usual spot in the front row, just behind the prosecutor's table. Becknell -- a devout Christian known to many as 'Brother John' -- pulls out a pen and...takes diligent notes...The purpose? To make sure drug offenders in eastern Kentucky are getting what they deserve...The Community Church of Manchester is leading the way through 'Court Watch,' a program in which volunteers attend court hearings to monitor judges overseeing drug-related cases...The Rev. Doug Abner...said the presence of Court Watch volunteers puts 'mild pressure' on judges 'to do the right thing.'" More (CNN 08.04.2007). Comments. a) There are some of us who read the New Testament differently than Rev. Abner & Co. See, the essay titled Crime and Punishment, which (unlike most candidates) I wrote myself and posted myself on my personally-created and personally-maintained website in my failed 2004 anti-war campaign for Congress in the GOP primary against MN Third District Congressman Jim Ramstad. b) Most court-watchers, thank God, don't have any agenda and are not out to put "mild pressure" on the judges. They tend to be retired people, mostly men. Visit any large urban courthouse and you'll find them. They often know as much about juries as so-called jury profilers and jury-selection consultants. Smart trial attorneys consult with them. We think it's a great way for retired people to keep active: walk to the bus stop, ride downtown, go to the clerk's office or the administrator's office and find where the juicy trials are, attend them, talk with fellow trial watchers, eat lunch, etc.

Annals of judicial 'signatures' -- herein of signature stamps. "A Northampton County probation officer resigned as the district attorney's office investigates the misuse of a judge's signature stamp. President Judge Robert A. Freedberg said County Court Administrator Jim Onembo approached him after Judge Anthony Beltrami reported someone used his signature stamp to alter a sentence involving Dennis Frey. Freedberg said he interviewed probation officer Joanne Phelan and directed her to submit her resignation. Phelan did, and Freedberg accepted it...." More (Express-Times - PA 08.04.2007). Comment. One way to end the use and misuse of signature stamps would be to make the judge responsible for any misuse of the stamp. Stated differently, we think judges should sign all orders and letters bearing their names and should do so only after reading and verifying everything in the order or letter.

Annals of judicial selection -- of screening commissions and judges appointing judges. "Former state District Judge Richard Brown has been appointed to a vacant district court judgeship in southern New Mexico. The appointment was made Friday by Supreme Court Chief Justice Edward Chavez. It became the job of the chief justice to fill the vacancy after Gov. Bill Richardson refused to make an appointment because of a dispute with a judicial nominating commission. The group would only submit one candidate for the judgeship to Richardson and the governor wanted at least two nominees to consider...." More (KOAT TV 08.04.2007). Comment. As Hunter S. Thompson said in ending some of his gonzo journalistic pieces, 'Res ipsa loquitur.'

On a fallen bridge and the need for redundancy -- in bridges and in the criminal process. "The cause of malicious unlawful convictions doesn't rest solely in the imperfect workings of our criminal justice system -- if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That's why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people -- and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction." -- From an excellent piece on the NYT Op/Ed pages titled The Presence of Malice, by Richard Moran, who is a professor of sociology and criminology at Mount Holyoke College. Moran's "recently-completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel." He argues that there are cases in which a police officer, prosecutor, or judge may be "dead set against" reopening a conviction even in the face of evidence exonerating the defendant because the officer, prosecutor or judge knows that his malicious actions or well-intentioned but wrongful manipulation of the case led to the conviction. Do you need what Moran is saying spelled out more clearly? "Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction...." More (NYT 08.02.2007). Comment. Moran suggests that the persistence of "malicious or even well-intentioned manipulation of murder cases...underscores why it's important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom." I agree. But what else, in addition to introducing better forensic science into the courtroom, can we do to prevent unlawful convictions? a) One partial answer, never easy, is the carrot-and-stick approach: reward those in the system who do the right thing and sanction those (like Michael Nifong, the rogue prosecutor in the Duke Lacrosse prosecution) who don't. b) Another approach is suggested by the recent collapse of the freeway bridge over the Mississippi River in Mpls. Dr. Piotr Moncarz, a prominent forensic structural engineer, is quoted as saying that the bridge design was nonredundant in concept, leaving inadequate room for error. "This is a concept which is called no redundancy. Every member is needed for the entire structure to work." More (ABC7 08.02.2007). We who have worked in the field of criminal justice sometimes pride ourselves excessively on the number of well-known "redundancies" that are built into the process that leads from arrest to conviction to punishment. But more redundancies are needed. I have some fresh ideas, based on nearly 30 years' experience in reading transcripts of criminal trials in my role as criminal law specialist for SCOMN, and I'll be focusing on some of them in the months ahead.

Those early-retirement pension provisions for 'disabled' judges. "Judge Ernest B. Murphy, the superior court jurist who won a $2.01 million libel verdict against the Boston Herald, is seeking to retire early with a lucrative disability pension based on his assertion that he is suffering from posttraumatic stress disorder as a result of the drawn-out legal battle and the newspaper stories that sparked it. But Governor Deval Patrick yesterday immediately rejected the appeal from Murphy, who is facing judicial ethics charges because of letters he wrote [on court stationery] to Herald publisher Patrick J. Purcell after the verdict, demanding more money...." More (Boston Globe 08.03.2007). Further reading. "Thank you, Gov. Deval Patrick...for finally saying no to a Massachusetts judge looking to take early retirement with a big fat kiss in the mail...It's amazing, this judicial perk known as the 'involuntary disability provision'...Here's how [it] works: The governor decides that a judge can no longer continue his, ahem, arduous duties, and sends a petition to the Governor's Council, which rubberstamps it. Voila - early retirement! The black-robed gent or lady starts collecting at 75 percent of his last salary...If Ernie doesn't get the kiss...he will be three years short of vesting for his 50 percent pension, which by the way, you have to pay state taxes on, unlike the disability pension. And don't forget the free health insurance for life...." -- From Howie Carr, It's time to bench judges' cushy retirement program (Boston Herald - Op/Ed 08.03.2007). Comment. Carr says, "At least 14 jurists [in Massachusetts] have checked out this way since 1991," and he asks rhetorically, "[W]ould it shock you to learn that two of them were ex-state reps, one was the brother of a mayor, and yet another was a fund-raiser for a governor?" We don't know the merits of Judge Murphy's request or whether any of the earlier requests that were granted lacked merit. We have heard stories suggesting that some of the early retirements by judges under similar provisions in some other states are nothing less than a scandal waiting to be discovered. We don't know if this is true or not. That's what journalists are supposed to find out for us.

Slow judge is removed from motion docket, faces disciplinary complaint. "[Judge Deborah Thomas, a] Wayne County Circuit Court judge accused of working too slowly[,] no longer is allowed to handle pretrial motions and faces a complaint that could remove her from the bench...The state's Judicial Tenure Commission also is reviewing 27 cases in which Thomas was reversed by appeals courts in the past five years." More (MLive 08.03.2007).

Judge is preventatively suspended for ignorance of the law. "THE Supreme Court (SC) has ordered the preventive suspension of a Baguio City Regional Trial Court (RTC) judge who reversed the final ruling of a co-equal court regarding the custody of the famed 'Golden Buddha' that formed part of the so-called Yamashita treasure. In a resolution, the SC en banc found Judge Fernando Vil Pamintuan of the Baguio RTC Branch 3, guilty of gross ignorance of the law when he motu proprio reversed the decision of Judge Antonio Reyes who has original jurisdiction over the case...." More (Manila Sun-Star 08.03.2007).

Two flamenco dancers to shed dresses and put on judges' gowns. "We generally think of judges as being studious types from middle-class backgrounds, whose idea of fun might be to read obscure biographies or play the occasional game of bridge. But two women from Malaga have done a lot to change such perceptions. Their background is working class, where nobody in their families would ever have given a thought to a professional career of any kind, and moreover, they have been earning a living for many years as flamenco dancers. Their names are Fina [(Josefina) Oña] and Carmen [Castellanos], and they are now fully qualified judges, ready to wear a new kind of costume in a few month's time...." According to the story, "Access to the judicial circuit in Spain is by competitive examinations, both written and oral, and they are not easy. They are called 'oppositions,' taken as one written examination and two oral sessions. The difficulty of the oral exams is that each candidate must take a subject at random and speak on it for a period of exactly 75 minutes. It is known as the 'five balls,' because the five subjects one must choose from are decided by taking five balls out of a drum." -- From Montse Martín, Malaga's dancing judges (SUR - Southern Spain 08.03.2007). Comment. Fina and Carmen unknowingly are following in the somewhat different dance steps of that Tap Dancing Judge from Mt. Olympus, Mr. Justice Holmes. See, "The unknown Holmes - or tap dancing & the law," at BurtLaw's Law & Justice Holmes.

Ex-girlfriend of judge is charged over taping of judge at public beach. "A woman who Circuit Judge Richard Wennet once dated was arrested Thursday and charged with illegally videotaping and recording his comment about a topless sunbather and then posting it on the YouTube web site. Julie Ann Domotor, 41, of Delray Beach, was charged with one count of interception of oral communications, and two counts of publishing those communications. Both are felonies. The video captures Wennet on a weekend outing at Peanut Island...A woman is prompting Wennet to comment on a presumably topless woman not in the frame. In the four-and-a-half minute clip, Wennet comments on the 'nice breasticals' and how he appreciates the joys of reconstructive surgery...." More (Palm Beach Post 08.03.2007). Julie Domotor's Photos. Comment. The FLA law is ridiculously over-broad. One does not have a reasonable expectation of privacy in what one says or does in a public place, such as a beach, and I hope that this prosecution of the very-attractive and bright and brave (she's a former Marine), Julie Ann Domoto, is dismissed, sooner rather than later. Update. "When it comes to women's breasts, the local go-to guy is Palm Beach County Circuit Judge Richard Wennet. I learned of Wennet's expertise on the subject 21 years ago during the then-infamous Dandy Doughboy Donuts case, a civil dispute sorting out whether topless waitresses serving coffee and doughnuts constituted adult entertainment. The judge took four hours with that hearing, which involved photographic exhibits and lots of guys talking about breasts. 'I know what nude means,' Wennet said before taking a stab at an acceptable attire for 'semi-nude' doughnut waitresses." -- From Frank Cerabino's column, When it comes to toplessness, justice is far from blind (Palm Beach Post 08.05.2007). Update. "Judge Wennet[, who says he is a 'victim,'] is a victim of being himself. The videotaping took place at the boozefest that happens every weekend at Peanut Island, near the Port of Palm Beach. In the shallow water, lots of people drink and generally carry on like aging Spring Breakers...[T]he laws Ms. Domotor is charged with violating are supposed to protect people when they have a reasonable expectation of privacy. The gatherings at Peanut Island are about as private as Mardi Gras." More (Palm Beach Post - Editorial 08.11.2007). Update. Judge denies bail; she's spent 41 days in jail (Palm Beach Post 09.20.2007). Update. Editorial: Free the Wennet 1 (Palm Beach Post 09.21.2007). Comment. The Palm Beach Post is doing a nice job covering this ongoing story.

Annals of problems at expensive courthouses.

a) That $89 million courthouse renovation. "The city spent $89 million on a lavish renovation of the Tweed Courthouse six years ago -- but somebody forgot the glue. Three marble blocks hanging near the historic building's roof were taken down this summer after inspectors discovered they had been installed without the proper epoxy, possibly endangering pedestrians below. The 150-pound ornaments, known as modillions, were hanging from the building's walls on steel rods, but were not tightly attached - and one of them was starting to wiggle...." More (N.Y. Daily News 08.05.2007).

b) New $50 million federal courthouse needs new roof. "The new $50 million federal courthouse in Cape Girardeau isn't even open, and already it needs a major repair. Officials with the General Services Administration said the roof of the new building doesn't meet government standards and needs to be replaced. The news Thursday came amid lingering delays in opening the four-story Rush H. Limbaugh Sr. U.S. Courthouse...." More (Kansas City Star 08.03.2007).

c) $130 million Boston courthouse springs leaks. "Boston's decade-old waterfront federal courthouse has sprung a number of leaks. Water has been leaking into the basement of the $130 million John Joseph Moakley Courthouse in South Boston since 2001 -- just three years after it opened...." More (WCVB-TV 08.06.2007).

d) The leaking rotunda. "Problems with the Northampton County Courthouse renovation and expansion project have included a leaking rotunda, swollen mahogany doors that wouldn't shut and employees developing cases of skin irritations. The most recent problem is a plaza fountain that has yet to spout...." More (Express-Times - PA 07.30.2007).

Bar chief says mandatory retirement of judges is anachronistic. "A day after Justice Ian Callinan graphically warned of the threat posed by terrorism in a landmark High Court ruling, the Victorian Bar Council chairman criticised the mandatory retirement age which will see the judge 'taken from the court' when he turns 70 next month. Michael Shand, QC, said Justice Callinan's retirement was a 'huge loss to the law' and the 'arbitrary' age limit gave 'pause to question its utility.' 'It has been described by Tom Hughes, QC, as the 'product of an anachronistic misconception that people who have led an active and useful life are over the hill at age 70...." More (The Age - Australia 08.03.2007). Further reading. BurtLaw on Mandatory Retirement of Judges.

Michigan Supremes are at it again -- guess the vote. The vote, once again, is 4-3, with the four "true" Republican justices, including Chief Justice Taylor, in the majority, and the two Democrat justices along with the "RINO" ("Republican In Name Only," as I was called when I ran an anti-war campaign for Congress in the MN Third District GOP primary in 2004) in dissent. And once again the majority is trying to suppress a dissent. This time the issue is whether Michigan has 14 or 15 judges too many, which is something Taylor advocated several months ago. Now, guess what, SCOMICH's "administrative arm" has issued its "biennial report" echoing Taylor's opinion that Michigan should cut, by attrition, ten trial judgeships and four intermediate appellate court judgeships. The three dissenters, led by RINO Justice Weaver, criticized the report as "analytically unsound." But, as Weaver said, the majority refused to include the dissenting opinions in the report sent to the Legislature, something Weaver called both "unprofessional" and "unfair." More (MLive 08.02.2007). Comments. a) One of the majority justices wrote that the "angry tone" of the dissenters illustrates "how difficult it is -- even in these tough budget times -- to save taxpayers the first nickel of their own money by shrinking an oversized branch of government." I'd generally be on the side of trying to reduce government expenses and I generally oppose proposals to increase the number of judges as the standard way to deal with increased filings. But this time I can't help siding with the dissenters. b) What's behind the proposal to reduce the number of judges? Who knows? Maybe the majority sincerely believes cutting the number of judges is good policy and maybe the administrative arm reached its conclusion independently, uninfluenced by Taylor and Co. Then again, one can't help noting that the current occupant of the governorship is a Democrat and reducing the number of judges by attrition, as proposed, would have the effect of reducing the number of appointments she could make. Who knew? c) Memo to Taylor & Co.: Suppressing dissents, like banning books, only calls attention to them and ensures they'll get read. Earlier. Latest on Michigan's fractured Supreme Court.

Annals of judicial selection processes. "[Israeli] Supreme Court President Dorit Beinisch accused Justice Minister Daniel Friedmann yesterday of sowing "disharmony and strife" with his proposed reform of the selection process for court presidents and deputy presidents. 'It is clear that the proposals you are disseminating are another in a series of steps that sow strife and disharmony and are intended to crush the existing structure of the judicial system and demolish the institution of the Supreme Court president,' Beinisch wrote in a letter to Friedmann that she also distributed to the media...." More (Haaretz 08.02.2007). Comment. We've been big admirers of the Israel Supreme Court and its courageous decisions in recent years. We think that tampering with the method of judicial selection used there, which has worked well, makes as much sense -- none -- as tampering with the method of judicial selection used in Minnesota, which also has worked well. Update. "Spokesman for justice minister slams 'orchestrated' attacks from Supreme Court president, former justices. Former Justice Heshin calls on minister to resign, says 'I would tell Friedmann to go back from whence he came'" More (YNet 08.02.2007). Update. "Two former Supreme Court presidents, Aharon Barak and Meir Shamgar, met with Justice Minister Daniel Friedmann last night at their own request to discuss the growing hostility between the minister and Supreme Court President Dorit Beinisch." They also reportedly told Friedmann they don't like some of his ideas for "reform." More (Haaretz 08.08.2007).

Judge cleared of 'flashing charge' won't be charged with more 'flashings.' "[Sir Stephen Richards, 56, of Wimbledon, south-west London, the] senior judge cleared of exposing himself to a woman on a train[,] will not be charged in relation to reports of similar incidents on the same line...." More (BBC News 08.02.2007).

Judge gives advice to actor. The other day Judge P. D. Kode sentenced a popular Bollywood film actor, 48-year-old Sanjay Dutt, to six years in prison following his conviction on 1993 weapons charges. Dutt then asked for time to surrender, saying, "Sir, I made a mistake 14 years ago. Please give me some time to surrender." The judge denied the request but spoke "informally" to Sanjay for about ten minutes, a) telling him "not to lose faith in himself as he was 'number one' in films," b) "'Act till the age of 100, I have only taken away six years,'" c) "'Don't get perturbed for you have many years to go and work like the Mackenna's Gold actor Gregory Peck.'" More (Electric 08.02.2007). Update. Sanjay to seek bail from Supreme Court pending appeal (NDTV 08.02.2007).

Should judge's widow continue living in an 'all judge neighborhood'? "Supreme Court Justice Khalilur Rehman Ramday took suo motu action on Wednesday and suspended a notice of the Lahore High Court (LHC) registrar that asked the wife and children of the late Justice Muhammad Nawaz Bhatti of the LHC to vacate their government residence. Justice Nawaz Bhatti was killed in the Fokker air crash near Multan on July 10, 2006. Justice Ramday said, 'I am shocked at the treatment being meted out to the widow and orphans of a colleague....'" More (Daily Times - Pakistan 08.02.2007). Comment. Since judges here in the U.S. are paid "paltry" wages, perhaps the Government ought to build subsidized Melrose Place-style courtyard apartments for judges and their spouses, with the spouses having a right to continue living in the apartments at the reduced subsidized rate after the judge, in Tennyson's words, crosses the bar. Further reading. Of courtyard apartments & 'courtyards' (suggesting use of Melrose Place-style courtyard apartment designs in designing appellate courthouses).

Annals of judicial transparency. a) Carnival Development Committee (CDC) defends carnival judge selection process as transparent and fair (Antigua Sun 08.02.2007). b) Editorial criticizing MO "nonpartisan" judicial appointments commission's failure to follow sunshine law (Springfield News-Leader 08.02.2007).

Newest SCOWIS justice 'sweats' as she takes oath. "Wisconsin's most recent Supreme Court Justice could soon get a taste of how it feels to be on the other side of the bench. Annette Ziegler,...sworn in today at the Washington County courtroom she presided over until recently, is still awaiting the outcome of a protracted legal conduct inquiry. She faces punishment by her new Supreme Court colleagues if convicted...." Newest Wisc. SC Justice still sweating out March ethics charges (Legal Newsline 08.01.2007).

Annals of alternative sentencing -- Judge sentences man to memorize Koran. "A judge here [Jeddah] sentenced a Saudi man to memorize two chapters of the holy Qur'an as a punishment after he was found guilty of starting a physical altercation with another man...." More (Arab News 08.02.2007). Comment. The judge could have sentenced the man to jail but, not wanting to disrupt his plans to study abroad, gave him this sensible alternative -- sensible within the context of Saudi law and culture.

Will illness affect the Golden Boy? "Barely a month ago, he was presiding over the close of a dramatic Supreme Court term in which he and his ideological allies were clearly ascendant. At the top of his game, he promptly flew to Europe for lectures and meetings with the cream of the Continent's legal establishment. Then out of the blue, on a clear summer day, he became a middle-age man in need of emergency medical treatment, hospitalized and confronting the implications of a condition that could affect his life in big and small ways like requiring daily medication or making it inadvisable to drive a car. In October, when he returns to his seat at the center of the Supreme Court bench, will colleagues and courtroom spectators see the same golden youth whose trajectory was unmarked by setback or sorrow?" - From Linda Greenhouse, Uncertainty Now in a Golden Youth's Trajectory (NYT 08.01.2007). Comments. a) Greenhouse's reference to the "Golden Youth's trajectory" calls to mind i) the Icarus myth and ii) something Robert Bly, Minnesota's de facto poet laureate, wrote:

A man often follows or flies on an ascending arc, headed toward brilliance, inner power, authority, leadership in community, and that arc is very beautiful. But many ancient stories declare that in the midst of a man's beautiful ascending arc, the time will come naturally when he will find himself falling; he will find himself on the road of ashes, and discover at night that he is holding the ashy hand of the Lord of Death or the Lord of Divorce....

R. Bly, J. Hillman, M. Meade, The Rag and Bone Shop of the Heart 95 (1992). And as Bly says, a man's experience with illness or loss or failure or pain or suffering or death is sometimes associated with a development of soul, of a greater gravitas or, if you wish, wisdom. We say this without suggesting Justice Roberts is lacking in soul or gravitas or wisdom. b) By the way, the referenced Bly-Hillman-Meade book is one of my favorite books, an anthology of poetry for men that every man, every parent of a boy, every woman who wants to understand men -- and every judge, male or female -- should own. I've given copies to a number of judges over the years. The selections and the architecture of the book are superb, as are the essays at the start of each themed chapter. c) Related reading. Griefs vs. grievances - of poetry, politics, law, life.

Study: SCOTUS' judicial free speech ruling hasn't damaged image of courts. "[Minnesota v. White, the] 2002 U.S. Supreme Court decision protecting the right of judicial candidates to speak freely about controversial issues...has not directly damaged the court system's legitimacy in the eyes of citizens, suggests a new study from Washington University in St. Louis...." James L. Gibson, Ph.D., author of the study, appearing in an upcoming issue of the American Political Science Review, says: "My analysis indicates that the alarmists are most likely wrong in their concern about perceived judicial impartiality being undermined. When citizens are exposed to issue-based speech from candidates for judicial office, court legitimacy does not suffer. Indeed, I can find no evidence whatsoever to vindicate the critics of [the case]. More (WUSTL.edu - Press Release 07.31.2007). Comment. We think the Court's decision in White was a good one and we like the "Minnesota Plan," Minnesota's system of direct election of judges. It's helped produce one of the better court systems in the country (one that still is in significant need of improvement) and one that ought not be tampered with by the power elite, who don't trust ordinary citizens as much as we do. While we like the Minnesota Plan, we don't like lawyers, especially lawyers from the big law firms, contributing to judicial candidates (invariably the incumbents), endorsing them, and serving as campaign managers and treasurers for them, nor do we like political interest groups doing so, which is why when we ran in the general election for statewide judicial office in 2000 we refused all contributions and endorsements and limited our expenditures to under $100. (We lost, big time.) But that is not to say we favor public financing of campaigns or legal limits on them. Perhaps some guidelines suggesting recusal of judges sitting in cases involving contributors to their campaign might help.

Rottweiler waits on courthouse steps for Quarterback Michael Vick to emerge. "Atlanta Falcons quarterback Michael Vick has refused to leave the courthouse where he was indicted on July 17th for his alleged role in conducting a dog fighting venture on property he owns...The reason for Vick's fear, is a large, snarling Rottweiler that appears to be patiently waiting on the courthouse steps...for Vick to emerge...." More (Unconfirmed Sources - Satire 08.01.2007).

Judges who interfere in politics. "The Democratic Progressive Party (DPP) caucus threw its support yesterday behind President Chen Shui-bian for voicing concern on Monday about the judiciary intervening in next year's presidential election. Calling the president's remarks 'impartial' and 'objective,' DPP whip Wang Tuoh...[said,] 'After the DPP came to power [in 2000], Taiwan's judiciary has made major progress and become much more impartial and objective, but a few good-for-nothing prosecutors and judges still embrace very obvious ideology and party preference...They exploit their judicial authority to attack candidates from the political party they dislike while covering up for other candidates from the party they do like.'" More (Taipei Times 08.01.2007).

What's the best way for judges to protect themselves against assassins? "'The best protection of judges is to do justice for all,' Regional Trial Court Branch 34 Judge Rosendo Bandal Jr. yesterday said of suggestions that they be provided with police or civilian bodyguards. This came after the fatal shooting of RTC Branch 63 Judge Orlando Velasco by still unidentified motorcycle-riding suspects, in front of his residence in Bayawan City Wednesday evening...." More (Visayan Daily Star - Philippines 08.01.2007). Comment. For my views on what I see as judicial paranoia over courthouse security, see, my mini-essays titled Stealing the courthouse hostas; Prayer Day at the county courthouse; Building courthouses with security in mind; BurtLaw and Montaigne on courthouse security; How about a courthouse surrounded by and filled with flowers? Latest courthouse threat - students who want pop; Judge receives 'contagious' letter.

Bodies of four judges kidnapped and killed by Taliban are found. "The bodies of four Afghan judges who were kidnapped nearly a fortnight ago, have been found in Ghazni province, officials have said...." More (BBC News 08.01.2007).

Elite judicial strike team heads for riverside County. "Two Marin judges have been tapped by California's chief justice to serve on a judicial 'strike team' to reduce the backlog of cases in Riverside County. Terrence Boren and Stephen Graham will be among 27 judges deployed to Riverside from August to November to cut through 275 felony prosecutions, including eight capital cases...." More (Marin Independent Journal 08.01.2007). Comment. In the words of a song referring to lawyers inm the delightful Harvard Law School Spring Musical in 1967, "If you cry out for Justice,/ They will appear...." Who are these fine judges headed for Riverside County in response to a cry for Justice? Well, you just might call them...Super Judges! Always on call, they never sleep. Given just a moment's notice, they swing into action, moving with the speed of lightning to impose order on chaos, to put out fast-spreading judicial brush fires, to quench the parched People's age-old thirst for Justice.

Court denies cancelling court sessions so staff could go 'welly wanging.' "The Crown Prosecution Service has 'categorically' denied reports it cancelled court sessions in Leeds so staff could take part in a sports day, which included a welly-throwing competition. Two courts at Leeds Magistrates' Court were cancelled on Friday -- the same day as hundreds of CPS staff from across the country gathered at South Leeds Sport Stadium for their annual sports day. A Courts Service official told a newspaper the courts were cancelled due to staff attending the event. But the CPS claims the cancellations were made to allow for reductions in staff during the summer holidays and did not affect the running of the courts." More (Driffield Today 08.01.2007). Comments. a) Wikipedia's entry, as of today, states, in relevant part: "Wellie [also spelled 'welly'] wanging, or wellie throwing, is a sport that originated in Britain, most likely in the county of Yorkshire. Competitors are required to hurl a Wellington boot as far as possible within boundary lines, from a standing or running start. A variation requires participants to launch the wellie from the end of their foot as if they were kicking off a pair of shoes." More (Wikipedia 08.01.2007). b) What is a "Wellington boot"? "The Wellington boot, also known as a wellie, a topboot, a gumboot, or a rubber boot, is a type of boot based upon Hessian boots. It was worn and popularised by Arthur Wellesley, 1st Duke of Wellington and fashionable among the British aristocracy in the early 19th century." More (Wikipedia 08.01.2007). My uncle Melvin Larson, a farmer and husband of my mom's sister, Adeline Herfindahl, loved his "Wellies." I remember once Mom and Dad driving from store to store with him in Minneapolis to find the right pair of Wellies to replace his worn-out pair. Melvin was a gentle man, always kind to his nephews, my bro and me (he taught my bro how to "drive clutch"), and I'd wager big bucks he never tossed his wellies either in sport or in anger. c) Welly wanging is a British variant of "shoe tossing": "Shoe tossing (or shoe flinging), the act of using shoes as improvised projectiles or weapons, is a constituent of a number of folk sports and practices. Today, it is commonly the act of throwing a pair of shoes onto telephone wires, powerlines, or other raised wires." More (Wikipedia 08.01.2007). On my daily walks with Lady Jane, a devilishly-smart game(as in games played with balls)-loving border collie, I pass by a pair of old running shoes hanging from an electric wire leading to the lights that illuminate the outdoor hockey rink in a park next to Minnehaha Creek. I didn't know until just now that shoe tossing is an international "sport." Hmm, she likes tennis-ball soccer -- would she like shoe tossing? d) In some parts of the world, flinging one's shoes is a gesture of extreme disrespect. Id. See, e.g., Throwing slippers (chappals) at judges in India (Daily Judge 08.05.2006).

Lawyers' rankings of judges are released. "Local lawyers say Brevard County Judge Benjamin Garagozlo is the most courteous, Circuit Judge Jim Earp one of the most punctual and Judges John Dean Moxley and George Turner are great listeners, according to a new poll. The Brevard County Bar Association said the anonymous poll -- tabulated using the responses of 157 Brevard lawyers -- gives residents a snapshot of how their tax dollars are being utilized." County Judge A. B. Majeed got the lowest overall score among county judges, and Judge Meryl Allawas the lowest among circuit judges. More (Florida Today 08.01.2007). Comments. a) Based on my background in statistics, I tend in general to doubt the worth and reliability of polls like this. Without speaking to this specific poll, I'm curious, for example, whether irrelevant factors such as the race, ethnic background, religion, gender, age, physical attractiveness, etc., may play a significant role in the outcomes. b) Moreover, I question whether lawyers are very good at rating either other lawyers (as in the "Best Lawyers" issues of lawyer tabloids) or judges. I know some "best lawyers" who I don't think are very good.

Should Congress give judges a whopping 50% pay raise? "The American Bankruptcy Institute says it supports legislation that would give bankruptcy judges a 50 percent pay raise, in an attempt to reverse 14 years of salary stagnation. The new legislation would bring a bankruptcy judge's salary to $227,976 a year from the current $151,984. Federal district court judges, who are paid about 8 percent more, would get a raise to $247,800 a year, from $165,200...." More (Chicago Tribune 08.01.2007).

Prez wants 'harmonious' ties with Chief Justice. Pakistan President Pervez Musharraf, who tried to fire Chief Justice Iftikhar Chaudhry, says he "accept[s] the judgment of the judiciary [reinstating Chaudry] and honour[s] it." He also says he believes in independence of the judiciary and hopes for "harmony" among the branches of government and with the Chief personally. More (Dawn 08.01.2007).

DA seeks special pros. to investigate her sorority sis, a gun-packing judge. "Wayne County Prosecutor Kym Worthy announced today that she has requested the state Attorney General appoint a special prosecutor to consider a warrant request against Inkster District Judge Sylvia James, who was found with a handgun in her purse Saturday at a passenger security checkpoint at Detroit Metro Airport...." Worthy and James are sorority sisters. More (Detroit Free Press 08.01.2007). According to the Detroit News, the loaded (and registered) handun was found in a routine screening check of James' carry-on luggage. James, who was not arrested and was allowed to continue on her flight to Atlanta, has a concealed weapons permit. More (Detroit News 08.01.2007). Comment. Yet another reason not to carry or even own a handgun if you're a judge.

Have chief justices been violating the law? "In an action that could open a Pandora's box, the Supreme Court on Monday sought data from the Centre to scrutinise whether the Chief Justices of India have followed legal procedure in appointment of additional judges to various high courts since 1999 and their confirmation...." More (Times of India 07.31.2007). Comment. As long as no one gets hurt, it's always amusing when the pillars of the law misapply or break the law -- as when, for example, the MN State Bar Association violates a state's Fair Campaign Practices Act during a judicial election (MN Campaign Finance Bd. findings and order dated 02.23.2001).

GOP judicial appointees and sentencing discretion under the guidelines. That's the subject of a new study by Professor David Zlotnick of Roger Williams University Law School. It turns out that "Republican appointees share many of the same concerns as academics and criminal defense attorneys."

Judge against whom disciplinary proceedings were pending dies. "[Judge Jeanette O'Banner-Owens, 62, a] Detroit district judge who was facing professional misconduct charges died Friday in Atlanta...of respiratory problems. The Michigan Judicial Tenure Commission filed a formal complaint against the judge in March, accusing her of displaying a harsh demeanor, excessively interrupting witnesses, making inappropriate and sarcastic remarks, and threatening to hold people in contempt without justification...." Her attorney believes the judge, who was on medical leave, would have been cleared of the charges if she had survived. More (Detroit Free Press 07.30.2007).

Chief Justice Roberts suffers another seizure, is hospitalized. "Chief Justice John G. Roberts Jr. was hospitalized Monday after suffering a seizure at his summer home in Maine, the Supreme Court announced. Chief Justice John G. Roberts Jr. at Northwestern University in February. The chief justice, 52, had a seizure at his home in Maine. The episode, described as a 'benign idiopathic seizure,' was similar to one he suffered 14 years ago, according to the court's press release. Idiopathic means that the cause of the seizure remains unknown...." More (NYT 07.31.2007).

The law school as courthouse. "Joel and Adriana Cruz just wanted to get married after seven years together. So they skipped an expensive church wedding and filed for a civil marriage in the San Joaquin County Superior Court. Rather than the downtown Stockton courthouse, they were told to show up at the Humphreys College Laurence Drivon School of Law...[T]heir big day was also a first for the small private Stockton college. The [school] on Monday began allowing the Superior Court use of its campus courtroom for weddings, small claims and traffic cases. Normally used as a classroom, Carcione Courtroom will be utilized for about six months to relieve the cramped downtown Stockton courthouse until the old J.C. Penney building on the southwest corner of Main and American streets is converted into annex courtrooms...." More (Stockton Record 07.31.2007). Comments. a) Since I like to quote myself (perhaps I need to get out of my hovel and socialize more), I'll reprint here a relevant posting I made on 10.07.2005 titled "BurtLaw's 'Modest Proposal,'" about how we could save public money and teach law students and others and benefit the public by letting law schools run conciliation courts:

BurtLaw's 'Modest Proposal.' Here in the Twin Cities there are four law schools. Both as a cost-sharing/cost-saving measure and as a tool to improve legal education and the quality of justice administered by small-claims courts, we propose that maintaining metropolitan small claims courts here become a shared responsibility of the law schools and the court system, with students being encouraged to provide "representation" to low-income small claims litigants, other students being assigned to assist the small claims judges with research memos, and many of the contested hearings being held in the law school "courtrooms." Moreover, students in other disciplines could be part of the small-claims-court laboratory: a) students of TV production could videorecord the hearings, edit them and present them on cable TV and perhaps sell "best-of" compilations to commercial TV; b) students of computer science could help develop new software for use by the court system; c) students from paralegal training and court services programs could operate the filings and records aspect of the laboratory; d) students of business management and court management could work together to assist the program; e) students thinking of law as a career could get a taste of law-in-action. Finally, and this is the good part, Judge Judy, 63, who just signed on for another four years (at more than $25 million per year?!) after ten years presiding on the tube, could be invited to bring her production unit to town once or twice a year, perhaps make the schools some money, attract attention to the schools' unique program, and teach the students a few things (both by postive-example and by negative-example). For some thoughts on the risks of soliciting federal funds to fund such an experiment, click here.

BurtLaw's 'Modest Proposal.' b) Hey colleges and law schools, want more ideas? Try this one on for size: Start a summer employment program for your students based on the use of the campus for destination weddings in the summer, with students from the music department and theater arts department providing the music and dramatic readings, jocks supervising use of campus sports facilities, campus chaplains performing the ceremonies, culinary arts students doing the cake-baking and reception catering, video production students videotaping the wedding, business students doing their thing, etc.

Judge shortage but not for lack of applicants. "An acute shortage of judges is causing long delays in bringing criminal trials to court, putting more pressure on overcrowded prisons and delaying justice for victims of crime...Retired judges are being pressed into service, and part-time recorders are being repeatedly asked to serve for longer periods...A main cause of the delays in appointing judges has been the bungled handling of the process by the new Judicial Appointments Commission. Established in April 2006 to make the selection of judges more merito-cratic and representative, it has yet to complete the process of appointing a significant batch of circuit judges...." More (Times - UK 07.30.2007). Update. Ministry of Justice says 'all businesses have vacancies,' denies shortage is cause of delays (Guardian - UK 07.30.2007).

A warning to lazy judges. "[Ugandan] Chief Justice Benjamin Odoki has warned lazy judicial officers fond of delaying to deliver judgements. He said such officers have no place in today's Judiciary. [He] said the courts are not supposed to sit at the convenience of the judge or magistrate, but at the convenience of the matter before them. 'Be fast, sober and deliver timely judgements...I prefer instant judgements! Why should you delay a ruling or judgement? Write and deliver your decision when facts are still fresh in your mind. The moment you delay, work piles up and you bring yourself unnecessary pressure.'" More (The Monitor via AllAfrica 07.30.2007). Comment. Whenever he was assigned to write an opinion, Justice Holmes would sit down after conference and write it. No flies after sat on his noggin. Funny thing is: his opinions are not only generally better than those of his peers, many of them are classics. Of course, as Sen. Hruska of Nebraska once said, "We can't all be Holmses."

Quote-of-the-day. "On January 1, 2006...when the temperature was 45 degrees, I climbed up on a ladder in order to clear the garage of our holiday home from leaves...The bushfires were raging four or five kilometres away, so I did what every sensible home owner does, get up in the heat; and I fell and knocked myself unconscious and spent an evening in Gosford Hospital. I was unconscious for about 20 minutes and, when I came to my senses, the very first thought that crossed my mind was, can I remember anything about the C7 case?" -- Justice Ron Sackville musing over the possible ramifications to the parties in a mega-case, like "the C7 case," if the judge presiding over it dies or is otherwise disabled from continuing to preside. More (Sydney Morning Herald 07.30.2007). Comment. For some reason, the judge's touching conscientiousness calls to my mind the nerdy resident "house" (dorm) adviser/counsellor at Harvard College in the 1960s who said he slept with his door open so it would be easy for students to wake him if his advice or counsel were needed.

When judges flub the First Amendment. "It is no small thing that a federal judge [Frederick Scullin Jr. of U.S. District Court in Syracuse] had to tell the state's presiding administrative judges that they flubbed the First Amendment when drafting new rules about attorney advertising in the State of New York...The issue is lawyers advertising...[The] new rule stated that no attorney advertising could 'rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel.'" More (N.Y. Sun 07.30.2007). Comment. The rule is rather obviously void as being unconstitutionally vague and therefore overbroad in its potential application.

More on judges as fashion police. "Mahoning County Common Pleas Court Judge Maureen A. Cronin, who was a judge for 13 years before her retirement July 1, said there is no written dress code, noting that attorneys advise clients about 'appropriate dress.' What's 'appropriate' is the crux of the matter...Judge Cronin admitted men have an edge over women. 'A man can put on a golf shirt and khakis and look fine,' she said. 'A woman has more body parts to expose.' Unfortunately, sometimes those parts are out there. 'No stomach or breasts should be showing,' Judge Cronin said." -- From a detail-filled, amusing piece on one court's attempt to control how ordinary people dress when appearing in their (the people's) courtroom. More (Youngstown Vindicator - OH 07.30.2007). Comment. One judge, R. Scott Krichbaum, also of Mahoning County Common Pleas Court, is quoted as saying that there is no formal policy but that he "expect[s] people to dress like they're going to church, a wedding or a funeral." Judge Krichbaum "said in some criminal cases when the defendant has been dressed inappropriately, he has had that person removed from the courtroom and dressed in orange jail coveralls provided by the county." Boy, it's just my opinion but I think the judges are playing a risky game. A few random thoughts. a) I don't believe it's ever appropriate for a defendant to be required to appear in court in an orange jail jumpsuit. b) When a judge tells a witness what to wear, the judge in effect is changing the way the witness presents herself in court and arguably influencing, directly or indirectly, how that witness is perceived and evaluated by a jury. c) I'm not sure judges as a class are qualified to serve as fashion mavens. I've known a lot of judges over the years. Let's just say on a few occasions if I had been Fashion Judge with the power to issue totally subjective Fashion Decrees I might have sent a few of them home to change clothes. d) I think my old teacher in the early 1960's, the late, great George B. Vold, internationally-renowned social-group-conflict theorist and professor of sociology at the U. of MN, might say in general that the attempts by judges to set courthouse dress codes are somewhat akin to the way dominant groups in society manage to get some of their own social mores converted into civil and criminal prohibitions. Query. Would Hillary Clinton be sent home if she appeared in Mahoning County Common Pleas Court wearing the cleavage-revealing outfit she wore on the Senate floor the other day? See, Hillary Clinton's Tentative Dip Into New Neckline Territory (Washington Post 07.20.2007). Further reading. Courthouse Fashion, part I: Another judge tries instituting courthouse dress code; Courthouse Fashion, part II: The Viking influence on judicial fashions; Courthouse Fashion, part III: Judges voice objection to some lawyers' attire; BurtLaw Super-Privacy Robes; BurtLaw Judge-Endorsed Bench Pants; BurtLaw Judicial Swimsuits; Judicial makeovers; BurtLaw Gravi-Tox; BurtLaw Judicial Extensions.

The ongoing judicial soap opera in Vegas. "[Judge Elizabeth] Halverson's bailiff, a black man, says he was ordered to rub her feet, give her back massages, put on her shoes, change her oxygen bottles and pick up papers, cookie crumbs and sunflower seed hulls strewn on the floor of her chambers. He eventually filed a claim for discrimination based on race, religion and sex. The bailiff, Johnny Jordan, was to be waiting for her each day at the building entrance at 7:30 a.m., though she often arrived at 8:30 or later. Halverson, the bailiff and other staffers alleged, would sometimes throw items on the floor and order Jordan to pick them up. When Halverson's mother visited in chambers, she asked her daughter, in the bailiff's presence: 'Is he your servant?'" -- From an entertaining detailed report titled You're NOT the Boss of Me! on the ongoing soap opera involving, inter alia, Judge Halverson and Chief Judge Kathy Hardcastle of the Eighth Judicial District in Nevada (ABAJournal - August 2007). Further reading. Also in the ABA Journal, novelist Scott Turow argues that the billable hour rewards inefficiency, makes clients suspicious, and may be unethical. More (ABAJournal August 2007). Update. "Two former employees of District Court Judge Elizabeth Halverson[, Law Clerk Sally Owen and Executive Assistant Linda John] are speaking out...[They] are now saying the judge is being unfairly targeted. Both of these employees were let go by court administrators last week when Judge Halverson was temporarily removed from the bench...All judges get to hire whomever they choose in these two positions. Both women say they feel unjustly terminated and believe they should have been re-assigned elsewhere in the courthouse...." More (KLAS-TV 07.30.2007).

Senator Charles Schumer claims Senate was duped by Roberts, Alito. "Senators were too quick to accept the...word [of nominees John Roberts and Samuel Alito] that they would respect legal precedents, and 'too easily impressed with the charm of Roberts and the erudition of Alito,' Schumer said. 'There is no doubt that we were hoodwinked,' said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee...." Schumer says that, absent extraordinary circumstances, the Senate ought not confirm another nominee by President Bush. More (Politico 07.27.2007).

Pilot project envisions more-interrogative Judge-Judy-like role for judges. "'Judge Judy' is getting a real courtroom. British Columbia is in the midst of a radical revamp of its Small Claims Court. And as part of its plan for offering faster and cheaper resolutions of legal complaints, the province intends to offer 'a speedy trial' for claims of under $5,000. The goal is to wrap up the trial within an hour. There will be no pre-trial hearings. Crucial to the pilot project's success when it starts this fall will be a new, interrogative role for judges...." More (Toronto Star 07.27.2007). Comment. I think one could make a fairly persuasive case that a system of quick one-day hearings on property division in divorce cases, held within one month after filing, would yield results that were as substantively fair and equitable to the parties and to basic principles of justice and fair process as the current lawyer-enriching, family-destroying system in which cases are dragged out for months and years, with hundreds of pages of filings, interminable discovery, and lots and lots of billable hours -- and, in many cases, the lives of husbands and wives and children left in near ruin.

The gems left behind by judge's slain mother. In February 2005 Judge Joan Lefkow discovered the bodies of her mother and husband, shot to death, in the basement of her Chicago home. The mother, 89-year-old Donna Humphrey, a farm girl who never graduated from high school, left behind some gems -- little poems, perfect in their own modest, quiet way, reflecting a lifetime of reflection on her own life. Now Judge Lefkow has made arrangements for the publication of some of the poems in a small run of 500 copies. More (Chicago Tribune 07.28.2007). Comment. When my mother's mother, Pauline Pederson Herfindahl, was in her prime, the newspaper she received in the daily mail typically published a poem a day. Grandma Pauline, who died of ALS in her early 60's, when I was a kid, clipped some of the ones she liked and kept them in a scrapbook. Who can not be touched by the picture of a modest farm woman like Pauline, leading a busy life tending to all the domestic duties set out by the expectations of society and family, seeking after the finer, more sublime things in life? The nicest thing my mother said of me in her decline was "He's a very good lawyer, but in his heart he's a poet." I have to believe that in some direct and indirect ways that I don't understand, I owe a good part of my love of poetry and poetic perception and imagination -- of Frost, Hardy, Dickinson, Stevens, Williams, Emerson, Thoreau, Cummings, Bly, Milosz, etc., etc. -- to Grandma Pauline and to all the farm girls like her, including Donna Humphrey, who in their hearts were poets.

Ex-judge is acquitted on retrial. "Former Española Municipal Judge Charles Maestas was cleared late Friday night of the rape and bribery charges against him. The eight-man, four-woman jury returned verdicts of acquittal on nine of the 10 counts against Maestas and was deadlocked -- with 11 votes to acquit -- on one bribery charge. State District Judge Michael Vigil declared a mistrial on that count...A jury convicted Maestas -- who served as municipal judge from 1998 to 2002 -- of similar charges in 2003, and he spent 2 1/2 years in prison. However, the state Supreme Court overturned the conviction in December." More (Santa Fe New Mexican 07.28.2007). Comment. All along we assumed he was innocent. Why? We always assume judges charged with crimes are innocent. How can we do that -- isn't that prejudging a case? Yes it is. It's prejudging based on law -- a little thing called the presumption of innocence.

Pontius-Pilate-style 'Justice by Applause-O-Meter? "Perhaps it's time we reverted to a more classic justice model -- Roman Coliseum style. Subiaco Oval could be converted into one big court of law...The jury would be compiled of 40,000 raucous Sandgropers who had either made at least one phone call to a talk-back radio program or had had a letter published in a newspaper (this being the criteria for 'jury' selection). Lawyers for the prosecution and defence would have to present tight and entertaining arguments in four quarters of no more than 10 minutes each. Referees, made up of former judges and QCs, would weigh the arguments based on the cheers of the spectators at the end of each quarter's summation....." -- From an amusing op/ed piece by Phil Haberland written after serving on a jury in a criminal prosecution. More (Perth Sunday Times - AU 07.28.2007). Comment. Haberland was disturbed that "more than one juror did not give a damn whether we found the defendant guilty or not guilty. They did not want to be there. It was Friday afternoon and they were heading to the pub. For them, any verdict would do." I served on a civil jury in a slip-and-fall case a few years ago. I was tempted to write an interesting mini-essay on the experience but thought it best not to do so. But nothing in that experience altered my view that going to trial by either judge or jury as determiner of fact is not that different from playing a game of chance. Our system, as good as it is, is not nearly as good as it could or should be.

Annals of judicial romance - judge, ex-fiancee drop petitions for protection. "A York County attorney and probate judge...and his ex-fiancee reached an agreement about their separation. Robert Nadeau and Lynann Frydrich, the one-time client who eventually became his fiancee, must stay away from each other under terms of the three-page agreement reached late Friday. They also agreed to not disparage one another and set a timetable for Frydrich and her school-age children to move out of Nadeau's house...In 2003, Frydrich made a complaint against Nadeau to the state Board of Overseers of the Bar, after he reconciled with his wife. She later withdrew her complaint when she and Nadeau reconciled. Last Friday, Frydrich said she filed a temporary restraining order against Nadeau...Nadeau counterfiled for a restraining order of his own...." More (Press-Herald - ME 07.28.2007).

The Path to the Judicial Heights. "In the first judicial appointment of his tenure, Gov. Deval Patrick on Thursday nominated Superior Court Judge Margot Botsford to replace the late Martha Sosman on the Supreme Judicial Court...." More (Boston Herald 07.2.2007). Comment. Botsford, who appears on paper to be as well qualified as others whom the governor might have appointed, was first appointed to the bench in 1989 by Gov. Mike Dukakis, whom her lawyer husband, Stephen Rosenfeld, served as legal counsel and chief of staff (the latter according to Herald columnist Howie Carr). According to today's Herald, Rosenfeld last year gave the governor's campaign fund three times the maximum amount of money allowed by law. More and more (Boston Herald 07.27.2007). The Herald quotes a spokesperson for the governor as saying, apparently with a straight face, that the contributions played no role in the appointment and that there's no one more qualified. It's sheer coincidence, I guess, that all across the country those who make it through the screening processes and eventually get picked by the governor as "the best people for the job" so often turn out to have been friends and allies of the governor. Meanwhile....

Will Missouri voters get a chance to reject the sacred Missouri Plan? "Gov. Matt Blunt is aggravated at the way a nonpartisan commission selected the names of three judges to send him as final choices for a vacancy on the Missouri Supreme Court, a source close to the governor said Thursday...Some of Blunt's political advisers say Missouri's nonpartisan court plan has outlived its usefulness and they are pushing for the governor to seek a statewide referendum for a constitutional amendment to change the way it operates." More (St. Louis Post-Dispatch 07.27.2007). Further reading. Writes Post-Dispatch columnist Bill McClellan: "The nonpartisan commission takes into consideration the governor's ideological preferences. It is not going to give a conservative Republican governor three liberal Democrats. That is what we said, and we said it with a certain smugness. The list came out Wednesday. Well, uh, you know, it's sort of like, well, uh." More (St. Louis Post-Dispatch 07.27.2007). Update. McClellan comments further today: "[T]here is one thing worse than giving a governor three people you know he won't like. That's giving him two you know he won't like. That's putting the fix in for the third." More (St. Louis Post-Dispatch 07.30.2007). Comment. And that, of course, is the sort of thing "nonpartisan" commissions often do. Read on: Editorial criticizing MO "nonpartisan" commission's failure to follow sunshine law (Springfield News-Leader 08.02.2007).

Will long-delayed paternity suit against high court judge finally be heard? "After five years, ministerial advisor Advocate Yolisa Maya's maintenance case against a high court judge is finally showing signs of being heard. Maya, a special legal advisor to Foreign Affairs Minister Nkosazana Dlamini-Zuma, has been engaged in a legal battle that has turned into a paternity dispute with Pretoria high court judge Ntsikelelo Poswa...." More (Independent Online - South Africa 07.27.2007).

http://www.int.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20070727045258437C278330

Negros Oriental judge is assassinated. "A judge who was shot in an ambush in Negros Oriental succumbed to his injuries Friday morning, even as the police remain clueless as to who killed him. Supreme Court (SC) spokesman Jose Midas Marquez said Judge Orlando Velasco of the Bayawan City regional trial court died at 6 a.m. Friday. He was 57...." More (GMANews - Philippines 07.27.2007).

http://www.gmanews.tv/story/52984/Ambushed-Negros-Oriental-judge-dies

Latest on Michigan's fractured Supreme Court. "Cliff Taylor is the chief justice of Michigan's highest court. He's also a zealot operating under a tight deadline, which may explain the reckless haste with which Taylor and other members of the state Supreme Court's Republican majority are laying waste to decades of consumer-friendly legal precedent. Insurers and other deep-pocket defendants who bankrolled the current majority's rise to power could lose their vise-like grip on the court if Taylor fails to win re-election when his term runs out next year. He's the only justice whose seat is a