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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 (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 personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.
Why would Minnesota want to be like Missouri? Voters in MN and other states with judicial elections are being "courted" in similar ways by members of the power elite in well-financed campaigns to give up their distinctly-American role in selection of judges in exchange for the fake one-candidate "retention elections" promised by "the Missouri Plan." I've posted a detailed critical essay on this topic, and I link to it here for the convenience of not only Minnesota readers but also of voters in other states who are being so "courted": Strib. urges longer terms for judges, no role for voters in their selection. Following my essay you will find updated links to many of my earlier as well as later postings relevant to this important public policy question.
Will she wear a sari or a gown? How about both? "A Durban [South Africa] woman has made legal history by becoming the only female attorney to be appointed as a judge on the KwaZulu-Natal Bench. And Mohini Murugasen, who has worn a sari daily for more than 30 years, says she will continue to wear her traditional outfit under her judicial gown...." More (The Times 05.15.2008).
Advocates for battered women complain about judge's remarks. "A county judge is in hot water for comments he made earlier this month while acquitting a man on domestic assault charges. District Court Judge Robert C. Wilcox, who apologized Friday for his remarks but stands behind his ruling, said in court on June 3 that he could not trust the victim in the case because she had sex with the defendant 10 days after the alleged assault. 'It's a word to the victims of the world, if you want justice you have to present yourself in a way that people will believe it,' Judge Wilcox said shortly before finding Thomas E. Knight Jr., 48, not guilty of second-degree assault...." More (The Capital via Hometown Annapolis 06.15.2008). Comment. Judges sometimes get in trouble not so much for their decisions but for their explanations. "Let the word go forth" statements are risky, whether by prosecutors in closing argument urging jurors to "send a message" (that's prosecutorial misconduct, diverting the jurors from the real issue of whether the state proved the defendant guilty beyond a reasonable doubt) or by judges sending a message to "the victims of the world" (or to, say, "men who are thinking about abusing their girl friends"). But the statements by some advocates for battered women are just as "off" when they suggest that the factfinder ought to be required to always accept the testimony of a woman who claims her boy friend struck her or to ignore evidence casting doubt on a woman's claims. Further reading. See, 'Crying Wolf - In a system that assumes children don't lie and women are victims, false allegations happen with alarming regularity and frequency' by Christie Blatchford (National Post 09.08.2001).
Alabama A.G. announces indictment, arrest of probate judge. "Attorney General Troy King announced the arrest today of Covington County Probate Judge Sherrie Reid Phillips for felony ethics and theft charges. Phillips surrendered late this afternoon to agents of the Attorney General's Office at the Covington County Jail. Attorney General King's Office presented evidence to a Covington County grand jury on June 10, resulting in a six-count indictment that charges Phillips with two counts of first-degree theft, two counts of first-degree theft by deception, and two counts of intentionally misusing her public office for unlawful personal gain...." More (Press Release 06.13.2008). Comment. We presume she's innocent. Why? Because of a novel little doctrine we like to call "the presumption of innocence."
Indicted Iowa judge has ties to woman whose tickets he dismissed. "[Kyle Williamson, 41, of Bettendorf, t]he Scott County judge charged with fraud, forgery and identity theft, dismissed traffic tickets for a woman he has provided legal counsel to and has financial ties with, documents reveal. [He] dismissed the tickets while serving as a part-time magistrate judge...He was named a full-time associate court judge in October. He has been on a combination of paid leave and suspension since Jan. 18, as authorities launched a criminal probe...He faces a six-count indictment in U.S. District Court in Davenport, charging him with bank fraud, identity theft and forgery. He [also] faces two counts of falsifying documents in Scott County District Court...." More (Quad City Times 06.14.2008). Update. Judge announces resignation (WQAD 08.14.2008).
Does SCOTUS' habeas decision 'tee up' an issue nicely for GOP? "Thanks in no small part to Justice Antonin Scalia's dire warning that granting Guantánamo detainees access to habeas corpus 'will almost certainly cause more Americans to be killed,' the Supreme Court finds itself on the verge of becoming something that it has not been for many election cycles -- a campaign issue... The ruling has 'teed up the Supreme Court issue nicely for the G.O.P.,' Curt Levey of the Committee for Justice, a group that advocates for Republican judicial nominees, wrote on his blog...." Linda Greenhouse, Justices Come Under Election Year Spotlight (NYT 06.14.2008). Comment. The dissenters have "teed themselves" up nicely for posterity, which will not look kindly on their faux "textualism." Those guys are "textualists" only when it suits them. What's their unspoken credo? This: "It all depends on whose ox is being gored." Or, in BurtSpeak, "It depends on whose Gore is being Bushed." Further reading. Dahlia Lithwick, The Enemy Within -- Who are we more afraid of: enemy combatants or federal courts? (Slate 06.12.2008) ("Justice Scalia...is banking on someday cashing in the 'I told you so' chit he wrote for himself today...But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench -- with decades of judicial experience and the Constitution to light their way -- might now do what they are trained to do: hear cases.").
Held: censure of judge was 'too extreme.' "A discipline panel's censure of a Las Vegas judge who had a woman handcuffed and jailed for just over two hours in 2003 to assure her boyfriend appeared in court on traffic charges was erased Thursday by the state Supreme Court. The high court ruled that the censure imposed by the state Judicial Discipline Commission on Las Vegas Municipal Court Judge George Assad was 'too extreme,' and Assad instead should apologize to the woman and take a judicial ethics class...." More (KTVN 06.13.2008).
Lawyers for death-row inmate allege judge-prosecutor affair. "Lawyers for a Texas inmate facing execution next week filed court papers on Thursday accusing the judge at his double-murder trial of having an affair with the prosecutor. The papers, filed in the Texas Court of Criminal Appeals, argue that the relationship between the judge, Verla Sue Holland, and the man who was district attorney of Collin County, Tom O'Connell, should nullify the conviction of the inmate, Charles Hood, in 1990... The petitions include an affidavit from a former assistant district attorney, Matthew Goeller, who said that the six-year relationship between Judge Holland and Mr. O'Connell was 'common knowledge' and that it raised 'reasonable doubt on the judge's capacity to act impartially.'" More (NYT 06.13.2008). Comments. a) Just an allegation at this point. b) The NYT story says "the relationship" was reported in Salon in 2005. But the affidavit suggests "the relationship" was "common knowledge" at the time of trial. In either event, assuming no one raised the issue earlier, why wasn't it raised earlier, either at the time of trial or before now? Asking rhetorically/hypothetically, Is this the sort of thing some attorneys, especially local ones who depend on judges to assign them cases, are reluctant to raise, for fear of alienating the offending trial judge in particular and other trial judges in general? c) How common is this? We seem to recall a female judge in The Practice who had a sexual relationship with a defense attorney who appeared before her. And wasn't there a female defense attorney in Philly who...? See, "Romancin' wit de judge" at BurtLaw's Court Gazing IV (scroll down). See, also, Prosecutor, judge: sex in chambers, showering together at courthouse; Judge resigns and prosecutor is fired over 'romantic relationship' (with links to other postings on the topic of judicial romance); Judge scolded for romance with lawyer; Was judge in bed with an assistant D.A.? More on former law clerk's allegations against judge. d) On the subject of what's a lovelorn judge to do, see our extensive comments at i) Judge publicly admonished for 'inappropriate' relationship with employee and i) Commission says judges can't socialize with courthouse hoi polloi.
Fellow walks 25 miles to courthouse for DWI sentencing. "Early Tuesday morning, Stephen A. Shoemaker discovered, to his dismay, that he didn't have a ride to the Cumberland County courthouse. The Shippensburg man was supposed to be there at 9:30 a.m. to be sentenced on a drunken driving conviction. So Shoemaker, 33, started walking at dawn. And he kept walking in the 90-plus-degree heat for about 25 miles -- with a detour to Carlisle Regional Medical Center to be treated for dehydration -- until he arrived to stand before Judge Edward E. Guido that afternoon...." More (Patriot News 06.10.2008). Comment. It seems heroic, but only relatively so. In "the old days," people regularly walked such distances. Emerson, Hawthorne, Thoreau -- they'd think nothing of hiking from Concord to Cambridge. Want to read about their hikes? Read their respective and extensive journals and notebooks, all of which are terrific. Or read Thoreau's essay, Walking. Me? When my old car, "Old Blue" -- see, my essay titled "My Best Father's Day" (scroll down) at BurtLaw's Father's & Kids -- finally gave out in 2005, I gave it to charity and didn't replace it (still haven't) -- see, my essay titled "Our Bait-and-Switch Society," entry dated 10.16.2005, at Burton Hanson's Political Opinion Journal - Sometimes Left and Always Right -- resolving to walk more, take the bus when needed, and hitch an occasional ride with my son or daughter in their cars. My "walking more" includes a) at least two vigorous dog walks every day, b) a regular walk to the grocery store whenever I need to get groceries (my increasingly-well-known and trendy Sir Burton's Walk-the-Dog-and-Walk-to-the-Grocery-Store Diet and Exercise Plan), c) an occasional walk to Lake Harriet, then Lake Calhoun and then Uptown, catching a bus home, and d) once-a-week walk-behind power mowing of a .9 acre lawn in the summer and hand shoveling of the driveway when needed in the winter. The result? I weigh the same weight I weighed when I was captain of the track team for my mentor, Leon "Brock" Brockmeyer, in high school. See, my mini-essay in the comment at One-eyed umps and the Rule of Law.
Sir Burton rises to defend Chief Judge Kozinski over porn postings. a) Most students of the judiciary are familiar with Judge Alex Kosinski, now Chief Judge of the 9th U.S. Circuit Court of Appeals. Regular readers of my blogs also are familiar with him (see, some links, from a Yahoo search, to my previous blog pages with postings about him). Indeed, he's sort of the "darling" of the legal/judicial blogosphere. Why? Well, just as "It is not often that someone comes along who is a true friend and a good writer," (E.B. White, Charlotte's Web), it isn't often that a judge comes along who is a good writer -- and "cool." He was appointed, at a very young age, by President Reagan. He's only 57 now. Although I often disagree with his opinions, judicial and extrajudicial, I like many things about him, including his irreverence, his interesting writing style (which, admittedly, sometimes calls attention to itself), his unpredictability (like Judge Posner, another of Reagan's once-a-whiz-kid appointees, he's not a conservative cookie-cutter's kind of judge), his courage, his brightness, his eccentric normalcy. I wouldn't want a Supreme Court full of Kozinskis (as if there are others like him) but he'd easily be one member of my picks of living judges for an ideal farraginous court (see, my posting titled A 'farraginous' Supreme Court).
b) In addition to all the qualities I mentioned, he's also surprisingly open and accessible. I exchanged e-mails with him several times in connection with the skirmish in August 2001 between Leonidas Ralph Mecham, Director, Administrative Office of United States Courts, and the Judges of the Ninth Circuit over the issue of monitoring of computer use by the judges and their employees. Judge Kozinski was the leader of the opposition. See, among my postings, "Foes of monitoring of judges' computer use win first round," entry dated 09.08.2001 at BurtLaw's Court Gazing II (scroll down). See, also, my postings about him under "Shagadelic Law" at BurtLaw's Court Gazing V (scroll down). c) For a number of years Judge Kozinski, apparently with the help of his son, at his own expense and using his or his son's own server, has maintained a website with the URL ("registered" to his son) of "http://alex.kozinski.com." There he would post, with easy public access, things like lists of and links to his law review articles -- those articles with uniquely-Kozinskian titles such as "What I Ate for Breakfast and Other Mysteries of Judicial Decisionmaking," 43 Cons. Fin. L.Q. Rep. 254 (1989), reprinted in 26 Loy. L.A. L. Rev. 993 (1993) -- and other publications (see, e.g., this Google cache of an entry from the temporarily-closed site). What has not been as well known is that the site, like many sites, contained subdirectories which he thought weren't "public" but which, in fact, anyone could gain access to if they knew and typed in the names of those subdirectories. He apparently uploaded "stuff" there that was not meant for the public eye -- some of it the sort of "sexual humor" images and jokes that some people enjoy circulating, via e-mail, to their friends. (Apparently his son uploaded "stuff" to those subdirectories, too.) In any event, as some federal appellate judges do in order to better see things from the perspective of the trial bench, Judge K got himself a trial, and it so happens it is an obsenity trial of a Hollywood "'adult' filmmaker." See, Upcoming trial will see hours of hard-core fetish pornography (L.A. Times 06.09.2008). Someone must have tipped off one or more members of the press, because yesterday, 06.11.2008, the L.A. Times posted a story on its website about Judge K's website -- and then, as one might say, the "subdirectories" hit the proverbial "WWW fan." Today's L.A. Times has a detailed story on the matter (Judge suspends L.A. obscenity trial after conceding his website had sexual images) and the New York Times has one, too (Chief Judge Contributed to Racy Web Site). Once the story went public, the Kozinskis -- temporarily at least -- "took down" the site, with some visitors seeking access to it being greeted by this Kozinskian bit of humor: "Ain't nothin' here. Y'all best be movin' on, compadre." Comment. In answer to the question 'Is the fellow who did that fit to be a judge,' this is what I said a year ago:
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).
Updates on Kozinski mess. a) "Judge Alex Kozinski's statements about...his website have been varied, although not necessarily inconsistent...There's a different statement we'd like to hear from him, and no, it's not an apology, an expression of regret or even an explanation. It's this: 'So what?'" More (L.A. Times - Editorial 06.13.2008). b) Judge Kozinski has concluded that there is "manifest necessity" requiring him to grant a mistrial in the criminal trial over which he was presiding and has recused from further participation in the case. More (L.A. Times 06.14.2008). Now the defense presumably will argue that the mistrial was not "manifestly necessary" and that therefore, under the caselaw, "retrial" is barred by the double jeopardy clause of the federal constitution. c) Judge K's wife has done a pretty good job setting the factual record straight. From a detailed and persuasive e-mail from Judge K's wife, Marcy Tiffany, posted at Patterico.Com:
The 'server' is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely...[O]f the several hundred items in the 'stuff' folder, the vast majority was cute, amusing, and not in the least bit sexual in nature...[I]n addition to the 'stuff' folder, which Alex and my sons used to store a hodge-podge of miscellaneous humorous items, we use the server to store several dozen other folders that contain a lot of personal material...Obviously, the advantage of using a server is so that we can access the material from other computers and also send family members and friends links that will allow them to see a specific item in a folder. For example, this allows me to send links to my sisters so that they can see the latest photo of our grandchild....
The Blawgosphere's take on Kozinski.
a) "The problem with being a judge who loves to shock is that you're a flashy barracuda in a school of plain tuna, and you risk careening off into the high seas that are the province of public officials who are just too out there for their own good...." Emily Bazelon, The Kozinski Circus (Slate 06.11.2008).
b) "Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: 'Hey look,' he says, 'look at the sort of stuff the judge keeps in his house.'" Lawrence Lessig, The Kozinski Mess (Lessig Blog 06.12.2008). Comment. I like Professor Lessig and generally agree with his approach to copyright law (as in his book Creative Commons). But, c'mon Larry, the analogy to keeping stuff in one's den at home is a stretch. Judge Kozinski may have felt putting his stuff in the "stuff" subdirectory kept it private but he should have known that putting it there was not like putting it in his den. Putting it "there" was more like one or more of the following: i) Leaving it in "open view" in the backseat of his car, trusting that nosey passersby would not try peeking theough the tinted windows to see what's inside; ii) leaving it out in the open on a table next to a street-level townhouse picture window into which passersby could see if they strained a bit; iii) leaving it on top of one's desk in an "open-air" modular office in a big company's "workpen" filled with modular offices; iv) putting it out on the "curtilage" surrounding one's suburban residence, say, on top of a picnic table near the sidewalk leading to one's front door; or v) maybe even a bit like putting it out on the "open fields" beyond the curtilage surrounding one's farmhouse.
Court named for him, Gus promises to call people 'whackjobs' as TV judge. "Former Sen. Alfonse D'Amato, 70, is heading to the bench. He'll be in Los Angeles Friday to shoot the pilot for a new courtroom-based reality show. If picked up, Judge D'Amato will be filmed in New York and ready for fall '09 syndication on the Fox Network. Why Al? 'He's got that extroverted personality. He's feisty, he has strong opinions and a strong point of view'...As for Judge Judy-like shtick ('Do I have stupid written on my forehead?'), D'Amato has a number of his own pet sayings up his sleeve. 'Undoubtedly, 'You're a whack job' will find it's way into the series,' he says...." More (Newsday 05.11.2008). Comments. a) The news story has a picture of Gus, as everyone calls him, standing next to a plaque that will identify a new federal courthouse as the "Alfonse M. D'Amato United States Courthouse." Several years ago, commenting on a post office building being named after a federal judge, I wrote: "Since courthouses are often named after members of congress, it makes sense (I think) that post offices are named after judges. But I'm not sure where that leaves particularly outstanding postmasters & postal workers. Perhaps individual mail drop boxes can be named after them." What do I really think? Well, I've been called a 'curmudgeon and a "misanthrope," but I nonetheless plough fearlessly ahead, like the Benson, MN Ploughboy football players of old, breaking through the crust of accepted opinions and vacuous thinking to reveal well-wrought Lake Hazel-ian arrowheads, like those my Pederson ancestors discovered, of penetrating truth: i) I don't think "judicial centers" should be named after individuals. ii) I don't think courthouses should be called "judicial centers." iii) If Minnesota ever decides to name the "Minnesota 'Judicial Center'" after some judge, it ought to call it the Andersonville Courthouse, since the best predictor of who the governor will name as a justice at any time (aside from whether the person is a friend or political ally) is whether the candidate's last name is Anderson. See, e.g., comments at the following postings: 'If I change my name to Anderson will the MN governor name me a judge?' Or are we Norwegians not as nice as I've made us out to be? and Chance of receiving asylum depends on who is judge. As I said in one of the comments, "Perhaps we will have achieved real equality in MN only when 'Every man is not a King but an Anderson.' Cf., Every Man a King (Wikipedia)." b) The TV judge shows are all alike. Where's the imagination? (One is reminded of the line in Rudyard Kipling's The Mary Gloster,
"They copied all they could follow, but they couldn't copy my mind, so I left them sweating and stealing a year and a half behind.") I have a number of clever, fresh commercial ideas for some TV judge programs but I'm not dumb enough to print them here and in effect give them away (or let one of the producers who visit this site steal 'em). But here's link to a posting about a clever idea of mine for a TV judge program that would aid (and attract national attention to) the Twin Cities area and our local law schools.
On politicians and the 'playing of cards.' I've warned against judges allowing themselves to be used by legislative and executive polticians. And I've warned voters not to let executive and legislative politicians get away with playing 'the judge card' to score cheap points with the electorate. Thus I think it's only fair that I warn, as I've done before, executive and legislative politicians not to allow themselves to be used or fooled by judicial politicians, not to let them play the "judicial independence card" or the "constitutional crisis card" in order to divert attention or try get a raise or muddy an issue. Read on....
When judges sue over pay, they may have to defend themselves. As readers of The Daily Judge know, Chief Judge Kaye of N.Y.'s highest appellate court has filed suit against the governor and legislators o/b/o of all state judges claiming their failure to give the judges adequate pay raises threatens judicial independence. Now Richard Dolan, the lawyer who represents the Guv and the Speaker of the Assembly, calls Kaye's claim "fanciful" and says he intends to call them as witnesses and question them about their household income and "whether each judge feels that the lack of a pay increase affects his or her independence, whether he or she is demoralized," etc. Dolan points out that judges are "among the most highly compensated State officials" and maintains their claims of undercompensation ignore their hefty insurance and pensions benefits. More (N.Y. Sun 06.11.2008). Comment. Judges traditionally have lived not in glass houses but in fortresses of solitude, hidden from the sunlight. Did they think they could continue to enjoy the luxuries associated with living away from it all if they came outside and started throwing rocks at those who don't enjoy the same luxuries? Further reading. Among my many relevants postings with comments, see, a) Chief Justice Roberts plays 'judicial independence' and 'constitutional crisis' cards; b) A judge responds to O'Connor's 'hyperbole'; c) Strib. urges longer terms for judges, no role for voters in their selection; d) Do lawyers really take a 'hit' on pay when joining the bench? e) 'I could be making lots more if I were Michael Jordan...' at BurtLaw's Law and Judicial Economics at BurtLaw's Law and Everything Else. Update. C.J. Kaye's suit, filed o/b/o all NYS judges, is separate from but related to one filed by several individual judges. In that suit the same judge to whom Kaye's suit is assigned ruled has just ruled in favor of the judges but the ruling, by a judge in effect ordering the legislature to give himself a pay raise, is problematical. See, New York Judge Orders Himself a Raise (N.Y. Sun 06.12.2008). More (NYT 06.12.2008), and more (WSJ 06.14.2008) ("Here's a weekend daydream: What if on Monday, you walked into work and gave yourself a raise? That's what happened in New York this week, when a state judge ordered the Governor and state legislature to pony up bigger paychecks for him and the rest of his judicial friends. It's the perfect plan -- if only it weren't for that inconvenient detail about separation of powers.").
Can a juror play Sudoku and still pay attention? "A judge aborted a drug conspiracy trial Tuesday after some jurors were found to have been playing the puzzle game Sudoku while evidence was being given. Sydney [Australia] District Court Judge Peter Zahra ended the trial Tuesday for two men facing a possible life sentence for drug conspiracy charges. The trial had been running for 66 days and had cost taxpayers an estimated 1 million Australian dollars (US$950,000)...." More (Seattle P-I 06.10.2008). See, also, this report in the Sydney Morning Herald (05.10.2008). Comment. The jurors were allowed to take notes. No one suspected that anything was awry until someone observed one of them writing vertically instead of horizontally. Four or five of the jurors had been playing while listening for as much as half the trial. Judging by externals and appearances, I can understand where the judge is coming from. But the foreman is quoted saying that playing Sudoku actually helped him pay attention to the testimony. Is it possible some jurors actually can listen as well or maybe better if they're allowed to doodle or play Sudoku? Me? I often fall asleep at night with the radio on, tuned to BBC news, and wake to it as well. It's not unusual for me to recall news stories "heard" while I was asleep. I've even been known to be very productive at legal tasks while -- dare I admit it? -- listening to music! Eons ago I knew a fine judge, long since deceased, who, I have it on reliable hearsay, used to doodle while listening to oral arguments. Afterward, he'd toss the doodles in the trash. A janitor, emptying the wastebasket every day, thought some of them were good and saved them. I heard this from the janitor, long ago deceased. I never saw any of the doodles. Wish I had. The point of all this is that smart judges -- and, yes, other people, including, it appears from accounts I've read, law clerk, bailiffs and presumably jurors -- can do two things at once. Holmes used to write long, literate letters to his pen pals while sitting on the bench listening to arguments. The letters are among the best in the language and are collected in volumes every lawyer and every judge should read. See, e.g., The Holmes-Laski Letters. Other judges daydream while presiding -- daydream about anything that suits their fancy. For example, Judge Cass Timberlane, the great judge of Grand Republic, MN, found himself daydreaming about the ankles of an attractive young female witness one day; indeed, he eventually courted her and married her. See, Annals of Judicial Romance. To use a line from Delmore Schwartz, In Dreams Begin Responsibilities -- that is, in the daydreams or doodles or letters or Sudokus of a judge or clerk or juror begin...what, greatness, romance, immortality, justice? You name it.
W. VA. justices question need for intermediate court. "Most of West Virginia's Supreme Court justices question the need for a midlevel appeals court, a proposal raised after they refused to hear two cases involving a combined $664 million in damages. The four justices cite the expected price tag of adding another layer to the state's judicial system...West Virginia's Supreme Court has complete discretion over whether to hear appeals[, a] provision [that] dates back to the state's founding in 1863...." More (Charleston Daily Mail 06.09.2008). Comments. a) At first blush, it's sort of refreshing to hear state supreme court justices say no to such a plan. Typically, it seems, justices in many states have not only endorsed such a court but have done everything in their power to get one established. Personally, and for multiple reasons -- including that I didn't admire the way the promoters of the amendment marketed it -- I voted against the amendment establishing one in MN. But, thanks largely to Peter Popovich, the first chief, and some early guidance-through-reversal, MN's intermediate court not only is a success but -- I think -- is a better court, over-all, than the state supreme court, as presently constituted. b) I'm somewhat shocked that such a liberal state as W. VA. doesn't give losing litigants the right to appeal. Before the establishment of the intermediate court here, SCOMN had no discretion as to which appeals to hear and its caseload, though manageable, was large. Now that the court has discretion, I believe it too willingly exercises that discretion in favor of denial of review, something that seemingly stems largely from a silly notion that it is no longer an error-correcting court but a policy-setting court that ought to be concerned with "important" issues. In my view, if a fair perusal of a petition for review establishes that the lower courts prejudicially erred, SCOMN ought to grant review and correct the error. It might be different if the members of the court were overworked in deciding cases, the court's core function. In my opinion, it's underworked in deciding cases, instead devoting too much of its time to other matters.
When you're arrested on the weekend, where's the judge? "Teenagers who get arrested in New York City are given some of the same protections that adults receive...For years, however, there was at least one major difference in how the criminal justice system treated adults and juveniles: The youths had an unofficial, and unpopular, right to a long wait on the weekends. Court processing for arrested adults -- those 16 and older -- is a seven-day-a-week operation in the city. For juvenile delinquent cases -- involving children and teenagers ages 7 to 15 -- processing in Family Court was only available Monday to Friday...." More (NYT 06.09.2008). Comment. Shockingly, there are still many state court systems -- hmm, I wonder which ones? -- where weekend arrestees, adults and kids, have to wait in jail all weekend, until Tuesday when Monday is a holiday, to see a judge. There's no good excuse for this, in my opinion. By the way, guess who brought about the improvement for kids in NYC? Mayor Michael R. Bloomberg.
When judges are picked in secret. "The veil of secrecy over the procedure for appointment of judges and the absence of clearly defined parameters raises serious questions over the impartiality of the selection process, says a parliamentary panel...In its latest report, the committee says: 'The closed system prevailing now is not getting meritorious persons called to the Bench. Transparency, inclusiveness and merit should be the way of appointing judges.'" More (Hindustan Times 06.09.2008). Comment. India has a one-size-fits-all judicial common law system. It's heavily bureaucratized and inflexible with massive court delays. One of the beauties of our federal system is that the states -- those "laboratories of democracy" -- don't have to follow the federal system and need not follow a one-size-fits-all template in matters of judicial selection and tenure. This is good because what works in one state might not work in another. Thus, the MN Plan, with voters having a say in judicial selection, has worked very well in MN but might not work well in some other states. Similarly, the Missouri Plan -- which leaves no say for voters in judicial selection, giving them only a limited yes-no vote on whether to retain a judge -- was adopted as an understandable response to the electoral shenanigans of that notorious political machinist, "Boss Tom" Pendergast. Unlike Missouri, Minnesota has no history of judicial corruption or influence peddling. It is true that favoritism is often a factor in the governor's choice of judges. But we have a check on that in Minnesota, since the Minnesota Way doesn't deprive voters of a role in judicial selection, as the Missouri Plan, in my view, mistakenly does. In Missouri, as I said, all the voters get is a chance to participate in Soviet-style one-candidate retention elections, whereas the Minnesota Way allows for contested elections giving the voters real choices. Moreover, as I've explained elsewhere, the populist Minnesota Plan, which does not deprive voters of a role in judicial selection, has produced a much better judiciary than that produced by the MO Plan and I deplore the fear-mongering being used to try convince MN voters to give up their role, which they have played so responsibly, in judicial selection.
Howie Carr's advice for those seeking judicial appointment. "When applying for a judgeship, after all, it never hurts to have yourself or your spouse listed as an early contributor to the governor, who appoints judges. At the very least, it can't hurt...." More (Boston Herald - Column 06.13.2008).
Drinking jugs led archeologists in discovering original county courthouse. "When searching for 17th-century courthouses, it might be good to keep in mind spirits -- the alcoholic, not ghostly, kind. Back then, around the 1670s, it seems councilmen and judges spent a fair amount of their time swilling liquor, so remnants of their wine bottles and beer tankards are easy to find. In fact, it was pieces of those stone and glass vessels that led a team of archaeologists to discover the original Charles County courthouse, the oldest government building in Maryland whose remnants could never be located -- until now...." More (Washington Post 06.09.2008). Comment. I like the statement by Julia King, an anthropologist from St. Mary's College of Maryland, "Oh, they drank at night when they were sitting around talking about the day, they drank on breaks and they might even have been doing it when they were in court." I ask rhetorically, Was the quality of justice any less as a result of all that drinking? Might it even have been "just a wee bit" better as a result? Just as "Malt does more than Milton can/ To justify God's ways to Man" (A.E. Houseman, "Terrance, This is Stupid Stuff"), so may -- I emphasize the "may" -- jugs of judicial juice help judges juggle the jiggly claims of justice("just-us"?)-seeking juvenile-acting esquires.
What's up in Michigan? Read the next five postings....
SCOMICH removes judge but doesn't block her from running again. "The Michigan Supreme Court unanimously decided Friday to remove [Circuit Judge Beverley Nettles-Nickerson,] a Lansing-area judge[,] from office, but declined a request from the Judicial Tenure Commission that would have essentially blocked her re-election hopes. Justices issued their ruling two days after hearing arguments...[The judge's lawyer] said...he expects her to seek re-election. Under the court's ruling, she won't be listed as an incumbent...." More (MichLive 06.13.2008). Comment. In a state in which the constitution guarantees voters a say in judicial selection, the state's supremes ought not be able to bar a removed judge from running again for judicial office. That would deprive voters of a right given them in the constitution. Of course, if the removed judge is disbarred in a separate and independent proceeding, the judge would not meet the qualifications for judicial office. But the desire to prevent an attorney from seeking judicial office would not be a legitimate factor in deciding whether to disbar.
Prosecutor wants entire bench disqualified. "Wayne County Prosecutor Kym Worthy [is] asking Michigan's second-highest court to do what three lower court judges have declined to -- disqualify Detroit's entire district court bench from presiding over the felony case against Detroit Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty...But the prosecutor faces an uphill fight, because the state's highest court has been so cavalier about the appearance of judicial impropriety...[T]o prevail, she'll have to persuade appellate judges that those at the bottom of the judicial system must be held to higher standards than those at the top." -- Brian Dickerson in Detroit Free Press (06.08.2008).
Can state bar bar applicant because he criticized state courts? "[The 6th Circuit Court of Appeals] has tossed a civil rights and First Amendment claim filed by a law graduate[, Frank Lawrence, Jr.,] who was denied a law license because [he]...told interviewers with the Michigan bar's character and fitness committee that he had little respect for the state court system[, that] federal courts are the guardians of the Constitution...[and because h]e also operated a website called StateBarWatch that criticized the State Bar of Michigan and the State Board of Law Examiners...." More (ABA J. 06.05.2008). Comment. One might argue that by denying admission to Mr. Lawrence because of his First-Amendment-protected criticisms of the courts and the bar, the courts and the bar have helped to substantiate his criticisms. The case ought to be compared and contrasted with the use of Singapore's judiciary to silence government criticism by bloggers and others through the use of defamation law. See, my entry titled U.S. lawyer is arrested for criticizing Singapore judge on blog.
Feds lose allegedly politicized criminal prosecution to Gerry Spence in Mich. "Geoffrey Fieger, [the Michigan lawyer] whose confrontational style and sharp tongue are matched only by his outsized dollar awards from juries, got what amounts to the biggest verdict of his career today when a federal jury in Detroit acquitted him and a law partner of charges they made $127,000 in illegal political campaign contributions... After the verdict, Fieger, with [his attorney, Gerry] Spence by his side, spoke before a crowd outside the courthouse. 'I hope this will put an end to political prosecutions in the age of Mr. Bush,' Fieger said...." More (ABA J. 06.02.2008). Comment. This squib belongs next to the one above involving the denial of admission to the Michigan bar of Mr. Lawrence, because of the Michigan bar's reprimanding of Fieger over his extrajudicial criticisms of the courts. See, my 2006 posting titled Calling a judge a 'jackass.' See, also, More on Michigan Supremes' split over free speech. Some are speculating that the freshly-acquitted Fieger will run against Michigan Supreme Court Justice Clifford Taylor, who was in the 4-3 majority of SCOMICH's controversial decision in the Fieger free-speech case. More (Michigan Lawyer Blog 06.03.2008).
SCOTUS justices' financial, junket disclosures. "Justice Clarence Thomas earned $500,000 in book advances in 2007, one of three Supreme Court justices to receive book-related income last year, according to financial disclosures released Friday...But he is still among the least wealthy members of the court, which could have as many as seven millionaires among the other justices... Justice Scalia...led the court with 33 expense-paid trips, including journeys to six foreign capitals...." More (NYT 06.07.2008).
Judge jails chronically-late lawyer. "Los Angeles County Superior Court Judge John J. Cheroske was so frustrated with [lawyer Stephen Charles] Hollingsworth arriving at court late -- or sometimes not at all -- that he threw him in jail as a way of ensuring that the attorney would show up for court on time...Hollingsworth spent Monday and Tuesday in jail until Cheroske ordered his release Wednesday morning after a court hearing in which the attorney appeared wearing handcuffs and a yellow jailhouse uniform. The events have sparked outrage among those involved and created a stir in the busy Compton courthouse...." More (L.A. Times 06.06.2008). Comment. We remind all trial judges of BurtLaw Rule-of-Thumb #139 for avoiding discipline: Avoid using the contempt power altogether. The rule is a corollary of another rule, one we like to call, in our clever way, The Golden Rule.
More on some troubled probate courts in Texas. "For years families bogged down in Harris County probate courts have accused judges of bleeding estates of tens of thousands of dollars to pay high-priced lawyers for unnecessary work. On Thursday, a Houston appeals court ruled that probate Judge Mike Wood improperly awarded what may turn out to be more than $2 million in fees to a trustee and his lawyers over the objections of a wealthy father who set up three trusts for his sons...." More (Houston Chronicle 06.08.2008).
The Jeeps for Judges program. "Benin-Governor Oserhiemen Osunbor of Edo State has presented 16 brand new KIA Sorento Jeep vehicles to Judges of the State High Court and Customary Court of Appeal, just as he also comfirmed the appointment of Professor Patrick Osho as a non ex-officio member of Edo State Judicial Service Commission. The Governor who presented the jeeps at the Government House Benin City yesterday, urged the State Judicial Service Commission to continue to be upright so as to ensure that only impartial and morally upright persons who command the respect and confidence of the public are allowed to sit on the bench...." (Empasis supplied.) More (Vanguard via AllAfrica 06.06.2008). Comment. Given the nature of "Jeep" seats, the judges probably can't help at least being "upright" while tooling around in their Jeeps.
Court of Judiciary orders judge removed from office. "A state court Thursday removed Circuit Court Judge Stuart DuBose from the bench, finding the Clarke County judge had violated all or parts of four of the state Canons of Judicial Ethics. DuBose, 51, faced 60 ethics charges, stemming from a series of incidents in which the judge verbally abused attorneys and subordinates, attempted to influence fellow judges in matters of personal benefit and made statements that put his impartiality into question...." More (Mobile Press-Register - AL 06.06.2008). Earlier. Suspended judge is arrested on gun charge.
Judge who spanks gets spanked with suit. "A Los Fresnos family is going to court to try to prevent a Cameron County justice of the peace from ordering spankings in his courtroom. The lawsuit filed Wednesday alleges that Justice of the Peace Gustavo 'Gus' Garza told a 14-year-old girl's stepfather that she would be found guilty of a criminal offense and fined $500 for truancy unless the stepfather spanked her in the courtroom. The lawsuit filed by Mary Vasquez and her husband, Daniel Zurita, described the paddle provided by Garza as large and heavy and fashioned from a thick piece of lumber...." More (Houston Chronicle 06.05.2008). Comments. a) In his great dissent in Olmstead v. United States, 277 U.S. 438, 470, 485 (1928), Justice Brandeis said, "for good or ill" government is "the omnipresent teacher" that "teaches the whole people by its example." What sort of a lesson is Justice Garza sending? But then one could ask the same of the justices of the Minnesota Supreme Court. Just the other day, in In the Matter of the Welfare of the Children of: N.F. and S.F., Parents, Minn. (2008, filed 05.30), Justice Alan Page, speaking for a surprisingly (to me) unanimous court, with the then newest judge not participating, upheld the lower appellate court's reversal of a trial court's determination that striking a child 36 times with a wooden paddle was neither reasonable nor moderate discipline but instead constituted physical child abuse. In case you've forgotten, it is 2008, not 1908. b) In the process of doing a Google "image search" for "spanking paddles" to find an image to illustrate this posting, I instantly discovered that among the paraphiliacs of the sado-masochistic sort, there is a subcategory of spankers, serviced -- as one might expect in this land of 10,000 consumer choices for every yearning -- by specialized purveyors of spanking paddles. See, e.g., the implements depicted at this site, titled, appropriately enough, Spanking-Paddles.Com. Here's an excerpt from Wikipedia's fairly detailed entry on paddle spanking:
As there is quite a market for paddles in regions where paddlings are still (or again) administered in hazing or education and in family households, as well as in erotic spanking, there are companies which cater for one or more of these markets, often in combination with other items (disciplinarian or not), for fraternity/sorority, home, and erotic use, but most of the terms and names these use are rather arbitrary. There are also various roadside and resort novelty shops that sell paddles (small and large); these are often decorated with humorous motifs and instructions such as "Board of Education," "Heat for the Seat," "How to Paddle Your Wife" and "Frontier Tail-blazer."
For a very detailed Wikipedia entry on spanking, without necessarily involving the use of paddles, click here. For a discussion by the NYT's Jane Brody of the possible origins of the various paraphilias, click here (Jane Brody, "Scientists trace aberrant sexuality" NYT 01.23.1990). By the way, instead of using an image of any of the paddles, I'm referring you (click on the thumbnail image) to an old Superboy comic cover showing Mr. Kent, with Superboy in his lap and holding a hairbrush broken in an attempt to discipline him; he's saying to Mrs, Kent, "Gosh, Ma, I forgot it's impossible to spank Superboy! How can we punish him for being a bad boy?" c) Speaking generally and without regard to any of the parties or judges involved in the two cases I linked to, I would be interested to hear what Drs. Sigmund Freud and Carl Jung and James Hillman might say about i) the possible sexual components of disciplinary spanking of children, ii) the causal relationship, if any, of childhood spanking and sado-masochism in adults, iii) the relationship, if any, of childhood spanking and judicial tendencies in general and in spanking cases in particular. d) What's my take on it all? i) I think SCOMN would have been better off not taking the case than issuing such an unsatisfactory opinion. ii) My parents were not spankers, certainly not paddlers, and neither was I. iii) I think the use of paddles on children by parents or schools (or by anyone else) should be specifically criminally prohibited as a form of physical child abuse, and I urge the Minnesota Legislature, which has already banned paddling in schools, to take up the issue and force all the legislators to take a position on the issue, making it clear enough for our appellate judges to understand it. iv) I'm glad to see that the Texas judge finds himself under fire (and in possible trouble with the judicial conduct board) for what I think is wrong on many grounds. Other spanking cases involving judges, lawyers, nuns. a) Alabama judge facing ethics charges resigns; allegations, which he denied, included 'removing inmates from Metro Jail and paddling them in a closet-type area near his courtroom' (WKRG 10.02.2007). b) 'Retired Whiting City Court Judge William J. Obermiller, 77, known nationwide as the 'Spanking Judge' after he ordered a teen defendant's hide tanned by a courtroom bailiff in 1962, [has] died' (Chicago Tribune via CorPun.Com 08.16.2000). c) Ohio judge acquits psychologist of an assault charge for 'pulling down a 14-year-old girl's pants and spanking her hard enough to cause bruises' (Cincy Enquirer 01.17.2003). d) A plea for public judicial spankings of 'bad boys' by "Chuck Coombes" (The Onion - Parody 03.24.1999). e) 'I couldn't believe it but I was standing right in front of the female judge getting ready for my judicial spanking...The judge pressed a button on her bench, and it settled into the floor. She was seated on an odd-looking armless chair. She was holding a...paddle....' (PSI PEN: Judicial Spanking - Fiction). f) Judge rules that lawyer's spanking of female client to prepare her as a witness isn't covered under lawyer's malpractice policy (AP via FreeRepublic 10.16.2002). g) Spanking nun who claimed God-given right to beat children is convicted of assault (Canadian Press 10.25.2002).
O'Connor says video game may help protect independence of courts. Former SCOTUS Justice O'Connor gave the keynote address yesterday at the Games for Change Conference at the New School. According to this blogger, O'Connor is "involved in creating an online game called 'Our Courts,' which will be a free online game, in which kids argue real legal issues applying real laws." As an aside, I wonder aloud to what extent the involvement of real game programmers in creating the game for which O'Connor is being given credit by the press corresponds to the involvement of law clerks in writing the opinions that went out under Justice O'Connors name. Hey, I merely ask the question. In any event, and this is the amusing part, she said "her foray into digital gaming started with her concern about what she called 'vitriolic attacks' from members of Congress and interest groups on judges," and she once again lamented that states like Minnesota still allow voters a say in judicial selection by requiring judges to face the possibility of challengers every six years, something she sees as a grave threat to jdicial independence. Id. My question is, Will the new game be programmed to teach the kids that, as O'Connor preaches, voters should have no say in selecting state judges? Will it be programmed to teach them that, as O'Connor preaches, if judges don't get that big pay raise they want, they'll stop being independent? Further reading. Among my many relevants postings with comments, see, a) Justice O'Connor says Minnesota should emulate Arizona; b) A judge responds to O'Connor's 'hyperbole'; c) Justice urges preemptive strike against weapons of incumbent destruction. d) On politicians and the 'playing of cards.'
Despite being retired, O'Connor gets a law clerk. "A former child actor who played the nerdy Weasel on the TV show Saved By the Bell: The New Class will become a U.S. Supreme Court clerk this July for retired Justice Sandra Day O'Connor. Actor-turned-lawyer Isaac Lidsky will be the first blind clerk at the Supreme Court, Legal Times reports. He will work on O'Connor's cases that she hears sitting by designation on federal appeals courts, and he will be assigned to another justice for case screening and opinion drafting...." More (ABA Journal Law News 05.28.2008).
Annals of judicial 'p.r.' -- herein of judicial mascots. "A parakeet named Saiban-inko has been chosen as the official character to promote the planned lay judge system, Justice Minister Kunio Hatoyama announced Tuesday at a press conference...Saiban-inko combines the name 'saiban-in' (lay judges) with the word 'inko' (parrot). Hatoyama donned the Saiban-inko costume when the parakeet paid him a courtesy call at the ministry last month. He seems to like the name, saying it helps conjure up the term saiban-in...Hatoyama said he had directed legal authorities and prosecutors offices to use the Saiban-inko mascot, conceived by the Fukuoka High Public Prosecutors Office, as the system mascot...." More (Yomiuri Shimbun - Japan 06.04.2008). Comment. I know a judge who, under the right circumstances, might be willing to prance around wearing a judicial mascot costume.
Judge accuses ABA of pro-homosexual agenda. "Suggested changes regarding language on 'sexual orientation' in the state's Code of Judicial Conduct are inconsistent with the beliefs of Oklahomans, according to an Oklahoma County judge. 'These policies are not based on laws enacted by Congress or the State Legislature, but on proposals of the liberal, pro-homosexual American Bar Association,' District Judge Bill Graves wrote in a letter dated April 8 to Oklahoma Bar Association members...." More (NewsOK.Com 06.04.2008). Text of letter. Comment. In OK it must pay "big time" (to use V.P. Cheney's famous aside to Pres. Bush) to be against anything thought of as out-of-the-ordinary in sexual matters, as exemplified by the judge who was charged with a felony and sentenced to four years (!) in prison for MWP (maturbating under his robes, using a vacuum constriction device, while presiding). In one of my multiple postings on that prosecution (Annals of MWP: Masturbating While Presiding),
Boy...it's just my opinion but I think the powers-that-be in Oklahoma have made and are still making way too much out of this case, embarrassing the state in the eyes of the world in the process. That is, they've made something small into something way too big, mimicking what a vacuum constriction device (VCD) is designed to do. I'm beginning to doubt that the ISOPM (International Society of Public Masturbators) will be holding its upcoming convention in Oklahoma.
Now, I'm beginning to doubt that any mainstream organization with a diverse membership would be wise to hold its conventions in OK.
How a bullied boy got 'revenge' -- by living well, as Lord Chief Justice. "Lord Woolf, the former Lord Chief Justice,...says he developed a strong desire to fight injustice during his schooldays at Fettes College, Scotland's leading independent school, and reveals that he was bullied...He believes that...he was the only Jewish pupil at the school...but is unsure whether his ill-treatment can be attributed to anti-Semitism...Th[e bullying] included being kicked down some spiral stairs on several occasions and an incident that led to him being repeatedly caned for an offence he did not commit...He was sent by a prefect to his housemaster, an ex-army disciplinarian, who said he should simply take his punishment and that any appeal could come only after his beating...." More (Times UK 06.03.2008).
SlipperySlope lectures BabyBarista. "'The very best [lawyers] are not just people you hire to tell your lies better than you could. They're people who actually start to believe those lies. You see, they live in the land of make believe and they sometimes become so good at arguing that they can't help convincing even themselves. Liars with the utmost sincerity. Deadly in court BabyBarista but it'll send you mad if you're not careful. So please don't start believing your own lies. If you don't want claims to settle because you want more brief fees, then in a quiet moment when no-one is listening, admit it quietly to yourself....'" "SlipperySlope" to "BabyBarista" while waiting in chambers to see "OldSmoothie." BabyBarista, Serving Coffee for the Rich and Powerful - A Junior's View - Year 2, Week 36 Liar, Liar (Times UK 06.02.2008).
Forcing justices of peace to retire at 70 = age discrimination, judge rules. "Forcing justices of the peace to retire at age 70 is unlawful age discrimination, an Ontario Superior Court judge has ruled in a case involving three former justices of the peace who launched a constitutional challenge to their profession's mandatory retirement age...." More (Toronto Star 06.03.2008). Comment. In my 2000 campaign for statewide judicial office I posted on my personally-maintained campaign website/blog a position paper I wrote calling for abolishing MN's wrongheaded, stereotype-based, anti-democratic and discriminatory policy of mandatory retirement of judges. I said, in part, that "[A]lthough the stereotypes supporting the arguments advanced by the defenders wouldn't support the discriminatory mandatory retirement rule for judges even if they were founded on fact, they turn out to be unfounded. Indeed, it turns out that mandatory retirement is forcing the retirement of the wisest, most experienced and, in many cases, most productive, most reliable, even healthiest judges." I then proceeded to document that statement. More. Although my views were ridiculed at the time -- something that bothered me not in the least -- there has been growing dissatisfaction since then with mandatory retirement of judges, as readers of this blog know.
When a judge becomes pollster, investigator, advocate, and condemnor. This is a strange case. Back in March of 2007 Moon, the chairman of the board of deacons at a small Baptist congregation in GA, allegedly changed the locks on the church and tried to replace the pastor with the church's finance director, Cousins, who is a mortgage broker. Members learned that the two men had refinanced the church's mortgage. The proceeds from the new loan were used to pay off the previous mortgage and past-due property taxes, leaving $47,000 in cash on hand, the disposition of which was in dispute. Some members obtained a TRO ex parte, after which Superior Court Judge Craig Schwall presided at a hearing on whether to continue the injunction. Rather than let the parties present evidence, "the judge solicited the opinions of church members in the audience at the hearing, none of whom was placed under oath and many of whom are not even identified by name in the record, regarding whether they wanted Cousins to 'run the church.'" Then the court called a recess and contacted the attorney who closed the deal and the bank where Cousins deposited the $47,000, after which the court "called Cousins to the stand and proceeded to question him. The judge then "announced that he was holding Cousins in criminal contempt for committing perjury." The judge also granted the requested injunctive relief. Now the Georgia Supreme Court has reversed the judge and remanded, in the process rebuking the judge for taking charge of the case, investigating on his own, not allowing presentation of evidence, holding Cousins in contempt without fair process, etc. Text of opinion; newspaper account (AJC 06.03.2008). By the way, the Georgia Supreme Court has chosen as home of its website the unfortunate URL "gasupreme.us," which on first glance conjures up an image of "gas."
Judge is convicted of unlawfully filling in wetlands. "A Baltimore judge [District Judge Askew W. Gatewood Jr.] accused of dumping hundreds of tons of building materials along his waterfront property in Anne Arundel County was sentenced yesterday to one year of unsupervised probation and ordered to pay a $10,000 fine and remove the debris in a deal that will likely spare him a criminal record. [Gatewood] pleaded not guilty to one count of unlawfully filling state wetlands without a license but avoided a trial by agreeing to the prosecutor's statement of facts...." It's unclear whether the judge will be subject to judicial discipline. More (Baltimore Sun 06.03.2008). Earlier. I commented in January that this is the sort of alleged wrongdoing that maybe should be handled civilly, perhaps with civil fines, rather than criminally. Annals of judicial pollution. Ultimately, that is the likely outcome of the case, since the court apparently will stay entry of judgment and wipe the record clean after Gatewood completes the terms of the probation order.
U.S. lawyer is arrested for criticizing Singapore judge on blog. "A California immigration lawyer [and former citizen of Singapore, Gopalan Nair,] has been arrested in Singapore on charges he insulted a judge in an e-mail and on his blog." More (ABAJ Law News 06.03.2008). The lawyer/blogger's allegedly defamatory remarks criticized the judge conducting a damages hearing in one of the notorious defamation actions by the "founding father of modern Singapore, former prime minister Lee Kuan Yew," who has used Singapore's draconian defamation law against his critics. See, Critic confronts Lee in Singapore court (IHT 05.29.2008). Comment. Defamation law in Singapore is used to silence legitimate criticism of the government, including judges. Our defamation laws, though not as bad, are also used to silence or discourage legitimate criticism of public figures, including of judges, which is one of the reasons why I believe the cause of action of defamation ought to be eliminated as inconsistent with First Amendment values. I express my views on that issue in some detail in a posting titled Court upholds dismissal of judge's libel suit against TV station.
Those letters from prominent friends asking for leniency. "Friends and acquaintances of one of New York's most prominent plaintiff's lawyers, Melvyn Weiss, are pleading for leniency as a federal judge in Los Angeles prepares to sentence the former class-action king today on charges that he conspired to cover up secret payments his firm made to investors who helped bring securities lawsuits...In a plea deal...Weiss, 72, has agreed to accept a sentence of between 18 and 33 months of jail time. The government is pressing for 33 months...Weiss's lawyers [are] argu[ing] for 18 months, half...in home confinement...Perhaps inadvertently, some of the letters highlight the extraordinary wealth Weiss developed through class-action litigation...." More (N.Y. Sun 06.02.2008). Comment. I've done no scientific empirical research but I have a strong impression based on reading thousands of records on appeal, including many, many such letters made part of the records, that as a rule-of-thumb these letters do no good in persuading a trial judge to be lenient in sentencing. In fact, they may be counter-productive. In the right case, however, the right kind of character testimony at trial (as opposed to letters at sentencing) can do a world of good. An example is the trial circa 1975 in D.C. of Nixon adviser, John Connally of Texas, on criminal charges arising out of the so-called milk-money scandal, when his defense attorney, Edward Bennett Williams, called a number of prominent character witnesses, including Coretta Scott King and Billy Graham; Connally was acquitted. Further reading. For an example of a case in which the letters did no good, see, Letters, we get letters -- 'Dear Judgie, Would you be so kind.... For the sort of context in which letters might conceivably help, see, "Update" following Panel recommends removal of judge of 28 years.
Newspaper publishes trial judges' reversal rates. "An analysis by the Arkansas Democrat-Gazette of more than 5, 700 appellate decisions from 1997-2007 involving the state's 118 circuit judges has produced information the state doesn't keep -- how often decisions by trial judges hold up on review...[O]n average, Arkansas' circuit judges are affirmed 80 percent of the time. Some judges are rarely reversed. Some have been reversed about half the time. How much significance to attach to a reversal rate isn't a settled point...." More (Arkansas Democrat-Gazette 06.01.2008). Comment. One certainly wouldn't want to base one's overall assessment of a trial judge on her reversal rate. If the appellate court that does the reversing is substandard, it might indeed be a badge of honor to be reversed more than one's peers. An appellate court that overdoes the "colleageality bit," with all the judges thinking alike and erroneously, may be prone to reverse that which is right and affirm that which is wrong. In other words, "the crowd" isn't always right.
Two more state judges are convicted in federal prosecutions. "Caddo Judges Michael Walker and Vernon Claville lost the trial of their lives Saturday when a federal jury convicted them of taking cash bribes in exchange for making it easier for some defendants to go free. The verdict was an apparent surprise to the judges[, d]efense attorneys and courtroom spectators...." More (Shreveport Times 06.01.2008). Comment. I know nothing about the particulars of these two prosecutions. But it's my general opinion that the federal government should stop prosecuting people for conduct better left to regulation by the states. In recent years there has been a dramatic and for the most part unjustified 'federalization' of criminal law that has contributed significantly to the workload of the FBI, federal prosecutors, defense counsel and federal judges. William Anderson and Candice E. Jackson, Washington's Biggest Crime Problem -- The federal government's ever-expanding criminal code is an affront to justice and the Constitution (Reason April 2004); George D. Brown, New Federalism's unanswered question: Who should prosecute state and local officials for political corruption? (Washington and Lee L. Rev. 2003); Readings on federalization and overcriminalzation (Overcriminalized.Com). Moreover, it's my observation that when the feds prosecute criminal cases, they -- unlike most state prosecutors, at least in MN -- tend to "throw the book" at defendants and adopt an overly-rigid approach to plea negotiations, making for clogged courts. And, I've noted before, there is at least a perception among some reasonable people, including Republicans (of which I am one), that in recent years federal prosecution has been used as a political tool against Democrats. Consider, in this respect, yesterday's report that "Fifty-four former state attorneys general [have] filed a brief...supporting the appeal of former Gov. Don Siegelman of Alabama, convicted two years ago on bribery and corruption charges in a prosecution depicted by his supporters as politically motivated." (NYT 06.01.2008).
A two-part special recalling a prostitution scandal involving judges. "Former Vancouver Sun reporter Glenn Bohn walks down memory lane and remembers how B.C.'s top judge fell off the bench...It's a story about male judges, female prostitutes and the way the male-dominated justice system reacted when B.C.'s top judge fell off the bench...." Parts One and Two (Vancouver Sun 05.31.2008).
A lawyer recalls a juvie judge he didn't like. "Leo McCune was a tyrant in a very small kingdom -- the Juvenile Court of Jefferson Parish, Louisiana...Due process didn't apply in Leo's court...He took the doctrine of Parens Patriae (the idea that a juvenile court judge should act as a father protector of a child's rights) to absurd and illogical conclusions. Girls testifying before McCune could tell no lies, boys -- especially black boys -- could tell no truth. Informal didn't adequately describe the atmosphere in Leo's court. Each morning prior to convening court, the old, red-faced, pot-bellied, white-haired man rocked in his high-backed wooden rocking chair, sans coat and tie. He entertained his staff by spouting sarcastic remarks he thought to be humorous...." -- Column of Tom McGee, who "writes stories about growing up in Louisiana and his professional life in the courtroom." More (Walton Sun 05.31.2008). Further reading. The juvenile court judge of my small-town youth, C. A. Larson, father of nationally-prominent Minneapolis C.P.A., Rholan Larson, husband of Ruth Hanson Larson, my late dad's late half-sister, was an entirely different, and much more enlightened, judge -- and he wasn't even a lawyer. See, "My 'felonious' past" (scroll down) at Burtlaw's Law and Kids at BurtLaw's Law and Everything Else.
Convicted man who jumped over rail and fell 20' in courthouse sues guards. "A 31-year-old man who jumped headfirst over the third-floor railing of the Allen County Courthouse last November after he was convicted of child molesting is now suing the sheriff...In his [federal] lawsuit, [Cicero] Offerle said he can prove the sheriff's department is not 'telling the truth' about his 'accident' and said he 'never jumped'...Because Offerle was in the custody of the Allen County Sheriff's Department at the time he was injured, the county has been responsible for paying [Offerle's] medical bills, which are in excess of $140,000...." More (Ft. Wayne Journal Gazatte 05.31.2008).
Judge says accusations made by 11 top judges are 'utter rubbish.' "Cape High Court Judge President John Hlophe has dismissed devastating accusations made against him by South Africa's highest court as 'utter rubbish.' Judge Hlophe slammed a complaint on Friday made by all 11 Constitutional Court justices that he had improperly attempted to influence rulings on three cases linked to ANC president Jacob Zuma's corruption trial, saying it was steeped in ulterior motives...." More (IOL 05.31.2008). Earlier. Click here for links to my earlier entries relating to this controversial judge.
Judge says vetted judicial appointments are not on basis of merit alone. "While some may believe judgeships are awarded on the basis of merit alone, this is hardly the reality. Judicial appointments are made largely on the basis of lobbying. For the federal courts, the lobbying is often by a friendly U.S. senator. For the state courts, it is usually by someone who has the governor's ear. This is the reality of judicial appointments...." -- From a letter to the editor by James J. Lombardi, a retired circuit court judge who served on a judicial nominating commission in MD. More (Baltimore Sun 05.31.2008). Comment. We don't oppose the use of screening commissions by governors in making state judicial appointments. We just believe that the ultimate appointing authority in states like Minnesota, with its astute electorate, ought to reside in the voters. Under the Minnesota practice, most judges don't face opposition when their terms are up for extension. But if a lawyer believes a particular judge doesn't merit another term without facing opposition, the lawyer can challenge the judge, leaving it up to the voters to decide. This system, which is incumbent-friendly, doesn't satisfy some members of Minnesota's judicial elite. With well-financed outside assistance, they are once again trying to persuade voters to give up their historic role in judicial selection, something they've advocated or at least hoped for for as long as I've been a lawyer. What do they offer in exchange? They offer a) a screening commission for the governor and b) fake elections -- that is, one-candidate retention elections in which the voters merely get to say yes or no to the incumbent. As I said, there's nothing preventing the use of screening commissions. In recent years, governors have been happy to use them. What the plan to use retention elections says is that the judicial elite doesn't trust voters to make a valid choice between an incumbent judge and a challenger. I find this insulting to the voters of Minnesota.
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.