The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 10.08.2005 - 10.16.2005
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal "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 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.

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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.

    Department of 'Oh, now it's all clear to me.' "High Court judge Justice Nazhat Shameem...was about to wrap up an appeal case she was hearing and adjourn court for a few minutes when Tui Vatani...stood up, walked towards the door and loudly exclaimed 'Woa.' before bowing to her and stepp[ing] outside. [Later, when called upon to explain his behavior, Vatani] replied that he was the warrior of the Tui Nayau and it was a form of respect to yell as such...[After explaining the rules of decorum,] Ms Shameem said she was pleased with the explanation and knew that he meant no disrespect to the court...." More (Fiji Times 10.15.2005). Comment. This sort of reminds me of the time I was stopped for driving  my 1988 Crown Victoria wagon illegally one night through the inner yard of the campus of Princeton University back in August of 1992 when my kids and I, on the big college trip, stopped off at Princeton after visiting Yale. The university officer kept asking me if I'd seen the sign. I had but I didn't feel like backing up a considerable distance. However, instead of saying that, I simply kept repeating apologetically, "I'm sorry. We're from Minnesota. We didn't know any better." Finally, he got so exasperated, he simply gave up and said, "Don't do it again." Judge Shameem basically said the same thing to Tui Nayau.

    Judges can be late but prosecutors can't. "Judge Michael Kupersmith threw out 14 criminal charges against four criminal defendants [because he] was irritated [with] Chittenden [VT] Deputy Prosecutor Carolyn Hanson [for being] four minutes late for a series of hearings." Ms. Hanson's boss, Chittenden State's Attorney Robert Simpson met with the judge and complained, saying it might make sense to fine a prosecutor for being late but it wasn't right to dismiss the cases and require the prosecutor to recharge. "'I also told the judge that we waited yesterday 45 minutes for a judge to come. We had a prosecutor waiting. I really think it is unfair to this particular prosecutor to have her singled out,' Simpson added." More (WCAX-TV 10.15.2005). Comments. a) What's the judge going to do if a defendant's attorney is late -- find him guilty? b) We believe in punctuality. (We're always -- congenitally, we're afraid -- early.) But we also believe in mutuality. It is as wrong for a judge to waste other people's time by being late as it is for anyone else to do so. c) We hope Ms. Hanson doesn't make it a practice of being late. We doubt that she will. We know of no real Hanson who ever would deliberately be late.

    New TV show -- 'CSI Hanover Courthouse'? "Utility contractors unearthed human remains Thursday while digging a trench at the Hanover County courthouse complex. The bones are believed to be centuries old...." More (Richmond Times-Dispatch 10.15.2005). Comment. Maybe they finally found Judge Crater, who went missing in 1930 and has never been found.

    Department of judicial fakery. "A [man] was arraigned before the Kiyawa Magistrate Court for [allegedly] faking a court divorcing letter and camping married woman for nine days. Saturday Tribune gathered that one Abdul Jabur of Birnin local government, Jigawa state camped one Mairo Rabiu in unknown place for nine days despite that she is married. The prosecution police officer told the court that Mairo had misunderstanding with her legal husband, which led her to look for way to be divorced and in the process, met one Inuwa who took her to Abdu Jabour...." More (Nigerian Tribune 10.15.2005). Comment. I wonder if the fake divorce decree (or whatever it purported to be) was as convincing as all those letters I receive from Nigerians who want to split with me thousands of dollars if only I will....

    Judge resigns after misdemeanor tax conviction. A North Carolina District Court Judge, Garey Ballance, 35, has resigned after being sentenced to nine months of incarceration by a federal judge for the misdemeanor offense of failing to file a federal income tax return for 2000 tax year. More (WRAL-TV 10.15.2005).

    Judge admits he acted 'like a damn dummy.' Retired County Circuit Court Judge Vincent J. Femia, 69, who served for 20 years on the Circuit Court Bench in Prince George County, MD, "sits the bench in the Upper Marlboro courthouse part time, usually presiding over the so-called rocket docket, in which the judge quickly hears dozens of cases involving lower-level offenses." On 10.04.2005 the file of Pedro H. Guifarro, 25, was handed him. Guifarro was being held on a charge of first-degree murder. Several days earlier an attorney representing a client with a Latino name told the judge that his client was free on his own recognizance and that a bench warrant had been issued for his client's arrest by mistake. The judge promised to rescind the warrant. When the file of Guifarro, the murder suspect, was handed to him on 10.04, apparently as a result of a clerical error, The judge saw the Latino name and got the case confused with the one he had discussed with the attorney and ordered Guifarro released. "'Like a damn dummy, I didn't even look at the file,' Femia [later] said. 'I screwed up.'" At last report, Guifarro was still on the loose. More (Washington Post 10.15.2005). Comment. Sounds like a number of people made some mistakes but the judge didn't use the usual "cop-out" of saying "Mistakes may have been made." He said, "Like a damn dummy, I didn't even look at the file I screwed up." Emily Dickinson said, "Tell us the truth and tell it slant." Or did she say "straight"? I like "slant" better so I'll stick to it. If she said "slant," that was poetic or philosophical advice for poets and friends and lovers and dealers in "Truth." Judges (as well as politicians not in robes) ought to tell the truth and tell it straight. The judge did.

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

    MN's chief justice vacancy. We've been asked to "reprint" our "advice" to Governor Pawlenty on the vacancy to be created by C.J. Blatz's decision to quit the court at age 51. No need to "reprint" it. It's here: Who will/should the governor appoint to fill MN's chief justice vacancy?

    Chief Justice threatens to quit. "Palestinian Chief Justice Zuhair al-Sourani...sent a letter to Palestinian President Mahmoud Abbas on Thursday saying he could not continue in his post unless the [new] law [on judicial appointments], ratified by Abbas on Tuesday...which gives ministers the power to appoint judges, was rescinded. Under the old law, new judges were appointed to the bench by presidential decree after being nominated by a panel of nine senior judges...." More (Aljazeera 10.14.2005). Comments. It is interesting, and encouraging, that both in Palestine and in Israel the judges seem to be "tough characters," strong in their belief in the independence of the judiciary. Justice Frankfurter said, "Weak characters ought not to be judges," and he was right. Further reading: Court most trustworthy state authority - Israel and  BurtLaw on Judicial Independence and Accountability.

    Judges ask that their views be considered in courthouse renovations. "Smith County judges recommended Thursday that county commissioners halt courthouse renovations until more information could be gathered on including security improvements in the $5 million plan...." More (Tyler Morning-Telegraph 10.14.2005). The detailed article gives good insight into the sort of things judges are concerned about, and rightly so, when courthouses are built or renovated. For example:

A major concern for 241st District Judge Jack Skeen Jr. was the fact that inmates would still be led through the hallways of the courthouse. Another issue that had been erased from the initial plan was an alternate route to prevent inmates -- sometimes up to 15 people chained together -- from being led with a few guards in the midst of jurors, witnesses and other citizens. Skeen said it presented a high risk to the safety of the public, adding that holding cells for violent inmates close to the courtrooms were also needed.

    Judge Hatchett speaks out on kids, war. TV's Judge Glenda Hatchett was a featured speaker at the annual Family Conference luncheon in Huntsville, Alabama. "'I am sick and tired of the rhetoric of leaving no child behind,' said Hatchett to a cheering crowd. 'We debate and fuss and fight over a few pennies for programs (for children), but we can find billions to send our troops halfway around the world. We've got to do better by our children and we can.'" More (Huntsville Times 10.14.2005). Comment. As we've said before, the "No Child Left Behind" initiative pulls off the sleight-of-hand of accomplishing federal control of education without much or any aid. As for "the war," we ran on an anti-war platform for Congress in 2004 and our views on that issue fill the pages of our political opinion journal. Further reading: BurtLaw's Law & Kids and Famed judge, Waco's greatest, dies.

    Judge speaks out against get-drunk-quick culture. "Senior judge Frank Chapman has warned of the get-drunk-quick culture that is putting women in the West Midlands at risk of rape and sexual assault. The judge, who sits at Wolverhampton Crown Court, said women who had drunk 'a great deal' were sobering up believing they had been raped. He spoke as controversy continues about new licensing laws which will allow a number of Black Country pubs to open 24-hours-a-day, leading to fears from police about crime and binge drinking...." More (Express and Star 10.14.2005).

    China's elderly: To hell with 'reverence,' we want cash. The cliche is that the Chinese revere their elderly. And maybe it's true. But, "a province with an increasing aged population, Guangdong is seeing a growing number of its elderly turning to the courts. Liu Sanmei, 96, is the oldest person in Shengping Village, Pingyuan County, in eastern Guangdong's Meizhou. Last month, Liu won a lawsuit against her three sons requiring that they provide her with living expenses and share the cost of her medical bills...Liu is one of many of Guangdong's senior citizens who have turned to the law to protect their rights in recent years....." More (China Daily 10.14.2005). Comment. Do the elderly have a "right to reverence" that will form the basis for a lawsuit to compel financial support? I always supposed that China, being a Communist country, had some sort of universal pension or social-security-type of retirement income-supplement plan. I guess I was wrong.

    Judicial archeology. "About two years ago, when history buff Steve Ehlmann was a St. Charles County Circuit Judge, he decided to poke around a storage room in the courthouse basement to see what he could find. He spotted some old boxes sitting on a lower shelf. He opened one and pulled out a yellowed document. It was dated 1826, the last year St. Charles was the capital of Missouri. Ehlmann knew the documents were important, but he didn’t necessarily know he had stumbled across a historical treasure...." More (St. Louis Post-Dispatch 10.14.2005). Comment. I'm an amateur historian myself. A number of years ago I did some research in the wonderful photo archives of Minnesota's great historical society, which may be the best government institution in the state. I was surprised to discover few pictures of past members of the state supreme court. Of course, methinks the courts themselves are often at fault. They ought to work with state and regional and local historical societies to improve the collection and preservation of judicial records, ephemera, and memorabilia.

    Judge murdered while talking on cell-phone. "Additional Sessions Judge of the Chandigarh Labour Court, Vijay Singh, was murdered by some unidentified persons in the local polo grounds here late last night, police said. Singh was talking over the phone with one of his friends in the UK while strolling at the polo grounds when some persons attacked him with sharp edged weapons, Senior Superintendent of Police Amardeep Singh Rai, said today...." More (The Hindu 10.14.2005). Unrelated but related story: Judge attacked outside home.

    Pay raise for judges in Mass. -- all at once or spread out? "House and Senate leaders have reached agreement on a plan to provide pay raises of up to 15 percent to state trial judges, their first raise in more than six years...[This would] raise the salaries to about $130,000 a year, up from the current $112,777 a year paid trial judges. It remained unresolved last night whether the 15 percent raise would be spread over three years, at about 5 percent a year, or delivered in a single year...Some legislators are concerned that an immediate 15 percent hike would prompt a host of judges to retire, handing the Republican governor the opportunity to fill the vacancies. Unlike most public employees whose pensions are based on a worker's three highest salaried years, judges are in an elite category. Their pensions are based on the salaries they get on their last workday. If the salary increases are spread over three years, judges considering retirement would be inclined to wait. Delaying the retirements until after the 2006 election would give Democrats a shot at controlling the judicial appointments...." More (Boston Globe 10.14.2005). Comments:

   a) We fail to see why judges' retirement benefits should be based on the salary on their last workday while ordinary public employees' retirement benefits are based on their three highest salaried years.

   b) In considering whether judges are adequately compensated, policymakers (and their bosses, the citizenry) ought to take into account any other benefits the judges receive (in many states these benefits are not only many but are somewhat masked or hidden). See, in this connection, i) "I could be making lots more if I were Michael Jordan...." and ii) More on those huge PA Supreme Court Justices' expense accounts.

   c) We don't think much of any judge who sits around waiting for a big pay raise and then immediately retires when he gets one, presumably moving on at that point, as many "retired" judges do, to lucrative employment by big law firms, where they work as private judges, arbitrators, mediators, etc.

   d) Any sensible pay plan and pension plan for judges ought to include incentives for experienced judges to continue judging and ought to be paired with the abolition of mandatory-retirement laws. Mandatory retirement both robs the citizens of the most-experienced judges and dramatically decreases the chances that experienced lawyers in their late 50's or early 60's will be appointed in the first place. See, BurtLaw on Mandatory Retirement of Judges.

   e) It is always bad when the President or a governor or a party in power gets to make an inordinate number of judicial appointments, which, though often disguised as nonpartisan, tend to be political in nature. When the Minnesota Court of Appeals was established, in 1983, a man named Rudy Perpich was Governor. Perpich appointed his close friend and political ally, Peter S. Popovich, to be the court's first chief judge, and Perpich gave Popovich the biggest say in the appointments of the eleven other openings on the new court, made in 1983 and 1984 -- along with some more in 1987. As some Republicans had predicted, pretty much "across the board" the governor appointed DFLers. (Listing.) This is not to say that his highly-partisan appointments were bad. (In my opinion, Popovich shaped it into a first-rate appellate court, and his successor, D. D. Wozniak was an effective steward of Popovich's creation. Indeed, it is my opinion that, thanks largely to Popovich's and Wozniak's leadership and the early appointments, the court of appeals is actually a better and more-reliable court than the for-the-most-part Republican Minnesota Supreme Court, as currently constituted.) Rather, it is to say that in general one ought to be concerned when any executive or any party makes an inordinate number of appointments, which tend to be political, to the bench. The ideal, in my opinion, particularly on appellate courts, is a "farraginous" bench. See, A 'farraginous' Supreme Court and New High Court Justice not a 'crazy feminist.'

    South Africa - judges & race. a) "The Cape Bar has nominated "backward" white male candidates with "narrow, sectarian" interests to the bench in the past 11 years, a top black judge has charged...." More (The Independent 10.13.2005). b) "A charge relating to allegations of racism has been laid by the Cape Bar Council against Cape Judge President John Hlophe, it was reported on Thursday...Hlophe was recently accused of calling a Cape Town lawyer Joshua Greef a 'piece of white shit' and telling him to go back to the Netherlands...." More (iAfrica 10.13.2005). Comment. Can't judges all just get along?

    Chief Justice makes it personal. "That is not a satisfactory place to draw the line, Chief Justice John G. Roberts Jr. said. He said he should be able to dismiss a law clerk who persisted in turning in memorandums declaring that 'Justice So-and-so's jurisprudence is wacky.' The clerk might well think that nothing is 'more important than how the court decides cases,' he continued, but that would not mean that such 'inappropriate' memorandums were entitled to First Amendment protection...." From the N.Y. Times' report of oral arguments on 10.12.2005 in Garcetti v. Ceballos, No. 04-473, a public-employee free-speech case in which a deputy district attorney in Los Angeles claims his boss demoted him for challenging the legitimacy of a search warrant. More (N.Y. Times 10.13.2005). Comments. a) It is "personal" because, if I recall correctly, judges, who generally enjoy absolute immunity from suit for their decisions in cases, etc., do not enjoy absolute immunity from suit in regard to court personnel matters. b) Since you're posing a hypo, Chief, how about a White House underling, fresh out of Harvard Law School, making fun of old law school profs, etc., etc. in intra-office memos? c) And while you're thinking of where to draw the proverbial line, will you be doing the "right" thing if you draw it so as to discourage anything but sycophantic butt-kissing by underlings. Cf, Maureen Dowd, To Sir, With Love (N.Y. Times 10.12.2005) ("According to a cache of mash notes released by the Texas State Library and Archives Commission in response to formal requests from The Times and other news organizations, Ms. Miers...told W. that he was 'cool' and 'the best!'; that he and Laura were 'the greatest'; that Texas was 'in great hands'; and that the governor should 'keep up the great work. Texas is blessed.'"). d) It's a BurtLaw Rule-of-Thumb: Anyone in a position of authority who surrounds herself with sycophants, incompetents and yes-men eventually will pay a price.

    W.Va. Bar rejects ending partisan judicial elections. "The State Bar has recommended that West Virginia continue picking its judges and Supreme Court justices through partisan elections...During its weekend meeting, the board voted 'overwhelmingly'’ in support of continuing judicial elections, and 'by a closer majority vote' backed the partisan election of the five-seat Supreme Court, Bar officials announced in a Monday news release...." More (Charleston Gazette 10.13.2005). Comment. For my views, see BurtLaw's Law and Judicial Elections.

    Famed judge, Waco's greatest, dies. "Bill Logue, Waco's longtime judge, children's champion, war prisoner, cancer survivor, candy maker and unparalleled Baylor fan, died Wednesday night. Logue, 81, who talked to friends this week about his eagerness to attend Lady Bears basketball games this season, died after emergency surgery at Hillcrest Baptist Medical Center for an intestinal blockage, his friends said...'Judge Logue is probably one of the greatest jurists we have ever had,' [Judge Alan] Mayfield said. 'His caring for the kids and the young people in this county has made a huge difference in the lives of thousands and thousands of people. As far as I am concerned, heaven is a little bit better tonight and Earth is a little worse.' State law forced Logue to retire six years ago at age 75 or there's a good chance he might have still been going to the courthouse, where he had been an icon for 47 years. When he retired in January 1999, he was the longest-tenured state judge in Texas and one of its most honored...." More (Waco Tribune-Herald 10.13.2005). Comments. a) According to the story, one of the judge's favorite quotes, taped to his shaving mirror, was this one said to be from an essay Within My Power by Dr. Forest E. Witcraft (1894 - 1967): "One hundred years from now, it will not matter what my bank account was, how big my house was, or what kind of car I drove. But the world may be a little better, because I was important in the life of a child." b) For our views on mandatory retirement, see, BurtLaw on Mandatory Retirement of Judges. c) For some of our views on the court system's treatment of kids (and those who once were kids), see i) recent entry regarding Judge Louis Schiff, ii) BurtLaw's Law & Kids, and iii) recent entry & comments on harsh sentencing.

    Courts for sale? "The city took one more step Wednesday toward moving its downtown shuffleboard courts east and bringing in upscale development for a beleaguered stretch of 14th Street. The City Council voted to sell the two-acre shuffleboard property along Ninth Avenue West to the city's Downtown Development Authority, which will begin considering developers' bids for the site...." More (Bradenton Herald-Tribune 10.13.2005). Comment. We don't think courts should ever be for sale to the highest bidder, least of all to "developers."

    Jeb Bush elevates judge who presided over recount in Bush v. Gore. "His face is one of the most recognizable among the Palm Beach County judiciary -- Charles 'Chuck' Burton, the amiable judge who presided over the pivotal recount of votes during Election 2000. Wednesday, he got another nod from Gov. Jeb Bush, who elevated Burton to a spot on the circuit bench...." More (Palm Beach Post 10.13.2005). Comment. Our childhood training, which included the precept we never should put a dark spin on anything but always assume the best of others, prompts us to mandatorily presume the guv made the appointment on merit alone.

    Another FLA judge gets the axe. "A circuit judge in Orlando [James E. Henson] was removed from office Wednesday by the Florida Supreme Court for practicing law while on the [county] bench and later advising a client to avoid criminal prosecution by fleeing the country...." More (Tallahassee Democrat 10.12.2005). Earlier: Florida judge faces possible removal for advising client to flee. Comment. We emphasize that the judge's last name is not "Hanson" but "Henson." To our knowledge, all judges with the last name of "Hanson" are not only above-average but exemplary in their conduct both on and off the bench. As for under the bench, well, we have no way of knowing. As an aid to those who have difficulty distinguishing one Hanson from another, as well as from Hensons, we refer you to Texas judge named Gerry Meier often mistaken for Harriet Miers.

    Fraser lashes out at judges. "[Dawn Fraser, the 68-year-old Australian] Olympic swimming great was last night ousted from the Seven Network's hit show Dancing With The Stars and accused the judging process of being flawed...'The judges were very very harsh on us...I couldn't have done what the younger people were doing...It was hard enough for [my dance partner] to lift me because I am not that small...It is a little bit flawed there. The judges have got a lot to answer for." More (The Australian 10.13.2005). Comment. We can hardly contain our outrage. Who do the judges think they are?

    Saddam's Iraqi judges 'specially trained' by U.S. et al at cost of $75 million. "The Iraqi judges who will try Saddam Hussein and seven members of his deposed government next Wednesday in Baghdad have received special training from US, British and Australian experts that included a mock trial in London...There will be no jury...The court and the training, which was described as technical and significant, were financed by a $75 million US budget allocation..." More (Aljazeera 10.12.2005). Comment. Looks like the trial will be a cut above Fidel Castro's "Roman Circus"-like "show trials" held in outdoor stadiums after he came to power in the 1950's. It also at least will appear to be a cut above the sickening middle-of-the-night videotaped 1989 "trial" of Romanian President Nicolae Ceausescu and his wife Elena by a secret military tribunal, which resulted, of course, in their being found guilty of crimes against the state and their immediate execution by firing squad? On this day - 12.29.1989 (BBC News). Perhaps it will be about on a level with the "show trials" for which the Russians became well known in the 1930s, maybe a cut below the Nuremberg Trials, which Chief Justice Stone referred to as "a high-grade lynching party" and which at least four members of the U.S. Supreme Court "particularly Stone, Black, Murphy and [Douglas] thought...were unconstitutional by American standards." Remarks of Chief Justice Rehnquist at ALI Annual Meeting 05.17.2004 (quoting Justice Douglas). "Show trials" are those which use the trappings of due process and justice to reach a pre-determined outcome, "kangaroo courts" in fact though not in form.

    Top judge decries cost of civil litigation. "Companies should regard the prospect of getting sucked into highly expensive civil litigation with 'horror,' the new lord chief justice [Lord Phillips] warned yesterday...'Civil litigation is...something any sensible person should look at with horror at the possibility of being involved in.'" More (Financial Times 10.12.2005). Comment. "I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death." Judge Learned Hand, "The Deficiencies of Trials to Reach the Heart of the Matter," 3 Lectures On Legal Topics 89, 105 (1926). As one who was a defendant in a civil suit, for divorce, which dragged on for nearly five years and at great cost, I say that Lord Phillips' "horror" and Judge Hand's "dread" are well-chosen words. But I regret to say that I don't think there's much hope for any significant improvement either in the UK or here. I don't think most lawyers and judges really realize the magnitude of the problem and the consequences of the failure of lawyers, judges and our policy makers to deal with it in a meaningful way.

    Judge is 'troubled' by harsh sentences for crack cocaine dealing. "Another federal judge [Judge Shira A. Scheindlin in Manhattan] Tuesday joined the chorus of jurists who say crack cocaine sentences are too harsh and that disparities between those sentenced for dealing crack cocaine and those penalized for powder cocaine cut along racial lines...." More (Newsday 10.12.2005). Comment. I would take it farther than Judge Scheindlin and say that our increasingly harsh sentences on convicted criminals in general are not merely "troubling" but downright immoral. Sadly, the harshness results from two things: a) politicians learned from President Nixon and George H.W. Bush that being "tough on crime" is a cheap way to win votes and b) too many people think in terms of criminals as "others," forgetting that the man in the dock someday might be their son or daughter or sister or brother. I was rereading some of my favorite Whitman poems today and came across a striking line in "Song of Myself" that I'd underlined: "Not a youngster is taken for larceny but I go up too, and am tried and sentenced." If politicians and legislators and judges thought of the person in the dock as "one of their own," their attitudes and their policies might change. But, of course, when "one of their own" is in the dock, "the system" maybe isn't always so tough because, as we all know, "much depends on whose ox is being gored." More at BurtLaw on Crime & Punishment - Law & Capital Punishment - Law & Kids.

    Three judges banned for life on bribery charges! "China has banned three wrestling judges for life on bribery charges before the official start of the 10th National Games in the eastern Jiangsu province today, state media said...." More (WebIndia 10.13.2005).

    Court upholds dismissal of judge's libel suit against TV station. "An appeals court Tuesday upheld [by a 2-1 vote] a decision [dismissing Allegheny County Judge Jeffrey Manning's] libel suit against a Pittsburgh television station that reported that he used a racial slur during an argument with an airport baggage screener....The court [determined] that the station wasn't malicious because it double-checked the information with various witnesses and spent weeks pursuing the story...[Manning's attorney] Gary Zimmerman, said he'll appeal to the state Supreme Court. Zimmerman said the appeals court judges ignored the facts of the case..." More (NEPA News 10.12.2005). Comments:

a) Hypothetically speaking, of course, might it be defamatory for an attorney to say that appellate judges "ignored the facts" in a particular case, if it could be shown that the attorney was in error and that he spoke with "actual malice"? :-)

b) More seriously, I agree with the view of Justice Black, that we ought to simply eliminate the cause of action for defamation as being inconsistent with First Amendment values. For an interesting piece on Justice Black, his absolutist position on the First Amendment and his expression of those views in the famous interview of him on CBS-TV by Eric Sevareid (whose small-town banker father was a mentor to my small-town banker father), see, Elizabeth S. Black, Hugo Black: A Memorial Portrait (Supreme Court Historical Society Yearbook 1982). Cf., Whitney v. California, 274 U.S. 357, 375-378 (1927) (Justice Louis Brandeis, concurring) ("Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution.").

Even the protection of N.Y. Times v. Sullivan (requiring plaintiffs who are public figures to prove "actual malice") does not really provide sufficient protection to the press and it would not, if it were extended, provide sufficient protection to ordinary speakers and writers in suits brought against them by ordinary plaintiffs. There occasionally are defamation cases brought against the press that seem to be nothing less than a form of legalized extortion. The defendant turns the matter over to its liability insurer, which then typically makes a cost-benefit analysis, balancing the expense of settling against the cost and risk of defending on the merits. Given the high costs of our legal system, it is often cheaper to simply pay the plaintiff/extortioner. But at least the commercial press typically has liability coverage. An ordinary defendant, whether sued by a public figure or someone who is not a public figure, typically has no comparable protection against extortionist suits. Civil suits of this nature (or any nature) are not minor matters for ordinary speakers and writers. In an August 12, 1935, letter from a writers' conference in Boulder, Colorado to his editor back in New York, Maxwell Perkins, the great novelist Thomas Wolfe (1900-1938), one of the fathers of my spirit, wrote about the effect threatened civil litigation was having on him:

...I fear...the long, involved, and costly operation of the courts of law and of lawyers, and although I feel confident that we can eventually defeat this woman', I am bitterly indignant...[that she] can threaten me with suit and take from me a portion of my earnings. It is an ugly and intolerable situation, and what is most shameful about it now is the fact that even if I defeat her claims, I can do so only at the cost of a large sum of money for legal services and of an utterly shameful waste of my time, my energy, my temper, and what is most important, of human faith in other people and in the integrity of their intentions....

    More on those huge PA Supreme Court Justices' expense accounts. A Philadelphia Inquirer columnist, John Baer, weighing in on the recent revelations about expense account practices of PA Supreme Court Justices, focuses his attention on the expenses of the two up for retention votes, Sandra Schultz Newman and Russell M. Nigro. "Newman likes deli in her office, Nigro extravagant meals. He charges for lunches of more than $100 at Capital Grille and the Four Seasons; dinners of more than $200 at Bliss and Pompeii; dinners of more than $300 at Mio Sogno and Prime Rib: dinners of more than $400 at Prime Rib and Morton's...During one week, last April 11 to 18, he spent $1,280 at restaurants in Philly, Ambler and Pittsburgh...In an interview, Nigro says he eats out more than others because he's not married. He says meals charged to taxpayers are for 'court-related business' with other judges, lawyers or law clerks, some in fairly large groups...He says he recently reviewed his expenses and found just 'eight [meals] greater than $300, most under $200... I don't think I'm taking advantage.'" More (Philadelphia Inquirer 10.11.2005). According to Baer, "Newman's charges are more modest but annoying. She charges for her AOL and Comcast hookups, for her On Star service and for $10 tips to hotel bellhops and doormen...She charged $165 for a private driver to take her to a conference. And she charged $5.05 for a soft drink and a quart of Half & Half from the Acme 'for a meeting.'" Id. The justices pull in $170,000 a year, plus long-term care insurance, the usual health & life insurance & excellent retirement & pension benefits. Plus, it appears, "taxpayers...pick up the cost of justices' luxury cars, insurance, maintenance and gas -- which for these two (she a Cadillac, he a Lexus) average $900 a month." Baer says: "I don't care if justices can make triple, or more, their $170,000-plus salaries in the private sector. If that's their interest, they should go there." A few comments.

a) I would be surprised if supreme court justices got these kinds of perqs in most states.

b) As to my views on arguments by judges that they could be earning more in private practice, I refer you to "I could be making lots more if I were Michael Jordan...."

c) Foolish use or abuse of government expense reimbursement policy is one of the easiest ways for a judge to get bad publicity. We've known that for years & years & years. And yet judges keep getting caught at it & embarrassed by the revelations.

d) I've always thought Brandeis (or was it someone else?) was right in saying that sunlight is the best disinfectant in governmental matters. In my view, citizens ought to insist on easier access to information bearing on judicial economics:

Each individual judge's work calendars and timesheets and travel-and-expense reimbursement request forms are public documents readily obtainable by any citizen using the "sunshine" or openness-in-government law. These and similar documents can be made more easily accessible to ordinary citizens by placing them on the court's internet web site. Similarly, the court should put online for public scrutiny any statistical reports that the chief justice receives. Ultimately, I believe anyone who is interested ought to be able to type in any trial court or appellate court judge's name and obtain public information that will aid one in assessing that judge's work habits, productivity, expenditures of public money, etc. Moreover, after the fact one should be able to type in the name or number of any case and follow that case from start to completion, viewing, for example, at the supreme court level, the path and accompanying timeline as an opinion circulated through the supreme court, with the public given access to the dates the majority opinion and any separate opinions were put in circulation, the name and how much time each judge spent on the case before passing it on, etc.

More at Judicial Independence & Accountability, an essay I wrote in 2000.

    No signs of senilty detected by this Court eyewitness observer. A fellow named Richard Poland is director of the Pre-Law Program at Flagler College in St. Augustine and an associate professor of law. He formerly served as probate judge in Somerset County, Maine. He recently wrote a piece for the 10.10.2005 Daytona Beach News-Journal about his experience sitting in on the arguments on the first day of the Supreme Court's new term. Here's a brief excerpt that bears on the question whether the super-annuated cats on the Court are too old to do their job:

At the conclusion of the second case, Justice Roberts stated, "The case is submitted." Everyone rose and the justices exited the courtroom. I had been impressed by the sharpness of their minds, but I could not help noticing that most of the justices relied on the handrail as they descended the three steps to exit the courtroom. That is understandable, however, since only two of the Justices are younger than 65. I have several other lasting impressions of the nine justices that I will share with you -- the shining silver hair and compassionate eyes of Justice Sandra Day O'Connor, the strong presence of Chief Justice Roberts who is clearly the person in charge, the quick wits and senses of humor of Justices Stephen Breyer and Ginsberg (neither the left nor the right can claim ownership of these human qualities), the aloofness of Justice Clarence Thomas who would not disguise his disdain for the oral argument process, the frailty of Justice Ginsburg, the alertness and sparkling eyes of 86-year-old Justice John Paul Stevens, the rapt attentiveness of Justice Anthony Kennedy, and the piercing eyes and articulate voice of Justice Souter.

One of my biggest peeves is our policy of mandatory retirement of judges at age 70 in Minnesota. The most-cited page on my Law and Everything Else blawg is one titled BurtLaw on Mandatory Retirement of Judges, where I put to rest, as Mr. Poland's first-hand observations also help to do, the notion that old judges ought to be required to hang up their robes and gather dust.

    Ohio juvenile court judge faces disciplinary proceeding. The Ohio Supreme Court's judicial disciplinary board has made public (and refused to dismiss) a complaint filed against Judge Carole Squire of Franklin County Juvenile Court, who now faces a disciplinary hearing. "According to the complaint, Squire barred a woman from speaking to her attorneys when the woman sought a civil protection order for herself and her 9-year-old child. When a reporter was present in [a] second case, Squire made false and misleading statements that covered up actions she had taken when the reporter was absent, the complaint states...." More (Akron Beacon-Journal 10.11.2005).

    Renegade civil libertarian group seeks removal of courthouse cupola. "Relying on the Declaration of Rights in the 1780 Constitution of the Commonwealth of Massachusetts, a renegade, radical civil libertarian group has filed suit in state court seeking removal of the cupola that sits atop the famous golden dome (actually, it's wood covered with copper gilded with 23-karat gold leaf) of the Massachusetts State House, arguing that the cupola looks like a little church and confuses tourists and other visitors into thinking that the Government has officially endorsed religion in general as being, literally, 'above the law.' An unofficial spokesperson for the Commonwealth, Dr. F. Lavoris Pusso, Ph.D., SuperNintendent, stated that it is unlikely the Commonwealth will file an answer to the complaint, but will instead allow the plaintiff to obtain a default judgment. 'We are in agreement with the suit, meaning it essentially is what is known as a 'friendly suit.' Therefore, there is no need to answer the complaint. Further, we think it would be futile -- and costly to the taxpayers -- to contest the suit.'" (The Daily Judge 10.11.2005). Comment. This is obviously a hoax news story.

    Texas judge named Gerry Meier often mistaken for Harriet Miers. She's originally from Gainesville. Her name is Gerry Holden Meier, she's 56 years old, & she served on the criminal court bench in Dallas County for 21 years before retiring. According to a profile titled ‘Our Judge Meier' - Former Gainesville resident mistaken for Supreme Court nominee in the Gainesville Daily register on 10.10.2005, "Several calls came in to the Register this week inquiring if President George W. Bush's most recent nominee to the Supreme Court was [the] former Gainesville resident...'Harriet and I have been confused for many years,' Meier said. 'People will ask her if she was a judge and if I were the first female president of the state bar.' In Tuesday's Register, some Gainesville High School alumni from the 1960s recalled one of their own becoming a high-ranking judge and thought at first that Bush's nominee could have perhaps been Meier...." Comment. Because my name is Burt Hanson, people understandably often confuse me with Burt Reynolds, the actor (whose film oeuvre includes the 1997 classic Smokey and the Bandits), Curtis Hanson, the director (latest movie, In Her Shoes), and many other Burt's and Hanson's. Who is "the real Burt Hanson"? I'm the guy whose name often tops the list of Google links when one runs a basic two-word Google search using 'Burt' and 'Hanson' or 'Burton' and 'Hanson,' although sometimes the list-topper for the latter search is 'Peter Burton Hanson,' who was on United Airlines Flight 175 on 09.11.2001, traveling with his wife, Sue Hanson and daughter, Christine Hanson to Disneyland when the plane was hijacked and flown into the World Trade Center. Moreover, I am not the "Burt Hanson" who was referred to as possibly "the unluckiest man alive" in the cover story for the 04.10.2002 issue of City Pages. I categorically deny that I am the "Burt Hanson" played by Cliff Robertson in the 1956 blockbuster Autumn Leaves, a younger man who marries a much older woman named Millicent Wetherby, played by the girly-girlish Joan Crawford. Once upon a time I often was confused with the "Burt Hanson" who fifty or so years ago was popular as a singer on the staff of Minneapolis' 50,000-watt clear channel megastation, WCCO-AM (some might say I not only sing better than he did, but indeed better than Hanson). I've also been stopped on the street -- nay, accosted, mobbed, asked for autographs -- by people who've said I look like a younger Ted Kennedy, John Lindsay when he was Mayor of New York City, Hal Holbrook, the actor, and the Clint Eastwood who starred in The Bridges of Madison County. I also used to be mistaken for my late brother. Who is the 'real Burt Hanson'? He's the guy who, in another life, was known as "Rockin' Rand," the guy who carries on the dream of James Dean and Elvis Presley, the guy who, in a crowded room full of chicks, will have the most attractive and intelligent ones gathered around him acting like a bunch of screaming, drooling rock-star groupies.

    Judge Calvin and his Bailiff Hobbes? "Calvin battled blobs of oatmeal and the bathtub suds monster. He and Hobbes hurtled downhill in their wagon and set out for the Yukon. He turned himself into a Tyrannosaurus rex, Calvin the Human Insect, Calvin the Bug, Captain Napalm, Stupendous Man and Spaceman Spiff...." More (Washington Post 10.04.2005). Comment. I don't recall that Calvin ever imagined himself to be Calvin the Judge and Hobbes to be Bailiff Hobbes -- but I may be wrong. According to the Post piece, which announces publication of the three-volume The Complete Calvin and Hobbes, "a 1,456-page art-book epic of every panel ever published" at a modest $150, the strip's creator, Bill Watterston, modeled Calvin's dad after his own dad, a patent attorney. Calvin? Hobbes? "Calvin was named for the 16th-century Protestant theologian who believed in predestination, Hobbes for the philosopher a century later who once observed that life is 'nasty, brutish and short.' Miss Wormwood, Calvin's teacher, was named after the apprentice devil in [C.S. Lewis'] The Screwtape Letters." Id. Every man has many selves. In the book's forward, Watterston reportedly says: "Hobbes got all my better qualities (with a few quirks from our cats), and Calvin my ranting, escapist side. Together, they're pretty much a transcript of my mental diary...." Watterston sounds like a man after my own kind: he has refused to "cash in" on C&H, as by authorizing movies or animated TV specials or "calendars, notebooks, pencils, backpacks or lunch boxes," etc.

    Adam Cohen on Judge Judy. "It is hardly surprising that Judge Judy is so popular. People like to see social hierarchies reinforced, and people who violate social norms 'taught responsibility' or otherwise punished. Humiliation is also a traditional crowd pleaser, and an important part of virtually every reality show on television. The real problem with 'Judge Judy' is...that for an audience that runs well into the millions every week, it is blurring the line between justice and social bullying...." More (N.Y. Times 10.09.2005). Comment. This is an excellent critique by Mr. Cohen. One of its premises is that, as Cohen puts it, "much of what occurs in the legal system can be explained by the relative social status of the participants," a premise Cohen takes from The Behavior of Law, a 1976 book by Donald Black, a U. VA. social sciences professor. In other words, it is fair to ask whether any judge, Judge Judy included, would treat anyone of high socio-economic status the way she treats her litigants, who, Cohen says, "almost invariably have a multitude of low-status markers: they are unemployed, they have criminal records, they speak poorly." I think it should be added, though, that were a public judge on a real court to treat any litigants the way she treats hers in TV RealityLand, it wouldn't be long before the judge found himself or herself before the Judicial Conduct Commission. Indeed, the archives of this blawg contain a number of actual examples. Nonetheless, there is great truth in the observation Cohen attributes to Black that "law moves more easily down social hierarchies than up." I first learned these and other things from one of the great influences on my life, the late Prof. George Bryan Vold, from whom I took two classes at the University of Minnesota as an undergraduate: Criminology and Functions of Social Conflict.

    Judge Hiller Zobel on Judge Judy. Back in November of 2001 Judge Hiller Zobel, a prominent Massachusetts trial judge, said in a speech in Nevada that "Judge Judy is the bane of existence of trial judges." For my views at that time on both that and on Judge Zobel's statement that in his opinion the press doesn't do a good job covering the courts, see entry dated 11.11.2001 titled "Judge Judy is the bane of existence of trial judges" at BurtLaw's Court Gazing III (scroll down).

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

    Pay-raise protestors target judges in retention election. "Citizen groups angry about state legislators' [and judges'] big pay raise want to vote incumbent lawmakers out of office on Nov. 8. There's only one problem -- there aren't any legislators up for re-election next month. So the pay-raise protesters are doing what they consider to be the next best thing. They're urging Pennsylvanians to take out their frustrations on two state Supreme Court justices who are up for a 10-year retention election on Nov. 8 -- Russell Nigro and Sandra Schultz Newman, both of Philadelphia...." More (Pittsburgh Post-Gazette 10.10.2005). Some related earlier entries, with embedded links: Will pay raise & expense account scandals affect retention elections in PA? - Did judge's role in judicial pay raises violate ethics rules? Comment. It is because of instances like this that some judges around the country prefer the possibility of facing a specific challenger in an election to the so-called "Missouri Plan," with its retention election (vote yes or no on whether to retain a judge). They reason that some (many?) voters might vote no in a retention election as a kind of protest against judges in general whereas those same voters might favor the incumbent if faced with a choice between him/her and a specific opponent with identifiable flaw of his or her own.

    Former top judge: P.M.'s proposed 90-day detentions without charge unlawful. "Government plans to detain and question suspected terrorists for up to three months are likely to prove unlawful, according to a recently-retired senior judge. Lord Steyn, who stepped down as a full-time law lord 10 days ago, said that allowing the police to question suspects for up to 90 days rather than the present two weeks was an 'exorbitant and unnecessary power.'" More (Uk Telegraph 10.10.2005). "Speaking publicly for the first time since he left judicial office last month, Lord Steyn condemns the Government for its assault on human rights, declares himself to be 'deeply sceptical' of a national identity card scheme and says he shares the comedian Rowan Atkinson's fears that the new religious hatred legislation will criminalise satire...." More (UK Independent 10.10.2005). And see, Johan Steyn, Democracy Through Law: Selected Speeches and Judgments (2004), reviewed here [15 Law and Politics Book Review 411-414 (2005)]. Comment. It is Lord Steyn who recently said:

Judges are not the servants of the Government. We swear an oath to the Queen as head of state, our duty lies to the public, not the Government. I think in all these complaints about how the judges are not being helpful enough they must remember we are emphatically not on the same side. They can put as much pressure on us as they like but we will do our duty.

Justice Frankfurter once said, "Weak characters ought not to be judges." Lord Steyn obviously is made of tough stuff and it is good to see that he is not using his retirement from judicial office to "go gently" into Dylan Thomas' "good night" but is going to "burn and rave at close of day" and not permit Tony Blair or anyone else put out the light.

    Pickets of Madison County? Absent a last-minute agreement, unionized county employees in Madison County, including bailiffs, court secretaries, and others, plan to go on strike. "On Friday, Chief Judge Edward Ferguson canceled jury trials for the coming week because of the possibility of a strike. Ferguson said he feared that impaneling juries would lead to mistrials, if jurors refused to cross picket lines at the courthouse...Circuit clerk Matt Melucci has vowed to keep the court running with supervisory staff...." More (St. Louis Post-Dispatch 10.08.2005). A longtime criminal defense attorney is quoted as saying: "What justice we do have in Madison County will come to a shrieking halt. They don't have enough clerks as it is. The way it works now, we already go and get our own files from the clerk's office. In most counties, we can't touch the files; they're like the Holy Grail. But we do it here because we have to." Note: In many states court employees are "at will" employees and are not permitted to strike. Comment. We're talking, BTW, about Madison County, Illinois, not Madison County, Iowa. The latter is the one with the "Bridges" that played a big role in the chick-flick that many dissatisfied wives across this great land were obsessed with back in 1995, I believe it was. I refer, of course, to the movie Bridges of Madison County, based on the Robert James Waller novel of the same title, in which the character played by Clint Eastwood beds-down and otherwise acts as sexual savior of the Iowa housewife, Francesca, played by Meryl Streep, while boring, well-meaning hubby and kids are off at the fair -- Francesca, who wrote in her notebook, discovered by her kids after her death, "He brought out something in me no one had ever brought out before, or since...made me feel like a woman in a way few women...ever experience" (Screenplay). No, the Madison County we're talking about is the one in Illinois that has been named No. 1 Judicial Hellhole in the Country a number of times by ATRA, the American Tort Reform Association.

    Judges getting 'political,' politicians getting 'judicial.' We're talking about India: "Former Attorney General Soli J Sorabjee has criticised appointment of former Supreme Court Judges to head commissions of inquiry in 'matters with political overtones.'...Commenting on the Bench, he said 'judicial punctuality has become such a rare quality that being on time has become a breach of convention for many judges.'...Asked if the Legislature was interfering with the court's functions, former Chief Justice of India M N Venkatachaliah, who also spoke at the function, said politics was 'slowly entering everything.' 'Constitutional judgment are facing political interference,' Venkatachaliah said..." More (The Hindu News 10.09.2005). Comment. Justice Robert Jackson was criticized for taking a leave to serve as Chief United States Prosecutor at the Nuremberg Tribunals. For an interesting lecture by Chief Justice Rehnquist devoted to Justice Jackson and his role at Nuremberg , see Remarks of the Chief Justice American Law Institute Annual Meeting - May 17, 2004 (Supreme Court Information). Chief Justice Earl Warren was criticized similarly for "agreeing" to serve on and as head of the Warren Commission to investigate President Kennedy's murder. According to one critic, Warren was "blackmailed" by President Johnson into "agreeing":

Johnson asked Warren if he would be willing to head the commission. Warren refused but it was later revealled that Johnson blackmailed him into accepting the post. In a telephone conversation with Richard B. Russell Johnson claimed: "Warren told me he wouldn't do it under any circumstances...I called him and ordered him down here and told me no twice and I just pulled out what Hoover told me about a little incident in Mexico City...And he started crying and said, well I won't turn you down...I'll do whatever you say."

For Chief Justice Warren's different recounting of his initial refusal and of what LBJ said to persuade him to serve, see Earl Warren Oral History 09.21.1971 (LBJ Library Oral History Collection).

    More on judge's creative alternatives to jail time, fines, etc. "[Broward County Court Judge Louis] Schiff told about a dozen judges [at the Judicial College in Reno, NV] about how he requires young drivers to photograph 10 roadside memorial markers -- each at a location where someone died in a traffic crash -- so they can see the number of people who die on roads where they travel. His homework assignments also include making them clip newspaper articles about auto accidents daily for a month, highlighting the names of the dead and injured, as a way to force them to see the results of accidents. He requires other young drivers to improve their grades at school and bring in report cards to prove it. In exchange for the pictures, scrapbooks and improved grades, he refrains from imposing fines or making them perform community service...." More (South Florida Sun-Sentinel 10.08.2005). Comment. We linked to another story about Judge Schiff in August: Judge as leader of the band. Judge Schiff sorta reminds me of the juvenile court judge of my small-town youth, a non-lawyer named C. A. Larson, father of well-known C.P.A., Rholan Larson, husband of Ruth Hanson Larson, my late dad's late half-sister. Here's the start of a piece I wrote a few years ago that referred to Judge Larson:

    My 'felonious' past. I grew up in the '50's in a small town on the eastern end of the Great American Prairie. It was a wonderful time and place to be a boy. My friends and I pretty much had the run of the town. (Our dogs did, too.) Everything was less regulated then. Some of us did things, minor things really, that if we'd been caught, we might have been taken before the juvenile court. The judge of juvenile court was a man named C.A. Larson. He may have been the best judge ever to preside in the Swift County Courthouse and he wasn't even a lawyer. If any of us had been caught doing something wrong and taken before Judge Larson, odds were he would have handled it informally, equitably, leniently, and kindly -- more with the discretion of a wise father than that of a judgmental judge. But I don't recall any kids I knew ever getting taken before Judge Larson. Things were handled informally, extrajudicially. If a kid got caught shoplifting, the owner of the store would call up the kid's parents and they'd handle it, intrafamilially.

Most of us guys carried pocket knives in the summertime. We used them often. In playing "stretch," in whittling, in making willow whistles, in carving initials on trees. I know of no instance in which any of us ever used our knives in any fights. And there were fights. If two guys fought, they usually wound up wrestling in the dirt, with one guy eventually "giving up." It never dawned on me in any of my fights to pull out my pocket knife and use it as a weapon. I don't recall carrying my pocket knife to school, but if I had it would have been absolutely unthinkable that I would have been subject to adverse consequences for doing so....

Continued at Law and Everything Else in the section titled BurtLaw's Law and Kids (scroll down to "My felonious past").

    Judge removed for viewing porn on court-owned computer. "The Kansas Supreme Court on Friday ousted [Saline County District Judge George R. Robertson, 56] for viewing Internet pornography on his office computer...Justices noted that the canons state 'public trust is essential to an effective judiciary' and that one judge's conduct may impact the public's perception of the entire judicial system. Robertson told the commission he spent countless hours as an elder of his church and had spread himself too thin between his judicial work and his church obligations...He told the panel that adult Web sites provided a diversion over nine months. A county computer technician discovered the viewing and reported it...." More (Washington Post 10.07.2005). Comment. Would the result have been different if the judge had been "caught" visiting daily-prayer sites on the office computer or simply using the court-owned computer to e-mail a friend? How about if a secretary discovered a pornographic magazine in a drawer in the judge's court-owned desk or on the court-owned desktop? Would it make a difference if she discovered a Bible in the drawer? How about a copy of Lolita? How about if a secretary listened-in on a judge as he talked dirty with his mistress over the court-owned telephone? Different result if he talked dirty with his wife? How is a "computer desktop" different from an old-fashioned desktop? What's so determinative about the fact that the court owns the computer? Can the Government, without running afoul of the First Amendment, remove a judge if he reads a pornographic magazine during a break at work but not if he reads the Bible during a break? How about if it's "Christian porn"? The short of it is, I don't think the analysis courts are using in cases like this will or ought to pass constitutional muster. Further reading. Foes of monitoring of judges' computer use win first round (BurtLaw's Law and Everything Else - Court Gazing II - 09.08.2001 with updates - scroll down) (recounting the role of Judge Alez Kozinski and the Judges of the Ninth Circuit, U.S. Court of Appeals, taking on Leonidas Mecham, Director, Administrative Office of United States Courts, over the issue of monitoring computer use by judges and their employees). More on Judge Kozinski. Judge Kozinski is an unpredictable broadly-respected darkhorse Supreme Court nominee if the nomination of Harriet Miers is withdrawn ("at her request"), a favorite of law reviews and law students for his always interesting opinions. Emily Bazelon, The Big Kozinski (Legal Affairs Jan-Feb 2004). He's surprisingly open and accessible. I exchanged e-mails with him several times in connection with the skirmish in August 2001 between Mr. Mecham and the Ninth Circuit.

    Judge's secretary could face 30 years in prison. "A former personal secretary [Heather L. Coleman, 51] to a federal judge [Frank C. Damrell, Jr.] has been indicted on 94 counts of fraud for allegedly stealing more than $250,000 from her former boss...If convicted on all counts, she could face 30 years in prison. Coleman is accused of stealing from Damrell by using blank checks from the judge’s brokerage account and the judge’s signature stamp...Coleman was Damrell’s secretary from the time he took his seat on the federal bench in December 1997 to her termination after the judge discovered the theft in April 2004. Coleman...withdrew her guilty plea to one count of mail fraud a week ago...." More (Lodi News-Sentinel 10.08.2005). Further reading. Although we haven't updated the links or added new material in awhile, BurtLaw's Law and Legal Secretaries is still worth checking.

    Felix Frankfurter fires his secretary. "The only secretary I ever fired was one that I had when I came [to the Court] who was generally too officious. My gut bust when she told me one day what a fine opinion I wrote. I couldn't stand that -- to have my secretary tell me. She was thoroughly incompetent to know whether it was a fine opinion or not...." From H. N. Hirsch, The Enigma of Felix Frankfurter 89-90 (1981).

    Firing of court stenographers upheld. "Attorney David L. Nixon responded angrily yesterday to last week's state Supreme Court's decision upholding the firing of the Superior Court's stenographers [they're what many courts call "court reporters" and they're being replaced by tape-recorders]. Nixon asked the court to reconsider, accusing the three retired judges in the majority of 'belatedly and wrongly interpreting' the law...The stenographers sued the high court and its administrators for eliminating their positions despite promises they say were made by earlier justices that the stenographers would be replaced only by attrition. All of the Supreme Court justices, as defendants in the lawsuit, withdrew from the case...." More (New Hampshire Union-Leader 10.08.2005). Earlier story. "A retired Superior Court Justice [Peter W. Smith, who served for 18 years before retiring in October 2003] has accused the state Supreme Court of 'treachery' in its treatment of nine court stenographers targeted for layoffs on Sept. 15...." More (New Hampshire Union-Leader 04.25.2005). Comment. We don't know anything about the rights or remedies of the Superior Court stenographers/court reporters in New Hampshire, but frankly admit that instinctively we're generally on their side, just as we're generally on the side of secretaries. There's a great Pedigree dog food commercial that shows a number of cute dogs & has the punch line, We're for dogs (there's also one now that says, "We're for pups"). We're also for secretaries -- and stenographers. In fact, having worked with both judges and secretaries, we generally prefer the latter. (Not that some judges aren't okay.) Sadly, secretaries often are not treated as well by their judges as the family dog. In many appellate courts, e.g., a judge's secretary (sometimes called a stenographer or typist) has no job security & may find herself (yeah, they're usually women) in effect buried or retired with her judge when he dies or retires. Specifically, if she wants to continue working at the court when her boss dies or retires she typically goes through a period of anxiety as she awaits the decision of the successor whether or not to retain her. I have always compared this to the ancient Egyptian cult of the Pharaoh's death, described here:

In the alphabet of Egyptology, Abydos comes first. It is the last resting place of the first kings of the first dynasty, 5,000 years ago. It is the birthplace of the cult of the divine king...It is where the pharaoh's undertakers buried his ships of the desert -- a flotilla of 20m-long planked craft to ferry the dead king to his afterlife -- and ritually killed and buried donkeys to carry his goods. They killed and buried his servants, too, to tend him beyond the grave....

Death on the Nile (Guardian Weekly). The practice is insulting to secretaries. It seems to assume that they are personal servants of the judges and not professionals employed by the state -- an assumption perhaps having something to do with the fact that, as I said, they typically are women. It also glorifies judges, who, after all, are not Pharaohs but public employees who ought not have the rights or perquisites of Pharaohs.

    Judge bows out of case after presiding over it for 21 years. "Superior Court Judge Bernard Dougherty got a moving sendoff Friday on his last day presiding over the long-running lawsuit that provided the indigent mentally ill with state-financed treatment. Attorneys for both sides lauded and thanked Dougherty. Associates who worked with him on the case rose and, sometimes in tears, praised the judge. And Dougherty himself shed a few judicious tears as he left the court...amid a standing ovation from everyone in the room. Dougherty, 68, has overseen the Arnold vs. Sarn case for 21 years...Dougherty is retired and has been hearing the case for the past four years as a pro-tem judge...Judge Karen O'Connor, the presiding Superior Court mental-health and probate judge, will take charge of the case...." More (Arizona Republic 10.08.2005). Comment. I forget how many years the case of Jarndyce v. Jarndyce in Dickens' Bleak House grinded on in the High Court of Chancery. Unlike that case, Arnold v. Sam seems to have accomplished some good: "When the case first was heard, Arizona ranked 50th in the nation in funding for mental health care; now it is 14th." Accordingly, we here at the international headquarters of The Daily Judge, exercising the broad discretion we have vested in ourselves, bestow the coveted "BurtLaw Daily Judge Judge of the Day Award" on the above-named judge in question.

    Judges feud in public view over private judges' use of courthouse. "Judge Nancy Margaret Russo posted a written warning this week to judges, lawyers and the administrator of the Cuyahoga County courthouse: Follow her rules governing trials heard by private judges or risk being charged with contempt of court. Judge Richard McMonagle, the presiding and administrative judge in Common Pleas Court, issued a reply to Russo's edict on Wednesday that could best be summed up in two words: Forget it. 'I believe that you are without jurisdiction to limit the use of our facilities in this matter,' McMonagle said in a letter to Russo....." At issue is a 1987 Ohio law regarding use of private judges. Judge Russo apparently has had some high-profile cases taken from her by the litigants' agreeing on the use of private judges instead. More (Cleveland Plain Dealer 10.08.2005).

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Affiliated Web sites

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

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

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