Mar 13, 2014 Standing when the judge enters the courtroom is a two-way street
It is easy for a judge to get away, at least temporarily, with unfairly scolding a lawyer or party with impunity, no matter how unfair the scolding. The judge wears the black robes, has the power to rule on the case, and has the power to find parties and lawyers in contempt of court. Such behavior is too common for too many judges.
Why would a judge sink to such levels, in the process dishonoring the judge’s name and reputation, dishonoring the bench, and dishonoring the judicial system? Judicial power, like any power, is at risk for abuse. The Solomon judge understands the awesomeness of his or her power, does the utmost to use that power only for good, and not to abuse, and not to demean.
My experiences with judges run the gamut from good natured exchanges to serious verbal engagements to one-way streets (with any one way ordinarily coming from the judge) to downright unacceptable judicial behavior that only is possible because the judge is wearing a black robe.
Recently, a judge berated me in open court, with my client by my side, about a legitimate motion I had filed. Do judges stop to think about the unnecessary wedge they help place between a lawyer and his client when the judge unnecessarily berates the lawyer in open court? Had the judge given me an opportunity for just sixty seconds to reply, I think he would have reversed positions. Instead, he just moved onto the next phase of the proceeding. Attorney ethics rules generally prohibit ex parte communications with judges about pending matters, thus limiting me from stopping by his chambers on my own to discuss this berating. How beneficial it might be for me to stop by his chambers for an informal chat, or better yet to take a walk together or sit down over caffeinated beverages or soft drinks, to enable us to let matters off our chests. Everything is a two-way street; let him tell me what concerns him about me, as well. Once again, though, come the limits of what I can discuss with him without the opposing lawyer’s presence before discussing matters appearing before him.
I know two former judges whom I never wanted in my clients’ cases. The first one took a liking to me from the beginning when I became a public defender lawyer. I saw him early on for the human he is, flaws and all. He was just a regular guy in so many ways, exercising extraordinary power, as his black robes reminded him. Before I knew how undesirable he was to have on the bench, I felt a human connection with him. With that respect and understanding that we had for each other, he was uncluttered in listening to my arguments at trial, and sometimes ruled in my favor when he might have done otherwise were he apprehensive about my going on the unnecessary attack on him rather than simply trying to persuade him. Several years later, after having become my own boss, I appeared before a new judge in another county whom I saw as exhibiting little heart, little warmth, and insufficient judicial temperament, although I compliment him that he never raised his voice nor used nasty language nor a nasty tone of voice. I never wanted to appear before him. Some colleagues said how nice a man he was off the bench. I decided to give a shot at relating to this judge as human to human. I once emailed him on a point of commonality having nothing to do with the law nor the court; he happily replied with an invitation to talk about it over coffee. I wanted to take him up on that, but before I could, I soon experienced him acting too injudiciously or me to feel comfortable breaking bread or drinking coffee (okay, I drink tea instead) with him.
This same judge left the bench a few years later. I saw him eating lunch with colleagues at a table outside a food court. I felt satisfied with this picture confirming that he was indeed off the bench, never to return. Part of me wanted to lash out at him and to tell him all the things I wanted to tell him when he was on the bench, but did not, lest I harm my client and me along the way. However, why wait until a judge is off the bench to take action on his or her unjust actions? Everyone was now out of harm’s way with this judge. My mind transitioned from surprise at seeing this former judge in this setting to dancing with glee in my mind that he was finally gone from harming people and their lives. Justice was done when he left the bench.
From my limited experience before him, I praise the judicious judicial example of former Judge Henry Kennedy, before whom I had my first civil jury trial, in 1997, in the District of Columbia Superior Court, only months before he ascended to the next door U.S. District Court. What a gentleman, a neutral referee never raising his voice, keeping control of the courtroom through the respect he instantly earned from the moment he entered the courtroom. He earned respect through the magic mirror of the respect that he deeply holds for all, and for the self respect he has for himself.
In the middle of my trial with Judge Kennedy, when the jury was out of the courtroom, I asked the judge: "In the words of Paul Desmond, might we Take Five minutes for a break?" Judge Kennedy smiled, saying he thought the song was composed by Dave Brubeck (here discussing the tune), and granted the break. Later that day, the judge told me he looked up the matter and agreed the composer was Paul Desmond. This was at once light banter and an example of this judge’s not letting his robes be an unnecessary barrier between him and those not on the bench. When I received a request over ten years ago to recommend judges to be invited to attend the judicial seminar (see page 2) at the Trial Lawyers College, the first one I thought of was Judge Kennedy, realizing that he already had so any of the qualities that could be learned at the college that his presence there would be a great light on the other judges there.
I have blogged plenty of times about dealing with difficult judges with the magic mirror, seeing them as a boulder in the road that we can driver around or try to lift while suffering a hernia, reversing roles with them as with a lion angry and hurt with a thorn to be pulled from his sole, seeing them as having once been helpless babies soiling diapers, seeing them as desirous and deserving of compassion, and returning them to center with the power of truth, compassion, and understanding.
That is not enough. This is a two-way street. The judicial role in America is in so many ways antithetical to a truly democratic and open society. The least a judge can do is to recognize that, and to emulate the Solomonesque example of retired Judge Henry Kennedy, or at least to give it a concerted ongoing effort.
Things are not always clear cut. Sometimes I get great results from justices spewing disrespectful words. Some judges who speak in the kindest and most respectful way rarely dispense results that benefit my clients. Such a situation sounds like a strange parody of the choice between good grammar and good taste. Why can I not get both from a judge?
Here are some examples of judges at their best and worst as humans:
GOOD BEHAVIOR BY JUDGES:
– Detroit federal Judge Victoria Roberts two years ago had the courage to dismiss a prosecution for an alleged plot to overthrow the government, finding insufficient evidence to convict.
– In 2012, Chesapeake, Virginia Circuit Court Judge John W. Brown ruled that the Department of Motor Vehicles had violated the First Amendment by applying viewpoint discrimination in reversing the issuance of a vanity license plate with the message ICUHAJI.
BAD BEHAVIOR BY JUDGES:
– SF Gate reports that former federal trial judge Richard Cebull (D. Wy.) sent hundreds of racist, sexist and politically inflammatory e-mails from the same courthouse computer over a four-year period.
– Blatantly playing prosecutor in robes, Iowa federal trial judge Stephanie Rose, responding to the prosecutor’s following a plea agreement’s prohibiting him from presenting material to enable a criminal defendant’s sentence to be lengthened, "called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated. Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was ‘a lesson’ there for attorneys: ‘You won’t like me when I’m angry.’"
– Recently, the District of Columbia Judicial Disabilities Commission reviewed proceedings in the courtroom of Judge Natalia Combs Greene, concluding: "It is clear from our review of the cases brought to our attention, that Judge Combs Greene’s demeanor was oftentimes less than courteous, and on occasion even rude and intimidating; moreover some of her comments during those proceedings were exceedingly inappropriate. This causes the Commission great concern… There are no exceptions to Rule 2.8(B). Every litigant deserves to be treated with the utmost respect." Good for the Disabilities Commission to make this conclusion, which is counteracted, though, by the Commission’s nevertheless finding Judge Combs Greene "fit to continue her judicial service… favorably recommend[ing] Judge Combs Greene’s appointment as a Senior Judge."
– Last year, Miami trial Judge
Jorge Rodriguez-Chomat substantially sentenced Penelope Soto for criminal contempt (but fortunately later reversed, but only after Ms. Soto ate crow before him) after she flipped him the bird and apparently "f’ed" him off for doubling her bond for saying "adios" to him after he playfully waived "byebye" to her at the conclusion of her bond hearing. Ms. Soto’ name is Hispanic and Spanish is widely spoken in Miami. How Ms. Soto’s saying "adios" justified a doubled bond is beyond understanding.
– Former Montgomery County, Maryland, District Court judge Brian G. Kim resigned in 2011 after paying a reckless driving ticket related to an allegation of road rage tailgating on a highway. I felt that former judge Kim’s tone of voice and manner in the courtroom were stricter than needed, which could have caused particular discomfort for litigants who did not have the benefit of a lawyer standing there for them.
– In 2009, the North Carolina Judicial Standards Commission in 2009 reprimanded a judge for ex parte communications on Facebook during the course of a trial, with one of the lawyers in the trial.
– In 2013, a District of Columbia Superior Court trial judge coerced a deadlocked jury in a murder trial. The appellate court, bless its heart, therefore granted a retrial.
Black robes do not transform a mere human into the be all and end all in the courthouse. Beneath those robes is still a human, with the entire package of strengths and weaknesses, feelings, frustrations, dreams, and dashed hopes. Judges are selected through the political process by executive or legislative branch nominations (depending on the state) and in some states from the ballot box. Those selecting judges are fallible, which precludes them from selecting infallible judges. Once a judge reaches the bench, no matter how s/he gets there, the judge’s power is too strong for the judge to do anything but harnessing and taming that power, and treating everyone respectfully. Government officials, including judges, are here to serve the public, and not the other way around.