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http://upload.wikimedia.org/wikipedia/commons/thumb/9/96/Golf_ball_5.jpg/320px-Golf_ball_5.jpgA couple of Saturdays ago, we were paired up on the golf course with a happy wise-cracking guy who turned out to be a presiding judge in another jurisdiction. I won’t mention where he was from but let’s just say, he was one happy hombre hitting white dimpled balls in the sunshine while his cold snap compadres back home were freezing theirs.

He was also a much better duffer than me which, of course is no big deal since I set the bar pretty low on the golf course. But I especially liked his bracing candor and absence of pomposity particularly when referring to his day job. His ‘hail fellow well met’ attitude was refreshing. Ah, but then again, we were basking on a sunny Arizona golf course. Who knows what he’s like back home? But at least he wasn’t like Judge Spaulding Smails!

Nonetheless giving him the benefit of the doubt, mid-round I commended the long-time jurist for having successfully inoculated himself from black robe disease — and for not asking me to kiss his ring. Hearing my good-natured razzing, he laughed and smote his Pro-V-1 down the middle of the fairway.

And with that I segue to less berobbed congeniality in the following updates:

From the slapping the spanker file.

Remember Texas Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted an embarrassing angry belt-whipping video online. Judge Adams was the belter and Hillary was the beltee. Well, add one more loss for the now ex-jurist. Following enough mea culpas, Judge Adams had been reinstated by the Texas Supremes in November 2012. But thing was, that video followed him around like the proverbial tin can tied to a cat’s tail. So thanks to getting caught beating his daughter on the video, he lost re-election last month. Chalk one up for prudent voters slapping down an ill-advised reelection bid. And give credit to much-maligned judicial elections, which now and then do somehow manage to impose some semblance of accountability courtesy of the voters.
Meanwhile back in Texas, remember Judge William Adams who lost it in more ways than one? For those who forgot, he was the jurist suspended for a year after his daughter, Hillary, posted a video online of the belt-whipping he administered. Well, add one more loss for the ex-jurist. The judge who was reinstated by the Texas Supremes in November 2012 after he was caught beating his daughter on video lost re-election in March. Chalk one up for voters slapping down an ill-advised reelection bid. And chalk up one for much-maligned judicial election voter accountability.
body parts,Buddhism,feet,footprints,religion,religious symbols,toes,visitations

From the foot massages no more file.

Sadly at only age 56, former Clark County, Nevada District Court Judge Elizabeth Halverson passed away March 1, 2014. She’ll be remembered for a lot of things, including the stuff that led to the imposition of judicial discipline. In particular, I’ll recall her former bailiff Johnnie Jordan’s affidavit where he said the judge had ordered him “to massage her feet, neck and shoulders, or some combination of those body parts.”  Also see “Foot massages no more. Nevada Supreme Court reaffirms district court judge’s permanent removal.”

From the shame in his game file.

photoAnd finally it turns out there was more than a little shame in the game of Wayne County, Michigan Circuit Judge Wade H. McCree Jr.

At least more than enough to convince the Michigan Supreme Court to hand down an order dated March 26, 2014 to remove from the bench the self-professed “No shame in my game” judge with a hankering for old-school R & B; inappropriate liaisons in chambers; and bare-chested texts.

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http://upload.wikimedia.org/wikipedia/commons/thumb/e/ee/Menudo_%28sopa_de_M%C3%A9xico%29.JPG/640px-Menudo_%28sopa_de_M%C3%A9xico%29.JPGI was having a bowl of menudo yesterday and thinking about Elizabeth Warren. Not so odd a juxtaposition — chowing down the communal Mexican ‘breakfast of champions’ while chewing on the Massachusetts Senator who champions populist economics and battles predatory financial institutions.

Menudo — the spicy traditional Mexican soup of honeycomb beef tripe in a red chili pepper broth base, garnished with lime, crushed oregano, chopped onions and cilantro doesn’t suit everyone’s taste. And neither does Elizabeth Warren.

http://upload.wikimedia.org/wikipedia/commons/thumb/8/8f/Elizabeth_Warren_Nov_2_2012.jpg/319px-Elizabeth_Warren_Nov_2_2012.jpgBut I like both. A year ago I cheered when the former lawyer and Harvard law professor took down our nation’s weak-kneed financial regulators for their shameful timidity. When Elizabeth makes news, I pay attention.

“Corporate judges.”

A speech she gave last week criticizing the “striking lack of diversity” on the federal bench prompted my menudo musings about Elizabeth. She called for more “professional diversity” and decried the continued trend of “corporate judges” who keep getting nominated to the federal bench.

Her speech echoed the points made by an Alliance for Justice report that the federal judiciary lacks judges “with experience (a) working for public interest organizations; (b) as public defenders or indigent criminal defense attorneys; and (c) representing individual clients—like employees or consumers or personal injury plaintiffs—in private practice.” According to the Alliance, 85 percent of Obama’s nominees have either been corporate lawyer types or prosecutors and sometimes, both.

Preaching to the converted, she told her Alliance for Justice audience that President Obama’s federal bench nominees ought to “have represented people other than corporate clients.”  Few have been public interest lawyers, labor lawyers, criminal defense lawyers, solo practitioners, or plaintiff’s trial lawyers.

j0289753The obvious implication is that once on the federal bench, by dint of their narrow work backgrounds exclusively representing “corporate interests” and their homogenous sociocultural experiences, the judges nominated will supposedly be more favorably predisposed to a conservative political world view. Warren and the Alliance suggest that the federal bench is stacked against the less powerful and weighted instead toward wealthy and politically conservative, pro-corporate special interests.

The reality, however, is that federal judicial nominees are chosen not so much because of their work experience but out of the mixed bag of political ideology; personal loyalty; party affiliation; their Senate confirmation potential; race, gender and judicial experience. And more often than not, candidates for appellate nominations also come from a state’s respective U.S. Senators. And those politicos have their own crony-bag of personal, ideological and politically connected favorites.

Apolitical judiciary?

And speaking of political ideology and party affiliation, as I riffed a while back, the irony is that life tenure for federal judges supposedly keeps them independent from those concerns. Canon 5 of the Code of Conduct for United States Judges even says as much, “A judge should refrain from political activity.”

So are judges apolitical? The answer is ‘no.’ “Judges are as opinionated as anyone else – – – maybe, more so. Merely donning a black robe, doesn’t magically make ideological inclinations or political predilections disappear.”

http://upload.wikimedia.org/wikipedia/commons/thumb/b/ba/Jules_Joseph_Lefebvre_-_Lady_Godiva.jpg/373px-Jules_Joseph_Lefebvre_-_Lady_Godiva.jpgAlong with the myth about George Washington and the cherry tree and Lady Godiva’s naked ride through Coventry, it’s simple mythology like the one perpetuated of Judges as Umpires.” The most famous proponent of that unfortunate baseball metaphor remains U.S. Supreme Court Chief Justice John Roberts.

In his book, “The Persistence of the Color Line,” lawyer and professor Randall Kennedy opines, “Roberts’ performance as a justice belies his claim. He is, as Professor Professor Christopher Eisgruber notes, “an odd sort of umpire” – – one who consistently calls the key pitches the conservatives’ way.”

But rather than baseball metaphors, it’s really more a cat-and-mouse game. Judicial nominees neuter their political and ideological persuasions while the rest of us try to ferret them out.

Any wonder then, that to futilely shield themselves from bare-knuckled partisan confirmation battles and win the lifetime-tenure prize, nominees parse, dance, glide and dodge their political backgrounds? Suddenly, they are all political agnostics. And about as crystal clear as a bowl of menudo. See “One Fourth Of Federal Judicial Nominees Did Not Answer Party Membership Question.”

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Photo Credits: Menudo, a typical Mexican soup made with tripe, hominy, and chile, by Ron habla hispana at Wikimedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license; Elizabeth Warren at a campaign rally in Auburn, Mass, Nov 2, 2012, by Twp at Wikipedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license; George Washington as a boy and the cherry tree, at Wikimedia Commons, lithograph engraved in 1867 by John C. McRae after a painting by G. G. White, public domain; Lady Godiva, by Jules Joseph Lefebvre at Wikimedia Commons, public domain.

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It was premature to say so. But the election of Barack Obama did not augur the start of a new ‘Post-Racial’ America. If there was any doubt about that, a 2013 Pew Research Center poll cleared it up.

50 years after Martin Luther King’s “I have a Dream” speech, the Pew Survey indicated only 26 percent of African-Americans believed the situation for blacks had improved the past five years — while 21 percent said it was actually worse.

Race is still with us. And even on “M.L.K. Day,” there’s this fatuous example from the racial-justice cognoscenti Sarah Palin who after noting today’s remembrance twitters Obama should stop ‘playing the race card.’

There are miles to go before there’s a color-blind society — assuming it ever happens. Yet surprisingly, others have suggested that the evils the civil-rights movement fought against have been “vanquished.” Racism is dead. What remains are simply “lousy schools, a thriving drug trade and a misguided governmental response, the collapse of marriage.”

RestaurantMarinated malignment?

Who knew?

So no surprise there was such a furor from the racism-is-dead crowd when last November Oprah Winfrey told a BBC interviewer, “There are still generations of people, older people, who were born and bred and marinated in it, in that prejudice and racism, and they just have to die.”

People 27701Admittedly, the 60-year old Oprah painted the greatest and not-so-greatest older generations with too broad a brush of aggrievement. And astonishing, too, coming from the one-time architect of touch-feely television therapy whose stock-in-trade is engagement, approachability, and likeability.

KKK public-domain-Library-of-Congress-Creative-Commons-ImageBut perhaps Oprah was merely affirming — although in a ham-handed way what Denis Leary said a few years ago about the generational legacies we leave our children. “Racism isn’t born,” Leary said. “It’s taught.”

Race matters.

Bigoted attitudes may be fading with the passing of preceding generations. The young do appear generally more enlightened and open-minded on such matters. But that’s not to say they don’t linger. Not long ago, yet another survey revealed that for those 18 to 30-year olds of the Millennial Generation, race continues to matter.

And unfortunately, it also still matters and in a much less benign way to members of the Boomer generation. Of whom one refers to as “the last reminders of our racist, homophobic, sexist past. When you look at those “white only” diners and drinking fountains in those photos from the 1960s you just can’t believe it. Or how women were treated. And gays. But many of our beloved boomers were teenagers back then, living with parents who watched Ozzie and Harriet and raised to believe that people who weren’t white weren’t to be trusted, women were meant to stay at home and gays were sinners.”

Habitually repentant?

http://lawmrh.files.wordpress.com/2012/03/judge-cebull.jpg?w=181&h=203And with that, we turn back to another signpost that race continues to matter and to that aptly named former Chief Judge of the U.S. District Court for Montana and now retired — 70-year old Dick Cebull. No matter his other achievements, he’s the jurist now best-remembered for passing around racist anti-Obama emails.

Well, there’s an update. As it happens, what was once believed to be aberrational and leading to a belated racist email repentance — has now turned out to be something of a bad habit. It now appears he just happened to get caught forwarding that one particularly nasty email that suggested President Obama’s mother had sex with a dog.

“I didn’t send it as racist, although that’s what it is,” he afterward. “I sent it out because it’s anti-Obama.”

Last Friday, a Memorandum of Decision in the Proceeding in Review of the Order and Memorandum of the Judicial Council of the Ninth Circuit divulged that Judge Cebull had actually sent hundreds of other bigoted emails.

The majority of the emails the former Montana federal judge sent via his office email account were political in nature. But as the memorandum additionally disclosed, “A significant number of emails were race related. Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally. A similarly significant number of emails related to religion and showed disdain for certain faiths. Approximately the same number of emails concerned women and/or sexual topics and were disparaging of women. A few emails contained inappropriate jokes relating to sexual orientation.”

But for the objection of U.S. 3rd Circuit Judge Theodore McKee, the public might never have known the extent of Judge Cebull’s misconduct.

Judge McKee had accused the 9th Circuit investigative panel of hiding Cebull’s misconduct because of their failure to release their findings. Once Cebull conveniently resigned, they’d proclaiming the whole thing “moot” and filed away Cebull’s embarrassing revelations.

Fortunately, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States found the lower panel in error when it withheld its investigative findings. The Committee stated, “The imperative transparency of the complaint process compels publication of orders finding judicial misconduct.”

Which leads me to finally conclude with what the late Christopher Hitchens said in reply to the question — “What is it you most dislike?” Hitchens answered, “Stupidity, especially in its nastiest forms of racism and superstition.”

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Photo Credits: Barack Obama, by DonkeyHotey at Flickr via Creative Commons-license requiring attribution.

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Since the California State Legislature took matters into its own hands and passed AB 1024 allowing applicants who satisfy admission requirements — but who are not lawfully present in the United States to be admitted as attorneys in California, no further can kicking down the road was needed. Governor Jerry Brown signed Assembly Bill 1024 into law on October 5th.

So this morning — one day after AB1024 officially became law and in a move that surprised few, the California Supreme Court handed down its decision, In re Garcia on Admission. And with the following words took the lead from the pols in Sacramento and granted undocumented immigrant Sergio C. Garcia admission to practice law in California.

Judges Gavel“Our order to show cause requested briefing on a number of issues raised by the Committee’s motion to admit Garcia to the State Bar, including the proper interpretation of a federal statute — section 1621 of title 8 of the United States Code (hereafter section 1621) — that generally restricts an undocumented immigrant’s eligibility to obtain a professional license but that also contains a subsection expressly authorizing a state to render an undocumented immigrant eligible to obtain such a professional license through the enactment of a state law meeting specified requirements.  Very shortly after we held oral argument in this matter, the California Legislature enacted a statute that was intended to satisfy this aspect of section 1621 and the Governor signed that legislation into law.  (Bus. & Prof. Code, § 6064, subd. (b); Stats. 2013, ch. 573, § 1, enacting Assem. Bill No. 1024 (2013-2014 Reg. Sess.) as amended Sept. 6, 2013.)  The new legislation became effective on January 1, 2014.

“In light of the recently enacted state legislation, we conclude that the Committee’s motion to admit Garcia to the State Bar should be granted.  The new legislation removes any potential statutory obstacle to Garcia’s admission posed by section 1621, and there is no other federal statute that purports to preclude a state from granting a license to practice law to an undocumented immigrant.  The new statute also reflects that the Legislature and the Governor have concluded that the admission of an undocumented immigrant who has met all the qualifications for admission to the State Bar is fully consistent with this state’s public policy, and, as this opinion explains, we find no basis to disagree with that conclusion.  Finally, we agree with the Committee’s determination that Garcia possesses the requisite good moral character to warrant admission to the State Bar and, pursuant to our constitutional authority, grant the Committee’s motion to admit Garcia to the State Bar.”

On Facebook, the elated Garcia posted,“With tears in my eyes I’m happy to report I am being admitted to the bar, thank God! This one is for all of you who dare to dream and by doing so change the world! Love you all! History was made today!” And so with all of the turmoil and the controversy now behind him, look for paralegal Sergio Garcia to be at long last sworn in as a California lawyer.

j0289753“Undocumented immigrant.”

In its first footnote, the Court also made a point of shying away, no doubt to the annoyance of many, especially here in Arizona, of shorthand terms like “illegal alien.” It instead opted to avoid “the potential problematical connotations of alternative terms” and adopted the term undocumented immigrant “to refer to a non-United States citizen who is in the United States but who lacks the immigration status required by federal law to be lawfully present in this country and who has not been admitted on a temporary basis as a nonimmigrant.”

The Court then acknowledged that the federal government has “plenary authority” on immigration and “that provisions of federal law relating to immigration prevail over any conflicting state law.” But thanks to California’s new law, it did not have to delve into how best to interpret 8 USC § 1621 (c) (1) (A), which renders an undocumented immigrant ineligible for any State or local public benefit such as a professional license.

Section 1621(d) grants States the authority to make “an alien who is not lawfully present in the United States” eligible for any State or local public benefit they might otherwise be ineligible for under 1621′s subsections (a) and (d).

No moral turpitude involved.

And with respect to how an undocumented immigrant having broken federal immigration law by his unauthorized presence in the U.S. can nonetheless be sworn to uphold the law — the Court said that since unlawful unauthorized presence does not itself involve moral turpitude or demonstrate moral unfitness,” it does not “justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.”

The Court further said that “existing federal limitations on the employment of undocumented immigrants do not justify excluding undocumented immigrants from admission to the State Bar.”

Momentous.

There’s scarcely any doubt that the California high court’s precedential decision today will also help other undocumented law graduates like Cesar Vargas and Jose Godinez-Samperio in other states. As I  while California decisions are not dispositive in other jurisdictions, state courts do tend to pay attention to what California does. So thanks to the California Supreme Court’s decision, Sergio Garcia’s case has again taken on a much more momentous dimension.

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There are risks lawyers take when they chance even the gentlest of criticisms of a judge. For a recent example, remember Paul Ogden, the

And then yesterday, there was a judicial misconduct case decided in Ohio. It involved Judge David Dean Evans who serves in the Court of Common Pleas of Gallia County, Ohio. The case is Ohio State Bar Assn. v. Evans.

The state bar charged Judge Evans with judicial misconduct for not recusing himself from a case where there was an admitted conflict with appointed defense counsel, a lawyer by the name of Robert W. Bright. The rule requires a judge to disqualify himself from any proceeding where his impartiality might reasonably be questioned, including in circumstances where a judge has a personal bias or prejudice against a party or that party’s counsel. 

Judges GavelHere’s what happened. While representing an indigent defendant, Bright’s client initially agreed to take a plea deal. But he later changed his mind during the plea hearing. Shortly thereafter, Bright’s client rethought his rejection and decided again to take the deal. But by then, it was too late. The judge had wearied of all the indecision and refused to accept the plea.

And apparently, he was still miffed when three days later — even after the county prosecutor and Bright jointly asked the judge to allow the plea change, Judge Evans still said, ‘no.’

“The only cure for contempt is counter-contempt.” – H. L. Mencken

People 1857By then, though, Bright had also had enough. He filed an 18-page motion asking for reconsideration while at the same time criticizing the judge’s “abuse of discretion” and his refusal to accept the plea agreement as “unreasonable and/or arbitrary and/or unconscionable.” Bright also threw in a few other criticisms about the judge’s courtroom practices.

Well, no surprise, Judge Evans didn’t take kindly to the motion and referred to it as “scathing” and demonstrative of Bright’s “bias toward and contempt for the court.” Not only did he deny the motion, but Judge Evans also ‘dropped a dime’ on Bright with the office of bar counsel referring the matter for possible attorney discipline. And for good measure, the thoughtful jurist sent along a copy of Bright’s motion.

Office Stress 62But here is also where the good judge got himself in trouble. He relieved Bright from further representation not only of the waffling defendant but “next filed entries removing Bright as appointed counsel in 63 other criminal cases — even though none of the defendants in any case had requested Bright’s removal as their counsel.

“The entry in each case stated that ‘Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court’ and ‘due to the Court’s inquiry to the Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s conduct.”

By publicly disclosing the bar complaint against Bright, the judge ran afoul of a bar rule requiring all proceedings and related documents in such grievances to be held private.

Bad things in threes.

And giving further credence to the saying that bad things happen in threes, after losing his entire caseload — a month later, Bright was fired by the county public defender. So he not only lost all his cases — but his job — and his right to privacy concerning the bar complaint.

And that’s not to mention Bright’s 63 clients who had their lawyer shot out of the saddle by the offended jurist.

The bottom line? There’s no mention about whether or not Bright got his job back. Or if any of his 63 clients were prejudiced by his sudden removal. But at least the bar complaint was dropped.

j0321176As for what happened to Judge Evans, I am however, pleased to report we do know what happened. Overruling the Board of Commissioners on Grievance and Discipline who had recommended a stayed six-month suspension, the Ohio Supreme Court ordered “a stayed one-year suspension [from the practice of law in Ohio] because ‘a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties.’”

Sounds fitting — but alas, only on paper. The sanction is stayed. In other words, there’s no actual suspension. It’s on hold — deferred — abeyed — on ice — conditioned on Judge Evans not committing any misconduct during the one-year suspension period. If he doesn’t meet that condition, then the stay is lifted and the one-year suspension is imposed. Meanwhile, the beat goes on.

The pointy end.

Lastly, as an insult-to-injury footnote, one Ohio Supreme Court Justice dissented in the belief that Judge Evans had “a reasonable reaction to the problem he confronted.” As a matter of fact, he thought the consent-to-discipline agreement with the stayed six-month suspension that had already been agreed to by the bar and Judge Evans was just fine.

After all, he further opined, Judge Evans is an elected official and the county’s sole judge. So if anyone should fall on their sword and be conflicted out, “it is more sensible for the attorney to give way than the judge.” Bright, after all, is just a terminable at-will working stiff — no matter if he’s “highly skilled.”

But from my vantage point, implicit in that dissenter’s collegial mind, is the belief that the preferable [or the better] man is Judge Evans. When all is said and done, it’s ‘power-to-the-people’ or so he means when he writes, “the elected judge should supersede the at-will employee.”

Ancient 19So as to which party suffered the actual injury, well no mystery there on who got the short and pointy end of that stick.

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Photo Credits: “Ouch,” by jeremyfoo at Flickr via Creative Commons-license requiring attribution.

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People 7442That Texas State Judge who as a Williamson County D.A. oversaw the 1987 wrongful murder conviction of Michael Morton and who was then subsequently charged with deliberately withholding evidence and making false statements just got sentenced this afternoon.

Judge Ken Anderson

With a 1-day credit for time served, Judge Ken Anderson will on December 2nd begin serving 9 days in jail and also pay a $500 fine. In addition, he’ll have to do 500 hours of community service.

If he’d gone to trial and been convicted of felony evidence-tampering, Anderson could have been sentenced to as much as 10 years. But thanks to his comprehensive settlement, instead of serving less than half of what Morton spent in prison, upon his release Anderson will look forward to a cushy retirement thanks to his 27 combined years of ‘public service’ — 16 as a D.A. and 11 as a state judge.

But 10 days in jail when compared to almost 9,125 days — or 0.1095% of the 25 years wrongfully served by Michael Morton — well pick your favorite acronym for this travesty and you won’t be wrong if you file this plea deal under “W.T.F,” “B.S.” “H.S.S” or if you just call the whole thing ‘bullshitastic.”

And oh yeah, as part of this sweet deal, Anderson surrenders his law license to settle the civil suit filed by the Texas Bar, which had charged him with prosecutorial misconduct in the Morton case.

But deal or no deal, Anderson continues saying he committed no wrongdoing in the prosecution of Michael Morton. Also see “Ex-DA takes plea in wrongful conviction case.”

And just last month, a clueless wag at the Austin American-Statesman prematurely extolled “the system flawed but triumphant.” Lauding the replacement of Judge Anderson by another jurist, he hailed “a system where failures can happen. But it is also a system where failures can be recognized and addressed. A system where amends – however belated – can be made. Flawed though it no doubt is, the system worked.” Yeah — rrrriiiigggghhhhtttt.

Graciously and far more generously than merited, following the sentencing, Michael Morton told the assembled press, “It’s a good day. I said the only thing that I want, as a baseline, is Ken Anderson to be off the bench and no longer practicing law — and both of those things happened, and more.”

But after serving almost a quarter century in prison, he’s nobody’s Pollyanna. His miscarriage of justice was only finally corrected when DNA evidence exonerated him and he was freed on October 4, 2011. So knowing first-hand how things actually work in practice, he also acknowledged, “This is as much accountability as our system can give us at this time.”

My cynical heart.

So damn if I wasn’t prognosticatingly accurate a year ago posting “be still my cynical heart” as I continued expressing doubt Williamson County Judge Ken Anderson would get anything more than “a censorious wrist-slap with a feather-duster.” And the year before, I’d even posted the discipline odds were ‘slim to none’ in the Texas State Bar’s misconduct inquiry. I only wish I’d been wrong.

But then as Terry Pratchett once wrote, “If there was anything that depressed him more than his own cynicism, it was that quite often it still wasn’t as cynical as real life.”

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Courtroom 93“Sadly, today the majority holds that the right to effective assistance of counsel guarantees nothing more than the presence of an appointed attorney at counsel’s table . . . .”

Client, ‘I hardly knew ye.’

With that, New Jersey Supreme Court Justice Barry T. Albin began his dissent in a case where the majority upheld the drug conviction of an indigent man who’d only first met his public defender when they spent about 25 minutes in a vacant courthouse stairwell the morning of the trial. And though they met afterward for a second time for half-an-hour, it was to discuss a plea offer — not to strategize about the upcoming motion to suppress or trial. 

Politics Law & Finance 43Justice Albin was especially displeased that his colleagues took the view that efficient docket management trumped “a just trial, affirming a judge’s decision that denied an adjournment to a woefully unprepared appointed attorney who was forced to stumble through a suppression hearing, calling his client without having spoken with him about the case and not calling any witnesses to support his client’s account.” See State v. Terrence Miller (A-35-11) (068558)

So much for the unanimous promise of Gideon v. Wainwright. And the fundamental right of an indigent criminal defendant to essential assistance of counsel to ensure a fair trial. In Gideon, a unanimous U.S. Supreme Court held that the trial and conviction without the the assistance of counsel violated the Fourteenth Amendment.

LAW AND JUSTICE 63It’s now been 50 years since U.S. Supreme Court Justice Hugo Black pronounced, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

Pointing fingers.

As news spread about State v. Miller, The criminal defense blogosphere lit up. One anonymous public defender even misdirected his vitriol by tossing f-bombs at the appointed public defender — for not standing up to the judge and risking sanctions for refusing to proceed. This from a guy who understandably blogs anonymously so he can keep his day job without fear of consequence. The caustic blogger also denounced appointed counsel’s “meet and greet practice.”

And then there was the more identifiable pundit Andrew Cohen writing at The Atlantic who also decried the justices for their “cramped interpretation of Gideon.” In addition, he took a shot at the Obama Administration for too much talk — not enough action, giving it “an ‘A’ for candor and ‘F’ for results when it comes to indigent defense.”

And ‘enough already’ with Attorney General Eric Holder and his Justice Department’s dog ‘n pony shows. Talk less and do more to aggressively advance indigent defendants’restoration of a reasonable right to counsel,” he wrote.

And while agreeing with Cohen that the ultimate fault lies with the judges, yet another lawyer-blogger took exception — not with Cohen’s critique of the justices or with Holder’s protracted lip-service to Gideon – but with Cohen’s Tweet that “no one stood up for Miller INCLUDING his PD.”

Cohen went too far, wrote Scott Greenfield at the criminal defense blog, “Simple Justice.” He wrongly placed “the burden of being jailed for refusal on the shoulders of the public defender.”

“Unhappy the land in need of heroes.”1

But lost in all the finger-pointing was the fact that except for Justice Albin, there were no white-hatted heroes here.

For one, what of the prosecution? Aren’t prosecutors supposed to hew to a duty to seek justice, not merely to convict? Oh, I forgot, cue the one-handed applause, “The prosecutor did not object to the application for an adjournment.”

And what about the predictable deference reviewing courts give to the trial judge’s abuse of discretion standard? Is it a “rubber stamp”? Unquestionably, it’s the most deferential standard of review.

Appellate Courts review questions of trial court discretion under this standard — but as one commentator famously admonished, an appellate court “would be remiss in [its] duties if [it] chose only to rubber stamp such orders of lower courts.”2

Sure the abuse of discretion standard3 is broad, overly defined and admittedly, even rather confused.4

Is it legal error? Or is it merely the unreasonable, arbitrary or capricious garden-variety exercise of judicial discretion? All the same, it’s the elephant in the room.

To its credit, however, the New Jersey Supreme Court didn’t completely ignore the pachyderm in the parlor. Nevertheless, the majority found no prejudice to Miller’s case from the trial court’s denial of his adjournment motion.

Certainly, they haltingly conceded, “it would have been preferable for the trial judge to have postponed the commencement of the suppression hearing.” But non-postponement didn’t rise to abuse of discretion – “in light of the history of the case, the defendant’s brief meeting with his counsel before the pretrial hearing and the newly-appointed attorney’s representation that he was prepared to proceed.”

Besides, the majority said, the constitutional right to counsel “does not equate to a guarantee of attorney-client rapport.” Backstopping itself with all manner of case authority on “constitutional principles,” the majority explained, “There is, in short, no federal constitutional right to a “meaningful relationship” between a criminal defendant and his or her attorney.”

The knottier problems.

But what about the even larger scale of the indigent defense problem? Those problems encapsulate and extend beyond what happened to Terrence Miller. Yet, they’re infrequently mentioned even by bleeding-hearts with their skivvies bunched up in knots.

For example, when it comes to equal justice for the indigent, what about the overwhelming lack of legal representation accorded misdemeanor defendants in this country? Compared to felonies, there are by some estimates 10 times more of those prosecutions. And this — even though the right to counsel applies in those cases, too, since defendants also face possible jail time.

And what about as law professor Douglas Colbert puts it, the lack of “a lawyer’s informed and compelling advocacy” at the bail stage? Colbert contends that the criminal defense bar needs to step up to help make Gideon‘s promise a reality, especially at the state level where “few criminal cases are tried and virtually every local criminal defendant appears at a first appearance judicial hearing.” See “When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings.”

Fungibly speaking.

Ultimately, a half-century after Gideon v. Wainwright, the right to assistance of counsel remains not fully realized even as trial judges have “the obligation” to ensure that defendants receive a fair trial.

As for Terrence Miller, Justice Albin described – “an impoverished defendant . . . treated as just another fungible item to be shuffled along on a criminal-justice conveyor belt,” and concluded:

“But Miller is more than another dispositional entry on a docket sheet, more than another statistic in some inexorable, impersonal process that knows no   delays for justice. He is an individual clothed with constitutional rights, such as the right to a fair trial and the right to the effective assistance of counsel. That the majority turns a blind eye to this fundamentally flawed and appalling process by upholding Miller’s conviction will surely disappoint those who believe that this Court is the guardian of our constitutional rights.”

And leaving no scathing words unsaid, he added, “The proceedings in this case are an affront to our long-established tradition of what constitutes a fair trial. No person, if placed in Miller’s position, would believe that he or she was dealt fairly by our system of justice. The foreseeable consequence of the majority’s opinion will be to undermine the public’s perception of the integrity of the criminal justice system.”

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[1] Quote by Bertolt Brecht

[2] Wilson v. Volkswagen of America, Inc., 561 F.2d 494,. 505-506 (5th Cir. 1977)

[3] What Judge Friendly called “a more generous standard of review” is found at: “Abuse of discretion” is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” In re Josephson, 218 F.2d 174, 182 (1 Cir. 1954); Also see Childress, “Endless definition and recitation adds nothing and eventually may confuse.” Steven Alan Childress & Martha S. Davis, 1 Federal Standards of Review [sections] 1.01, at 1-15 (1992)

[4] Waterman, An Appellate Judge’s Approach When Reviewing District Court Sanctions Imposed for the Purpose of Insuring Compliance with Pretrial Orders, 29 F.R.D. 420, 424-5.

Photo Credit: “Garbos Kisses,” by THOR geishaboy 500, at Flickr via Creative Commons-license requiring attribution.

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For lawyers — at least, there are many morals to the same story. For one, don’t speak ill of a lawyer disciplinary commission. And for another, no matter how successful the lawyer in court or unblemished the record — don’t be ‘too’ outspoken. And most of all, never mind what passes for a lawyer’s purported First Amendment Free Speech rights — lawyers who say supposed unkind things about judges run risks.

businessman tied up uid 13After all, it’s less like American Express privileged membership and more like Judge Cardozo’s, “Membership in the bar is a privilege burdened with conditions.”

All of which takes me to the latest lawyer Free Speech beat down. It comes from the Hoosier State and more specifically, Indiana’s Commission on Lawyer Discipline.

The Commission is recommending a lawyer’s one-year suspension for criticizing a judge in an email. The Indiana lawyer is Paul Ogden who now finds himself facing the hard truth of what Norman Vincent Peale once said, “The trouble with most of us is that we would rather be ruined by praise than saved by criticism.”

When not otherwise defending himself before the masters of Indiana lawyer discipline, Ogden lawyers, teaches political science, and blogs at “Ogden on Politics.”

His case ought to concern all lawyers — even those who’ve never shed a wistful tear for the moonlit banks of the far away Wabash. It’s why Paul Ogden’s troubles merit even wider dissemination and why I obtained his express written permission to reblog his post below.

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Disciplinary Commission Recommends One Year Suspension, No Right to Automatic Readmission for Sending Private Email Criticizing a Judge

By Paul Ogden

Yesterday was the deadline for submitting proposed findings of fact and conclusions of law on my disciplinary case.  Unbelievably the recommendation from the Disciplinary Commission is that for my offense of criticizing a judge in an email, I receive a one year suspension without right to be readmitted to the Indiana Bar.

Meanwhile other Rule 8.2 cases (which covers disparagement of judges) litigated by the Commission have resulted in discipline consisting public reprimands to 60 days suspension.  Apparently I am a special case.  Again, they want me suspended for a year, without right of readmission.

Executive Secretary Michael Witte

During one notable exchange I had between DC prosecutor Seth Pruden, he insisted the Commission’s actions in this case were purely about enforcing the rules, it was nothing personal to me. Of course that is not true, as evidenced by the suggestion I be suspended for a year..  Indeed in one of the documents outlining the need for a one year suspension he goes out of his way to specifically state “[t]he respondent has also published articles critical of the Commission.”  He also faults me for complaining about the fact that an attorney (a partner at one of the most politically powerful law firm in the state, a firm that I have been very critical of for not having to follow the disciplinary rules other attorneys have to follow) apparently failed to recuse himself and instead sat in judgment of me when deciding to file a grievance against me and then formal charges.

The Commission chides me for the fact I am “without evidence” to show a “grudge” the attorney and  Executive Secretary Michael Witte might have to pursue this prosecution against me.  That is an extremely disingenuous.  The Commission’s records and proceedings are kept secret.  There is no way of obtaining smoking gun evidence. My one attempt to do so, a subpoena sent to the aforementioned politically powerful law firm for communications between the Commission and the law firm, was met with fierce resistance from the Commission.  If there was nothing to hide, nothing that would show an improper influence by that law firm (and that attorney I had filed a grievance against) on the prosecution of my disciplinary case, one would think the Commission have welcomed an opportunity to show that via disclosure of the emails.  Instead the Commission hides behind secrecy at every opportunity then faults me for not having “evidence.”

If my criticism of the commission had no bearing on pursuing the charges, then why would the Commission go out of its way to mention in Monday’s filing asking for severe sanctions because I had written articles critical of the Commission and made “attacks on the integrity of the Commission and the discipline process?”  That’s completely irrelevant to the charges.  But indeed that’s what this is all about.  You criticize the Disciplinary Commission, then the Commission will make you a target.   The grievances that began this process were filed by none other than Executive Secretary Michael Witte just months after I wrote an article critical of the Disciplinary Commission going almost exclusively after small firm and sole practitioners, in particular 397 times out of 400 cases I looked at over a three year period.  I would note that grievances are rarely initiated by the Executive Secretary, i.e. only 5% of the time.

I would also note that the Commission is arguing for a harsher penalty against me because I “lack insight” into my wrongdoing.  I have the temerity, after all, to actually believe that the First Amendment protects my right to criticize a judge in a private email and refuse to back off of that stance.  Also, I am specifically cited for filing “dilatory motions” in my attempt to defend myself against this prosecution  By definition, a “dilatory motion” is a baseless motion filed for the purpose of achieving a delay in a proceeding.  There has been absolutely no delay sought by me in any of my filings or in the case at all.  The DC attorney undoubtedly knows the definition of a “dilatory motion” yet he proceeds to make that false representation anyway.  Apparently if you’re not willing to roll over for the DC and admit wrongdoing when charged with misconduct, that then becomes grounds for the DC to seek additional punishment.

My 26 years in the practice of law has seen almost exclusively two leaders of the Disciplinary Commission, Donald Lundberg and Michael Witte.  Both were appointees of former Chief Justice Randall Shepard.  While the Commission was respected by attorneys under previous leader, Sheldon Breskow, under Lundberg and Witte’s leadership the Commission has been the subject of enormous  criticism by attorneys.  The attorneys consistently say the same thing – that the disciplinary rules under Lundberg and Witte are not enforced equally, that the Commission prosecutes small firm and sole practitioners almost exclusively, and the disciplinary prosecutions have become very politicized.

While Indiana attorneys do not respect the Disciplinary Commission because of the way it has operated the past 25 years or so, there is a tremendous amount of fear.  Attorneys believe that if they dare publicly criticize the Commission, if they dare argue for reform, they

Former Executive Secretary Donald Lundberg

will themselves become a target of the Commission.  I can say from personal experience that is an absolutely accurate.  The DC, in fact, admits that I should be punished because I criticized the Commission. While the Commission argues I believe I am above the rules, it is clear that the Commission believes the First Amendment does not apply to criticism of the agency.

What I have found surprising though is the way in which the Commission prosecutes cases.  Personally, when I litigate cases, I think it is unethical to fail to inform the court of critical facts or knowingly make false claims.  Yet the Commission’s attorney has done exactly that in my case apparently without so much as batting an eye.  As example, in the second charge that I improperly tried to influence judges by engaging in “ex parte communication” by sending a letter to the Marion County judges trying to educate them about the process for, at the conclusion of the civil forfeiture cases, divvying up the civil forfeiture proceeds among the government entities.

Although the DC mentioned in its complaint that I had no cases before any of the judges to whom I sent the letter, the DC completely and I believe intentionally failed to include the critical information that I had actually copied the letters to the Marion County Prosecutor, the Indiana Attorney General, and the Marion County Public Safety Director, the very government officials involved (at trial and on appeal) with the division of those proceeds.  No one I have talked to in the legal profession thinks this charge has any merit whatsoever.  After all, judges are often educated about the law by outside sources and there is absolutely no prohibition on doing so.  Yet the Commission continues to push this completely baseless charge, disingenuously omitting key facts when necessary to try to make the charge look like it actually has some merit.  Meanwhile, the rules prohibit me from simply seeking a summary dismissal of this meritless charge.

Perhaps I shouldn’t be surprised by how the rules seem to enforcement of the rules seem to be selective.  During a conversation I had following a deposition, the DC’s counsel took the position that Rule 8.2 absolutely applies to private communications.  He said that two attorneys having lunch criticizing a judge had better be able to prove their criticism of the judge is true or they are subject to discipline. Later the Commission’s attorney later changed that position saying that the Commission was not talking a position on whether Rule 8.2 applies to private communications.  In yesterday’s filings apparently the DC again changed its position arguing that because private communications can be disseminated to a wider audience, they are also subject to Rule 8.2.

Undoubtedly the enforcement of Rule 8.2 by the Commission depends on the speaker.  If it is someone out of disfavor, the rule gets applied.  If it is someone is liked by the Commission, there is no rule violation.  Hence the constant complaint from attorneys that the Commission’s imposition of the rules is often political.  Rule 8.2 apparently does not apply to DC attorneys.  During my conversation with DC Attorney Pruden about Marion County judges not following the law regarding dividing up civil forfeiture assets, he said the problem is not that they do not follow the law, but rather the problem is Marion County judges are “lazy.”  I do believe that is a disparaging comment that Mr. Pruden cannot prove is true and, thus, is a violation of Rule 8.2.   My guess is the Commission will never charge Pruden.

Again, while I am not hopeful I am going to be allowed to continue practice law.  My fight is about paving a better future for attorneys in this state.  I hope my case is a catalyst for the Indiana Supreme Court to finally take a hard look at reform of the disciplinary process.  The Supreme Court needs to order an independent investigation of the operations of the Disciplinary Commission (including an interview with attorneys, who have their confidentiality protected lest they face reprisals by the Commission, and an audit of those grievance files maintained for years against attorneys) and make some much needed changes to the disciplinary process, including establishing statutes of limitations, requiring more transparency in Commission operations, providing a system by which attorneys can get meritless charges dismissed summarily, and requiring that only attorneys with significant judicial experience sit as hearing officers.  While personnel changes should also be made, starting with terminating Mr. Witte employment, the primary focus needs to be on changing a disciplinary process that is clearly broken.

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“Disciplinary Commission Recommends One Year Suspension, No Right to Automatic Readmission for Sending Private Email Criticizing a Judge,” posted at Ogden on Politics, the personal blog of Paul Ogden, September 24, 2013. Reblogged and reposted with express written permission of Paul Ogden, October 2, 2013. (Photos of Commission officials from Ogden on Politics)

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Before getting to “Free CLE” — first there’s Judge Wade “No shame in my game” McCree who was back in the news this week. For those who’ve forgotten, he’s the 3rd Circuit Court jurist out of Detroit with a penchant for old school R&B and more to the point, who was suspended without pay last February for improper conduct according to the Complaint taken up by the Michigan Judicial Tenure Commission.

On Monday, the Commission rendered its 22-page decision and recommended Judge McCree’s removal from office and conditional suspension without pay “for a period of six years beginning on January 1, 2015, with the suspension becoming effective only if Respondent is re-elected to judicial office on the November, 2014 ballot.” His current term expires December 31, 2014.

According to the Commission’s Findings of Fact, the judge maintained “a personal and intimate relationship” with a complaining witness in a case he was hearing and “used his chambers to engage in sexual intercourse” with that witness — but did not recuse1 himself from the case until months later.

Judge McCree also gained an additional 15 minutes of fame for defending his bare-chested texts.

That said, here’s a saucy official who needs no “Funky Cold Medina” to score his ‘action.’ He also memorably invoked Bill Withers’ “Use me up!” but not more saliently — ‘strokin’ Clarence Carter.

The Michigan Supreme Court will determine the ultimate disposition of the Commission’s recommendation. Also see Board recommends removal of Judge McCree, 6-year suspension if he is re-elected.

“a thing most strange and certain2 and about that civet coffee.

And then there’s civet coffee aka ‘cat poop coffee’ and people who consume things most of us would rather not.

It’s one thing for someone like British television survivalist adventurer Bear Grylls, the host of “Man vs. Wild” — who’s made a living eating just about anything strange and seeming to ‘like’ it — from beetle larva to goat testicles to raw snake to bear poop — stuff I highlighted at

Far as I’m concerned, Grylls wins the Mikey Award, a dubious award I made up earned by anyone willing to eat what most of us crinkle our noses at. Grylls reminds me of that little kid in the iconic television commercial who hated everything but ate it anyway.

So what’s all this got to do with the price of poo tea in China? Well besides providing a segue to what this post is also about — it reassures all those civet coffee drinking devotees (presumably the same folks also sipping panda poo tea).

Scientists have now developed a way to authenticate the $150-227 per pound Über expensive civet coffee, which is brew made from the Asian palm civet’s excrement.

Up until now, there’s apparently been no standard test to confirm if the civet coffee you savored was the real thing or a funky version of what Seinfeld called underrated Postum?

Civet coffee drinkers of the world take heart for Poop, there it is: New test for exotic civet coffee.”

All the same, put a pot of the cheap stuff to brew and lawyers get yourselves comfortable for more Free CLE. The usual disclaimers apply.

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No shame in FREE CLE game.

Courtesy of New York Law Journal, Complimentary CLE Webinar, Monday, September 16, 2013

Estate & Gift Tax Planning Techniques: Freeze Partnerships and the Related Valuation Issues, Including the Application of Marketability Discounts

Approved for 1 CLE credit in the states of NY, NJ, CA and IL.
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Courtesy of Attorney Protective Legal Liability Insurance Provider at http://www.attorneyprotective.com/about-attorney-protective

Ethical Marketing and Client Relations Webinar, September 24, 2013 – Attorney Protective

Attorney Protective is an Approved Multiple Activity Provider in CA and NJ. This webinar is approved for 1 CLE credit (ethics) in AL, AR, CO, FL, GA, ID, IN, KS, KY, LA, ME, MS, MT, NC, NV, OH, SC, TX, VT, WA and WY. This webinar is approved for 1.2 credit hours (w/ .6 professionalism credit) in MO. This webinar is approved for 1 general CLE credit hour in IL and NH. This webinar is approved for DUAL credit in TN. New York’s approved jurisdiction policy applies.”

Intake Procedures – Unleash Your Inner Detective Webinar on October 24, 2013

https://www1.gotomeeting.com/register/957441296

“Attorney Protective is an Approved Multiple Activity Provider in CA and NJ. This webinar is approved for 1 hour of CLE credit (ethics) in AL, AR, CO, ID, IL, IN, KY, LA, ME, MN, MS, MT, NC, ND, NV, OH, TX, VA, WA and WY. This webinar is approved for 1 hour of CLE credit (ethics and professionalism) in KS. This webinar is approved for 1 general Self-Study CLE credit in UT. This webinar is approved for DUAL credit in TN.  This webinar is approved for one general CLE credit in IL, NH, NM and VT. This webinar is approved for 1.2 total credit hours, including 1.2 hours of professionalism credit in MO. New York’s approved jurisdiction policy applies.”

http://www1.gotomeeting.com/register/957441296

Lessons Learned – A Look at Recent Legal Malpractice Cases Webinar November 4, 2013 - Attorney Protective

“Attorney Protective is an Approved Multiple Activity Provider in CA and NJ. This webinar is approved for 1 CLE credit (ethics) in AL, AR, CO, FL, GA, ID, KS, KY, LA, ME, MN, MS, MT, NC, ND, NM, NV, OH, SC, TX, VT, WA and WY. This webinar is approved for 1.2 credit hours (ethics) in MO. This webinar is approved for 1 general CLE credit hour in IL, IN and NH. This webinar is approved for DUAL credit in TN. New York’s approved jurisdiction policy applies.”

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[1] As for ‘much ado about’ judicial recusal, consider the ancient maxim “nemo debet esse iudex in propria causa” (no person may judge their own cause) and how it works in practice, see “Chief Justice Roberts, Obamacare and the rarefied air of judicial recusal” and that “43 states have either a statutory or a constitutional right of recusal for cause at the trial court and the appellate court levels. 25 of those states expressly or implicitly permit the same judge whose recusal is sought to hear and rule on the motion to disqualify herself.”

[2] See Macbeth: Act 2, Scene 4

Photo Credits: “Not Funny, How Embarassing! Kiss My White Puppy Butt, I’m a Big Macho Dog Mom – I’m one year old on February 14th!” by Beverly & Pack at Flickr via Creative Commons-license requiring attribution; “73/365 Drink Me!” by ganesha.isis at Flickr via Creative Commons-license requiring attribution; “Bear Grylls: Ultimate Survivors,” by LWPKommunikáció at Flickr via Creative Commons-license requiring attribution;Sumatran Kopi Luwak farmer, small-scale producer, showing his product prior to cleaning and roasting, at Wikimedia Commons, released to public domain by HaztechGuy at the wikipedia project; “Common (or Asian) Palm Civet. Paradoxurus Hermaphroditus” by gailhampshire at Flickr via Creative Commons-license requiring attribution.

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A lawyer who’s good at math is about as common as a judge who writes intentionally funny judicial opinions. Both are as rare as a pretty frog in a pond.

http://upload.wikimedia.org/wikipedia/commons/thumb/c/cc/RanaTemporariaMaleThumb.JPG/640px-RanaTemporariaMaleThumb.JPG

Of the mathematically challenged lawyer ignoramus et ignorabimus, last fall, Chief Justice John Roberts, redounded with obviousness, “I think there are a lot of people who go to law school because they’re not good at math and can’t think of anything else to do.”
academic,arithmetic,children,community services,mathematics,numbers,persons,pointers,students,symbols,tutoring,tutors,volunteering,volunteers

For lawyers at least, it was no surprise when lawyer and senior Internal Revenue Service official Lois Lerner lamely blurted out,“I’m not good at math,” at last Friday’s damage-control news conference following revelations the IRS had targeted tea party groups. “Not good at math”? Among lawyers, such blinding obviousness is self-proving without an affidavit.

As for the matter of the judicial funny bone, Justice Roberts did not, however, impart his views on the subject.

File:Laughing Fool.jpg

Suffice it to say, though, that when it comes to judicial funnies, those who find mirth in a judicial opinion are either bone-dry law professors or sycophantic lawyers in the grip of what Max Boot calls “gavelitis” when all judicial “witticisms are suddenly hilarious.”

Laughing

By deign of their vocation, the former need a footnote to source a sense of humor while the latter are necessarily compelled to react with the sincere insincerity of the employee who laughs uproariously at the boss’s bad jokes. Think I’m kidding? Try and find something to smile about — much less laugh at from Judges Say the Darndest Things: FindLaw’s List of the top ten funny, quirky or downright weird judicial decisions.

Kudos, though, to University of Louisville Law Professor Judith D. Fischer who to her immense credit of “humor in courts’ opinions,” says,Most of its examples strike me as contrived and un-funny.”

animals,mammals,nature,pigs,snouts,faces

Unlike math, humor isn’t something you learn. You can’t teach someone to be funny. Or to quote Robert Heinlein, “Never try to teach a pig to sing; it wastes your time and it annoys the pig.”

The unfunny court.

With a hat tip to Matt Ence, this gets me to one more instance of a frustrated humorist in black robes. It’s U.S. District Chief Judge Fred Biery of San Antonio and his corny, pun-filled, double-entendre-replete opinion denying a preliminary injunction to a strip club challenging a sexually oriented business law.
emotions,faces,females,persons,Photographs,pouting,sad,sadness,women

The judicial order, 35 Bar and Grille v. City of SA – Order Re Prelim Injunction Part I, begins, “An ordinance dealing with semi-nude dancers has once gain fallen on the Court’s lap.” And after a drum roll and crickets sound, it goes on from there — with references to “alleged naked grab of unconstitutional power” and an adversely impacted “bottom line” and that “the ordinance would strip them of their profits.”

“To bare, or not to bare, that is the question,” he adds. Which should prompt a better question, ‘Instead of a judge turned comedian, why wasn’t Henny Youngman a judge instead of a comedian?’ Which recalls this Youngman chestnut: A drunk was in front of a judge. The judge says “You’ve been brought here for drinking.” The drunk says, “Okay, let’s get started.”
                                                                                                                                                         But back to Judge Biery whose Order concludes, “Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending. It is so ordered.”
bleary-eyed,emotions,exhausted,exhaustion,gestures,hands,heads,males,men,overworked,people,persons,tired,weariness,weary

To be fair, Judge Biery’s opinion managed a groan from St. Mary’s University Law Professor Michael Ariens who told the press, “I think Judge Biery’s decision is correct as a legal matter. But his opinion fails if he was attempting to be witty or attempting to write ‘tongue in cheek,’ and his use of double-entendres largely fails as humor and appears almost intended to offend.”

Conversely, the legal website, Above the Law, glowed effusive, “The Chief Judge produced over seven pages of genius double entendre . . . which he entitled “THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE.”
Also see “The Itsy Bitsy Teeny Weeny Bikini Opinion: Texas judge issues world’s cheekiest ruling.” 

File:Leonard Nimoy William Shatner Star Trek 1968.JPGAnd concurrently, another U.S. District Judge in search of a funny bone cracked wise by using Star Trek references to sanction four lawyers in an Order quoting Mr. Spock.
                                                                                                                                                      Truth be told, what’s funnier are the instances of unintended humor.
                                                                                                                                                       Fear not.
photo
Like Cher, who said she only answers to two people, “myself and God,” judges — especially those with lifetime appointments probably fear only the Almighty.
                                                                                                                                                             As for the context of their purported humor, it makes little difference. Whether off-color judicial opinion or improper email, The perfect judge fears nothing.”
File:The Scream.jpg
Take, for instance, the investigation of now retired U.S. District Judge Richard Cebull, forthwith declared “moot” as far as the 9th Circuit is concerned, fulfilling thereby the prognostication:
                                                                                                                                                           But contrast the occasionally more accountable elected state court judges like Dakota County, Minnesota judge Richard Spicer — just reprimanded for making “insensitive” jokes in court.
Spicer.jpg
Among Judge Spicer’s supposed witticisms was his wisecrack on being told of the consecutive ages of a juror’s four children, “Well … you weren’t shooting blanks. We know that much.”
                                        
All this self-evidently giving testament that unlike Jerry Seinfeld, judges can indeed — be not funny.
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Photo Credits: Male of Rana temporaria, byPiet Spaans Viridiflavus at Wikipedia Commons; Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons,  United States public domain tag; Leonard Nimoy and William Shatner as Mr. Spock and Captain Kirk from the television program Star Trek at Wikipedia Commons, public domain;Stańczyk by Jan Matejko at Wikipedia Commons, public domain;Lightning Strike, by Lars Kasper at Flickr via Creative Commons-license requiring attribution; The Scream, by Edvard Munch at Wikipedia Commons, public domain.

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