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Archive for the ‘On Judges’ Category

Wisconsin lawyer Michael Cicchini dropped another provocative “truth bomb” this week at The Legal Watchdog entitled, “The lawyer job market.”

http://img.wikinut.com/img/buwi66ndxqe7rzbw/jpeg/0/Talking-with-Hands-Wikimedia-Commons.jpeg

Cicchini posted about how ridiculously difficult it still is for jobless lawyers who are forced to choose self-employment when they’re unable to find full-time paying law firm work. An advertisement he recently received for work at the pleasure of the Racine Circuit Court made his point.

Despite an improving economy, new lawyers face daunting challenges. Blame the continuing glut of lawyers as well as irreversible changes to 21st century client expectations impacting the legal profession’s cost, profit and pricing structures.

While the good news is that the number of persons taking the Law School Admission Test has reached record lows, the transformative economic strictures continue to hold sway.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Politics Law & Finance 43Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.
Some 6 months after the Milwaukee Journal Sentinel ran its investigative series on the state’s embarrassing absence of meaningful attorney discipline, Justice Bradley made headline-grabbing allegations involving her purported physical altercation with Justice Prosser. See “Bradley says Prosser choked her.”

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.

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Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

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http://lawmrh.files.wordpress.com/2010/09/politicians-34.jpg?w=197&h=243On Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”

I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).

child silly faceAccording to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

http://upload.wikimedia.org/wikipedia/commons/thumb/8/88/A_Rubber_stamp_stand.JPG/640px-A_Rubber_stamp_stand.JPGFor all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

Entertainment 606In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.

In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.”  Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

http://upload.wikimedia.org/wikipedia/commons/4/43/Stick_figure_-_choosing.jpgThat the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.

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(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4

(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353

Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.

 

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Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!” 

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example,

Indeed, according to a June 2014 Arizona Law Review article, “Judicial Performance Review in Arizona: A Critical Assessment,” authors former Arizona Supreme Court Chief Justice Rebecca White Berch and her former law clerk now attorney Erin Norris Bass, reference Professor Larry Aspin’s studies revealing that between 1964 and 2010, Arizona judges up for retention averaged an undervote of 42.9%.

In his report, Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”  And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article, also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.” 

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license;My Kitty Boys Doing the Big Eye Stare, by joanna8555 at Flickr Creative Commons attribution license;Instagram-logo, uploaded by José Moutinho at Flickr Creative Commons attribution;DeMoulin’s Patented Hoodwink, at Flickr Creative Commons-attribution license uploaded by Arallyn!

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File:Laughing Fool.jpgLike Cher, Article III federal judges answer only to themselves and to God — assuming, that is, they aren’t atheists — otherwise they’re not answering to the Almighty either.

Which leads me to question why given how untouchable they are, some folks, granted mostly lawyers are nonetheless so exercised over Federal Judge Richard Kopf having told the U.S. Supreme Court it should ‘STFU.” One nose-out-of-joint conservative law school professor was so peeved at Judge Kopf he even went for the cheap ad hominem and called him “dummKopf.” I hope Steve Bainbridge doesn’t really think he’s the clever first one to think up that pun when he ranted it was the judge who should STFU.

The 68-year old Judge Kopf is retired but on senior status since December 1, 2011. This means he’s working at-large as a judge but assigned to any inferior federal court while receiving his retirement salary.

Hercules and the umpire.

But besides working as a senior justice, he also has a personal blog called “Hercules and the umpire” where he waxes either eloquent or inappropriate depending on your sociopolitical point of view.

Following the U.S. Supreme Court’s latest controversial decision involving a closely-held corporation’s personhood and its attendant religious beliefs concerning Obamacare-mandated contraceptives in Burwell v. Hobby Lobby Stores, Inc., the very opinionated Judge Kopf invoked the acronym, STFU, to argue the nation’s high court is “causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid.” But it was that acronym that got people’s underwear in an uncomfortable bunch.

For the uninitiated, STFU is simply short-hand for shut the F-bomb up. Oh, my, that a judge would deign to use such language? At least it wasn’t in any judicial opinion.

Cebull didn’t blog.

http://lawmrh.files.wordpress.com/2012/03/judge-cebull.jpg?w=181&h=203Maybe if the now retired 70-year old Federal Judge Richard Cebull had blogged instead of emailing on his office computer, he might’ve kept his racist robes and his own senior status another day? Just kidding.

You’ll recall an investigation by the 9th Circuit Court of Appeals Judicial Council revealed Judge Cebull had sent hundreds of “racist, sexist and politically inflammatory” e-mail messages over four years while serving as a federal judge in Montana. Parenthetically, Native American advocacy groups are still petitioning to see all the ex-judge’s racist emails but the 9th Circuit keeps saying ‘No.’ They’re supposedly confidential. Oh well, at least they’re just ‘secret’ and not ‘lost’ like Lois Lerner’s missing IRS emails.

“Dirty old man.”

http://static.someecards.com/someecards/usercards/MjAxMi01Y2Q5Y2I1MGRhMzg5M2Yw.pngIt’s not like Judge Kopf hasn’t been here before. A self-described “dirty old man ever since I was a very young man,” he got people worked up just a few months ago when he posted “On being a dirty old man and how young women lawyers dress.”

In that post, he wrote “I have three rules that young women lawyers should follow when considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it. 2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.”

http://upload.wikimedia.org/wikipedia/commons/thumb/a/a9/Hans_Conried_Uncle_Tonoose_Danny_Thomas_Show_1959.JPG/363px-Hans_Conried_Uncle_Tonoose_Danny_Thomas_Show_1959.JPGFilters? What filters?

Let me first inoculate myself against accusations of ageist stereotyping. I’m well past my middle-earlies. That said, perhaps age should at least, be discussed here.

Besides our own anecdotal evidence about crazy uncles ruining holidays “with outlandish behavior and boorish opinions,” studies support what some of us have long suspected, aging brains not only drive forgetfulness but blunt behavior.

In one study, “Aging, Executive Functioning, and Social Control,” researcher William von Hippel found that physiological changes such as aging-related atrophy of the brain’s frontal lobes, which he calls “the seat of executive functions” are associated with “age-related inhibitory losses.” This can lead to unvarnished prejudice, “off-target verbosity” and “socially inappropriate remarks.” For an unscholarly, inelegant take on the same topic, also see “Old People Saying Shit They Should Not.

Any wonder that 75-year old Federal Judge Richard Posner recommends judges after 70 be required to takea test of mental acuity every five years.”

Judge Robert Malcolm Kerr of whom it was said, “He administers a kind of rough and ready justice that irritates many and pleases few.”

But when it comes to the berobed, the combination of age-related inhibitory deficits with hubristic-minded ‘black robe disease’ also called “Judge-Itis” — why that’s downright pyrotechnic. In some quarters, judge-itis has morphed into Judge Judy-fication. For examples, remember King County, Washington’s real-life Judge Judy Eiler or the very recent Brevard County Florida Brawling Judge John Murphy. As historian Barbara Tuchman said, “A greater inducement to folly is an excess of power.”

So if media-celebrated ‘no nonsense’ ‘tough-talkers’ on the bench can gloss over Model Code of Judicial Conduct Canon 2’s sub paragraphs on courtroom decorum and demeanor, why can’t judges with personal blogs?

“Everyone was thinking it, I just said it.”

Not to say that 60-somethings and older have cornered inhibitory deficits. Take San Diego California’s Judge DeAnn Salcido, a member of Generation X who was reprimanded for using her courtroom to create audition tapes for a Judge Judy-style television show.

http://lawmrh.files.wordpress.com/2014/07/e15ef-filter.jpg?w=327&h=227Unabashed, she said, “I have a big mouth. I don’t know when to be quiet. I’m telling you everything I know. That’s just the way it’s going to be. I don’t know how to change that. It’s a defect in my personality.” Methinks she needs a blog, too.

And then over the weekend, I finally had enough. I’d been following an anonymous Millenial and once-upon-a-time wanna-be lawyer turned author/blogger. I once thought his blog was refreshingly funny even with all the profligate F-bombs. But then his profane posts kept crossing the line from witty real-world impertinence to nasty hyperbolic meanness. And after reading his last post describing what he’d be willing to do if someone paid off all his student debt, I finally said “No mas” and unfollowed.

No filters.

So when it comes to blurting out whatever pops in your head regardless of the consequences, I’m now inclined to think age is irrelevant. As a society, thanks to social media, online anonymity and no-longer-taught etiquette, we have no filters.

http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/The_Wounded_Angel_-_Hugo_Simberg.jpg/298px-The_Wounded_Angel_-_Hugo_Simberg.jpgWhich gets me back to Judge Kopf. In his latest post, “Please stop,” the blogging judge says he’s reconsidering his blog after all the fallout from his STFU post. In his post, he reprints a communication received from a Nebraska lawyer who he says has his “highest respect.” In his missive, the lawyer appeals idealistically to Judge Kopf’s ‘better angels of our nature’ and asks him to stop blogging — lest it bring discredit on the public’s understanding of the judicial system.

But from my quick unscientific review of the comments to this post, it seems most readers favor his continued blogging. So as Judge Kopf contemplates what he’s going to do, not to worry. It’s not like public confidence in the Supreme Court isn’t already at a historic low or that judicial irreverence means the public will think as Dickens’ Mr. Bumble did that “the law is an ass.” I think he should keep blogging.

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Photo Credits: Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons, public domain;American magazine ad for the film Hercules (1959), HerculesMagazine.jpg, Wikimedia Commons, public domain;Hans Conried as Uncle Tonoose, Wikimedia Commons, public domain;Robert Malcolm Kerr, Vanity Fair, 1900-11-22m Wikimedia Commons,Public Domain; The Wounded Angel,Hugo Simberg, Wikimedia Commons, public domain.


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I love juxtapositions. It’s an odd personality trait. Or maybe, it’s the heat. Or it’s niggling sleep deprivation now that I’m up earlier than usual — before 4:30 AM to walk our dogs before the summer sun scorches paws and dehydrates lolling tongues. It clears 90°F before 8 AM.

Take, for instance, my frequent lumping together of ‘Old Skool’ rhythm and blues with otherwise unrelated substantive topics. Regular readers know, for example, I especially like Old Skool’ Riffing on Godfather of Soul James Brown.

So when news hit that Brevard County Florida Judge John C. Murphy was back but handling civil cases after less than 30 days of paid vacation leave for reportedly scuffling outside his courtroom with Assistant Public Defender Andrew Weinstock, you’ll understand why “Get Up Offa That Thing” started playing in my head. However, I’ll admit that this particular jurist doesn’t strike me as someone who’d channel Soul Brother No. 1‘s happy “I’m back! I’m back!” refrain.

Brawl in Brevard.

You remember the “Stop pissing me off . . . if you want to fight, let’s go out back”  ‘Brawl in Brevard.’ That’s when after ripping the public defender a new one in his court, Judge Murphy irascibly took matters out to the hallway for a more serious heart-to-heart with the surprisingly unintimidated Andrew Weinstock.

I prognosticated then, “I don’t expect much to happen to Judge Murphy.” So he’s back already. Also see “Judge who hit public defender returns to bench, less than a month later.”

People 7442Sure the Judicial Qualifications Commission reportedly opened an investigation. But seeing how the wagons have already circled around Judge Murphy, I still predict, if anything, the gentlest of admonitions. Besides, according to news reports, no criminal charges were filed in the incident.

 

Boy with his hands on his face uidOpen Letter Contrition — but not for all.

In an open letter released “To the Residents of Brevard County,” Judge Murphy has moved to put the embarrassing episode behind him. “I am happy and relieved to be back at work serving the people of Brevard County and I thank [Chief Justice] Judge Harris for his support and the confidence he has shown to me,” he wrote.

Not to worry, I guess, if the Judicial Qualifications Commission happens to make a probable cause determination and the whole thing’s sent for adjudication to supportive Chief Justice Harris and the Florida Supreme Court.

In his letter, Judge Murphy expressed “regret” for his actions. And he “committed to continuing personal improvement” and to “win back” public trust and confidence. He offered “my personal apology” to each of his 18th Judicial Circuit colleagues and to “judges everywhere.” Curiously, he made no mention of Weinstock, the object of his ire, nor did he apologize to him. But at least he left out the standard non-apology apology.

Yet as the New York Times reported a few days ago, voters can expect more judicial contrition in Florida. See “Here Comes the Judge, in Cuffs – In Broward County, Fla., Spate of Judges in D.U.I. Arrests.” Yeah, I know — let he who is without sin hide behind the nearest rock pile.

Dominick/Flickr

And to reassure the county electorate that he hopes will again reelect him, Judge Murphy also added, “I seek to ensure that this sort of unacceptable behavior will never happen again.” The words “seek to ensure” reminded me of that scene from “The Outlaw Josey Wales.” It was where Dan George as Lone Watie described his visit with the other Chiefs of the Five Civilized Tribes to the Secretary of the Interior and the Secretary nonsensically tells them “Endeavor to persevere.” I imagine the judge will likewise “endeavor to persevere” not to spar, biff, or poke public defenders on premises.

1158073_paper_emotions_-_hateNot the last angry man.

To assist those aspirations, while on his taxpayer-paid leave, Judge Murphy took part in a favorite bureaucratic fix — anger management. The courts may not have them but I have my doubts about anger management programs and whether they even work.

Of anger management classes, the Health Journal at the Wall Street Journal said, “It’s not clear if the programs work, as few studies have analyzed their effectiveness. There are no licensing requirements for anger-management trainers — anyone can open a business. And since participants don’t usually sign up voluntarily, trainers say it’s possible to complete a program without changing one’s behavior.” Also see NPR’s “The Anger Management Industry – Calming Courses on the Rise, But Do They Work?”

Now really, is there such a thing as curing a propensity to be an angry jerk? Or can counseling graft a nice personality on an overbearing putz? Or can it fix what one blogger hilariously calls HUAD – Head Up Ass Disorder?

Take, for example, that serial biting soccer footballer Luis Suarez who after two previous biting incidents during a game was recommended anger management treatment. Suarez’s now up to three bites with the latest administered on an Italian Player at the current World Cup. He’s been fined and banned for 4 months. Still the psychologists keep recommending anger management instead of bicuspid restraints.

http://media-cache-ec0.pinimg.com/736x/5f/e6/84/5fe684ecb7261693a426fe41022db7c1.jpg

Fortunately, even if anger management doesn’t work, there’s always Dr. Seuss. How about carrying around “Did I Ever Tell You How Lucky You Are?” in your pocket?

Truthfully, when it comes down to it, some people just don’t have the requisite people skills, civility and infinite patience to handle life stresses.

I’m all for reinvention — but as Clint said, “A Man’s Got to Know his Limitations.” If you can’t handle on-the-job anger, find another line of work.

Which to conclude, of course, reminds me of another ‘Old Skool’ golden oldie ditty.

It’s from my East Los Angeles Barrio days: “Are you angry?” So when all else fails — there’s always a song.

 


Photo Credits: James Brown Live Hamburg 1973 by Heinrich Klaffs Heinrich Klaffs – at Wikipedia Commons, originally posted to Flickr as James Brown Live 1702730029; Pin by Debbi Kassin on Anger Management & Conflict Resolution Dr. Seuss, Did I Ever Tell You How Lucky You Are?

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Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

File:1849 - Karikatur Die unartigen Kinder.jpg

Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

http://upload.wikimedia.org/wikipedia/commons/thumb/8/88/Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg/319px-Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

LAW AND JUSTICE uidThis past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

Caucasian businessman pointing finger beside window uidThe Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

File:Freespeech.jpg

Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Laughing Jackass 10952161246Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

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File:RandyOrton-chokehold.jpgHow’s that for an arresting quote? Haven’t heard such talk since my barrio East Los Angeles high school days. But as an instance of failed judicial temperament? Who’d of believed it?

I must need a recollection refresher as it’s been awhile since I last posted on judicial temperament and how justice But having just finished reading Kenosha, Wisconsin criminal defense lawyer Michael Cicchini’s excellent Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights and with overnight news that a judge allegedly opened up a can of whoop-ass on a public defender — well, I’m compelled to post today.

The incident caught on courtroom camera, except for the off-camera hallway fracas, took place in Brevard County, Florida. In one corner was Judge John C. Murphy, a Dayton Law School grad admitted to the bar in 1983 and an elected and reelected county judge the past 8 years. And in the other corner and on the receiving end of the judicial ire and supposed fisticuffs was Public Defender Andrew Weinstock. From the raw video, it’s reasonable to surmise some preexisting tension between the two purported combatants.

Tale of the tape.

http://i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif

But what’s also clear, at least from the tape, is that the strained relations went beyond a loss of judicial patience with a public defender. No, it’s my opinion the judge was likely ‘pissed off’ by Weinstock’s unwillingness to plea out his client; and to succumb to court pressure; and to waive his client’s right to a speedy trial. “You know I’m the public defender. I have a right to be here and I have a right to stand and represent my client,” Weinstock is heard saying in response to Judge Murphy’s “You know, if I had a rock I would throw it at you right now.” 

Sixth Amendment Right to Speedy Trial.

But what about an accused’s right to a speedy trial? Read Chapter 8 in Cicchini’s illuminating book to learn how that works in the real world. Cicchini calls it another one of our “soft” constitutional rights. Consequently, it’s not so speedy and it’s honored more in the breach than observance. And then there are the consequences visited upon both defense lawyer and accused for presuming to insist on their rights.

Given Cicchini’s other recitations in his concise 163-page book about how government agents (police, prosecutors and judges) routinely circumvent our constitutional protections, I think that rather than an angry jurist, it’s the public that ought to be royally pissed. But we’re not. With civics hardly taught in school; with our fount of knowledge reduced to movies and television dramas; and with our tendencies toward holier-than-thou self-righteousness when someone else’s accused of a crime — our blissful ignorance keeps us pacified.

As for the Sixth Amendment right to a speedy trial, as Cicchini tells it, speedy-trial demands are discouraged. And judges will “not-so-subtly punish defense lawyers who make them.”  That said, I don’t think that when Cicchini wrote those words, even he envisioned what’s supposed to have occurred in Brevard County court yesterday.

But then again, my esteemed brethren and sistren of the criminal defense bar are NOT going to be shocked by such tales told in or out-of-school. Indeed, I bet most of them could add their own chapters and real-life examples to Cicchini’s book. They know all too well about what passes for the preservation of individual rights in criminal court. See for a recent example, Arizona criminal defense lawyer Matt Brown’s latest post, “Real Monsters,” about an octogenarian cancer patient and alleged victim caught up in a dilemma worthy of Franz Kafka. Or take this other instance of what passes for impartiality between a judge and his BFF prosecutor just posted by Pro Publica at “Startling Sidebar: Brooklyn Judge Gave Political Advice.”

man sleeping at deskAs for the rest of us still walking around with our eyes closed about the purported sanctity, inviolability and indomitability of our individual constitutional rights — save for the clueless knuckleheads applauding in Judge Murphy’s court — most of us are taken aback by such unseemly conduct and the report of a Judge accused of hitting attorney.” But most won’t read pass the titillating headlines to understand it was because of the lawyer’s defense of his client’s Sixth Amendment right in all criminal prosecutions to a speedy and public trial. And too bad our attention will be fleeting. Soon our self-assurance and complacency returns.

A teachable moment.

Politics Law & Finance 43Still it was no surprise the story made the newswires and even the morning news shows. Or by necessity that I had to parenthetically refer to Cicchini’s timely and topical take-down of “the world of criminal justice” and about the sorry state of our “soft” and “malleable” constitutional rights.

At the risk of invoking the banality of the ‘teachable moment,’ the stuff he writes about needs to be taught in our schools and not so as to, perish the thought, undermine our rose-colored faith in the system. No, it has to be taught to wake us up “about what really happens to ordinary people on a daily basis” when they’re caught in the maws of the criminal justice machine. Forewarned is forearmed. I urge every person reading this post to get a copy of Tried and Convicted.

And as a final add on the Brawl in Brevard, according to the Statement from Chief Justice John Harris, Judge Murphy will be taking a temporary leave of absence and has agreed to seek anger management counseling. Public Defender Weinstock took some time off. After the din dies down, I don’t expect much to happen to Judge Murphy (and hopefully nothing to lawyer Weinstock) although Florida’s ever tireless lords of discipline will almost certainly be poking proboscis into the matter.

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Photo Credits: Randy Orton chokehold, by Sean Refer, at Wikipedia Commons, Creative Commons Attribution-Share Alike 2.0 Generic license; can of whoopass, via photobucket, http://i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif.

 

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