Several months having passed since I last blogged about judicial lapses and specifically, Judge Lucy Koh who asked Apple’s attorneys if they’re ‘smoking crack’ or Allentown, Pennsylvania District Court Judge Maryesther S. Merlo and her “Rover has a bone. Rover has a bone,” it’s time for a revisit — prompted as I am by another of those oft-repeated ‘sky is falling’ Op-Eds about the judiciary under alleged attack.
In truth, I hadn’t given the Koh and Merlo incidents much thought of late. But thanks to the hand wringing essay I was just sent concerning the latest so-called assaults on de facto lifetime retention election jurists, a bit of reality-checking juxtaposition is called for.
Judges in historically placid judicial retention havens like Iowa, Florida and Arizona stay on the bench unperturbed for virtually as long as they want. Nevertheless, judicial independence defenders are again complaining this election cycle that the usual suspects — the far right’s social conservative wing-nuts are after judges, meaning one justice in Iowa and three justices in Florida over their rulings in some controversial cases. There’s even a supposed half-baked, no one’s ever-heard-of effort in Arizona to oust a state supreme court justice.
In Judge Koh’s case, however, she’s a life tenured Article III federal judge who needn’t ever worry about public reaction to intemperate remarks. But as for Judge Merlo, though, since she sits in an open albeit nonpartisan election jurisdiction that good judge and those with oversight over her doings pay better attention to public opinion. Pennsylvania is not a merit selection/judicial retention election sanctuary.
Judge Merlo was ultimately removed from the bench for as the charges stated, ‘bringing the judicial office into disrepute by failing to perform the duties of her office; for violating the state constitution; and for breaking the rules of judicial conduct.’ The Pennsylvania Supreme Court rejected Judge Merlo’s appeal for reinstatement.
“I’ll strangle you.”
Last month, in another nonpartisan election jurisdiction, there was the matter-of-fact takedown from Kentucky Senior Judge Martin McDonald applied to assistant public advocate David Barron in Jefferson Circuit Court, “If you ever call me again on my cellphone I’ll strangle you. You understand?”
And although Barron responded with “I apologize,” Judge McDonald was hardly mollified. Instead, he added the equivalent of a verbal body-slam saying, “I’m telling you, you were unethical, it was improper and then you go to the supreme court and complain, because I told you that we’re plowing ahead with this thing, and you complained about information that you improperly obtained through your unethical ex parte contact with the court. Now that is out of bounds. That is totally out of bounds. And if you ever do it again I will send you it the bar association and try to get your bar license yanked. Do you understand that? Yes or no?”
Judge McDonald, who has stirred controversy before, was caught on tape, which nowadays is increasingly problematic since the stuff always goes viral.
As for Senior Judge McDonald, he later said he was only being “facetious” when the threatened to strangle the public advocate. One legal ethics guru, however, Hofstra Law School’s Monroe Freedman — in priceless understatement said Judge McDonald’s conduct was “highly injudicious.” Video clips of Judge McDonald’s verbal body slam can be seen as part of the reportage from the Louisville Courier-Journal.
“Ain’t no shame . . . .”
Finally, comes the topper and out of another nonpartisan judicial election state where open contested elections mean voters usually pay better attention. From Detroit, Michigan — it’s shirtless near-naked Judge Wade McCree who texted a risqué photo to his bailiff’s cellphone. Not surprisingly, bailiff Corporal LaDawnn Malone’s husband was not pleased when he discovered the apparent judicial trolling.
Interestingly, what apparently got the jurist in the most trouble was not so much the inappropriate photo of the judicial abs but his subsequent flippancy. Borrowing a page from The Wire’s Omar Little, Judge McCree proudly exclaimed to a T.V. reporter, “Ain’t no shame in my game.” For this bit of injudicious sauciness, the Michigan Supreme Court ruled in support of the Judicial Tenure Commission’s sanction recommendation and in its censure order said McCree’s comments “brought shame … to the judiciary.”
Photo Credits: “The Fright,” by piddy77, at Flickr via Creative Commons-licensed content requiring attribution;”Grand Rapids,” by Stevan Sheets, navets, at Flickr via Creative Commons-licensed content requiring attribution;”Mikhail Ivanov with a rear-chinlock on Bruno Sassi in 2010″ by Mikehudak97 licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license at Wikipedia Commons; Detroit judge disrobes, texts photo to bailiff [Fox News]; (Hat tip to Jay for no shame in his game Judge McCree news item).