The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 08.01.2005 - 08.09.2005
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there.

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

    Second judicial appointment embarrassment for Gov. in 2 weeks. "Gov. Mitt Romney has put on hold the judicial nomination of Bristol County prosecutor Renee DuPuis while authorities investigate allegations made by her ex-husband during their bitter child custody battle...." More (Boston Globe 08.09.2005). Comment. Gov. Willard Mitt Romney (R. Mass.), b. 1947, has impressive academic credentials (B.A., Brigham Young; joint MBA-JD, Harvard Law), & somehow managed to get elected in a state some have filed away under the stereotypes of "liberal" & "Democrat." Also, he has going for him the fact that his brother was a classmate of mine at the law school. :-) But, like his father, former Republican Gov. Geo. Romney of Michigan (who knocked himself out of the Presidential sweepstakes by saying he had been "brainwashed" into supporting the Viet Nam War), he keeps stumbling over his own feet.

    Fourth day of deliberations in Miss. judicial bribery trial. "The federal jurors in Mississippi's judicial bribery trial were in their fourth day of deliberations on Tuesday in a case that charges a prominent attorney with bribing a state Supreme Court justice and two former Gulf Coast trial judges...." More (Sun-Herald 08.09.2005). Comment. There've been a number of federal prosecutions of state judges recently for bribery, etc., & I've wondered by what legal fiction the feds obtained jurisdiction. This sentence from the above story gives the answer: "Investigators have said federal grants given to the court systems in which the judges work give federal prosecutors jurisdiction in the case." When I was in high school I argued in a debate before the PTA that federal aid to secondary school education would lead to federal control. I was, of course, just mouthing the political platitudes of the GOP party. But it turns out I was right, as evinced by the GOP's "No Child Left Behind" initiative (which pulls off the slick trick of accomplishing federal control without much or any aid). And now, it seems, federal aid to state courts = federal criminalization of judicial conduct that the states traditionally have been thought (by Republicans, at least) able to regulate. Can it be fairly said that Republicans, & I am one, though of the liberal variety, believe in states' rights?

    Texas' infamous 'Judicial Hellhole.' "A new report released today [by the American Tort Reform Association] details why Jefferson County, Texas -- the only Texas jurisdiction to receive the 'Judicial Hellhole' designation for three years in a row -- has been a magnet for speculative litigation.  More personal injury lawsuits are filed in Jefferson County, per capita, than any other large county in Texas. 'Jefferson County's history for welcoming lawsuit abuse in its courtrooms has attracted speculative litigation to this jurisdiction which has become known as one of the most plaintiff-friendly forums in the United States,' said Sherman Joyce, president of [ATRA]. 'Litigation tourists, guided by their personal injury lawyer travel agents, file their cases in Judicial Hellholes like Jefferson County because they know they can circumvent the law and receive a favorable award or precedent, or both.'" From an ATRA press release. More (PRNewswire.Com 08.09.2005). Comment. I've argued in the past that we're overlitigated & overlawyered, & I told the court & the parties as much during voir dire in a p.i. (hardware store "slip-and-fall") case in which I sat as a juror a couple years ago. But during deliberations I found myself using my minimal persuasive powers to help steer the other jurors to a compromise verdict in effect awarding the plaintiff a good part of the damages she claimed. It's called: keeping an open mind, listening to the evidence, listening to one's fellow jurors, using one's common sense ("What happened to the defendant store's surveillance tape that might have shed light on what happened?"), evaluating credibility, and following the judge's instructions.

    Federal judge called as juror in state court. "U.S. District Judge Linda Reade (Reed) was called for jury duty yesterday in a felony criminal mischief case in Linn County District Court, but she didn't make the final 12. Reade says she was hoping to serve as a juror -- for the first time -- but shrugged it off, saying 'One judge per courtroom is enough.'" More (WHO-TV 08.09.2005). Comment. I was called once, in the mid-1990s, when I was the Minnesota Supreme Court's deputy commissioner, but during the two weeks of service I wasn't chosen to serve on any jury. However, when I was again called, more recently, & was no longer working at the court, I was chosen to serve on a p.i. case (see, above). Right off the bat during deliberations, a fellow nominated me to serve as foreperson. I declined & nominated him, saying in serving as jurors we were all equally qualified. I felt that, but I also felt I could  have more influence on the verdict by not serving as foreperson. It is a well-known sociological truism that the nominal leader or moderator of any group, if interested in unanimity, is often less influential than the hoi polloi who make up the rest of the membership. I think it'd be good if every judge had to sit in the boring jury room for a week or two & see how the system wastes the time of the good citizens who don't try to get out of jury service, just as I think it wouldn't hurt if every judge (and, more importantly, every "tough-on-crime" legislator) were required to serve a week in jail, just so he/she would have some minimal understanding how long a day or a week or a year in prison really is.

    Cambodian government using courts to silence critics? "A Cambodian military court has convicted opposition lawmaker Cheam Channy and sentenced him to seven years in prison on charges of creating a secret military force. Politicians and human rights groups are calling the trial and verdict an attempt to silence political opposition....." More (VOA News 08.09.2005). Comment. We read an item like that and some of us think it seems so foreign. And yet it not only can happen here, it has happened here, in good ol' Minnesota -- and our vaunted court system helped make it happen. Want to read about it? I wrote a mini-essay on it, titled "It Can't Happen Here," on 09.15.2001, four days after 09.11. I based the title on Sinclair Lewis' 1935 novel It Can't Happen Here, a novel that imagined the coming-to-dictatorial-power in America of a demagogic politician who promised quick solutions to the Depression, as Hitler had done in Germany in 1933. Since this is the 70th anniversary of the novel and the 87th anniversary of Governor J.A.A. Burnquist's use, with the aid of our courts, of the now-notorious Minnesota Commission on Public Safety to suppress political opposition by Charles A. Lindbergh's father, and since we always need reminding that our usually-politically-appointed judges can't always be depended on to uphold our right to free speech, etc., I thought to myself, "Why not link to the essay?" Here's the link.

    Brits consider secret courts for terror. "Special anti-terror courts sitting in secret to determine how long suspects should be detained without charge are now under active consideration, it emerged yesterday...The decision to adopt secret anti-terrorist courts will mark a huge departure from England's centuries old 'adversarial' system of justice...." More (Guardian Unlimited 08.09.2005). Comment. "If you can keep your head when all about you/ Are losing theirs...." If, Rudyard Kipling.

    On giving up our rights in order to protect ourselves against terrorists. "'Hm,' said Doremus, as often Doremus did say it. 'Cure the evils of Democracy by the evils of Fascism! Funny therapeutics. I've heard of their curing syphilis by giving the patient malaria, but I've never heard of their curing malaria by giving the patient syphilis!'" From Sinclair Lewis, It Can't Happen Here 22 (1935).

    Suit: N.C.'s public financing of judicial elections violates First Amendment. "A Court of Appeals judge and an anti-abortion group filed a lawsuit yesterday over North Carolina's public-financing system for judicial races, arguing that the rules limit free speech and put candidates who don't participate at a disadvantage. Judge Barbara Jackson, who was elected in November, and North Carolina Right-to-Life filed the class-action lawsuit in Greensboro federal court, according to the clerk's office there...." More (Winston-Salem Journal 08.09.2005). Comment. The James Madison Center For Free Speech is representing plaintiffs. Don't be surprised if the much-touted law is found defective, not necessarily in concept but as written & applied, on free-speech grounds. Related story: Free speech is a 'bad idea'?

    Court reinstates expelled golf club members. Anyone who has the audacity to take on the powers-that-be may come to know first-hand a little bit about the capacity of friends & other supposedly nice people, even so-called Christians, to engage in childish, vindictive behavior -- e.g., shunning or ridicule. One of my many mentors and fathers of my spirit said to me once, "Hell, if Christ came again, some of the pillars of our local church would be the first to join the crucifixion party." He was right, of course. Well, the members of the Bothwell Castle Golf Club in western Scotland didn't crucify anybody but some of them did some nasty things. When three long-time members had the audacity to object, not as members but in their roles as citizens, to a new clubhouse because they feared the planned development, unless changed, might harm the environment, & when the local authorities agreed & required the club to change the plans, the club cast them as pariahs and expelled them. As if that wasn't enough, many of the good members, it appears from the linked story, shunned the expelled members or verbally accosted them. Sometimes judges are noble & grand and ride white horses: yesterday the Court of Sessions shouted a loud "Fore!" (or was it "Fair!"?) while riding to the rescue & overturning the expulsions. More (The Herald 08.09.2005). Further reading on golf & judges & lawyers: a) S. Ct. Justice is Captain of Royal & Ancient Golf Club of St. Andrews; b) PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).

    Judges as depicted in movies. "There have been two major changes in the treatment of judges in film since the 1970s. First, we are now part of the main story line to a far greater degree, if not the main character in the film. Second, unfortunately, the changes have not been to our advantage, for the most part. Judges often now seem to be portrayed as lazy, corrupt, biased and arrogant. Of course there are some judges who are like this, but not to the extent that the movies would suggest...." From Judge J. Howard Sundermann, Jr., Judges in Film (Picturing Justice - The Online Journal of Law & Popular Culture 03.13.2002). Comment. This piece, though somewhat out of date, is still worth a read. My favorite judge in the movies is Judge James K. ("Jim") Hardy (played by Lewis Stone in 14 of the movies) in the delightful Andy Hardy series of films that starred Mickey Rooney and, among others, Ann Rutherford and Judy Garland.

    Judge gets 10 days in jail, with work release, for DWI. "Superior Court Judge Elaine Rushing was sentenced to 10 days in the Sonoma County Jail and three years informal probation after her attorney entered a no contest plea on her behalf Monday to misdemeanor driving with a blood-alcohol level in excess of 0.08 percent. Another DUI charge and a hit-and-run charge, also misdemeanors were dismissed...." More (KTVU 08.08.2005).

    A judge's props & costumes. "The judge's [before-and-after photos of meth addicts] have become as much a fixture in his courtroom as his 'happy robes,' brightly colored robes he wears on the bench when people finish probation ahead of schedule. He's nicknamed the photos with gruesome titles - the 'Face of Living Death' and 'Time Machine.' Both show the effects of drugs on the body. The photos are so popular that lawyers have asked him to show them to their clients...." The judge's name is Ric Howard. He uses the pics to try scare meth users into giving up drugs. More (St. Petersburg Times 08.08.2005). Comment. As the novice judge was putting on his lime-green robe, he said to Judge Howard, his mentor, "Are you sure this is how Judge Roberts caught President Bush's attention?"

    Annals of individualized justice. "A judge has barred a Winchester woman from driving or riding in a car with any type of sound system for a year. The ban, issued by Clark Circuit Judge William Jennings, is part of the probation terms for Shemeko Howard, 20, who was cited for a noise violation...." More (WKYT 27 Lexington 08.08.2005). Comment. Like a world-class medical diagnostician, focusing on the potentially-fatal but easily-overlooked defect & fixing it, Circuit Judge Jennings identified Shemeko's problem as having to do with noise, or sound, or something, while driving or riding in a car or something & he creatively did what in his wisdom he determined he had to do to fix it.

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

    Free speech is a 'bad idea'? Susan Holden, President of the Minnesota Bar Association, representing the state's lawyers -- who, come election time, seemingly always support every governor's typically-political judicial picks with endorsements & cash contributions -- doesn't actually say free speech is a bad idea. Or does she? You decide for yourself. This is the opening sentence of her opinion piece in today's Minneapolis Star-Tribune opposing the Eighth Circuit's en banc decision several days ago (click here) reaffirming the free speech rights of judicial candidates: "A federal appeals court decision last week gave us something that may be legal, but is a really bad idea for a lot of reasons." Hmm. I can't help thinking she just doesn't like judicial challengers to have the same rights that judicial appointees have long had prior to their appointment. As everyone knows, political supplicants have long been able to somehow get the message to "their" governor, when... More at BurtonHanson.Com.

    Mom threatens to blow up courthouse after daughter is sentenced. "The mother of a 12-year-old car thief stormed out of a courtroom Thursday, threatening to blow it up, after a judge handed her daughter a 10-year sentence...." More (AllHeadlineNews 08.08.2005).

    Watchman gets nine years for taking from judge. "A watchman who sneaked into a room of a Judge and stole various currencies and personal belongings was on Monday sentenced to nine years' imprisonment with hard labour by a Circuit Court in Accra...Chief Inspector Darfour said about two years ago, the Judge was transferred from Kumasi to Accra and was putting up in an uncle's apartment at East Legon together with the convict, who was then the caretaker of the house...." More (Ghana Web 08.08.2005).

    Palestinian Chief Judge retracts resignation. "Palestinian Chief Justice Zuhair al-Surani said on Monday he was withdrawing his resignation after President Mahmoud Abbas promised to take measures to end assaults against judges and courts in Gaza and the West Bank...." More (Reuters AlertNet 08.08.2005). Earlier story: Palestinian Authority Judges on strike; chief resigns. Comment. Is it still possible for Justice O'Connor to retract her resignation?

    Is it wrong for Judge Harold Hill to lead a boys bands? "The Commission for the Administration of Justice starts meeting on September 13 to determine whether the fact that a sitting judge is also president of a band club violates the judiciary's code of ethics. The case involves Mr Justice Lino Farrugia Sacco who is president of the St Joseph Band Club of Hamrun...." More (The Times of Malta 08.08.2005). Comment. Maybe we oughta cut judges a little slack. Tooting a horn might help a judge let off repressed steam in a harmless way & make him a better judge. For more on the "band club" in question -- the St. Joseph Band Club of Hamrun -- & the unique role of the band club in Malta, see In the heart of Maltese traditions (Malta Independent Online 07.17.2005).

    VA judge dies in farming accident a month after retiring. "One of Southwest Virginia's most highly respected judges - Fred H. Combs - died late Saturday night or early Sunday morning as a result of injuries he received in a farming accident Thursday evening. Combs, 59, served 20 years and six months as General District Court judge in Tazewell County, retiring from that position on June 30...." More (Bluefield Daily Telegraph 08.08.2005).

    Judge Marcelo Kopcow, the man, the legend. "Standing in the serious environment of the court, wearing a black robe, with gray highlights in his hair, he conveys an image of a figure who commands respect. But this official image of Judge Marcelo Kopcow hides a father, husband and man not unlike any other...." More (Greeley CO Tribune 08.08.2005).

    The high cost of judicial digs -- your tax dollars at work. "Taxpayers will foot a $2.5 million bill to lease office space in Irmo for a federal appeals court judge because officials say there is no space available in the recently constructed $40 million federal courthouse in Columbia. The 4,224-square-foot unmarked building is being built solely for Judge Dennis Shedd, who was appointed three years ago to the 4th U.S. Circuit Court of Appeals in Richmond, Gary Mote, a spokesman for the U.S. General Services Administration office in Atlanta told The Greenville News for a story Sunday...." More (Tuscaloosa News 08.07.2005).

    Justice Stevens delivers stinging critique of death penalty.  "Supreme Court Justice John Paul Stevens issued an unusually stinging criticism of capital punishment Saturday evening, telling lawyers that he was disturbed by 'serious flaws'...[Among other things,] Stevens said a statement from a victim's family sometimes 'serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.'" More (Yahoo News 08.07.2005).

    Judges at convention focus on protecting judges. "A veteran federal judge in Chicago warned Friday that political attacks on the nation's judiciary are fueling fanatics with personal grudges against judges. U.S. District Senior Judge Marvin Aspen said law enforcement needs to find a better way to identify threats to the judiciary as well as better procedures to protect judges and their families...." More (Chicago Tribune 08.07.2005). Comment. Queries: a) to what extent, if any, does turning courthouses into fortresses have a counterproductive effect? b) to what extent might surrounding courthouses with flowers and fountains & otherwise making the exteriors & interiors more welcoming & less remindful of Soviet Union architecture conceivably calm people down & make them feel the courthouses are theirs (not "the terrain of the enemy")? See, Courthouse flowers & better government.

    Court declares August "amnesty month." "Greenwood's city judge is declaring August as Amnesty Month and offering to drop failure-to-appear charges for nearly 1,000 people...Those eligible for the offer include people suspected of marijuana possession, driving while intoxicated, reckless driving, battery and resisting police...." More (Indy Star 08.07.2005). Comment. Should you buy a new car in August -- or hold out for the possibility of an even better deal in September? Some of the folks in Greenwood may be thinking, "Maybe September will be 'pardon month' or 'no-fine/no time month.'"

    Remembering when San Quentin inmates took over courthouse. "Meanwhile, Judge Haley was brought down from the bench and told to stand face-to-face with me in the middle of the courtroom. It was then I saw that the prisoners had taped a sawed-off shotgun to the judge's neck with the barrel pointing up under his chin. One of the prisoners was holding the judge's arm with one hand and the trigger of the shotgun with the other...." The judge, by the was, was killed. From The untold story - Court reporter recalls horrific day at the Hall of Justice 35 years ago (Marin Independent Journal 08.07.2005).

    Dallas County's court system loses track of 10,000 probationers. "Probation officials in Dallas County lost track of more than 10,000 people they were supposed to be supervising last year, according to a study obtained by a newspaper. That represents about a quarter of all the people in the county on probation in 2004. And the number of probationers unaccounted for is up 65 percent since 2000, The Dallas Morning News reported Sunday." More (Dallas-Fort Worth Star-Telegram 08.07.2005).

    Nagpur judge, unable to get pregnant, kills self. "An additional district and sessions judge Renuka Shailendra Pande, allegedly committed suicide by consuming poison, PTI reports from Nagpur. Pande consumed poison at her Jaripatka residence in the city on Thursday and went to her husband, who is a mine manager with Western Coal-fields Limited (WCL) at Kanhan, near Nagpur, where her condition became critical. The 40-year old Pande, who was reportedly frustrated over her inability to bear a child, had attempted to commit suicide earlier too and was undergoing psychiatric treatment, Police said...." If you haven't figured it out, Nagpur is in India. That's its High Court depicted upper left. We sorta have a soft spot in our heart for Nagpur. More (StarofMysore.Com 08.07.2005).

    The most famous "judge mystery" ever. "He was last seen 75 years ago yesterday, leaving a W.46th St. watering hole after dining with two companions and jumping into a taxi, disappearing into history. Judge Joseph Force Crater - Tammany Hall stalwart, justice of the New York State Supreme Court and dapper man about town - remains the city's most famous missing person. His baffling disappearance spawned thousands of jokes and from time to time rumors circulated of Crater being spotted on a South Sea isle or in some other remote locale...." More (N.Y. Daily News 08.07.2005). Comment. I grew up in the 40s & 50s in a small town in western Minnesota. I remember people occasionally making reference to "Judge Crater." Rural Minnesota had its own missing-judge mystery in 1933 when a probate judge suddenly skipped town, taking with him his deputy, a woman, creating quite a scandal in the process. Governor Floyd B. Olson, the Farmer-Laborite, whom my grandfather's brother, Louis Herfindahl, served as political secretary, appointed the judge's abandoned wife to succeed him. She became the only female probate judge in the state. A few months later word arrived that the former judge had gotten a Nevada divorce & had married his deputy in Nevada. That divorce was set aside & his former wife, now the judge, obtained a Minnesota divorce in April of 1934.

    Beating a drum outside courthouse every day is o.k.? "Corvallis [Oregon] resident Jim Ellison was found innocent last week on charges he violated the city's noise ordinance. The decision, handed down by Judge Mark Donahue in Corvallis Municipal Court, upheld Ellison's right to free speech...Ellison was cited in December for violating the city's noise ordinance when a Corvallis police officer asked him to stop playing his drum. Ellison, 54, who had been beating the drum at the daily anti-war demonstration in front of the Benton County Courthouse ever since October 2001, refused...Ellison said he doesn't think he's set a legal precedent. 'I was hoping (Judge Donahue) would be more specific on what protesters can or cannot do,' Ellison said. 'We could bring a 40-piece drum band out, but it's not a pressing issue for us at the moment.' Ellison still protests in front of the courthouse every day. But he said he has recently switched to blowing bubbles...." More (Corvallis Gazette-Times 08.07.2005). Comment. The judge didn't say no ordinance could constitutionally prevent Ellison's drumming, only that the one in question failed to pass constitutional muster. I have personal experience with courthouse drumming & other music playing. I worked for many years for the Minnesota Supreme Court in the capitol & many years for it when it moved across the street to the east to its own judicial building. Once a year I had to try get work done with the sound of loudly-played Indian drums being played for a good part of the day in connection with some gathering, and once a year I had to try get work done to the sound of "Amazing Grace," as played on bag-pipes, being played over & over again in connection with the annual anti-abortion, Roe v. Wade protest. Walking out of the building once on that day a friend, who was a devout Catholic and strongly anti-abortion, said to me, laughing, "They [i.e., the protesters] are the best argument I know in favor of abortion." I admire a guy who can joke about "his own side." I'm not sure anyone ought to be able to play an over-amplified recording over & over again all day outside any public building.

    Screams in old courthouse - not unusual. The reason? "A few weeks ago, Charlotte Kesler heard something fluttering against the window blind of her office in the historic Madison County Courthouse. Then it fell to the floor. It was a bat. Looking up, she saw another little black mass clinging to a bar that holds up the window blinds. Later Kesler found another bat flying around her office. Bats have long been a big problem in the 104-year-old former courthouse, which is now used for office space. They've been found in an office kitchen area and seen clinging to a hallway light fixture. Screaming from surprised workers or guests is a common sound in the building...." More (Access North Georgia 08.06.2005). Comment. During my 28+ years as an aide to the Justices of the Minnesota Supreme Court I typically worked a flex-time schedule, getting to work at 6:30 a.m. but leaving in mid-afternoon to pick up my kids at school. I recall two incidences like the above in which screams would have been justified, both when the court occupied the 3rd & 4th floors of the East Wing of the Capitol. One morning I spotted a bat in a common area & alerted the head custodian. He killed it with a broom. In the other I had my window open to let in a bit of fresh air & a pigeon entered through it. I asked the assistant custodian, a fellow who once had pigeons as pets, for help. He grabbed it with his hands & released it through the open window. In neither instance did I scream.

    State chief justices oppose speeding up death appeals, executions. "Chief justices of state courts have urged the U.S. Senate not to pass a bill aimed at speeding death penalty appeals. The resolution passed overwhelmingly by the Conference of Chief Justices this week was the latest opposition to the Streamlined Procedures Act, introduced in the Senate by Jon Kyl, an Arizona Republican, and the House by Dan Lungren, a California Republican. Only the chief justice of Texas' Supreme Court voted against the resolution, according to several justices who were present...." More (Baltimore Sun 08.06.2005). Comment. The chiefs held their annual convention this last week at the Charleston Place Hotel in Charleston, SC. For details, click here.

    N.C.'s Chief Justice complains about $118,209 salary. "Judicial salaries in the state are "alarmingly" below those of other lawyers in North Carolina, and that could lead to an exodus of experienced judges if nothing changes, the state's top judge [Chief Justice I. Beverly Lake Jr.] believes...." More (Greensboro News-Record 08.06.2005). Comment. It may or may not make sense for the legislature in NC to increase judges' salaries. But the argument -- which judges always tirelessly trot out when they want a pay raise -- that some lawyers make twice as much as they do, by itself, is no more persuasive to me than that Judge Judy makes $25 million a year (which she reportedly does) or that Tiger Woods makes more dough than the judicial mind can comprehend. For the flaw in this logic and for the kind of approach I recommend, see, I could be making lots more if I were Michael Jordan.

    Exodus of judges -- or scores who are willing to serve? N.C.'s Chief Justice warns there'll be an exodus of judges if their salaries aren't increased. But it appears that in Florida, at least, lawyers are lining up in droves to try get appointed: "Several Polk County judges will be among 25 applicants interviewed this week for two newly created judgeships in the 10th Judicial Circuit. A nine-member nominating commission will interview applicants Tuesday, then recommend three to six people per judgeship to Gov. Jeb Bush...." More (Orlando Sentinel 08.07.2005).

    Ex-judge's conduct described as 'problematic.' "Former Boone Circuit Judge Jay Bamberger was paid at least $45,000 to be a director of a controversial nonprofit organization he agreed to create with money left over from a multi-million dollar settlement of a case arising from the diet drug 'fen-phen.' Bamberger recently returned the money and resigned from the board of directors of the Kentucky Fund for Healthy Living, after questions about the details of his involvement were raised in another lawsuit...." More (Cincinnati Post 08.06.2005).

    Palestinian Authority judges on strike; chief resigns. "Palestinian Authority judges went on strike on Saturday in protest at inadequate security arrangements, while the chief justice [Zuhair al-Surani] said lawlessness in the courts had forced him to resign. Gaza and West Bank judges and lawyers have repeatedly complained of attacks by Palestinian gunmen storming courtrooms to try to influence decisions or to protest about rulings...Palestinian gunmen detonated bombs outside the houses of both Surani and Attorney-General Hussein Abu Asi last week causing damage, but no casualties...." More (Reuters AlertNet 08.06.2005).

    San Diego Padres Judge Eric Young. "When manager Bruce Bochy and players mention Eric Young, they give obvious respect to the man second baseman Mark Loretta and others call The Judge. This judge is never dour or officious, yet if a wayward teammate needs to be told to steer the proper course, Young will do it...Young's leadership extends to the team's kangaroo court. There, he truly is the judge, imposing fines on players. There's your respect, Young said with a laugh. 'Whatever I bring up in court can cost guys dollars,' he said. "I don't think they want to tick me off.' Young's words carry extra weight because he's traveled so far...." More (San Diego Union Tribune 08.06.2005).

    Wife, 48, accuses hubby, a retired judge, 66, of pushing her. "A retired Multnomah County judge faces domestic assault charges after his wife accused him of injuring her during an argument. Senior Judge Thomas Moultrie, 66, was arrested about 1:20 a.m. Friday at his Portland home...." More (The Oregonian 08.06.2005).

    Dahlia Lithwick on why she opposes term limits for federal judges. One of the common arguments for term limits of federal judges is that after they've been in office awhile, they get "out of touch." This irritates Dahlia Lithwick: "My suspicion is that the words 'out of touch' merely represent the kind of anti-elite, anti-intellectual demagoguery that poses the greatest danger to the judicial branch. 'Out-of-touch' judges are really no different than out-of-touch politicians, intellectuals, or academics who simply spend a lot of time reading and thinking. And while we may or may not benefit from elected officials who spend lots of time at rodeos and fairs, there is nothing to suggest that such extracurriculars would enhance a jurist's skills. Judges are supposed to be reclusive and bookish. They're judges!" More (Slate 08.05.2005). Comment. Sadly, in some states (Minnesota?), the notion of "judicial outreach" arguably is getting out of hand -- so much so that I won't be surprised if we start seeing our judges taking the courts on the road to "perform" at rodeos & fairs. See, BurtLaw on Judicial Independence & Accountability. And, see, infra.

    Cal. Supreme Court to hold forth in civic center for two days. "California Supreme Court justices soon will be holding court in Redding. Shasta County Superior Court officials announced Friday that this state's highest court will take up residence Oct. 4-5 at the Redding Civic Center where it will hear oral arguments. John Zeis, a Superior Court administrative analyst, said Friday that the Supreme Court 'fairly regularly' ventures outside San Francisco to hold such sessions in California communities under an outreach program that is geared primarily for students...." More (Redding Record-Searchlight 08.06.2005). Comment. Minnesota is either the pioneer or one of the pioneers in this sort of "judicial outreach." I said in the previous entry, only half in jest, that I won't be surprised if we start seeing our judges taking the courts on the road to "perform" at rodeos & fairs. "Civic center?" Hmmm. A few years ago I saw a PBS documentary filmed in China that included footage of a "trial" held in a civic center auditorium, shortly after which the poor guy found guilty was paraded through the streets, then taken out of town to the place where "they" do such things & executed. One can at least argue that an appellate court's hearing oral arguments in a civic center or other auditorium before 1,500 or more people is not that unlike the Chinese "show trial" depicted in the documentary. But I won't make the argument. I'll just say I oppose this form and most forms of "judicial outreach" as practiced in Minnesota & other states. I'm pretty much alone in this & perhaps it provides further support to those who've criticized me as misanthropic. But one judge told me after retiring that "taking the court on the road" in this way makes the court a kind of "traveling dog'n'pony show." I can't say it better.

    Former judge punished for corruption in Guangxi. "Yang Duoming, former vice-president of the Guangxi Zhuang Autonomous Regional Higher People's Court, was sentenced to 10 years in prison. The verdict was issued by the Railway Transport Intermediate Court in Liuzhou, a city in central Guangxi Zhuang Autonomous Region on Friday...." More (Xinhuanet 08.06.2005).

    Remembering a sportsman judge. "Justice Saad Saud Jan departed to his heavenly abode on July 21 after playing a remarkable innings of 74 (years) in the field of judiciary as well as sports. Sadly enough the media has not given him the projection that he really deserved. The few articles, which appeared in the press, quite rightly concentrated on his efficiency, performance and achievements in the field of judiciary. His overwhelming love for sports, however, missed a mention...." This Pakistani judge loved cricket & tennis. More (Daily Times 08.06.2005).

    Annals of creative sentencing. "An ex-convict who pleaded no contest to sexually abusing his daughter was sentenced to crochet afghans as part of the community service requirement of his probation. Despite an outcry over the seemingly lenient sentence, the prosecutor in the case said he had been ready to dismiss it for lack of evidence...." Apparently the crocheting was part of the plea bargain entered into after the complainant indicated she was prepared to testify her mother pressured her into making the allegations during the divorce/custody proceedings. The prosecutor had authorized dismissal of the charge, but under the agreement got not just the crocheting but supervision & registration as a sex offender as conditions of probation. More (MSNBC 08.05.2005).

    Reporter describes switch from covering courts to covering sports. "[I]t quickly became apparent that there is little romance to the criminal faction, at least here in the Copper Country. Rather, for the most part, those who commit acts of depravity are usually just drunk or stupid, and more often than not, both.
I really won't miss seeing the unending procession of drunks parading through the courtroom. While as yet we don't have a huge drug problem here (although prescription drug abuse is big in Baraga County), we have a huge alcohol abuse problem. The epitome was one guy who came through with a .53 blood-alcohol level, when .35 is considered clinically dead. As Judge Phillip Kukkonen puts it, 'You know how you get to a .53? Practice.'" More (The Daily Mining Gazette MI 08.06.2005).

    Flower terrorism in UK town timed to arrival of judges. "The timing seemed suspicious, coinciding as it did with the visit of two Britain in Bloom judges to Luddenden, to see if the place could trump its Village of the Year success in last year's Yorkshire in Bloom competition by carrying off a national crown...There is a sudden abundance of amateur sleuths among Luddenden's 900 population, according to Mr Boom. 'Whether it's someone in the village, we are not going to guess,' he said." More (Independent Online 08.06.2005).

    Annals of beer judging. "A beer brewed with potatoes and cherries among the ingredients caught the attention and the taste buds of the judges at this year's BrewNZ New Zealand Beer Awards. The affectionately-named and highly appealing Paddy's Pudding beer handed Hawke's Bay brewer Chris O'Leary one of the six awards he picked up...But it was his vintage ale-style brew called Oude Reserve which really had the judges fizzing, and which resulted in a gold medal in the Experimental Class. The remarkable brew, a strong, warming 10.5 percent 'barley wine' vintage ale, was effectively awarded 'Best in Show' and has prompted Mr O'Leary to brew it annually from now on, as a vintage reserve...." More (Hawkes Bay Today NZ 08.06.2005). Comment. I'm wondering if it was the 10.5% that persuaded the judges. After a mug of 10.5% ale, most judges would declare the ale "world class."

    Eight deputies fired after investigation of Atlanta courthouse shooting. "Fulton County Sheriff Myron Freeman fired eight deputies Friday, nearly five months after an inmate on trial allegedly overpowered a deputy, took her gun and killed three people at the county courthouse in downtown Atlanta. Freeman also suspended without pay two other officers, and three other deputies were given written reprimands or 'counseling.'" More (Atlanta Journal-Constitution 08.06.2005). Comment. We live in a "blame culture." Whenever something bad happens, we have to blame someone. In government, the persons blamed usually are the frontline people. The higher up the ladder one is, the less likely he'll be blamed.

    Bulletin! Chief Justice announces retirement. "Mr. Justice John Major[, age 74,] of the Supreme Court [of Canada] will retire on Christmas Day, two months ahead of his mandatory retirement date. The departure of Judge Major, who joined the court in 1992, opens the door for a new justice in time for the new year...." More (The Globe & Mail 08.05.2005). Comment. Three thoughts: a) I'm guessing we fooled you into think Bill Rehnquist had announced his retirement. b) I wonder if a groundswell of opinion might persuade Mr. Justice Major to stay on an extra two months. c) I oppose mandatory retirement of judges.

    Is it okay for PA judges to decide challenge to their own pay raises? "The lawsuit targets a provision that allows lawmakers to collect their raises immediately as 'unvouchered expenses' -- extra pay equal to the raises- - in spite of a constitutional ban on legislative salary increases taking effect until after the two-year session in which they are passed. The law includes a clause that would invalidate the entire statute if any part of it is ruled illegal, so any ruling against the legislative raises would also eliminate the judges' raises." Is it okay for judges to decide the challenge? "While the code of judicial conduct requires individual judges to disqualify themselves from cases in which they have a 'substantial financial interest,' the standard is different when all the judges on a court are affected by the same conflict, [according to] Anne Lazarus, chairwoman of the State Conference of Trial Judges' Ethics Committee...who is also a Philadelphia judge." More (Bucks County Courier-Times 08.05.2005). Comment. Who else are you going to get to decide the issue? My belief is that, when the eyes of the public are on them in a case like this, judges tend to bend over backward (maybe too much) to decide the issue without regard to their own personal interests. People are free to doubt that. But it's not that difficult for an experienced judge, if he/she is any good at all, to act dispassionately & without thinking of self-interest in such a situation.

    Those undisclosed memos written by John Roberts. "[T]he administration's concerns are not trivial. Disclosure of internal documents in judicial nominations has typically occurred in response to accusations of impropriety; there is no suggestion of misconduct in this case. To be sure, turning over the material could establish the precedent that confidential attorney-client material becomes fair game whenever senators are curious to know what a particular nominee thought on a particular issue. The risk that this could chill the willingness of line attorneys to give their candid views is a serious concern. There is a possible solution...." More (Washington Post - Editorial 08.05.2005).

    Does new Washington DUI statute violate-separation-of-powers doctrine? As amended, the DUI law in question provides in relevant part that "A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence" that certain conditions have been met. It then provides, in part:

For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.

A number of trial judges have ruled that this provision violates the separation-of-powers doctrine by interfering with the judicial function. The Washington Supreme Court has agreed to review a case presenting the issue. More (Seattle Post-Intelligencer 08.05.2005).

    Thomas Reed Powell on the separation-of-powers doctrine. "From the standpoint of the judiciary, there are two sides to the shield of the doctrine of separation of powers. It is essentially the province of judges to know what the law is, but judges should not undertake nonjudicial jobs." Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation 25 (1956). Some states (Minnesota is one), but not all, have held that propounding rules of evidence and deciding issues relating to the admissibility of evidence are inherently judicial functions under the applicable state constitutions. Powell, by the way, was a contemporary of Felix Frankfurter on the faculty at Harvard Law. It was said, if my memory is accurate, that Powell "cleaned out" the students' minds & that Frankfurter "decorated" their minds. One of Powell's grandsons attended HLS when I was a student. He was a genius, I think. He could come to class unprepared, catch the flow of the Socratic dialogue, and then raise his hand & contribute better than the ones who were fully prepared. He was a sort of Dr. Samuel Johnson -- at night at Harkness Commons, the student hangout, he held forth at the same table every night & the table was usually full.

    Why so few black people, relatively speaking, on juries? "Wayne County Circuit Court has commissioned a study of the under-representation of blacks on juries. About 42 percent of the residents of Michigan's largest county are black, while 27 percent of those who report for jury duty are black...." More (Detroit Free Press 08.05.2004). Comment. It's a problem all around the country, I think. Anecdotal evidence: I've been called for jury duty twice in the last ten years in Minnesota's most populous county. The first time the large jury room was filled with maybe 100-150 people but only two were black. The second time there were significantly more black people but still not enough, proportionally speaking.

    Tahany Al-Gebaly, Egypt's first woman Supreme Court judge. "My presence in the court is, I suppose, part of the process restoring Egyptian women to their rightful place in our society. In the past, women in Egypt have been leaders, both during the rule of the pharaohs and in Islamic times. But we have been absent from the judiciary since Egypt started its modern history roughly a century ago...." Women's work: Supreme Court judge (BBC World Service's World Today 08.05.2005).

    Candor in courtroom. "[B]efore receiving a 36-month prison sentence Thursday for fondling a 16-year-old, [Rodney] Hawkins smirked, sucked his teeth and said he broke the law because he craved attention. 'It makes me feel better to do something that makes someone mad,' the 6-foot-4 inch-tall 20-year-old told Judge Stephen A. Wolaver of Greene County Common Pleas Court...." More (Dayton Daily-News 08.05.2005).

    Ethics charges filed against Nevada J.P. The judge in question is a justice of the peace, Daniel Ward, in Fallon, Nevada. "After his son, Sean Ward, was arrested on drug charges, the commission complaint alleges the judge used his influence to get the boy out of jail without having to post bail. It also alleges Ward failed to recuse himself from handling a child endangerment case involving his son and son's girlfriend, Michelle Harrison, and tried to thwart an investigation of his son by the Nevada Division of Investigations...." More (Las Vegas Sun 08.05.2005).

    Courthouse bell rings & dings out of control. "County officials silenced the [Jefferson County Courthouse's] more than 100-year-old bell after an unknown malfunction sent the local landmark ringing out of control Saturday night. It is the second time in two years that the 140-foot-tall clock tower's normally reliable chime rang out until its power was shut off, said county officials. The bell began ringing Friday morning, was repaired and then started up again about 10 p.m. Saturday, said county Administrator John Fischbach...." More (Port Angeles Peninsula Daily News 08.04.2005).

     Last-minute scramble by judges to file overdue tax returns. "A last-minute scramble by judges across the nation to file overdue tax returns has headed off criminal proceedings that could have cost them their jobs. Just two judges are still at risk of prosecution and potential dismissal from the bench, after 14 others either filed their tax returns yesterday or won an extension of time from the Australian Taxation Office...." More (The Australian 08.05.2005). Earlier. Comment. Most U.S. judges probably wouldn't pay their taxes on time if they weren't worried about the public reaction at their getting caught. (A joke! -- don't be so serious.)

    When a lawyer collapses during trial. "Closing arguments in the federal bribery trial of state Supreme Court Justice Oliver Diaz Jr. and three others came to an abrupt halt today when defense attorney Rob McDuff fell faint as he was addressing the jury. Rob McDuff, the attorney for Diaz, never fainted but he had to be carted off on a stretcher...It was another interruption in a trial lengthened by repeated delays from death, illness and bad weather." More (Jackson Clarion-Ledger 08.05.2005). Comment. Turns out he hadn't eaten in awhile. We always say, "A slightly hungry attorney makes a good closing argument in a judicial bribery trial, but a famished one risks fainting."

    The kind of 'stuff' judges deal with.... A judge who had a nice distance from his job said once that it seemed to be a mark of all the traditional "professions" that the practitioners thereof have to deal with a considerable amount of "muck." He seemed to be saying, "No wonder they give us judges a few paltry perks like respect, courtroom lackeys, and so on -- it's small enough pay for the kind of crap we have revealed to us on a daily basis." I know the feeling expressed from having been an aide to appelate judges for 28 years & having read thousands of transcripts in criminal cases, many of them the most god-awful sex- & child-sex-abuse cases you can (not really) imagine. This one out of good ol' FLA is an example:

A man angry with his wife because she repeatedly asked him to cuddle after sex while he wanted to watch sports on television has been sentenced to death for killing her with a claw hammer. Christopher Offord, 30 received the sentence Wednesday from Circuit Judge Dedee Costello, who said the brutality of the killing outweighed any mental health issues.

More (South Florida Sun-Sentinel 08.04.2004). The defendant pleaded guilty & said he wanted the death penalty. Not surprising -- some killers are smart enough to realize, as George Bernard Shaw did, that imprisonment for life may well be a harsher penalty than death. I still oppose the death penalty, but I think I know where this sports fan was coming from in asking for "death."

    Attorneys pay for a new sculpture for courthouse to replace removed one. "Sioux Falls area lawyers have raised money for a new sculpture that will be installed outside the Minnehaha County Courthouse. Members of the Second Judicial Circuit Bar Association are raising $42,000 to purchase 'The Fabric of the Law,' a sculpture created by Sioux Falls artists John Jastram and John Henry Peters...The statue will...replace the one that must be removed...." More (Sioux Falls Argus Leader 08.04.2005). Comment. Hmm, I wonder which one "must be removed." I also wonder if anyone considered spending the money on flowers instead. See, Courthouse flowers & better government.

    The $8.3 million 'judicial garage.' "The site for the new judicial center parking garage [in Bradenton] is being cleared this week, and construction on the foundation for the $8.3 million structure will start Monday...." More (Bradenton Herald 08.05.2005). Comment. When I worked as an aide to the justices of the Minnesota Supreme Court in the new fortress-style judicial center in St. Paul, I had one of the coveted assigned spaces in the underground, heated parking ramp. I had to pay for it, of course, but it was money well spent. My 1988 Ford Crown Victoria wagon was always cool when I got in it in the summer after work & warm in the cold Minnesota winters. I wouldn't have traded the privilege for a pay raise. It is the official position of The Daily Judge editorial board that all judges ought to be provided with safe, secure & preferably sheltered parking at reasonable expense to them. (But we courageously oppose providing judges with showers in their chambers.)

    Sensible editorial (for once) on judicial elections from Mpls.' 'Strib.' "'Just because you can do something,' [parents] tell their kids, 'doesn't mean you should.' It's a point grown-ups would be wise to heed in the wake of Tuesday's ruling by the Eighth U.S. Circuit Court of Appeals which stripped away Minnesota's longtime ban on political commentary by judicial candidates. The decision frees would-be judges to seek political-party endorsement, expound upon their beliefs and directly solicit campaign funds...." More (Minneapolis Star-Tribune 08.05.2005). Comment. It's a point I made the other day (click here). Indeed, more freedom of speech by judicial candidates might help the voters pick out the good ones by voting against the ideologues who betray their unfitness for office by every single-minded, simple-minded ideologically-driven thought they utter.

    Judge as 'probation officer, social worker, team coach.' "Judges in the Fairbanks area are considering a therapeutic court program that would put drunken drivers into treatment rather than jail...Judges in a therapeutic court would take on more of a mentoring role. They would commonly end a proceeding with applause, or step down from the bench and shake an offender's hand, said District Court Judge Raymond Funk...." More (Anchorage Daily News 08.04.2005). Comment. Perhaps the judge could start the proceedings each day by asking everyone in the courtroom to shake hands with the people sitting near them & say, "Pleased to meet you & peace be with you." (A cheap joke, I know.)

    Judge uses 'humor & humiliation" rather than jail. "Judge Michael A. Cicconetti usually lets the punishment fit the crime. Using a blend of humor and humiliation, the Painesville Municipal Court judge has sentenced defendants facing low-level crimes to fates like sharing a sty with a pig and parading a donkey through town...He calls his court 'the elementary school of crime' and says itís his job to make sure defendants donít graduate...Cicconetti first experimented with alternative sentencing with motorists who sped through school zones, making them spend a day working as a school crossing guard. 'I have not had any of those people return, ever,' he said...." More (Canton Repository 08.04.2005). Comment. I wonder if the judge has tried "the stocks" or "the dunk tank." I don't like the idea of humiliating people in this way but I think a case can be made that it's better in many cases than sending them to jail. Is it "either/or"? Why not "neither"? We jail too many people for piddly things (at great expense) & imprison too many people for far too long (at enormous expense) for "non-piddly" offenses. See, BurtLaw on Crime & Punishment. (I know I'm in the minority on this.)

    The 'sleeping judge' retires. "Judge Ian Dodd - referred to by some jurors as 'Judge Nodd' - has had a number of complaints lodged against him for 'nodding off' during cases. Judge Dodd, 56, was last year diagnosed with sleep apnoea - a sleep disorder that affects a person's breathing. He will retire after nine years on the bench on a $152,000-a-year [Aussie dollars] life pension following a medical assessment, newspapers said today...." More (The Daily Telegraph 08.04.2005). Earlier stories.

    Latest phone scam: Why didn't you show up for jury duty? "A scam artist is using jury duty to try to coax Thurston County residents to disclose their names and Social Security numbers...." More (Tacoma News-Tribune 08.03.2005).

    Roberts tells Senate he prizes 'modesty.' "In his first written response to questions from the lawmakers who will review his nomination to the Supreme Court, Judge John G. Roberts Jr. told the Senate Judiciary Committee on Tuesday that judges must possess 'a degree of modesty and humility,' must be respectful of legal precedent and must be willing to change their minds...." More (N.Y. Times 08.03.2005). Comment. I guess he must be claiming a bit of modesty & humility for himself. I hate to say it but I'm wary of judges who toss about terms like "modesty" and "humility." My fellow Norwegians are good at it & it irritates the hell out of me. They want you to think they're modest and humble, when deep down they really think they're pretty hot stuff. One wants to say to some of them, as Golda Meier, the late Prime Minister of Israel, said to a member of her cabinet, "Don't be so humble, you're not that great."

    MN. Supreme Court reversed again on free speech. "[The Eighth Circuit Court of Appeals, sitting en banc,] today overturned Minnesota's rules on the way judges can campaign for office...The court said a Minnesota Supreme Court Canon of Judicial Conduct that prohibited judges from identifying themselves as members of a political organization; attending political gatherings, and accepting endorsements from political organizations violated the First Amendment...[The court,] in an 80-page ruling, said of Minnesota's rules, 'The facts of this case demonstrate the extent to which these provisions chill, even kill, political speech and...rights.'" More (Minneapolis Star-Tribune 08.03.2005). Text of opinion. Comment. I have long believed that, historically, our state supreme court here in Minnesota is one of the best of the fifty state supreme courts. But there are areas in which, historically, it has been a weak court. The most glaring example, perhaps, is in the area of free speech. Near v. Minnesota, 283 U.S. 697 (1931), reversed our state court's unanimous decision upholding the so-called Minnesota "gag law," which allowed prior restraint of free speech. Sadly, there've been several important free speech cases since then where the court has missed the boat. A gadfly named Greg Wersal, whose views of the role of judge don't necessarily coincide with mine, has courageously waged a battle of several years against our state supreme court's unconstitutional gag on campaign speech by people who have the audacity to run against a sitting judge. He won in Republican Party of MN v. White, 536 U.S. 765 (2002). But our court doesn't seem to have gotten the message, and Wersal has had to continue the battle -- and has won again. For this, I, for one, am thankful, even though as a judicial candidate I didn't and would never seek or accept either party endorsement (banned until now) or individual endorsements of politicians (something incumbents regularly have done). The fact one has a right to do something, doesn't mean one ought to do it. Sadly but predictably, the response from some members of the local judicial-media-bar complex reminds some of us of Chicken Little's response to getting hit on the head with an acorn -- "The sky is falling!" But the sky is not falling. See, one of my earlier entries on the issues decided, Walt Whitman on Minnesota Supreme Court's foray into censorship at BurtLaw's Law & Judicial Elections. Nor does the decision justify Minnesota in abandoning its current system of selecting/electing judges or in any way constitute a necessary threat to judicial independence. On former, see, Whitman, supra; on the latter, see, BurtLaw on Judicial Independence and Accountability.

    Pat Robertson prays for vacancies on Court; asks the Lord to 'take control.' "In a televised prayer on Tuesday for Judge Roberts's confirmation, for example, the television evangelist Pat Robertson asked his viewers to pray: 'Take control, Lord! We ask for additional vacancies on the court'...The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the prayer 'ghoulish,' saying, 'The only way people leave the court these days is through death or infirmity.' But a spokeswoman for Mr. Robertson said he was praying only for retirements, not deaths, noting that Justice Sandra Day O'Connor had retired after his prayer was first posted...." From a story in today's New York Times reporting that Rep. Tom DeLay will appear on the 08.14.2005 telecast entitled "Justice Sunday II," to help "rally conservative Christian support for remaking the [Supreme C]ourt." Comment. I'm an old-fashioned Norwegian-Lutheran. I was taught that it is o.k. to lay one's needs and fears, as one perceives them, before God in one's prayers but that it is generally wrong to pray for things or to try prescribe answers or to tell God how to be God. Consider, also -- for whatever relevance, if any, it may have -- Matthew 6:5-8:

"And when you pray, you are not to be as the hypocrites; for they love to stand and pray in the synagogues and on the street corners, in order to be seen by men. Truly I say to you, they have their reward in full. But you, when you pray, go into your inner room, and when you have shut your door, pray to your Father who is in secret, and your Father who sees in secret will repay you. And when you are praying, do not use meaningless repetition, as the Gentiles do, for they suppose that they will be heard for their many words. Therefore do not be like them; for your Father knows what you need, before you ask Him."

    Man pays $120 fine in pennies; judge makes him wait 'til counted. "A man who tried to get even by paying a traffic ticket with $120 in pennies got upstaged by a North Dakota judge who made him stay until they were counted...." More (WebIndia123 08.03.2005).

    Autopsy results on judge under probe who apparently killed self. "A state judge [46-year-old Ed Aparicio] who apparently killed himself amid a federal corruption probe had marijuana and alcohol in his system when he died, according to an autopsy report...." More (Houston Chronicle 08.03.2005).

    The Cow County Judges Association. "When Presiding Tehama County Superior Court Judge Dennis Murray takes his seat on the state Judicial Council, it's a safe bet that he will be the only former member of the Cow County Judges Association...." A profile of a "small court" judge in our most populous state who is a believer in the "generalist" judge. More (Red Bluff Daily News 08.02.2005).

    Might there be more rather than fewer 'small' courts in the future? "Industries are too big, school systems are too large and impersonal, and transportation systems are too far-flung. And all of this is bound to come crumbling down. Sooner rather than later, he says, local economies will re-emerge, trains will replace long-haul trucks, local shopkeepers will replace giant retailers and local farmers will feed local communities, supplanting gigantic factory farms. What could possibly set off such a radical transformation? 'The end of cheap oil,' Mr. Kunstler writes...." From a profile of James Howard Kunstler, novelist, essayist and blogger (Kunstler.Com) in N.Y. Times 07.30.2005. Comment. Might our courts be too large & impersonal? If I think so, I'm perhaps biased as a result of family history, personal observations & experience. My mother taught in one-room rural schools in west-central Minnesota for many years. I attended a relatively small-sized public school system in a town of 3,500 in west-central Minnesota. It is my observation that small schools, if run well, sometimes serve their students better than big schools. In the decade of the 1960s, with graduating classes in the 100-125 range, my hometown high school graduated, in addition to many other outstanding people, two people who would go on to head major national financial entities or corporations, FannieMae & Estee Lauder - North America. If some small schools beat the big ones, some small courts do, too. A few years ago, at least, a disputed divorce with no custody issues, only property division, that took four years in Minnesota's Hennepin County might have come to trial in six months in Rochester, home of the Mayo Clinic, in Olmsted County -- or so a reliable source told me.

    Spanking complaint in judge's past. "A senior judge [James C. Dauksch Jr.] serving in the 9th Judicial Circuit resigned from the state Attorney General's Office four years ago amid sexual-harassment allegations that he 'spanked' an executive secretary, according to documents released Tuesday...." More (Newsday 08.03.2005). Comment. What shall we do, crucify the judge? I suppose it's never too late.

    Ex-judge testifies he looted estate. "A former Downstate judge admitted he stole hundreds of thousands of dollars from a businessman's estate after being elected to the bench in 1990, pouring the money into his family's failing businesses and a second home for himself. Robert Cochonour, who was a Cumberland County circuit judge from 1990 to 2002, testified that he stole from the $2.2 million estate as a 'last resort' to save his family's oil and horse businesses and that he intended to pay the money back...." More (Chicago Tribune 08.03.2005). Comment. "You see, Burt, this is what happens when judges don't get paid enough." For my response, see, I could be making lots more if I were Michael Jordan.

    Judge in mob trial doesn't like Scorcese film, wonders if jurors are dumb. "The judge in the John A. (Junior) Gotti case expressed concern yesterday that the mob scion's fate could be decided by a panel of dimwits. Asked to name the three people they admire most, several potential jurors irked federal Judge Shira Scheindlin by neglecting to fill in the blank on their questionnaire...." But there's dumb & there's dumb. The judge apparently has gaps in her learning, as shown by her reaction to the names some jurors filled in: "Rapper Jay-Z, actor Ewan McGregor, and hip-hop impresario Sean (P. Diddy) Combs all failed to register on the scholarly judge's radar. She did, however, recognize Bill Gates, Donald Trump and Walt Disney." More good stuff like this (N.Y. Daily News 08.03.2005). Also during juror selection the judge reportedly said she didn't like Martin Scorcese's Goodfellas: "'I walked out of that movie,' Scheindlin quipped yesterday in Manhattan during a lull in federal court jury selection in the Gotti case. 'An awful, awful movie.'" More (Newsday 08.03.2005). If Judge Posner were in the pool & were being questioned, it'd go something like this:

Reason: Do you get time to see movies and TV?

Posner: My wife and I don't go to the theaters; that's too much of a bother. But we rent movies or buy movies. I like comedies. I don't like serious movies. I make an occasional exception, but I like comedies and my tastes are pretty catholic. I'm very enthusiastic for the Marx Brothers; I like Joe Pesci a lot; I like Meg Ryan; I like the Gary Grant-Katharine Hepburn movies.

Reason: What about TV?

Posner: I do channel flipping late at night, so I see little pieces of this and that. Occasionally, I'll see an old movie or sometimes the animal channel. Or I'll watch the cable news programs. I don't have a very good sense of the full television sphere. I have never seen a situation comedy.

From Judge Posner Talks to Steve Kurtz '87 (Reason 04.01.2001). Whaddaya t'ink o' his answers, Judge Scheindlin?

    Iranian judge assassinated. "An Iranian judge who presided over the high-profile trial and conviction of an Iranian journalist five years ago was assassinated by a gunman on a motorcycle in central Tehran on Tuesday. Assassination attempts are rare in Iran. This is the first such attack since 1999..." More (N.Y. Times 08.03.2005).

    Brits to abolish Diplock courts in N. Ireland. "The British Government is to abolish Diplock courts in Northern Ireland in August 2007, as part of its normalisation programme.In 1973 non-jury trials were introduced for a wide range of terrorist offences in the country, followng a report by Lord Diplock who argued that judges should sit alone because of the risk of jury members being intimidated. Judges themselves then became IRA targets. In the following years many members of the judiciary were killed or injured...." More (UTVLive.Com 08.02.2005).

    Airports, subways, museums, courthouses. "Airplane and subway riders endure searches that seem more effective at reassuring the public than at thwarting determined villains. The net effects of putting art behind glass are similar. The gains in security are dubious; the loss of enjoyment to art-lovers is guaranteed." From an op/ed piece in the 08.02.2005 N.Y. Times titled Art Wants to Be Free, by Edward Dolnick, author of The Rescue Artist: A True Story of Art, Thieves and the Hunt for a Missing Masterpiece. Comment. More & more public buildings, including museums & courthouses & public schools are becoming fortresses & their owners, the people, are being made to feel less & less welcome. The other day, after reading a story about a courthouse custodian named Stephens who has transformed the courthouse grounds into a floral wonderland, which people make a special point to visit, I asked the question: Might Mr. Stephens' flowers lead to better government? It's perhaps worth asking also whether a few hundred dollars spent on planting & tending flowers outside a courthouse might be more cost-effective in promoting courthouse civility & safety than a few hundred thousand dollars in increased spending on building up more & more layers of security.

    'Libertarians' want to condemn Breyer's NH property now, too. "Organizers are trying to collect enough signatures to go before this town next spring to ask to use Breyer's 167-acre Plainfield property for a 'Constitution Park' with monuments to commemorate the U.S. and New Hampshire Constitutions...The plot echoes the party's effort to get Weare, a town about 45 miles to the southeast, to seize Souter's home. His property also is the focus of a proposal by a Californian who suggested the town turn the farmhouse into a 'Lost Liberty Hotel.'" More (Chicago Tribune 08.02.2005). Earlier: Will government condemn Souter's N.H. home to sell to hotel developer?

    Lawyers file suit against county over condition of old courthouse. "In papers filed last week in Superior Court here, the Warren County Bar Association alleged that the courthouse first constructed during the administration of John Quincy Adams and last renovated during Eisenhower's is 'grossly overcrowded and in a state of disrepair,' thus creating 'an unsafe and unhealthy condition.'" More (N.Y. Times 08.02.2005).

    Profile on 40th anniversary of tough-guy wheel-chair-bound Florida judge. "Broward Circuit Court Judge Stanton S. Kaplan keeps a fighter fish and a replica of an old mace in his chambers. While the items seem to symbolize Kaplan's reputation as one of the county's toughest judges, the Queens-born jurist has a softer side as well. He met his late, second wife when she sat as one of his jurors, gushes sentimental when asked about his Shih Tzus and owns a talking Three Stooges clock...He insists that armed officers stay 40 feet from prisoners at all times, and he requires prisoners to be handcuffed from behind...." More (Miami Herald 08.02.2005).

    The notorious opinion in Lason v. State, 12 So.2d 305, 152 Fla. 440 (1943).  As a student at Harvard Law School from the fall of 1964 through graduation in 1967, the 150th anniversary of the school's founding, I can verify that the most-notorious & most-diificult-to-find judicial opinion during that three-year period was that of Chief Justice Rivers Buford in Lason v. State, 12 So.2d 305, 152 Fla. 440 (1943). We typically referred to it as simply "12 So.2d 305." I first read it as a framed opinion on the wall of some buddies at the start of second year. It was difficult to obtain a copy. Fellow students regularly ripped it out of Langdell Hall Library's multiple copies of the West volume containing 12 So.2d opinion in question. Librarians would make a xerographic copy of it & tape it back in, but within a few days it would be gone. The prosecution in Lason was one containing two counts alleging that 76-year-old defendant, John Lason, had "commit[ed] the abominable and detestable crime against nature per so" against two young women, ages 11 & 13." The facts were not in dispute: fellatio and cunnilingus had occured. But were those acts a crime within the comprehension of the particular statute he was convicted of violating? The opinion is notorious because of C. J. Buford's decision to quote verbatim the defense's statement of the question on appeal, a statement that put a pretty extraordinary spin on the facts. Purely as a historical curiosity, we reproduce that quote here, with the rhetorical query, "What was Chief Justice Rivers Buford thinking?":

 'Does the one specific crime definitely defined and limited by Section 7567, C.G.L.-1927; 3534 G.S. (1906) 5424 R.G.S.-1920; Ch. 1637, Sub. Ch. 8, Acts 1868, Sec. 17, comprehend or include the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his raglike penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in his feeble and aged condition impelled by the irresistable impulse, in turn he would kiss and put his tongue in their little though potentially influential and powerful vaginas?'

More (Novalis.Org).

    Judges who 'stole' houses will now get free housing at state expense. "Russia's Supreme Court has sentenced three judges to between 11 and 14 years of prison for apartment fraud in Moscow, ITAR-TASS reported Monday. Nina Mishina was sentenced to 11 years in prison, Vasily Savelyuk to 12 years and Nina Ivchenko to 14 years. In 1996-1998 the judges were a part of a criminal ring that stole 71 apartments, worth about U.S. $2.5 million...." More (Prime-Tass.Com 08.01.2005).

    Oyez, oyez, the United Methodist Church Supreme Court now in session! "The case of the Rev. Irene Elizabeth 'Beth' Stroud -- who underwent a church trial last year after disclosing that she is a lesbian -- tops the fall docket for the United Methodist Church's supreme court. The Stroud case is one of 14 items on the docket for the United Methodist Judicial Council's Oct. 26-29 meeting in Houston. Stroud, an associate pastor at First United Methodist Church of Germantown in Philadelphia, had lost her clergy credentials following a December church trial, but she was reinstated by an appellate court of the denomination's Northeastern Jurisdiction on April 29...." More (Spero News 08.01.2005).

    Gary Keillor on John Roberts. Keillor says that "every conservative has a liberal hopping around inside and vice-versa," and that "[Roberts] was nominated because he doesn't give off a strong enough scent to get the dogs excited, but maybe he doesn't smell conservative because he is actually a moderate. Yikes...." Keillor suggests that if John Roberts can graduate from Harvard College in three years, with honors, & then graduate from Harvard Law, with honors, "and still be a yahoo, then the country is in worse trouble than we knew." More (Salt Lake Tribune 07.31.2005). Comment. We made similar points in a comment shortly after President Bush named Judge Roberts. See, Psst, it's John Roberts. On the subject of each of us being both "liberal" and "conservative," I invite you to read my essay 'Liberals' and 'Conservatives' in the campaign archives at my political opinion web site, BurtonHanson.Com.

    Hizzoner, the certified race-walking judge. "Couts, who is from Whiteside, a small town north of Troy, trains with the Racewalkers Club of St. Louis. He is also a certified USA Track and Field Racewalking judge...." More (Columbia Missourian 08.01.2005). Comment. We've never been big fans of competitive race-walking. We're more inclined to attend "the nationals" of the Precision-Walking and Free-Style Walking Competitions, held each year in Mpls. We love it when the best of the best do "blind corners" followed by "quick stops" seemingly without effort. But our favorite is the "walking double-take preceding the walk into a brick wall," which carries an 8.7 degree of difficulty.

    Judge called up to serve in Iraq. "After working as the chief District Court judge in New Hanover and Pender Counties for years, Judge John J. Carroll III is preparing to serve his country in a completely different capacity. The Army reserve lieutenant colonel received his mobilization orders for Iraq last week. He reports for duty Saturday...." More (Tuscaloosa News 08.01.2005). Comment. We'd like it better if every year, for as long as the war continues, 10% of the Members of Congress, men and women, who voted for the war were randomly selected & required to serve on the frontlines in Iraq.

    Curious judicial press release. "The question of curtailing the vacations of Supreme Court, High Courts and Lower Courtsí Judges have been considered in the past and have found not feasible due to the taxing nature of work of judiciary and the Bar...." More (Press Information Bureau - Ministry of Law & Justice - Press Release 08.01.2005).

    Claim that military hearings at Guantanamo Bay are rigged. "A lawyer for Australian Guantanamo Bay detainee David Hicks says new revelations from two former US military prosecutors prove that the process being used to try his client is biased. In separate leaked emails, the two men allege that the military commission system is rigged in favour of the prosecution and the cases it is pursuing are 'marginal.' The Pentagon has dismissed the claims...." More (ABC News - AUS 08.01.2005).

    JWI - judging while intoxicated? Cook County Judge Consuelo Bedoya-Witt is not accused of that but an attorney has argued that if judges were held to the same standard Judge Bedoya-Witt applied in holding a party in contempt for appearing in court in an intoxicated condition, then "many attorneys would be locked up on a regular basis, dare I say even some judges." According to a story in the Chicago Sun-Times today, an Illinois appellate court reversed Judge Bedoya-Witt's jailing of a party for showing up in court while drunk & for therefore being in contempt of court. The court said the record didn't support the judge's determination the party was drunk, only that someone had told the judge the party had showed up smelling of alcohol.

    What courthouse-entry searches are uncovering. "[Captain James DeFoe of the Bibb County, GA courthouse] said deputies find 20 to 30 edge weapons every month 'screwdrivers, butcher knives, carving knives, box cutters, you name it.' On top of that, there's drugs, drug pipes, fake guns, brass knuckles, handcuffs and other forbidden objects brought in by some of the 1,500 daily visitors. 'They never think the metal detector is going to pick it up a lot of times, and then a lot of them just forget about it,' he said. The items offer an interesting look into what people keep in their pockets...." More (Macon Telegraph 08.01.2005).

    Latest on case of the disgraced "penis-pumping" judge. Last summer the blog world and the weird-news sites were alive with the imagined sound of whooshing that some said emanated for a number of years, during court hearings, from beneath the robe of an Oklahoma judge named Donald Thompson. See, e.g., Judge a pervert in court (UK Mirror 06.25.2004). The judge, who denied the charges, retired with an $88,800 a year pension last August while threatened with discipline by the Judicial Conducts Board. Oklahoma judge's career ended by allegations (S.F. Chronicle 02.08.2005). I would have thought that would have ended the matter, but no: Thompson is scheduled to go on trial in September on indecent exposure charges & the prosecution has announced it intends to seek admission of so-called "other-crime" or "similar-conduct" evidence to help prove its case. For example, "one new witness will testify [if allowed] that Thompson exposed himself to her and made lewd proposals one night when she was working as his court reporter." More (KOTV 07.31.2005). Comment. Judge Thompson's troubles illustrate why judges fearing similar troubles should consider buying Jimbo's Zip-Seal Judicial Robes, the ones with the the zip-lock and an inner lining made of light-weight sound-absorbing bullet-proof material. If Judge Thompson had been wearing one of the Zip-Seal robes, he'd be able to claim it was a physical impossibility that witnesses heard or saw what they claim they heard or saw. He'd also have been protected against anyone attacking him.

    Supreme Court orders random drug testing of judges, staff. "The Supreme Court has created a special team to test members, officials and employees of the judiciary for illegal-drug use. Chief Justice Hilario Davide Jr. and two other senior magistrates of the Court issued a three-page memorandum creating the team that will supervise the drug test...." More (The Manila Times 07.31.2005). Comment. In Board of Education v. Earls, 536 U.S. 822 (2002), our Supreme Court confronted the propriety under the Fourth Amendment of mandatory urine testing, i.e., the warrantless, non-probable-cause search, of every kid in middle school & high school participating in any extracurricular activity. By a vote of 5-4, the Court upheld the searches. As Dahlia Lithwick suggested, the judges might have perceived the reality of such testing differently, might have felt differently about it, if they were subject to being hauled off the bench and forced to give urine samples. Now it appears the judges in the Philippines are going to be subject to just that.

    Judges experience middle-class nightmare as water enters homes. "Chandigarh, July 31: Six judges and their family members spent a sleepless Saturday night as rain water entered their houses, damaging furniture and books. Even guardsí tents pitched outside the houses were submerged in waist-deep rain water....Damaged and blocked road gullies that are under construction on the road dividing Sectors 14-15-25-24 have been blamed for the water seepage." A probe has been ordered. More (Express India 08.01.2005). Comment. We here in the international headquarters of The Daily Judge believe that judges ought not have to spend sleepless Saturday nights as rain water enters their houses & damages furniture & books. We trust it will not happen again.

    Judge threatens police with 'dire consequences' for jailing son. Police in Salt Lake [in India] arrested Ujjwal Biswas, the 25-year-old son of a judge, and two of his companions for drinking in public & creating a public nuisance. Ujjwal called home from the police station,  called his residence. Around half an hour later, his mom, Judge Chitra Biswas of the City Family Court, showed up with her hubby, Dr. N.C. Biswas. "She reportedly threatened the police officers of dire consequences if they failed to oblige her by not releasing her son immediately. Police also alleged that she threatened to get them transfered if they did not comply with her wishes." But police did not comply. More (The Statesman 07.31.2005). According to a story in The Telegraph the mother denies having threatened police, but she told reporters the boys did nothing wrong: "Everyone drinks. It is not a crime," she is quoted as saying. The Telegraph story says: "Ujjalís employers, too, have a lot of complaints against him. 'Some of his superiors have reported that Ujjal had threatened to land them in trouble using his motherís connections,' one of them added." A police officer says, "Ujjal ha[s] been arrested a number of times and prosecuted for drunken brawls." More (The Telegraph 08.01.2005).

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