AP Photo/Florida Today, Tim Shortt, Pool; youtube; shutterstock
Judge John Murphy was presiding over a criminal calendar in Brevard
County, Florida, when he grew incensed with public defender Andrew
Weinstock, who had refused to waive a client’s right to a speedy trial.
Murphy became so angry that, in one of the most famous judicial outbursts, he challenged Weinstock to a fight.
“You know if I had a rock I would throw it,” Murphy, a retired
colonel in the U.S. Army Special Forces who served in Afghanistan, told
Weinstock. “If you want to fight, let’s go out back and I’ll just beat
your ass.”
The two men then went to the hall, where a fracas ensued. Weinstock
would later say he was punched by Murphy, while Murphy would insist that
Weinstock was the aggressor. The scuffle only ended after a courthouse
deputy separated the two men.
Upon Murphy’s return to the courtroom, he presided over eight criminal cases—without a defense lawyer present.
More than 18 months later, the Florida Supreme Court removed Murphy from the bench.
“Judge Murphy’s grievous misconduct became a national spectacle and
an embarrassment to Florida’s judicial system,” the justices wrote in an
opinion issued in December 2015.
The incident—which was captured on video and can still be seen on
YouTube—may have been unusually public, but Murphy isn’t the only jurist
to engage in questionable conduct. Across the country, judges are
creating embarrassing headlines when they are accused of abusive
behavior toward lawyers and litigants.
R-E-S-P-E-C-T
“Judges hold a position of authority within our legal profession,”
says Jayne Reardon, executive director of the Illinois Supreme Court
Commission on Professionalism. “In the judicial canons, judges are
called upon to be leaders when it comes to civility.”
State and federal codes of judicial conduct require judges to be
patient, respectful and courteous to everyone in the courtroom. Despite
these admonitions, Reardon, who works to promote integrity and civility
in the profession, believes the tenor and discourse among judges,
lawyers and litigants have deteriorated as norms of acceptable behavior
outside the courtroom have shifted. “What is civility in this day and
age is subject to interpretation,” Reardon says. “To try and get back to
a situation where we embrace civility and collegiality as a profession
is a ways off.”
But Reardon says there’s a lot at stake: public trust in the judicial
branch and legal system, respect for the courts, and confidence in the
rule of law. Reardon says it’s incumbent on judges to model
professionalism in their courtrooms, respect all parties and shut down
incivility when it starts.
Photo of Jayne Reardon by Sam Hollenshead/Georgetown Law.
“We call on judges not only to exemplify courteous behavior and
civility but also to require that of other courthouse personnel and
lawyers who come before them,” she says.
But it’s no secret that judges don’t always exhibit those qualities.
Some of the most high-profile examples of judicial bullying have
occurred in criminal cases, where emotions on all sides often run high.
“Unfortunately, the system is full of bullies, even in very high
places,” Abbe Smith, a professor at Georgetown University Law Center,
observed in a Hofstra Law Review essay. “Criminal defendants are regular
targets and so are their lawyers. Getting slapped down, dressed down,
and put down is part of the job.”
Smith wrote that in one of her first cases, a judge in Philadelphia
criticized her for bringing up a U.S. Supreme Court case. “Are you
citing a U.S. Supreme Court case in this courtroom? Do you know where
you are?” he asked her.
Photo of Abbe Smith courtesy of Illinois Supreme Court Commission on Professionalism
Smith, who directs the criminal law and prisoner advocacy clinic at
Georgetown Law, says she was “probably struck mute for four, five
seconds,” before answering that the law set out by the Supreme Court
applied in all courtrooms.
Benes Aldana, who serves as president of the National Judicial
College, an ABA-sponsored institute for the continuing education of
judges, suggests arbiters take this approach: “Start out with Aretha
Franklin’s advice of ‘respect,’ and carry it throughout the whole
proceedings.”
Photo of Benes Aldana courtesy of Cuny Law School.
Aldana, a former chief trial judge for the U.S. Coast Guard and a
member of the ABA Judicial Division and Litigation Section, says the
burden is on judges to maintain decorum in the courtroom and to ensure
civility. The NJC offers a variety of classes and workshops to help
judges navigate the emotions and responsibilities of the job.
“Bullying is never OK,” Aldana notes, while acknowledging the
pressure judges face on a daily basis. “It starts out with basic
respect. You’re in an adversarial process from the beginning to the end.
But even though I say in the courtroom the burden is on the judge,
lawyers also have responsibility, the clerks, the entire courtroom.”
ABA Judicial Division Chair Toni E. Clarke, a judge in the Circuit
Court for Prince George’s County, Maryland, agrees that civility is a
shared responsibility and is bringing attention to the issue through the
creation of the William D. Missouri Civility Award, an annual honor
named after a revered jurist who embodied courtesy in the courtroom. The
award will be presented posthumously at this year’s ABA Annual Meeting
to Judge Missouri, who served for 25 years in the Maryland court system
and died in 2017.
Photo of Judge Toni Clarke courtesy of the ABA.
“If you talked to any lawyer who was in front of him, he was fair, he
was never mean to lawyers and he wouldn’t tolerate them being mean to
each other,” Clarke recalls. “I don’t think anyone dared to disrespect
him. He was civil … he treated everyone with respect.”
Clarke adds that while some judges may have an issue with demeanor,
in her experience, “I’ve seen lawyers do some ridiculous stuff,” but
despite this, “I think most judges do their best to be fair and
impartial.”
‘Black Robe Disease’
And when they do go too far, judges can be admonished, face censure or be recalled.
“There are judges who run the gamut from simply overly stern to
downright abusive,” says Charles Gardner Geyh, a law professor at
Indiana University Maurer School of Law.
But Aldana argues that in an age of political polarization, the
public and campaign donors have become more attuned to the judiciary,
resulting in more scrutiny of judicial performance. And with a 24/7 news
cycle and cameras in the courtroom, bad behavior caught on tape can go
viral and destroy careers.
“YouTube has examples of recent events where judges have lost their
temper,” Aldana says. “In our civility courses, we not only talk about
ways to deal with civility in the courtroom, but the whole mindfulness
of our own personal well-being as a judge.”
Steve Zeidman, a professor at the City University of New York School
of Law and director of the criminal defense clinic, has dealt with the
ire and irritability from judges that is common in the antagonistic and
often tragic field of criminal defense work.
He says judges will express their antsiness by writing out orders if
lawyers talked too long or interrupt defense counsel to ask questions
such as, “Is that all?”
Photo of Steve Zeidman by Alimond Studios.
“There is such a focus on speed and efficiency that when defense
lawyers try to slow things down to have a conversation about the facts
or the law, they are inevitably seen as obstructionist,” he says.
Zeidman adds that judges also can display a temper with criminal defense attorneys when their clients reject plea deals.
When Zeidman was a young defense lawyer in Manhattan, he encountered a
judge who reacted vindictively when he learned that a defendant was
rejecting a plea deal: The judge scheduled the case to go to trial the
day before Zeidman was slated to take a trip to Mexico. Zeidman says he
rescheduled his trip and took the case to trial, and his client was
acquitted.
He says he later mentioned in a written evaluation of the judge that
he was “vengeful, spiteful and tried to ram a plea down a defendant’s
throat.”
The judge apparently learned of the evaluation. Zeidman says he was
stopped by the judge in the hallway one day and told, “What goes around
comes around.”
Zeidman, who served on the New York Mayor’s Advisory Committee on the
Judiciary from 2008 to 2010 and from 1996 to 1999, says that judges are
often evaluated based on their efficiency—meaning the number of cases
they dispose of in a given time period. This focus on moving cases along
may contribute to some judges’ impatience on the bench, he says.
Of course, judges face pressures beyond just needing to move their cases along.
Photo courtesy of Judge Juanita Bing Newton.
“The job of a judge is very isolated, very demanding—very difficult,”
says Juanita Bing Newton, a judge for the New York State Court of
Claims who now serves as dean of the New York State Judicial Institute
at the Elisabeth Haub School of Law at Pace University, which trains
judges throughout the state. “Imagine you are sitting there and have the
lives of children in your hand,” she says. “Or have to decide whether
or not to set aside a verdict in a multimillion-dollar malpractice
case.”
She adds that judges, like everybody else, have stress in their lives.
“They have mortgages to pay—have issues with family and home,” she
says, adding that the institute offers sessions for judges on wellness
and coping with stress.
But beyond simply manifesting stress, some judges also exhibit “black
robe disease”—the courthouse lingo describing judges who abuse their
authority.
“Black robe disease is very real,” says Larry Turner, the
Gainesville, Florida, attorney who represented Murphy at his judicial
conduct hearing, and who was also a judge for eight years.
Photo of Larry Turner courtesy of Turner, O’Connor & Kozlowski.
He says it’s easy for judges to lose perspective after they’re on the
bench. “All of a sudden everybody is kissing your ring and laughing at
your jokes,” Turner says.
“No one tells you when you do something wrong,” he adds. “After a
while, you just don’t have any real concept of what kind of job you’re
doing.”
“‘Robe-itis’ is the more scientific term,” Aldana says with a laugh.
“I think judges need to be aware that even though they’re the judge, the
position doesn’t belong to them. It’s one of the things I try to tell
new judges is that humility is the No. 1 trait you need to have as a
judge.”
One criminal defense lawyer who experienced the wrath of a judge
firsthand is Clark County, Nevada, public defender Zohra Bakhtary.
At a hearing in May 2016, Bakhtary was arguing that her client
shouldn’t be sent to jail when Justice of the Peace Conrad Hafen told
her to stop talking.
“Zohra, be quiet,” he said, according to a transcript of the proceeding.
When she attempted to continue arguing, Hafen said, “Do you want to be found in contempt?”
Photo of Zohra Bakhtary by Earnie Grafton.
She started to answer, but was only able to get in a few words before
Hafen told her again to be quiet. “Now. Not another word,” he said.
When she again tried to interject, Hafen ordered her handcuffed. He
then proceeded to sentence Bakhtary’s client to six months in jail on a
misdemeanor petty larceny count. (The client was later freed by a
different judge.)
Hafen released Bakhtary a few minutes later. Four days after the
incident, Hafen officially entered a finding of contempt against
Bakhtary.
Several months later, Clark County Judge Gloria Sturman reversed the contempt finding.
Bakhtary, who currently serves as chief deputy public defender in
Clark County, says her job often involves fighting an uphill battle. But
she says she hadn’t anticipated the struggle playing out the way it did
in Hafen’s courtroom that day.
“When I became a public defender, never in a million years did I expect I would end up in handcuffs,” Bakhtary says.
Hafen lost a bid for re-election in 2016. The following year, the
Nevada Commission on Judicial Discipline censured him for several
incidents, including the one with Bakhtary. He agreed not to contest the
censure and to refrain from serving as a judge in Nevada again.
While Hafen is now off the bench, judicial conduct authorities rarely remove judges for behavior deemed inappropriate.
For example, in California, more than 1,200 complaints against judges
closed in 2017, but no one was removed from the bench (though three of
the investigated judges either resigned or retired while the complaints
were pending). The thirty-nine complaints closed that year resulted in
some lesser form of discipline for conduct on the bench. Among the
jurists publicly censured was San Diego County Superior Court Judge Gary
Kreep, a prominent lawyer in the “birther” movement before being
elected a judge in 2012.
In August 2017, the California Commission on Judicial Performance
censured Kreep—but stopped short of ousting him—over a number of
judicial conduct violations, including that his campaign website and
disclosure forms misrepresented his resume, and that he made
inappropriate remarks in court.
Among other instances of questionable conduct, he commented on a
public defender’s accent and asked if she was a citizen of Mexico.
When she said she was a U.S. citizen, Kreep said, “I wasn’t planning on having you deported.”
He also referred to people by nicknames he gave them. Among the
people nicknamed by Kreep were three interns in the San Diego Public
Defender’s Office—whom he called “bun head,” “Ms. Dimples” and “Shorty,”
who was actually 6 feet 7 inches tall.
Kreep’s creation and use of the nicknames “created an atmosphere in
the courtroom that was too informal and lacked appropriate decorum” and
didn’t convey appropriate respect, the Commission on Judicial
Performance wrote in an opinion filed in August 2017.
While the judicial commission allowed Kreep to keep his job, voters
weren’t as forgiving. In November 2018, Kreep lost his bid for
re-election.
Turning the Other Cheek
Even where a situation goes entirely off the rails, it’s not a given that judges will be removed.
In Murphy’s case, for instance, the Florida Judicial Qualifications
Commission recommended only a public reprimand, suspension without pay
for 120 days, a $50,000 fine and other sanctions that stopped short of
removal. But the Florida Supreme Court took the rare step of removing
Murphy from the bench.
The judges said Murphy’s “egregious conduct demonstrates his present unfitness to remain in office.”
“Furthermore,” they wrote, “where a judge’s actions erode public faith in the courts, removal is appropriate.”
But Turner says there’s more to the story than what was seen on video.
He says Murphy’s use of the phrase “I’ll just beat your ass” meant he
planned to verbally scold Weinstock, not physically attack him.
Weinstock said he was hit twice by Murphy. But Murphy said he only
took “defense actions,” and that Weinstock was the one who started the
physical fight.
Lawyers who appear in court regularly and bear the brunt of judicial
outbursts as part of their jobs are much less likely to lodge official
complaints than litigants.
In California, the most-populous state in the country, the Commission
on Judicial Performance received 1,251 new complaints about 878
different judges in 2017. Attorneys initiated only 4 percent of those
complaints, while 86 percent came from litigants or their family and
friends.
And in New York, the state with the most active lawyers, the state
Commission on Judicial Conduct received 2,143 new complaints in 2017,
with 1,832 coming from criminal defendants or civil litigants, and 53
from attorneys.
One reason why lawyers don’t complain is they simply develop thick skins.
“Obviously you become calloused at some point,” says Las Vegas-area
attorney Dominic Gentile, who represented Bakhtary in her successful
proceeding to vacate Hafen’s contempt finding. “If you don’t become
calloused, particularly as a criminal defense attorney, you’re going to
do a lot of bleeding.”
Additionally, some attorneys worry that complaining will backfire against themselves or their clients.
Georgetown’s Smith adds that public defender’s offices sometimes
hesitate to complain about judges who bully lawyers if the judges are
perceived as issuing fair rulings.
Photo of Charles Geyh by Hallie Geyh.
She says the people in charge of a public defender’s office will
often ask themselves whether a judge who has exploded in court is
“somebody we should complain about,” or whether it would be better to
“put up with the outburst because it’s a good judge.”
Attorneys have another reason for not complaining—they often work
regularly with the same judges and learn to choose their battles wisely.
Like many of his colleagues, Geyh, who practiced law in Washington,
D.C., says that even when he saw judges who were abusive, he never
protested.
“It never occurred to me to complain, because the judge is going to
stay on the bench and will just remember you as the guy who complained,”
Geyh says. “Judges develop reputations as stern, crotchety and so
forth. You just go in there with your helmet on.”
Full Article & Source:
Bullying from the Bench: A wave of high-profile bad behavior has put scrutiny on judges
