Thursday, August 28, 2014

Inattentive Driving



Don’t text and drive.  Pull over to make that cell phone call.  You have one job when you’re behind the wheel:  Driving!

I occasionally have folks in court charged with inattentive driving.  I don’t recall handling a texting while driving case, but some of the inattentive driving cases bring back sad and painful memories.  I occasionally share my story with people who appear before me.  Especially if they are charged with failing to stop at a stop sign.  Especially if they think it’s not a big deal. 

I tell them the story of Denise and Nathan.  And then I tell them the story of Sara.

It was a time before text messages, before i-phones, even before cell phones.  The year before I was appointed to be a judge, Denise was my legal secretary.  She not only was a first rate assistant, but her family and mine became quite close friends.  My daughters did summer day care for her children. 

One Sunday, Denise and her husband and their children, Nathan, age 5 and Sara, age 8, were on their way to meet family for lunch when a car blew through a stop sign and t-boned their car, killing Denise and Nathan. 

After the accident, Sara would often come from her house the two blocks away to help my wife make cookies, or decorate for holidays or just hang out. 

Three years, three months and three weeks after Denies and Nathan were killed in the car accident, Sara was riding with her cousin, passing through the very same intersection when a car blew the very same stop sign and t-boned the car, killing Sara.

There is a monument erected at that intersection now.  Two, actually, one on either side of the highway.  Each is about eight feet high, a tube about 18 inches in diameter, painted bright yellow.  At the top of each is a flashing red light, positioned right above the stop sign.  One last chance to catch the attention of a driver who may not have seen the stop sign as he approaches the intersection at highway speed.

So, when a person appears before me on charges of failing to stop at a stop sign, and they give me the impression that they don’t think it’s a big deal, I tell them about Denise and Nathan and Sara and explain why, to me, it is a big deal.

And then I assess the normal fine for driving through a stop sign.


Thursday, August 21, 2014

Senior Judge



I have been “retired” now for several weeks.  I used quotation marks, as I have worked about half time since my official retirement date.  Governor Dayton has not named a replacement for the judgeship chambered in Sibley County, and I have agreed to help out as I can until the new judge can take over.  Also, I was assigned to a case in Dakota County that was to have been tried in March, but for several reasons, could not be until the end of July.  So, I have been pretty busy, doing what I had been doing the last 26 years! 

I am doing this work as a “Senior Judge”.  When I retired, I applied to the Minnesota Supreme Court to continue to work on a temporary and an as-needed basis as a retired judge.  The Chief Justice approved my application, and I am now on a list of senior judges statewide who may be called to help out when needed in a particular county.

There are several reasons why a Senior Judge may be needed:  To fill in after a judge retires and a new one is appointed is the obvious one for me now.  When I was working on the Supreme Court Technology Committee, helping with the computerized case management project in the late 90’s and into the ‘00’s, I was away from the bench for two or more days a week working on that project.   A retired judge came in and served in Court in my place so that I could help out on that important project.  Sometimes, a judge becomes quite ill and needs significant time away to recover.  In those cases, a retired judge can fill in.

Rarely, there is a case that is so sensitive that all the judges in a district have a conflict.  In those situations, a retired judge can be asked to handle a particular case. 

I am happy to help out while I can, but am a little anxious to really find out what this retirement life is all about.  I had submitted my notice of retirement to the Governor’s office well in advance, and was hopeful that my successor would be named prior to my official retirement date.  But, I am not privy to the Governor’s schedule or his priorities, and I’m sure there are good reasons that my successor has not yet been named.  However, I know I am not the only person who is anxious to find out who the new judge chambered in Sibley County will be! 

Wednesday, August 13, 2014

A Judge's Nightmare

The entire State of Minnesota grieves the tragic and senseless murder of Mendota Heights Police Officer Scott Patrick on July 30.  Conducting a routine traffic stop, he was apparently gunned down in cold blood at close range by the driver of the vehicle. 

That driver is believed to have been Brian Fitch, now charged with first degree murder in Officer Patrick’s death. 

Fitch had appeared before a judge several months ago, facing a presumptive prison term.  The judge placed him on probation and ordered to a specific chemical dependency treatment program that I have sentenced many defendants to from my courtrooms.  It is a good, tough program that has had a decent track record with tough cases.  Fitch apparently left the program before completing it.

It is the situation all judges fear.  We are called to administer Justice, tempered with mercy.  We are aware that the United States imprisons a larger percentage of its population than any other country in the world.  A large part of our prison population are there because of drug offenses, and many authorities on the subject say it is far more cost effective to offer chemical dependency treatment than imprisonment.

In cleaning out my desk last month, I found a letter or two, thanking me for giving a particular person a second chance, and telling me that he or she has now been sober for months or years.  While these letters certainly make me feel good, I can’t help but think that it could have gone the other way:  The person who should have been sent to jail or prison for drunk driving becomes intoxicated again, is involved in an accident resulting in serious injury or death.  Then it would be me, answering my front door to find that cameras rolling and a microphone in my face asking for explanations. 

Judges can never be absolutely certain, even after a trial, that we know what happened at a particular event in the past.  We surely can’t be certain what may happen to a person in the future.  So, as all human beings, we must make the best decisions we can with the best information we have.  We hope and pray that our decision is correct.

As recent events testify, some times, tragically, they are not.

Our hearts go out to Officer Patrick’s wife and daughters, as well as to his law enforcement family from every department across the state.  All of us join in their grief and sorrow and ask that question that has no answer, at least in this life:

“Why?”

Saturday, August 2, 2014

The Value of Education


I will not be online Thursday, so am posting the August 7 blog early this week.

Truancy cases are sometimes very frustrating, not only for the judge, but for the county attorney, social worker, probation officer and school officials.  When the child is quite young, it’s often a symptom of more serious issues within the family.  For middle schoolers and high schoolers, it can be simply a resistance to authority or a little bit of Tom Sawyer.

In my county, the school, social services and county attorney’s office have developed a program to address truancy at different stages.  One thing happens when a minimum number of days have been missed, and at different stages, different interventions are made.  If none of them are successful, a truancy child protection petition is filed and the family comes to see me in Court.

For the older truants, I believe my job is to get them to think beyond next week or next month.  The dialogue can go something like this:

“Do you enjoy cooking French fries?  (Most of the time, they say no.)  How about sweeping floors and cleaning toilets?  Well, if you do not get a high school diploma, those are about the only kinds of jobs that are open to you.

“Don’t get me wrong, people who serve hamburgers and make beds in hotels make a good, honest, hard-earned living.  But I think you have more potential than that.  Someday, you’re going to want to get married and have a family.  When you do, you’re going to want to provide for them – make sure they have a comfortable home, enough food and be able to enjoy some of the good things in life.  You’ll be better able to provide for your family if you’re earning more than minimum wage.  And, the only way you’ll be able to get a job earning more than minimum wage is to get a high school diploma.

“Actually, you’re going to want to get more education than high school.  But, before you can go to college or vocational school, you’re going to have to have a high school education.

“I think education is so important that I am willing to order that you leave your parents’ home to be sure that you get to school.  That’s really not the worst thing in the world that can happen to you, but I’m pretty sure you’d rather stay at home with your family and hang out with your friends on the weekends.  I don’t want to order you into placement, so I hope and expect that you will go to school, and try your hardest at school, so I won’t have to make that decision.

“Good luck!”

*  *  *  *  *  *  *

Next week:  Inattentive Driving.

Thursday, July 31, 2014

Coffin Nails



It is illegal for a person under the age of 18 to use tobacco products in Minnesota.  They may not smoke cigarettes or cigars or use snuff or chewing tobacco.  But, if you have been near a high school in the half hour or so before classes start, odds are you’ll see one or more students smoking cigarettes.  Once in a while, they are caught, ticketed and end up in my courtroom.

And if they end up in my courtroom, they will hear the story of my mother-in-law.

I will tell them that Vivian started smoking at just about their age.  She didn’t know when she started that she would develop chronic obstructive pulmonary disease (COPD) and emphysema. 

I tell these young people that I would not wish the death my mother-in-law endured on my worst enemy.  I tell them that Sibley County used to have a smoking education class (unfortunately dropped due to lack of funding and not enough participants) where one of the exercises was to take a very small straw – the kind sometime used to stir mixed drinks – place your lips tightly around it, pinch your nose and breath through that tiny straw.  That’s what it’s like having COPD.

I tell them what it was like to sit by her bedside at the nursing home, laboring to breath and waiting until she could have another nebulizer, that opened up the airways a little more to make breathing marginally easier.

Young people are invincible.  They are indestructible.  Something that might happen 20, 30, 40 or 50 years from now is just not important.  And odds are pretty good that they are living with adults who smoke, too, which makes it just that much more difficult. 

My brother, Dr. Mike McCarthy, spent a large part of his medical career dealing with people suffering from chemical addiction.  As a Family Practice doctor and later as Director of Medicine at an inpatient treatment program, Dr. Mike would routinely see chemically dependent patients.  As I regularly see those types of folks, too, we would often compare notes.  Dr. Mike once told me that of all the chemicals to which people can become addicted – alcohol, cocaine, methamphetamine, heroin – nicotine was the hardest chemical to kick.

I know that my little sermons will normally go in one ear and out the other.  But, I still need to give it.  Because I never know if I am talking to the right young person at the right time so that the message sticks and they will take steps to quit.

I hope, in 26 years, there was at least one.

*  *  *  *  *  *  * 

Next Week:  The Value of Education

Thursday, July 24, 2014

Choosing a Jury in the “Olden Days”



A few weeks ago, while looking for something else in the Court Administrator’s office, a black, wooden cube, maybe 18 inches on a side, was discovered.  This cube had a cylindrical handle attached to one side, two small drawers at the bottom and a dish-like depression on the top, with a wooden cover that would swing over the dish and back again to allow access.

The minute I saw it, the name Bea Goetsch popped into my head.  I can remember, as a young attorney and a new judge, watching Chief Deputy Court Administrator Bea carry that wooden box into the courtroom at the beginning of a jury trial.  The cover over the dish was swung aside so that she could take, one-by-one, little slips of paper from the dish and read the name to choose the jurors who would be placed in the jury box for the judge and attorneys to question to see if they would be chosen to sit for the trial starting that day.

Before computers, that is, before 1994, the jury panel was chosen from a list of registered voters for Sibley County.  A committee of five persons would hand pick prospective jurors from the list of eligible voters.  (I recall the first time I ran for County Attorney a lady said I didn’t have to talk to her:  She didn’t vote so that she wouldn’t be called for jury duty!)

The prospective jurors’ names were typed on perforated paper so that each name was on a paper the same size.  Then, the slips would be folded twice and placed in the bowl of the black box.  Bea would then randomly pull names from the bowl, announcing each name in open court. 

Sometimes jurors were excused.  The slips for those jurors went in the left drawer at the bottom of the black box.  Those who were chosen to sit for the trial were placed in the right drawer. 

Now a list of registered voters is merged by computer with persons who have driver’s licenses in the County.  From that list, the computer randomly selects the number of jurors needed for the term.  Then, on the day of trial, the names of the jurors who have been summoned for jury duty that day are randomly ranked by the computer to let the Court Administrator and the Judge (but not the attorneys!) know who will be chosen first and who is on the bottom of the list.

The new system is certainly more efficient and undoubtedly fairer.  But, I sometimes miss the drama and pomp as Bea Goetsch would reach into the bowl at the top of the black box to call the next name…

*  *  *  *  *  *  *

Next Week:  Coffin nails

Thursday, July 17, 2014

Court is Adjourned



What a great day!  My last day on the bench was truly memorable.  I adjourned court early to get to a cake and coffee reception at the Courthouse.  It was so very nice to have so many people stop by, sign the guestbook, and wish me well as I retired.

Then, off to Winthrop for the after-hours open house.  Oh, my, what a memorable event!  Of course, Patty was there, with my three children and seven grandchildren.  Five of my seven siblings, an aunt and uncle and several cousins came out, too.  Former law clerks, court administrators, attorneys and probation officers stopped by.  Lions Club members, brothers from the Masonic fraternity.  I had friends from my technology days for the State Court system come to my event – one all the way from Atlanta, Georgia and another from Sacramento, California! 

A Minnesota Supreme Court Justice came out to present me with a certificate of appreciation from the Supreme Court, and another from the Governor.  The Chief Judge of the First Judicial  District also presented a certificate.  I received a certificate proclaiming July 10, 2014, as “Judge Thomas G. McCarthy Day in the City of Duluth”, signed by Mayor Don Ness, my nephew.  Wow! 

My talented grandsons provided music for the evening, including one of the true highlights of the night for me:  My entire family singing “Puff the Magic Dragon.”

Back in the olden days, before Gameboys and portable DVD players, families had to entertain themselves on road trips.  The McCarthy family would play the alphabet game, the “I see …”  game and several other road games.  And we would always have a sing-along.  And the sing-along would always include “Puff”. 

Puff is not only the official McCarthy family song, it is a song of transition.  Little Jackie Paper got tired of playing with painted wings and giants’ rings, so he didn’t come to visit Puff any more.  What an appropriate song for a different kind of transition!  A transition from a professional life that I truly loved to a new stage in my life and a new set of priorities.  

The weekend was spent with grandchildren.  In a way, it was not much different than a normal, long weekend from work.  As I write this during the weekend, I wonder how it will feel come Monday morning, when I stay home and Patty goes off to work.  Not bad, I’ll bet! 

I have been so blessed in so many ways.  I can’t wait to see what the next stage brings! 

*  *  *  *  *  *  *

Next week:  Choosing a jury