Thursday, April 17, 2014

Picking a Jury

Jury selection is the first, and very possibly the most important part of a jury trial.  Prospective jurors are placed under oath and the judge and attorneys ask questions to determine if they can be fair and impartial in the trial.

This process, called voire dire (to speak the truth) seeks to eliminate potential jurors who have preconceived opinions on how the trial should end up or has prejudices (conscious or subconscious) which would prevent them from listening to the evidence and the judge’s instructions on the law.

The questions are usually pretty straightforward:  Have you ever served on a jury before?  Do you know any of the witnesses?  If so, would you be able to consider their testimony in the same manner as any other witness who may testify?  Do you have any problem serving on a jury that may last X days?  Have you been convicted of a felony?  (One juror told us, under oath, that he was not a felon.  It was only when the jury came in after a four-week trial that we found out he was a felon.  That jury verdict needed to be thrown out…)

In one criminal case I tried, the defendant was Hispanic who did not speak English.  Even today, there are people who are prejudiced against people of color, so I needed to ask if there was anyone on the jury panel who could not presume the defendant innocent simply because of his race.  One juror raised his hand, and said he could not judge a Hispanic fairly and impartially.  The juror had an Irish surname.

Naturally, I dismissed the prospective juror from the panel.  But before I did, I said, “It is really sad that a person of our Irish heritage could be prejudiced against people coming to this country to find a better life, as our ancestors were forced from their native land because of a famine.  When they reached this land, they, too were discriminated against.  Cartoons in papers depicted Irishmen as baboons.  Help wanted signs included ‘No Irish Need Apply’.  How is it that we have forgotten the injustice of ignorant prejudice and become the bigots ourselves?”

(I must admit that the real words I used at the time were far less eloquent than those above, but the sentiments were identical.)

The vase majority of jurors summoned do their best to set aside any preconceived notions of how the case should end and promise to listen to the evidence, apply the law that the judge gives and give a fair an impartial verdict.  THAT is the main reason why the American system of Justice is the best in the world!

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Next Week:  Fleeting Moments of Beauty

Thursday, April 10, 2014

Staff Attorneys

A few years after I was appointed a judge, the caseload per judge increased dramatically.  That increase in case load meant that judges often did not have the time to conduct legal research necessary to accurately decide a case.  It was decided that it would be most cost effective for each judge to have an attorney to assist the judge with the research, drafting orders and other tasks.

The pay for law clerks is lower than many starting salaries for associates in law firms or becoming employed in the public sector.  The law clerks, however, gain valuable experience observing and working for the judges.

Over the 26 years, I have had 16 staff attorneys, commonly called law clerks.  (Actually, my 17th started just this week!)  Many judges prefer to have one competent clerk for as long as possible, as it can be somewhat of a chore to train in a new staff attorney.  I have opted for the more traditional approach to employing clerks:  They are expected to work one to two years, and then move on to a more traditional legal position.

I have had some clerks that have stayed for almost two years, and others that were gone within six months.  I have taken great pleasure in watching these young attorneys start out on their careers. 

There was a time, during a budget crisis, that a freeze on hiring law clerks was put in place.  For several months, I was without a clerk (until that budget crisis finally passed) I worked without a clerk and did my own legal research.  I commented at the time that I was the highest paid law clerk in the State of Minnesota. These young attorneys, trained in using computers for legal research, were significantly more efficient doing legal research than my method of pulling the books off the shelf, and retyping the language from the cases that needed to be in my decision. 

I have worked with law clerks who were of all political persuasions.  I have worked with a college football player and a Iraq war veteran and National Guard officer – each young attorney brings experiences to the office that I have never experienced.  I have tried to be a mentor to these intelligent, motivated and dedicated young attorneys.  

But I can guarantee that I have learned more from working with them than they have from me.
It was been a privilege and a pleasure.

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Next Week:  Picking a Jury

Thursday, April 3, 2014

Oath of Citizenship

One of the two oaths that I have administered that I consider the highlights of my professional life happened on April 9, 2005 at the 152nd Annual Communication of the Grand Lodge of Minnesota held in St Louis Park, Minnesota. 

Andy Rice was born and raised in England.  He came to Minnesota, met and fell in love with Chris and settled in to a successful career.  He became a Mason and rose to the highest position in Minnesota Masonry – Grand Master.  I had had the opportunity to work with Andy on the Board of Directors of the Grand Lodge of Minnesota for several years, and we became good friends. 

Andy told me that his dream was to become an American citizen the day he became Grand Master.  He had completed the process of naturalization, but there was one obstacle:  Normally, the oath of citizenship was given by a Federal District Court Judge.  I had met Federal Judge Donovan Frank when he was a Minnesota District Court judge and we both served on the Conference of Chief Judges.  With Judge Frank’s help, we convinced the Department of Homeland Security that it was just fine for me to administer the oath of citizenship at this important event.

Thus it was that, mere minutes after being installed as Grand Master, Andy Rice raised his right hand and took an oath that has been around since George Washington’s time: 

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

With his son in his Cub Scout uniform standing next to him, Andy pledged allegiance to the flag of his adoptive country for the first time.    After which, a couple hundred small American flags were waived in the audience and a huge cheer went up.  A very proud moment for all present – especially for me, the judge who had the privilege of administering the oath!

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Next Week:  Staff Attorneys

Thursday, March 27, 2014

Court Reporters

I have often said that there really is only one person in the courtroom that must listen to each and every word that is said.  No mind-wandering – strict concentration.  That person is the court reporter.  The court reporter is required to take down, in machine shorthand, practically everything that is said during court proceedings.  It often can be a challenging profession.

People in court cannot nod their heads or say “uh-huh” or “uh-uh” – those terms and body language simply cannot be accurately recorded for the record.  And the record becomes critical if the case is to be appealed to a higher court.

Other issues are common:  Two people talking at the same time – it’s hard enough to do one at a time!  Witnesses, attorneys and even judges can talk very fast, challenging even the most talented court reporter to keep up.  (I have been justly accused of being a real challenge for court reporters, as I can talk pretty fast!)  Expert witnesses may often talk in technical or medical terms that are not familiar and yet the reporter must take the testimony down and may be required to type it up, accurately, at a later time. 

A court reporter attends school where he or she learns the machine shorthand and other basics, and then simply works to build up speed to 225 words per minute, the minimum required for graduation.  There are 22 keys on the shorthand machine.  Reporters must often strike multiple keys at the same time for one letter.  For instance, “beyond a reasonable doubt” would look like this on the paper that comes out of the shorthand machine:

K W RA  R  D

I have been blessed to work with two terrific court reporters during my career:  Jerry Goodroad started with me within weeks of my appointment and stayed for 24 years.  Paul Lyndgaard is finishing his career with me – we’ll be retiring the same day.

I occasionally will have school children come in to tour the courtroom.  They learn about what we do, and I answer questions they may have.  I have learned that I should not introduce the court reporter until the very end of the session.  The children are fascinated by the machine, and the work the reporter does.  Paul has a habit of giving each child some machine paper with their name on it, in shorthand.  He, and Jerry before him, truly is the star of the show.  I’m just the warm-up act!

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Next Week:  Oath of Citizenship

Thursday, March 20, 2014

Excuses, excuses!

The Minnesota State Patrol had a clever television ad that showed drivers giving excuses why they were speeding.  Law enforcement officers have told me that these are not made up – they have heard most, if not all, of the excuses shown in the commercial!

I recall being in a different courthouse for a criminal calendar and seeing another judge’s notes on the blotter on the bench.  He had listed excuses (“The car wouldn’t start.”  “My ride backed out at the last minute.”  “I have the flu.”  Etc.) with checkmarks behind each excuse indicating how many times he’d heard it.  

One of my colleagues recently noted that a sure way to solve the unemployment problem was to get arrested and appear before the judge, because he (and all of us!) routinely hear that the defendant needs to get out of jail because he is supposed to start a new job today (or tomorrow).

Another of my colleagues came up with the top ten reasons a person who was recently arrested should get out of jail.  Like the excuses shown in the State Patrol ad, these are not made up – I, and I suspect every judge in Minnesota, have heard each one several times.

1.      I was supposed to start a new job this morning
2.      The neighbor is watching my children
3.      My grandmother is dying (or just died)
4.      I am not getting proper medical care for (pick any communicable disease)
5.      They had my address wrong
6.      If you let me out to get to an ATM machine I can pay the bail
7.      I have never missed a court appearance
8.      My animals need to be fed
9.      I am getting evicted and I need to get my stuff out of my apartment
10.  Did I tell you about that new job?

I must say that routinely I and other judges hear legitimate and well-reasoned grounds to consider releasing defendants who appear before me.  We all must base our decisions, whether it be setting bail and release conditions or any of the myriad of other decisions that are presented to us on a daily basis, on the facts as we know them in the particular case and the law that governs that specific decision. 

That doesn’t prevent us, however, from a chuckle now and again when it is obvious we are trying to be sold a bill of goods.

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Next Week:  Court Reporters

Thursday, March 13, 2014

Ex Parte Communications

Perhaps you have noticed that the legal profession really loves Latin phrases.  Good thing I took two years of Latin at Arlington-Green Isle High School!

Ex parte is one of those Latin phrases often used in law.  It is an important phrase, especially for judges.  It translates as “from one party.”  As it applies to judges, it is a rule that says in  litigation one side cannot give the judge information that is not provided to the other side. 

Our system of Justice is the adversary system.  Each side presents its evidence, makes its arguments, and the theory is that the judge is able to sort out the inconsistencies and make the correct decision.  There are, of course, numerous times when things can go wrong, but, by and large, our system has worked well for a couple hundred years or more.

If, however, one side is able to give the judge information that the other side does not know, and to which it cannot reply, that would be an unfair advantage.  That is why ex parte communications with a judge are strictly prohibited.

If an attorney engages in ex parte communications, he or she can be disciplined by the Lawyers Professional Responsibility Board.  If a judge engages in ex parte communications, he or she can be disciplined by the Board of Judicial Standards.  These are not fun encounters and judges and lawyers alike and are avoided as much as possible. 

Sometimes, judges receive information from people not directly involved in the case, but know something about it from one of the parties.  These are very difficult situations for judges, as these folks are just doing what they think is right.  They think they are helping their friend so the judge will have the full picture.  (This most often happens in family court matters, especially custody or parenting time disputes.)

The result of this type of communication , however, is that the judge at the least has to disclose the communication to both sides, and depending on the information submitted, the judge may have to disqualify himself from any further consideration on the case.  When that happens, another judge steps in and has to get up to speed on what has happened before in the case.  It is not a good use of public resources.  But it is sometime necessary to ensure that both parties have the full benefit of a fair trial, by an impartial judge, not improperly in possession of ex parte information.

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Next week:  Excuses, Excuses

Thursday, March 6, 2014

Prison Tours

One of the requirements of serving as a District Court Judge in Minnesota is to make a tour of a correctional facility once every election term – six years.  The theory is that judges ought to see the prisons to which they may commit individual defendants from time to time.  I have had four such tours, and have found them to be very interesting.

Perhaps the most interesting was that of the Men’s Challenge Incarceration Program or “boot camp” at Willow River.  This is a six-month program to which inmates can apply.  There are strict guidelines as to who may be eligible for the program (for instance, no violent offenders) and there is a long waiting list.  A successful completion of the program means an early release from prison to an intensive supervised release.

The recidivism rate (that is, the number of inmates who re-offend after their release) is significantly lower for CIP graduates than for the general prison population.  Also, the chemical dependency treatment program is one of the best around – particularly for methamphetamine addicts, as they have been in prison for several months before they are admitted to CIP, and are through withdrawal.  The real test, of course, comes when they leave CIP and return to the community.

During the tour, we were ushered into a classroom where there were 19 men who had entered the program within the last month.  Now, I must tell you that there are about 270 District Court Judges in Minnesota who can pronounce prison sentences.  What would the odds be that one of those 19 men in that classroom would have had his sentence pronounced by me?  Well, there were three!  And we later met six more men who were to graduate from the program within the next two weeks, and one of them had appeared before me for sentencing.  Four of the 25 men we saw that day had their sentence pronounced in my courtroom!  What are the odds?!?!

A few months later, I was working in my yard when a car pulled up to the curb and a young man, one of the 25 I’d met at Willow River, walked over to tell me he had completed the Challenge Incarceration Program and, though he and his girlfriend were having a little rough time, he had maintained his sobriety and was proud to tell me the boot camp program seemed to be working for him!  A rare opportunity for me to find out what has happened to a person after they left my courtroom!

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Next Week:  Ex Parte Communications