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…

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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! 

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Next week:  Choosing a jury

Thursday, July 10, 2014

The Parting Glass

It is a tradition in pubs in Ireland that the final song of the evening is The Parting Glass. 

And all that I’ve done, for want of wit
            To memory now, I can’t recall
So fill to me the parting glass
            Good night, and joy be with you all.

As I look back on a career in the law, capped as a trial court judge for 26 years, there are in fact some things I’ve done, for want of wit, that I can recall – though thankfully, not too many.

I look back on the privilege it has been to serve the people of Minnesota, of the First Judicial District of that State, and especially the people of my home in Sibley County.  I have tried my best to live up to the trust that you have placed in me by judging as best I can, with out fear or favor or the hope or promise of reward – other than that reward that comes with the knowledge that this day, I have done my duty.

When I was appointed to the bench in February, 1988, I knew that there were other candidates that knew the law better than I did.  There were others that had a bit more experience than I did at the time.  In short, there were other candidates that were at least as qualified as I was.  

But it was I that was chosen to wear the black robe and make decisions that have impacted the lives and fortunes of hundreds of people since that day I raised my right hand and took the oath of office.

Harry S Truman said, “There are probably hundreds of people better qualified than I am to be president, but they weren’t elected.”  I surely can relate to that sentiment.  I know there are smarter, more patient and likely better qualified people who could do a better job than I.  (We trust one will be appointed to take my place.)  But, they weren’t chosen to be the judge in Sibley County – I was.

So, I recall the final chorus of that Irish pub-closing song:

But since it fell unto my lot
            That I should rise, and you should not,
I gently rise and softly call
            Good night, and joy be with you all!

Thank you for this opportunity to serve you.  Good night, good bye, and Joy and Justice be with you all. 

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Next Week:  The Party’s Over …

Thursday, July 3, 2014


When I first sat at the desk previously occupied by Hon. Kenneth W. Bull, and opened the top drawer, I found a hacksaw blade with a note on it:  “Judge:  Keep this handy in case you ever get so confused that you send yourself to jail!”

There have been days, but not THAT bad!

I also found a mimeographed page that explained the hierarchy in the Courthouse.  (For those under age 50, you may not know that one of the favorite TV shows when I was growing up was Superman.  It opened with “Faster than a speeding bullet.  More powerful than a locomotive.  Leaps tall buildings in a single bound.  Look!  Up in the sky!  It’s a bird!  It’s a plane!  No, it’s SUPERMAN!”)

With that opening, here is “The Legal Hierarchy – Who’s on Top”

The District Court Judge leaps tall buildings in a single bound, is more powerful than a locomotive, is faster than a speeding bullet, walks on water, gives policy to God.

The County Court Judge (Note:  there were County Judges until the mid-1980’s) leaps short buildings in a single bound, is more powerful than a switch engine, is just as fast as a speeding bullet, walks on water if the sea is calm, talks to God.

The County Attorney leaps short buildings with a running start, is almost as powerful as a switch engine, is almost as fast as a speeding bullet, walks on water in an indoor pool, talks with God when special request is approved.

The Assistant County Attorney barely clears a Quonset hut, loses a tug of war with a locomotive, can fire a speeding bullet, swims well, occasionally is addressed by God.

The privately retained defense attorney owns tall buildings, but is in default, derails speeding trains, keeps a pistol in his desk, passes water, uses God as an expletive.

The Court Administrator makes high marks on walls when trying to leap tall buildings, is run over by locomotives, can sometimes handle a gun without inflicting self-injury, talks with animals.

The Deputy Court Administrator lifts tall buildings and walks under them, kicks locomotives off the tracks, catches speeding bullets in her teeth and eats them, freezes water with a single glance.  She is God.

Now, as I prepare to leave my desk in the Sibley County Courthouse for the last time next week, I wonder what artifacts I should leave in the desk for the judge who will occupy it after me….

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Next Week:   The Parting Glass

Thursday, June 26, 2014

Middle Drawer on the Right

I have started cleaning out my desk.  It’s a big job – 26 years of stuff from a confirmed pack rat. 

Recently, I started combing through the contents of the middle drawer on the right side of my desk.  Along with copies of some expense records and calendars showing which courthouse I worked in on a given day, was a stack of several inches of paper – copies of opinions from the Court of Appeals and the Minnesota Supreme Court reviewing cases I had decided and an unhappy litigant sought to overturn.

In the olden days, the Clerk of Appellate Courts would put a copy of the opinion in an envelope on Monday (when the opinions were released) and I’d get it at the courthouse a day or two later.  These days, I get an e-mail notice to go onto the appellate court website on Monday and check out the opinion.  It’s more expedient and less costly, but it doesn’t contribute to the stack of memories in the middle drawer on the right.

Some cases I had forgotten about.  Some cases I couldn’t recall, even after reading the opinion.  Some cases brought back memories about the trial, the attorneys, the clients and the struggle I had in making what I felt was the correct and just decision.

Many of the opinions affirmed the decision I had made.  There were several that reversed that decision, and made a different order.  The most troublesome were those that were remanded – “Judge McCarthy, you messed this up.  We’re sending it back for you to get it right this time!”  (Fortunately, there were very few of those opinions.)

A significant number of the appeals involved situations were a person was charged with driving while impaired or were family court (divorce) files. 

I’ve never been too concerned about whether a particular case was affirmed or reversed.  I’ve always felt that I have my job to do, and the appellate courts have theirs.  Sometimes when I’ve been reversed, I see the mistake I made and learn from it.  Other times, I’m firmly convinced that I made the correct decision, but the rules of the game provide that I follow the decisions of the higher courts.  In fact, in the last month of my judicial career, I’ve told attorneys, “I agree with your analysis of the case and believe I should rule in your favor.  However, the Supreme Court has told me we are both wrong, and until they change their decision, I am obligated to follow it.”

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Next Week:  Artifacts

Thursday, June 19, 2014

Unhappy Customers

One of my favorite cartoons when I was growing up was “Super Chicken”.  Super Chicken had a sidekick, a lion named Fred, who would often complain when they were put in a particularly tough situation.  When that happened, Super Chicken would exclaim, “You knew the job was dangerous when you took it, Fred!”

Some days, I can relate to Fred.

It’s pretty certain that at some point during 99% of court proceedings, one side will be unhappy with the judge’s rulings.  I try to explain why I have ruled in a particular way, but, understandably, this does not always satisfy the party on the losing end.

Most people can and do accept the decision and get on with their lives.  Once in a very great while, folks are so unhappy with a judge’s decision that they want the world to know how badly they were treated.

One case I handled involved allegations of domestic abuse.  The father had his visitation rights with his daughter limited because of the threats.  He was very unhappy with me.

He was so unhappy that he paid for newspaper ads in three counties, criticizing me and asking other unhappy litigants to contact him (one other did).  Then, he copied the ads and hung them up in bars in the three counties.  He followed up by writing several letters to the editors of local papers. 

Ah, the good old days. 

Today, when a litigant is unhappy, he turns to… a blog!  For the cost of nothing, a blog can be set up to give folks a venue to criticize judges (or anyone else), sometimes in the most unfair and defamatory ways.  Several of my colleagues have become the subjects of such blog attacks.  They almost invariably involve a family law dispute concerning custody or parenting time of children. 

These electronic forums can help organize protests against a particular judge.  I was at a courthouse where such a protest was being held against one of my colleagues.  I know of another of my colleagues whose church was picketed on Sunday morning to protest his rulings.

And we judges pretty much have to sit and take it. Our rules of ethics prohibit us from commenting on pending cases, which these always are.  The aim, of course, is to intimidate the judge into changing his decision.  The result, of course, fails.

And we often wish that the litigants would put a fraction of the effort into maintaining their relations with their ex-spouse and children as they did attacking the judge.  I know they would be happier, in the short and long run.

But, then I remember, “You knew the job was difficult when you took it, Tom”

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Next Week:  Second Drawer on the Right

Thursday, June 12, 2014

A Judge's Religion

I was visiting a church many years ago when one of the parishioners approached me and struck up a conversation.  He said some nice things about my work as a judge and ended the conversation with the comment, “We need more Christian judges.”

I’ve reflected on that conversation often over the ensuing years.  I think there are two ways to interpret that phrase:  1) We need more judges to espouse specific Christian principles from the bench, including allowing prayer in school, Christmas manger scenes on public property and posting the Ten Commandments in the courthouse.  Or, 2) we need more judges to judge as Jesus would:  oppose cruelty and hypocrisy and temper Justice with Mercy.

Occasionally I’m asked if I use my Christian principles (or, if I’m at a Lodge meeting, my Masonic principles) when I make decisions as a judge.  The first response that comes to mind is, “Of course I do!”  These principles of justice and fairness and mercy that are a part of my faith must also be a part of the important decision that I do.

On the other hand, I do not ask myself “What would Jesus do?” when I’m faced with making hard decisions.  To steal a line from one of the Jesuit retreats I have attended, I know what Jesus would do:  he would gather as much information as he could and make a decision based on the circumstances as they are at the time. 

I am very comfortable with a well-defined separation of Church and State and personally believe it is in the best interest of the Churches to maintain that separation. 

On the other hand, I do believe it is a judge’s responsibility to call out hypocrisy and hold people accountable for their actions.  I believe a judge should attempt at all times to do Justice, but to temper such acts with Mercy.

While I would like to say to some criminal defendants, “Go and commit crimes no more,” I know that I cannot.  Acts have consequences and the law requires that I impose them.

I try to approach every decision I make by first following the law.  I attempt to execute Justice, tempered by Mercy.  Within the bounds that are set by the law, I try to tailor my decision to fit the particular circumstances of the parties before me.

I do the best I can with what I have.

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Next Week:  Unhappy Customers