Thursday, December 26, 2013

Home for the Holidays

No matter what your religion, at this time of year, a person wants to with family. “There’s No Place Like Home for the Holidays”, goes one popular seasonal tune.

There are some people who just can’t be home for the holidays, though.  One Christmas Eve, I was able to stop by the local Legion Club for a cup of coffee before heading over to the courthouse.  By good fortune, I sat across the table from one of the Greatest Generation:  Roy Kuhlman had flown a B-24 over Europe in World War Two.  I asked Roy if he’d ever been away from home over the holidays.  He told me he’d actually been a prisoner of war, after his bomber had been shot down in 1944.

Roy passed away this year.  I think about him, and all those who have served in the armed forces of this country, who have missed holidays, birthdays and more in service of our country.

I also have taken calls from law enforcement over the holidays.  They, too, are called away from their families on these important holidays.  They are often busy on those days, too.  I am told by folks in the liquor business that Christmas Eve has been the biggest day for sale of alcohol through the whole year.  This may result in driving under the influence, or alcohol-facilitated domestic abuse charges.  We all hope for a quiet night for our public servants, but often, it is a busy night, away from their families. 

Activity in court is normally lower this week.  The cases we do have, however, are often difficult and often sad.  Holiday parenting time disputes can arise at the 11th hour.  (Starting in October, I have a policy to ask folks in court on any child custody matter if they have the holidays worked out.  If not, we get it done right then.  The last-minute motions are just too hard on the parties, not to mention the children.  They also put a lot of pressure on a judge to make a snap decision on a most-important issue.)

As most of us gather with family and friends this holiday, let’s remember those who cannot be home for the holidays, because they are serving us and keeping us safe.

Merry Christmas.

*  *  *  *  *
Next week:  Resolutions

Friday, December 20, 2013

Intercontinental Televison

Last week, I wrote about the very beginning of our use of interactive television to conduct court hearings.  Since those early days, hardly a week goes by when I do not conduct a bail hearing or other matter over ITV.

We have conducted dozens of review hearings for persons in state hospitals by ITV.  Children who have been placed out of home are able to participate by ITV without having to travel hours each way by unmarked squad car.  (We will appoint an attorney at the person’s location to sit with him or her, while the original attorney is in Gaylord so that the person can consult with counsel immediately and at the same time have the original attorney present who is well aware of the history of the case.)

A side benefit is that often family members will appear at the Courthouse to observe or participate in the hearing.  If there are a few minutes before the next hearing is to be called (or sometimes, even if there are not), the Court staff will leave the courtroom and allow the family a little time to visit.

The most unique use of the ITV equipment, however, came at the end of a very sad case.  A sixteen-year-old girl from Spain came to our community as a foreign exchange student.  The father of her host family was alleged to have sexually molested her.  She and her parents returned from Spain so that the victim could testify at the trial.  The host family father was found guilty by the jury and a sentencing hearing was set for several weeks later.

The victim and her parents had neither the time nor the money to come back to Minnesota for the sentencing hearing, though they were most interested to learn what happened.  The Sibley County Attorney’s Victim / Witness Coordinator and the Court Administrator were able to arrange for an interactive television connection between the Courthouse in Gaylord and a government office in Madrid, Spain.  The sentencing hearing was scheduled at 9:00 a.m. Minnesota time to accommodate an eight hour time difference with Spain.

Court staff tested the system the day before, and the hearing went off flawlessly.  The video was crystal clear and the audio was perfect – not even the delay that we sometimes see when the network anchorman talks to the foreign correspondent on television.

The victim and her family were able to observe and to participate (though they declined to make a statement) at the sentencing hearing.  We were most pleased and proud that we were able to make that happen!

*  *  *  *  *

Next week:  Home for the Holidays

Thursday, December 12, 2013

Cameras in the Courtroom

A person is arrested in Sibley County and needs to appear before a judge within 36 hours.  I am assigned to another county – there is no judge in Sibley County within the time required.   In the “olden days”, when I was county attorney, I’d get into my car and drive to Glencoe.  The Sheriff would have the defendant transported there, too, to appear before the judge.  The hearing would take maybe 10 or 15 minutes.

Another person has attempted suicide and is hospitalized.  A petition for judicial commitment is filed, to require the person to obtain mental health treatment at a state hospital.  A preliminary hearing is required for the judge to consider whether there is enough evidence to continue with the commitment proceedings.  The patient is either transported the nearly two hours, one way, to the Sibley County Courthouse for the 15 minute hearing, or the judge, attorneys and court reporter make the trip to Willmar for the hearing.  Either way, it is a lot of time, expense and hassle for all involved.

Back in about 1997, Sibley County received permission from the Minnesota Supreme Court to conduct a trial on using interactive television for commitment hearings.  We were permitted to conduct those hearings for several months and then the program would be evaluated to see if it should be continued, expanded or halted. 

We found that, as expected, we had saved time and money for the system.  What surprised us all, however, was the evaluation from the Patient Advocate at the State Hospital that the program was a great benefit to the patients themselves!  They did not have to be placed in the back seat of an unmarked squad car for the ride to the courthouse, and then back again to the hospital.  The patient could remain in the normal treatment day with a 20-minute interruption for the hearing rather than 3-4 hours away.  And, the patient was actually more focused on the hearing because it was conducted by television.

The program was approved and made available for other counties.  Soon, other hearings were being conducted by ITV. 

Now, that person who was arrested would be walked over to the Sibley County Courthouse and I or another judge would sit in front of the camera in another courthouse and conduct the hearing before the time ran out.

There are limitations to the use of television for courts.  They can be difficult for the court reporter to accurately record.  They are not very efficient for longer trials and we certainly wouldn’t use it for a commitment hearing where the patient claims to receive messages through his television.  But, they do permit a judge to be much more efficient.

*  *  *  *  *

Next week:  Intercontinental Television

Thursday, December 5, 2013

Dads and Drugs

            Parents may be summoned into Court because their children are in need of protection or services, either because the child has such severe issues that the parents simply cannot meet them or, more tragically, because the parents’ actions require the Court’s intervention for the child’s safety.  Some of the most difficult and tragic cases involve parents whose use of controlled substances jeopardizes their child’s safety and their relationship to their child.

            I had a case some time ago involving two young parents who were in such a situation.  The Father had a bad chemical dependency problem.  The case had been pending for several months, and Father was ordered to be drug free in order to see his son.

            At this hearing, the son, who was about 18 months old, was brought to court and as soon as he saw his Dad, he climbed into his lap, and stayed there for the entire hearing.

            I heard the reports from the social worker and the Guardian ad Litem.  I heard the statements of the attorney for the County and the attorney for each of the parents.  I then had this conversation with the Father, taken from the Court Reporter’s notes:
THE COURT:  Father, when was the last time you saw your son before today?

FATHER:  About a month and a half, two months.

THE COURT:  How can you stay away from such a beautiful child, who obviously loves you?  He doesn’t want anything more today than to sit on his daddy’s lap.  I just can’t comprehend it.  I was just visiting my grandson who is about two months younger than your son.  There is nothing better than doing just what he’s doing now – snuggling up on his daddy’s chest.  How can you not do everything in your power to let him do that?  Do these drugs have such a control over you that you love them more than you love your son?
We are at a time now where I’m going to have to make a really hard decision and that decision might be that you will never see your son again.  I don’t want to make that decision.  I don’t want to do that.  And very honestly, I won’t do it.  You’ll make the decision for me.

 Sad to say, often the drugs win.  Even with the support of the County’s resources, treatment programs and the threat of losing the right to parent or even see one’s own child is not enough to overcome the apparently irresistible pull of the pill, needle or bottle.

*  *  *  *  *

Next Week:  Cameras in the Courtroom

Thursday, November 28, 2013


As we pause this week to celebrate the Thanksgiving Holiday, it is well to recall the Pilgrims who left England so that they might practice their religion without fear of persecution.  In 1620, the Church of England was the only recognized and permitted religion in England.  Some of the Pilgrims had emigrated to Holland, where they could practice their religion, but they had difficulty in finding suitable jobs to support themselves.  They ultimately returned to England and then set sail for the New World.

The Mayflower did not land where it was intended.  However, as it was late in the year, the Pilgrims decided to remain there.  They needed a new permission, or patent, to make it legal.  So, to provide for governance until the new patent arrived, the male passengers of the Mayflower signed an agreement, later named the Mayflower Compact, for their governance.

They agreed among themselves to “Covenant and Combine ourselves together in a Civil Body Politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts, Constitutions and Offices from time to time, as shall be thought most meet and convenient for the general good of the Colony”.

It appears that the desire for self-determination in the new colony ran deep from the earliest settlers.

The Pilgrims maintained a good relationship with the Native Americans, who assisted them with food and advice as the settled in for their first winter.  The next year, 1621 the new settlers were blessed with an abundant harvest.  90 Native Americans joined with the Pilgrims for a three-day celebration of thanks.  In the 1800’s, this event became the basis for the story of the First Thanksgiving. 

In 1863, in the midst of the Civil War, President Lincoln declared a “National
day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens.”  In 1941, Congress passed a law establishing the fourth Thursday of November as the date for the Thanksgiving holiday.

I hope all of you will be able to gather with family or friends this holiday to celebrate and reflect on our many blessings.  We should all pause to give thanks for our good fortune to have been born, or to have come, to a country of opportunity and of laws that apply to all, regardless of race, creed, color, religion, national origin or sex. 

Happy Thanksgiving!

*  *  *  *  *
Next week:  Dads and Drugs

Thursday, November 21, 2013

Expert Witnesses

In many trials, especially products liability lawsuits, expert witnesses are called to explain aspects of a case that a lay person (including the judge) may not understand.  Most often each side will hire its own expert.  Same facts, same circumstances, different opinions.

Surprised?  I guess we shouldn’t be.  Experts may charge very high fees to investigate, write a report and testify.  If an attorney is putting out that kind of money, it will happen only once if the opinion is not what the attorney is looking for.

When I was a practicing attorney, I had a small probate matter with a modest home that needed to be appraised in order to be sold.  I contacted a local realtor, who was more than happy to help.  “Tom,” he said, “I want you to know that I’m going to appraise this property fairly.  My only question to you is:  Do you want it fairly high or fairly low?”

I knew this realtor well, and I knew that he was kidding.  But one has to wonder about many of the experts. 

Plaintiff’s attorneys are often criticized for contingent fee arrangements.  That is, if the plaintiff loses the case, he owes no attorneys fees, but if plaintiff wins, he pays his attorney a percentage of the recovery – often 1/3.

This type of arrangement can result in big paydays for the plaintiff’s attorney as well as their client.  But, on the other hand, it is the only way people of limited financial means can afford to retain an experienced and respected trial attorney to handle his claim.

Expert witnesses, on the other hand, are paid no matter what.  Attorney retainer agreements will provide that, while the unsuccessful plaintiff will owe no fees if they lose, the expenses will remain the obligation of the client.  As a practical matter, if the client doesn’t have the ability to pay, the attorney may end up paying those costs.

I had a lengthy products liability case over which I presided involving a major automobile manufacturer.  Plaintiff called six expert witnesses.  The Defendant called four.  Just ONE of the Defendant’s witnesses’ firms had been paid over $4 million from 1995 to 2002 to testify in similar cases for Defendant!

I wish there would be more attention paid to the very high fees often paid to expert witnesses when discussing lawsuit abuse.  I also wish I were wise enough to figure out how the parties could get the expert evidence they needed without being incurring huge expenses in the process. 

*  *  *  *  *

Next Week:  Thanksgiving

Thursday, November 14, 2013

Judge’s Courtroom Blessing

Most years, I take leave from judging, from extracurricular activities and even from my family to attend a silent retreat.  I started this tradition the year before I was appointed to the bench.  The retreat is this weekend. 

I normally leave on Thursday after work and drive to the Jesuit Retreat House on Lake Demontreville in Lake Elmo.  After supper on Thursday, the silence begins and lasts until supper on Sunday evening.  I find the opportunity to reflect, pray and consider the suggestions of our retreat leader a terrific opportunity to recharge my batteries and to get me to consider again what is truly important in this life.

I have written in a journal every year I have attended.  It’s about the only time during the year that I make an effort to write down what I’ve been thinking and doing.  It has been very interesting for me to go back to previous years to see what I’d been experiencing at the same point in the retreat.  Sometimes, I surprise myself.

One of those times was when I read a Judge’s Courtroom Blessing that I had written the year before.   

Some years before, I had heard an essay on Public Radio about a woman who was a light rail train operator.  She had said during the interview that before she boarded the train to begin her shift, she said a prayer of blessing for herself and all the people who would ride her train that day.

Wouldn’t it be neat to do the same thing for my courtroom as I started each day? 

Well, I usually forgot, because I never did it often enough for it to become a habit.

So, when I returned from the retreat after discovering the prayer I had written the year before, I had it printed, framed and hung outside the courtroom.  I still don’t remember to say the prayer every day, but it does give me cause to reflect when I do.

A Judge’s Courtroom Blessing

Bless this Courtroom and all those who will appear here today:
Give them safety. 
Give them courage.
Give them comfort. 
Give them Justice.
Bless all who will work here today:

Remind us all that the people who are brought to this place today
are Your children.

Send your Blessings, especially, on me as I judge: 
Give me patience. 
Give me understanding. 
Give me discernment. 
Give me eyes to see and ears to hear.
Remind me that I am Your servant, and that I am their servant.
Give me grace sufficient for the day. 

Inspire me to do Justice,
To love Kindness,
And to walk humbly with you, my God.

*  *  *  *  *

Next week:  Expert Witnesses

Bonus Post: Douglas Amdahl’s Prayer

Douglas Amdahl was Chief Justice of the Minnesota Supreme Court when I was appointed a District Court Judge.  I think I only met him on one or two occasions, though I was privileged to preside at his Masonic Memorial Service on August 21, 2011.  His “Judge’s Prayer” is famous, and posted in many judicial chambers around the State.  I offer it here as an “extra”, as it was an inspiration to me to write A Judge’s Courtroom Blessing:
A Prayer

I pray that today I will have the knowledge to discover and the wisdom to clarify, the legal issues;

The ability to see, and the unbiased mind to recognize, the true facts;

The heart to know, and the gentleness to understand, the human problems;

And the patience and logic to reach, and the courage to declare, the just decision.

All these things, Lord, I ask that at the close of this day my conscience may truly say, 

“Today, you were worthy to be called ‘judge’.”

Thursday, November 7, 2013

Sorry Doesn't Make It Better

Just about everything that happens in Court involves some kind of consequences for acts that happened days, months or sometimes years before, outside of the courtroom.  It may be when one of the parties to a contract that has gone awry seeking damages or another person seeking damages because of a car accident or allegedly defective product.

For a judge, the decision of consequences comes up most often when we are called upon to impose penalties in a criminal sentencing hearing.  We are called upon to consider just about all aspects of the crime and the defendant’s situation.  A presentence investigation (PSI) is prepared by a probation officer to give the court a surprisingly detailed history of the Defendant, his or her family, education, work history and often chemical dependency or psychological evaluations.  The PSI will often give the agent’s recommendations as to what would be an appropriate sentence.

Even with the recommendations and all the information provided, there is still a large amount of discretion that judges have in pronouncing sentence.  If a person convicted of a felony does not go to prison, for instance, how much, if any, jail time ought he or she serve?  Is there restitution (money to be paid to the victim of a crime) and if so, how much?  What should the fine be?  Is treatment for alcohol or drugs necessary?  Should the defendant be required to attend Alcoholics Anonymous or Narcotics Anonymous? 

Having read the presentence investigation and the various reports, I am ready to conduct the sentencing hearing.  I will first ask if the defendant has any corrections to the PSI that I should know about.  I will then hear from the prosecuting attorney, sometimes from the victim, the defendant’s attorney and the defendant.

It is then my turn to speak. 

The goal is to fit the punishment to the crime.  Sometimes, the defendant and his or her attorney will say that the defendant has been punished sufficiently already.  They have apologized and truly feel bad and remorseful for what they have done.  Sometimes, they are right.

But sometimes, I recall growing up, the oldest of eight children.  There were lots of apologies offered in the McCarthy household back then, for slights small and large.  If the apology did not fit the misdeed, Mother would remind us that “Sorry doesn’t make it better.”  There was a hurt and it requires a consequence. 

So, I start to speak and do my best to do justice and make the punishment fit the crime.

*  *  *  *  *

Next Week:  A Judge’s Courtroom Blessing

Thursday, October 31, 2013

How did you know that?

As a First District Court judge chambered in Sibley County, I have often been assigned to other courthouses when there is no court in Gaylord.  For the first 15 years or so of my judicial career, I averaged three different courthouses every week!  So, I had a lot of time to catch up on news and music while traveling to different courthouses many mornings a week! 

One Monday morning, I was driving to court at Glencoe, in McLeod County, listening to The Morning Show on Public Radio (I still haven’t forgiven MPR for taking that show off the air!), when one of the hosts announced a request:  A person named “Jim” had called in, saying he was driving to Court in Glencoe and asking for a song dedicated to him. 

The host, Jim Ed Poole, said, “Boy, he must have done something really bad if he has to drive all the way to Glencoe to go to Court.”  He went on to say that “Jim” was a musician – a drummer – and played an old Rock’n’Roll song for him:  “Tell it to the Judge”.

As was typical in those days, I didn’t know which of the two calendars I would be hearing in Glencoe that day.  I said to myself, “Please, let me have the arraignment calendar in McLeod today!

It turned out that I did.  I scanned the list of persons who were scheduled to appear before me, and found that there were two men named James on the list.  The very last person called that morning was Jim.

He had been charged with two misdemeanors, if a recall correctly:  underage consumption of alcohol and possession of a small amount of marijuana.  He pled guilty to both and I must confess, I gave him a little break on the fines.

I then said, “I’ll bet you’re a musician, aren’t you?”

“How did you know that?”

“And, I’ll be you play the drums.”

“How did you know that???”

“And, I’ll be you made a request on Public Radio this morning….”

“Ah!  That’s how you know that!”

I gave him a few more parting words about staying out of trouble, and sent him out to pay his fines.  I hope that’s the last time he had to appear in court! 

*  *  *  *  *

Next week:  Sorry Doesn’t Make It Better

Thursday, October 24, 2013


When a defendant appears for sentencing, one of the factors that a judge must consider is whether a victim has suffered financial damage as the result of the crime, and order the defendant to pay that amount back as restitution.

Some cases are easy:  The defendant shoplifts from a retailer and the property is not recovered.  The restitution is price tag for the item stolen.

Other times, it’s not so easy.  A drunk driver totals a victim’s older car and only means of transportation.  One might think that the cost of a replacement vehicle would be the proper measure of restitution.  However, the law in Minnesota provides that it is the fair market value of the property that is the proper figure for restitution.  So a replacement vehicle may run $2000, but the fair value of the wrecked car, before the accident, was only $1000.  I am required to award only the $1000.

In some cases, the cost of repair is the measure of damages.  A burglar breaks into a house and damages the door.  The cost to repair the door (and other damages caused by the break-in) is the proper measure of damages.

Sometimes, the damages are so high that there is no way the defendant could ever repay them.  One case in particular comes to mind:  after a night of partying, three young men thought it would be great fun to turn the valves at the natural gas pipeline supplying the city.  The gas was turned off, and so were the furnaces, dryers and stoves throughout the city.  Homes and businesses were pretty much shut down until the gas company first turned off all appliances in the homes and businesses, then turned on the gas to the city and finally went to each home and business in the city to relight pilot lights and be sure that the appliances were working properly and safely.

The gas company alone had damages in the hundreds of thousands of dollars.  Plus, there were claims from manufacturing companies in the city who could not open that day because there was no heat to their facilities.

The defendants were ultimately found, charged and pled guilty to the charge of Criminal Damage to Property.  They were placed on probation for five years each and each was required to pay $100 per month for each month they were on probation to be applied to the restitution claim.  Quite a cost for a night of partying.

Restitution is only an amount required to be paid as a part of the criminal probation terms.  This does not preclude any victim from suing the defendant in civil court for any and all damages that they can prove were caused by the defendant.  Of course, the defendant cannot be required to pay twice for the same damage. 

*  *  *  *  *

Next week:  How Did You KNOW That?

Thursday, October 17, 2013

Be Careful What You Ask For

All criminal defendants have the right to a speedy trial, guaranteed by the United States Constitution.  This means that if a Defendant makes that demand, his trial must be held within 60 days (with some exceptions).  I had one defendant who gave this phrase an entirely different meaning.

I was presiding at the call of the jury calendar.  There were perhaps 15 criminal cases set on for jury trial this particular day.  One case I called was a man representing himself on a charge of Driving After Revocation (DAR).  As he came to the attorney’s table, he took a small American flag and desk flag base out of his bag and set it on the table.  He then proceeded to explain to me that he was not guilty of DAR, that he was traveling, not driving, and that traveling is a right guaranteed by the United States Constitution. 

I told the gentleman that there was one other case, a fellow who was in jail, that would be the only trial to go ahead of his, and I wouldn’t know if that case had resolved until after lunch.  Why didn’t he just have lunch, come back at 1:00 and we’d see if we could get his trial in that day.  The Defendant said, “I want to demand my right to a speedy trial.”  He would come back at 1:00 and I’d try to accommodate. 

At the break, I found that he had been in court on a similar charge just a few weeks before.  The judge then worked out a plea arrangement and, before the Defendant left his courtroom, told him, “I’m not going to ask how you got to court today, but I want you to know that there are some very suspicious people who work here.  I STRONGLY admonish you:  Do NOT drive away from the courthouse.”  Well, of course he did, which was the case I was trying that day.

After lunch, the other case settled and at about 1:45, we started picking a jury for this DAR trial.  By 4:15, the defendant was on his way to jail to begin serving a 30-day sentence, having been tried before and convicted by a jury of his peers.

This Defendant had demanded a speedy trial.  He was able to get just what he asked for!

*  *  *  *  *

Next week:  Restitution

Thursday, October 10, 2013

Addressing Domestic Violence Issues

In 1995, when I was asked to be a part of a delegation from Minnesota to the national Violence Against Women Conference, there was some discussion of whether it was appropriate for judges to participate in a conference or organization that was focused on the victims of domestic abuse.  After all, we are called upon to preside and decide cases of domestic abuse, both criminal and civil.  Wouldn’t we be perceived as favoring one side over the other if we attended/supported education efforts to reduce domestic violence?

The Chief Justice of the Minnesota Supreme Court issued an Order that it was not only permissible to participate in such groups, but it was encouraged. 

After all, there is no judge anywhere that is in favor of crime.  Yet, each one of use must make decisions about persons charged with crimes dozens of times each week. 

A person, and a judge, can be against crime or domestic abuse in general, but must be able to look at each individual situation to determine whether the charge has been proved or whether the criteria for issuing a domestic abuse order for protection have been demonstrated.  If so, a guilty verdict is rendered or an order for protection is issued.  If not, the charges or the petition must be dismissed.

I have dismissed petitions for orders for protection where the petitioner is obviously and with good reason, terrified of the alleged abuser because one of the requirements of the statute has not been proved.  As much as I feel for the alleged victim, and as much as I wish I could grant the order she (usually, but not always a she) has requested, I simply cannot under the law I have sworn to uphold. 

I continue to participate in our county’s bi-monthly meetings on addressing the serious and pressing issues of domestic violence.  We have worked together to streamline and standardize the procedures in handling these cases, from investigation through trial and after. 

I know the actions of this group of law enforcement, prosecutors, defense attorneys, probation and social workers has made our county safer for victims of domestic abuse.  I also know we have much more work to do.

And I guarantee that the State or the Petitioner in such actions must prove their case before I will issue a guilty verdict or order for protection.

*  *  *  *  *

Next Week:  Be Careful What You Ask For

Thursday, October 3, 2013

The War on Terror

It may be surprising to hear, but as a country judge, I am on the frontline of the War on Terror on a weekly basis.  No, I don’t have Al Quaida or the Taliban in my courtroom.  I have (usually) men who are alleged to have committed acts of domestic violence against the people they are supposed to love and protect the most in this world.

I attended a speech by a police officer who grew up in a home where his step-father routinely beat his mother.  He and his brother would cower in their rooms, praying that the horror would end.  He is the first person I heard describe living in a home where domestic violence occurred as living with a terrorist.

That is an apt description.  Studies on domestic violence show that the abuser will isolate the victim (usually his wife or his girlfriend) and exert control over their every act.  Jealousy can be a huge part of the domestic violence cycle.  Alcohol or other drugs can be a catalyst, though not a cause, to the violence.

Early in my judicial career, I was chosen to represent the First Judicial District at a statewide conference on domestic violence.  Later, the Chief Justice asked me to represent Minnesota at a national conference in New Mexico.  I had the privilege of being part of the rollout of the Domestic Abuse Order for Protection database, which allowed police officers to confirm the existence and particulars of outstanding orders.  Prior to this system, it was often difficult to know just what the Order provided if the courthouse was closed and the order unavailable.

Fairly often, the Petitioner (usually the wife or girlfriend) will come in within months, or even weeks (sometimes, hours), of the Order for Protection and ask that the Order be dismissed.  I will often require that the Petitioner appear in Court so that I can be sure that she understands that the Order was issued for her protection and safety.  I will often ask if she has made contact with the domestic abuse advocate and whether she has a safety plan in place.  And, I will ask for her promise that, if any time in the future she feels unsafe, she will take steps to insure her safety, which may mean asking for another Order for Protection.

This week, I’ve been invited to moderate a presentation on domestic abuse for court personnel, attorneys, judges and advocates for the First Judicial District.  It is an honor to be involved in a program to make our state a little safer for victims of domestic abuse.

*  *  *  *  *

Next week:  Addressing Domestic Abuse Issues

Thursday, September 26, 2013

A Night in Jail

During a quarter of a century on the bench, I have pronounced jail sentences for perhaps hundreds of people.  (I try not to say that “I sent him to jail.”  He committed the act that required the jail sentence.  I simply made it official.)

A lot of people who have never been in jail wonder what it is like.   I can tell you, sort of…

The Sibley County Jail was expanded in 1995.  Once the construction was complete, the staff hired and procedures established, all that was necessary for them to open for business was a test run. 

Thus it was, on a summer night, I went to the Sibley County Jail to join with several other citizens who volunteered to be “prisoners” for the jail staff to practice their procedures and work out any kinks in the system.

I was first placed in a holding cell, while the men who had arrived before me were processed.  The cell is small, with only a concrete bench.  I was there for about a half hour before being brought into the booking room.

I was photographed – the standard front and side mug shots.  My fingerprints were taken – using ink on paper instead of the electronic scanners we use now.  I was then given an orange jump suit and shown to a cell.  Actually, there were four cells off of one day room.  The furniture was poly covered iron.  The bed was metal, with a thin mattress and a plastic pillow – quite uncomfortable.

I was in the cell for maybe an hour when the door opened, and a local officer said, “Judge?  We need a warrant signed.  Don’t worry – I put the suspect in the holding cell so he wouldn’t see a prisoner signing the warrant!”

We watched television from the uncomfortable benches until lights out at 10:30.  Then onto the cots for the night.  Procedure calls for bed checks throughout the night.  The doors, of course, were heavy metal and every time the key went into the lock, it woke me up. 

At 7:00 a.m., the test run was over.  We were given orange juice, coffee and donuts.  The mug shots and fingerprint cards were given to us as souvenirs.  Our civic duty was performed and soon the jail would be open for business. 

And I knew that if I never spent another hour in a locked jail cell, it would be too soon. 

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Next week:  War on Terror

Thursday, September 19, 2013


Some of the saddest cases involve people who are in this country illegally.  Many times they appear before me charged with relatively minor offenses, but are then held until the Department of Homeland Security decides whether or not to deport them.

One defendant was brought before me on minor charges, but I was informed by the prosecutor that they could not obtain the correct name and date of birth of the defendant.  I had him placed under oath and asked him to tell me his correct name and date of birth.  The interpreter had a hint of a smile when he told me the defendant had given a date of birth of April 31, 1963.  I had a slight smile as well when I told the defendant he’d be held, without bail, until his identification could be confirmed.

Many of the folks in this situation, however, are here to earn money and send it home to their families.  They try to fly under the radar, but a broken taillight, or cruising through a stop sign, or driving after they’ve had too much alcohol to drink will bring them to the attention of law enforcement and begin the journey back to their home – and the conditions that forced them to leave in the first place.

Another case I handled involved a person who had been in Minnesota, illegally, for over 17 years.  He supported himself and his family (wife, two children and a stepson) until his home was searched and a trace amount of cocaine and one illegal pill were found.  Normally, probation with some jail and treatment would have been the sentence.  However, the immigration service deported him to Mexico, while his wife and children remained in Minnesota.  Had I had complete discretion on how to handle the case, I think I could have come up with a more compassionate – and more just – outcome to this sad situation.

My great-great grandfather left Ireland in the 1840’s because of the potato famine.  Once he left County Cork, he never saw his family there again.  True, my great-great grandparents came to this country legally – at least I think they did.  But the desperation that drove them to leave Ireland must lead others to leave their home country today to try to make a life in the United States. 

A state court judge does not deport people who are in our country illegally.  We are required, however, to order that they be held until Homeland Security makes its decision.  While it’s a duty I am required to perform, it is a sad one.

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Next week:   A Night in Jail

Thursday, September 12, 2013

I Pledge Allegiance

            On September 11, 2001, I had a late start in Court, so I decided to stop by the local Legion Club for a cup of coffee and a little conversation before heading to the Courthouse.  The television over the bar showed a familiar building with smoke billowing out of it.  “An airplane hit the World Trade Center,” I was told.  An accident?  No one knew.

            As I was drinking coffee and conversing with friends, an exclamation came from the television area – “Another one hit the other building!”  The apparent became obvious:  this was no accident.

            Along with the rest of the country, I walked through the next week in a daze.  Put a flag pin on my lapel.  Put a small flag out of the backseat window of my car.  Prayed for my children and my country.

            Politicians called for new laws requiring the Pledge of Allegiance to be recited in schools across the land.

            I suppose a couple of weeks had passed when I realized I didn’t need a statute or anyone’s permission to recite the Pledge of Allegiance at the beginning of the day in Court.  I could just do it!

            So, I tried it.  “Thank you, ladies and gentlemen,” I said as I walked up to my place on the bench.  “I’d invite you to remain standing and join with me as we open court by pledging allegiance to our Nation’s flag.”  I turned and faced the flag and began.  And the people in the courtroom joined in.

            It was uncomfortable that first time.  For the first several weeks, in fact.  Doing something different.  Doing something few, if any, of my colleagues were doing.

            As I went to different courthouses and started opening court the same way, I eventually got used to the surprised looks and the occasional smirk.  I started to receive occasional thanks for the new ritual.  One lawyer who appeared before me was a semi-regular guest on a local radio show and talked about the Pledge on the air.

            I had a few folks who said they didn’t like it and were uncomfortable with the practice.  One attorney simply stayed out of the courtroom until court was open and the Pledge had been recited. 

            Now, more than ten years later, starting court in this way is second nature.  Rarely, I’ll be distracted as I go onto the bench and just sit down – until I see the bailiff, clerk and court reporter are standing with their hands on their hearts, waiting.  I stand again, and thank them for the reminder, and pledge allegiance to our country so that court may properly be brought to order.

            And so we may, for a brief moment, reflect on the marvel of this Country which
offers access to its justice system to all.

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Next week:  Undocumented

Thursday, September 5, 2013

Continuing Education

In order to be licensed as an attorney, a person must have graduated from an accredited law school, pass the bar examination, take an oath and (of course) pay the required fee.  In order to continue to be a licensed attorney, one must complete 45 hours of continuing education every three years.

Judges are licensed attorneys.  We, also, are required to accumulate 45 hours of education every three years.  One of the most efficient ways of doing this is to provide a condensed course of instruction tailored specifically for judges.  Thus, the Minnesota District Judges Association and the Supreme Court Continuing Education office each provide an annual three-day conference for judges to obtain most, if not all, of their annual education requirements. 

This education conference also enables the Judges Association to have their membership business meetings.  It is also an opportunity to network with other judges from across the state to compare notes and pick up tips on doing our job more effectively and efficiently.  Providing this training to judges in a statewide conference is a very cost-effective way to provide our required education.

This week, I am attending the annual conference of the District Judges Association.  I will obtain most of my required education credits for the year.  I know I will learn tips from other judges that will make me a better judge.  Some of that education will occur in the education classes offered during the conference.  Much of the education will occur during meals, breaks and in the hospitality room.

Many days, I am the only judge in the courthouse.  It is very helpful to be able to bounce ideas off of a colleague when there is a particularly difficult legal matter to decide, or an unusual set of facts.  That is one reason why I especially look forward to this gathering.

25 years ago, when I first attended this conference, my conversations usually involved “What are your children up to these days?”  For the past several years, it has been “When are you planning to pull the plug and retire?”  I expect this will be my last District Judges Conference as an active judge.  So, not only will I learn some new ideas, catch up on what has been going on in my friends’ lives, but I will start to say good-bye.

I am looking forward to recharging my batteries. 

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Next week:  I Pledge Allegiance

Friday, August 30, 2013

Bonus Blog!

One of my most-admired colleagues retired this week after over 24 years on the District Court Bench.  Judge Edward Lynch served the people of Minnesota with distinction over his career, presiding over high-profile cases with dignity and competence.  He served as Chief Judge of the First Judicial District for several years, and has been a valuable asset on many statewide judicial committees.

As a parting gift to the staff of the District, Judge Lynch sent out a beautiful poem that sums up well the tasks faced by trial court judges.  It is reprinted here, with his permission.  Best wishes for a long, happy and healthy retirement, Ed!

Becoming a Judge

When you grow weary of lawyering, the stress and the strife
When you realize you want more purpose and meaning in your life
When you can leave behind the advocacy that defined your career
And embrace neutrality and solitude without hesitation or fear


When you can see in every criminal a trace of good

When you can follow your conscience and do what you should

Despite public pressure or media presence

And temper justice with mercy as you pronounce your sentence

When you are able to help lawyers and litigants reach resolutions
When you focus on the kids and not the parents in dissolutions
When all around you is chaos but you remain calm
And apply to society's wounds the law's healing balm

When you recognize the conflicts and strive to accommodate

When you overlook minor irritations and decline to intimidate

When you ease those before you: the frightened and nervous

With compassion, understanding and a commitment to service

When you look beyond the cases scheduled before you
And understand the ramifications of all that you do

On the administration of justice and the public’s perception
And conduct your life honorably, without exception

When you accept there is nothing routine about the matters you see
Because they involve peoples' freedom, property or family

When you can appreciate the tragedy and humor cases can have
But hide the tears and suppress the laugh


When you earn the respect of others and the community’s trust

When you’re considered fair, impartial, patient and just,

When you understand that the process is as important as the end

Then, then you will be a judge, my friend.