Thursday, November 6, 2014

Good Luck in Court!

95 weeks ago, I published my first reflection on becoming a district judge.  It has been a real privilege and pleasure sharing with you some of the experiences I’ve had sitting on the bench.  This week, Judge Looby begins his tenure as the District Judge with his chambers in Sibley County.  Except possibly for those rare occasions when he or another sitting judge simply is not able to preside in Gaylord and I’m called to help out, my work there is done.

I feel this is an appropriate time to conclude these weekly pieces on my experiences as a trial court judge.  I’ve tried to give you a different look at the business of judging.  Reading these pieces, it’s clear that it’s not always, or even usually, a sterilized review of the facts and application of the law.  More often than not, it’s an imprecise process – as much an art as a science.

I want to thank those of you who have emailed of talked to me about these musings.  I also want to thank the Winthrop News for publishing these short essays under the heading “A View from the Bench”. 

At this point, I sometimes ponder what my legacy will be.  I suspect that some who have appeared before me will say that I am the wisest, most patient and just judge since Solomon.  Others will be convinced that I am the most uninformed judge ever to have donned the black robe.  There is no doubt that my decisions have affected hundreds of lives over the course of my career.   I have tried my best and can live with my decisions, even those in retrospect I have discovered were not the best decision I could have made.

Now, it’s time for new tasks and new projects.  I’m looking forward to it!

But who knows, perhaps I’ll miss setting down my thoughts weekly and will start a new series of essays.  Maybe I’ll write some reflections on being retired.  Perhaps the News will publish these as “A View from the (Park) Bench”!

*  *  *  *  *
I couldn’t fine a spot for this actual text message conversation I had a few years ago, so I’m going to drop it in here.  I do have a friend in Forest Lake, and thought it was from him: 

Sender:            Are you in Forest Lake? I thought I saw you drive by but not sure.
Me:                  Nope.  In Court.
Sender:            What did you do?
Me:                  :-)  who is this?
Sender:            Sorry wrong #.  Good luck in court.

*  *  *  *  *

PS:  For those of you who have asked and those who may be curious, I finally did get that porch painted! 

Thursday, October 30, 2014

The Longest Trial

Jury trials can be some of the most interesting work a judge does.  Instead of making the decision myself after hearing the evidence presented, a panel of six to 12 jurors is impaneled to assist in finding the facts and rendering a verdict. 

I was surprised to realize that most jury trials last two days or less.  I had always thought that a matter serious enough to required the assistance of citizen jurors would take longer than that – not as long as the O.J. Simpson trial (televised to the nation for several weeks), but longer than 48 hours!

I have had a few jury trials that lasted more than a week.  The longest trial over which I presided lasted 21 trial days, spread out over 7 weeks to accommodate attorney and witness schedules and the Christmas holidays.  It involved a man who was involved in a car accident and was a paraplegic as the result.  He was suing the car manufacturer, claiming the car was unsafe and that was a cause of his injuries.

Six lawyers were involved in the trial – three for the injured man and three for the car company.  There were expert witnesses, hundreds of exhibits and videotaped testimony that was played for the jury.  Our technology courtroom was put to good use during that trial!  I believe it would have taken two or three more days, at least, to have conducted that trial without the available technology.

It was interesting to see the very different dynamics that developed over the course of the trial.  The attorneys stayed in local hotels or bed and breakfasts.  It was a small town, so they and the parties would run into each other at lunchtime or after the court adjourned.  I had to be very careful to continue to remind the jury about their duty not to talk to anyone about the case and not to do any investigating (like visiting the scene of the accident or going online to research car safety) throughout the trial to be sure there would not be a mistrial.    

After 21 days of testimony and many hours of deliberation, the jury returned its verdict.  It was only then that we all realized that one of the jurors was on felony probation!  Despite being asked in writing when he was summoned for jury duty and in the questioning under oath during jury selection, he had failed to mention this critical fact.

So, I had to vacate the jury verdict and set the matter on again for trial.  The parties were able to settle the case before the trial date came around, so I did not have a repeat of the longest trial over which I had presided.

Thursday, October 23, 2014

Small Claims Court

Some of the most challenging cases for a trial judge happen in conciliation court, or small claims court.  When I first took the bench in 1988, the maximum amount that could be claimed in conciliation court was something like $1000.  Now, it is $15,000!  Small claims, indeed!

These cases can involve very complicated issues of law and of fact.  Since lawyers generally are not allowed to appear in conciliation court, the litigants may not understand what evidence is required to be presented to succeed.  For instance, simply because that used car that was purchased has a major problem with the engine or transmission after only 200 miles is usually not enough to prove that it was defective when sold.  Some kind of expert testimony may be required.

Also, folks often do not have a realistic idea of how much they have been damaged.  One claimant alleged that his neighbor had cut down a dead tree that was on the claimant’s property.  He computed his damages based on the amount one would pay for a bag of firewood at the local convenience store.  That is far, far more than proper measure of damages for the tree, which would be its value as it stood on the claimant’s land.  (The claimant lost this case on other grounds, in any event.)

In many conciliation court cases, the defendant does not even appear.  In those cases, the plaintiff wins by default.  I recall one case where the Girl Scouts of America were suing a mother of a scout who had received over $1000 in Girl Scout cookies and had not paid for them.  I really wish the mom had appeared – I wonder what the other side of that story was!

I am sometimes asked what I think of the television judges, like Judge Judy.  I must confess, I have tried to watch that show, but usually end up turning it off after only a few minutes.  If I treated people as rudely as that judge does on television, I would rightly be reported to the judges’ ethics board.  I also worry that people may hesitate to bring a legitimate claim because they fear being ridiculed by the judge. 

Because for those people, it is not just an entertaining television show or another day at the office for the judge.  It is a very important day in their lives, and they deserve to have their claims considered with the respect and dignity to which they are entitled.

Thursday, October 16, 2014

15 Minutes of Fame

Back in the 1960’s, an artist names Andy Warhol is supposed to have said, “In the future, everyone will be world-famous for 15 minutes".  I came across that quote recently and it made me think not of people who seek the public limelight, but of the people that have come into my life “for 15 minutes” over the years.

Some are literally only 15 minutes.  Some are a part of my life for 15 days or 15 weeks or 15 months.  In every case, I have made one or more decisions that have always had an immediate and often a long term impact of the person’s life.

And then, they are out of my life.  Notwithstanding the fact that I have made what might be a life-altering decision, once their case is concluded, I really have no way of knowing what has happened to them.

The one case that has stuck with me for the longest time, as I heard it early in my judicial career, involved a dispute between the parents of a young girl.  Mother claimed that Father had sexually abused the child during a visit.  The case took several days to try. 

For the first couple of days, it appeared to me that, for the first time in my judicial career, I had a case where Mother falsely accused Father of a horrific act.  Then, on about the third day of testimony, the child’s social worker testified about her first visit with the child concerning the abuse.  Not for the first, or the last time in my judicial career, I found that my first impression was wrong.  I concluded that Father had abused the child, and ordered that he not have any visits with the little girl until he had completed sex offender treatment.

His response:  I can’t do sex offender treatment, because I haven’t abused my daughter.

Given the same set of facts, I would make the same decision today.   Yet, I wonder if that Dad ever saw his daughter again.  I did the best I could with what I had, but there is no 100% guarantee that the decision was the correct. 

Did that veteran stay sober after treatment?  Did that young woman safely get through her tour of duty with the Marines?  Did the children ever reconcile after the probate dispute?  Did the child injured in an auto accident wisely invest the insurance proceeds or blow it when he turned 18?

I will probably never know.  It’s the nature of my job, and the nature of life.

Thursday, October 9, 2014

Terminating Parental Rights

Some of the most emotional cases in the courtroom happen when parents give up their rights to parent their children.  This can happen in different situations:  A teenage mother, for instance, realizes she can’t raise the child and places it for adoptions.

Most of the hard cases, however, come at the end of a child protection proceeding. 

Sometimes, when I expected tears and a very emotional hearing, I am (unpleasantly) surprised.  In one case, Mother agreed to terminate her parental rights, as she was in prison.  The law requires that a parent sign the voluntary termination of parental rights document in the presence of a judge.  As I was going through Shakopee that week, I offered to stop by the Women’s Correctional Facility there to witness her signature. 

I arrived at the prison, went through the metal detector and emptied my pockets and briefcase for inspection.  I was escorted into a small conference room just the other side of the solid steel door that clanked and locked behind me.  Mother soon came into the room.

I started to say something about what a hard and difficult decision this was, when the mother interrupted me.  Could we please get this over with?  She didn’t want to be late for supper.

I guess not every woman has those strong maternal instincts. 

On the other hand, I recall a case where the parents were addicted to methamphetamine.  That is a terrible affliction and quite difficult to overcome.  After unsuccessful attempts at treatment – and another arrest for possession of the drug – the parents realized that it was in their child’s best interest to be raised by someone else.  One of the grandparents stepped forward and offered to care for the child.  The parents agreed to give sole legal and physical custody of the child to Grandma.  (In that case, the parents’ rights were not terminated.)

There were lots of tears at the hearing, and the parents acknowledged that they let their child down.  At the end of the hearing, because the parents’ rights were not terminated and Grandma would be raising the child, I was able to tell the parents that one chapter in the story had closed, but the book was not finished.  They still had the opportunity to sober up and proved themselves.  While they likely would never parent the child, they could be a part of their child’s life.

It was up to them.

Actually, it’s always up to them.  Judges don’t terminate parental rights – the parents do.  Judges only sign the paperwork that makes it official. 

Wednesday, October 1, 2014

John Hancock

You may remember from your grade school American History class that John Hancock was the first person to sign the American Declaration of Independence.  His signature was big and bold, and he reputedly stated that King George would not have to put on his spectacles to read it!

Over time, “John Hancock” has become a synonym for signature.

Of all the professions, doctors are supposed to have the worst handwriting.  I have compared my signature to that of my younger brother, Dr. Mike.  Dr. Mike’s signature has always been more legible than mine…..

Judges are as notorious for poor handwriting as doctors.  Periodically, our district office will collect copies of all of the judges’ signatures, with their names printed alongside, and distribute them through the system so, for instance, officers who are executing a search warrant can actually know who the judge was who signed the warrant! 

I’ve produced many a John Hancock in my career as judge.  Recently, I kept track and found that I’d affixed my name to 40 different legal documents in one day!  A conservative estimate would be that, in my 26 year career as a judge, I have signed well over 100,000 orders, on file permanently in the District Court. 

The happiest orders I have signed make new families:  adoptions are by far the most joyful work a judge can do.  Marriage certificates are other happy orders.  But, there have been sad orders, too:  committing a person to prison or a mental institution or signing the final divorce decree.

I have signed sentencing orders on probably thousands of criminal cases.  These may go from assessing a fine for a traffic ticket to sentencing a person to the county jail for domestic abuse to sentencing a young man to prison for life for committing murder.  That was sobering.

It’s a cliché that the job is not over until the paperwork is done.  The divorce is not final, the adoption is not approved, the will is not admitted to probate and the marriage is not recognized until a judge affixes his or her signature. 

I recall Twins players telling how they were lectured by Harmon Killebrew to sign autographs so that people could tell whose signature it was.  Sometimes, when I have a stack of a couple dozen orders to sign, I’ll remember Mr. Killebrew’s advice, slow down and try to be more careful with my signature – after all, it will be in the court records forever.  But even when I do, it’s barely more legible.

And after all, there are people waiting for me to get back in the courtroom. 

Thursday, September 25, 2014

Judicial Demeanor

Judges are required to comply with the Code of Judicial Conduct.  These are mainly common-sense rules to protect the dignity of the Court and the judicial process and to set forth the ethical rules the judge must obey.

One of the Canons in the Code requires that a judge maintain “order and decorum in proceedings before the court”.

As a judge, especially one who has served for many years, there is an issue that we may become so accustomed to presiding over the many and various cases that come before us that we consider the “All rise!” a call to just another day at the office.  To the people who appear before us, however, it very well may be the most important day of their lives.  This is true no matter how trivial or unimportant the matter may seem to the judge. 

As a judge, I have an obligation to enforce discipline in the courtroom.  We do serious work in that room, and I have a duty to maintain the decorum that lets people know that serious work and important decisions happen here.

I have observed a few judges who have a very informal, conversational style in the courtroom.  That method seems to work for them, but I think that being too informal depreciates the dignity of the Court.

On the other hand, I have observed judges that rule their courtrooms most strictly.  People appearing in those circumstances are often cowed into silence, just by the judge’s attitude.

So we walk the fine line of maintaining order and decorum on the one hand, while attempting to put the litigants enough at ease that they can tell their story.  Sometimes, it is a difficult matter.  When emotions run high, as in domestic cases or marriage dissolutions, it puts pressure on the judge.  When a person representing himself just doesn’t understand, it is hard to maintain patience and courtesy while explaining what he wants just won’t happen.  These situations can be even more difficult if the person does not speak English and the conversation goes through a certified interpreter.

The most important thing for folks coming to court is to be assured that they have been heard.  By balancing the discipline to maintain proper decorum and the relaxed attitude to encourage the free flow of information, a judge can do the best job possible. 
As the comment to the Rule of Decorum states “Judges can be efficient and businesslike while being patient and deliberate.”  

Thursday, September 18, 2014

So, How's Retirement?

If you have asked me that question in the last several weeks, you have probably heard me say something like, “If I were charged with Retirement, there would not be enough evidence to convict.”

Yes, the Governor has been pretty slow in naming my replacement.  When I told Patty several weeks ago that it would probably be a month before he would interview the finalists for the position, she said, “WHAT?  Doesn’t he know you have a porch to paint?!?”

I’ve also joked that the only ones happy about this situation are the walleyes in Rice Lake!

I have been working a bit more than half time, covering most calendars in Sibley County and trying to finish up a difficult case that I had tried before my formal retirement. 

This week, however, the new judge has been named:  Timothy Looby, attorney from Waconia.  Judge designate Looby has been a practicing law for a long time – he and I were on opposite sides of cases before I became a judge!  When I called to congratulate him, I learned he is most excited to begin this next stage in his career and will do so as soon as he wraps up his practice, in about six weeks.  I know that Tim will do an excellent job as a District Court Judge chambered in Sibley County.

When Judge Looby settles in as the full time judge in Gaylord, it will mean that I REALLY will be retired!  Up to now, I’ve been going to the same office I used for the last 25 years – though it is missing the photos and other personal effects that I had taken home prior to my official retirement date.  In just a few weeks, Tim’s photos and personal effects will adorn the walls and desk of that office.  If I am called on to fill in on occasion in Sibley County, I’ll use the visiting judge’s office.

When that happens, it will become real.  One chapter of my life will close and another will open.  It has been said that the only constant in our lives is change.  And that the only one who really likes change is a baby with a dirty diaper.

But we all adapt, every day, to the changes that happen in our lives.  No doubt, I’ll adapt as well.

In fact, I’m looking forward to trying! 

And, just maybe, getting that porch painted!

Thursday, September 11, 2014

Irish Alzheimer’s

Do you know the definition of Irish Alzheimer’s?  You forget everything, except the grudge.

That is an awful joke at the expense of a terrible disease, playing off of one of the many stereotypes of the Irish – that they enjoy a good fight.  I had promised myself I would never repeat that joke.  However, recently as I thought about it, I realized that it is not only a story that is in very bad taste, but it is a metaphor for things I have seen in my work and among my friends and family:  a person becomes so offended, often by someone they love, that they forget all the wonderful times and good qualities of the other person and remember only the offense.  Only the grudge.

The grudge becomes all-consuming.  It can eat a person from the inside. 

Marriages fall apart.  Families are torn asunder by inheritance battles.  Business associates lose trust and their relationship, as well as their business, fails.

Relationships, whether between family members, business associates or sovereign governments, can be strained, damaged or broken by miscommunications and misunderstandings as readily as by intentional acts.  How many wars and divorces have been unintentionally caused over the millennia by such sins of omission? 

I recall a divorce case I once handled.  The couple had been experiencing stress in their marriage.  They had an argument, and the husband retreated to the basement bedroom.  He never returned to the marital bedroom.  18 months or so later, they were in my courtroom to finalize the dissolution of their marriage.  Neither one of them could recall what they were arguing about that had led them down that irreversible path.

They could only recall the grudge. 

Who suffers as the result of the grudge?  Often, the one who is carrying it.  The other person may not even be aware of it.  They may know that Jerry hasn’t called for awhile, but doesn’t think much else of it.  Jerry, on the other hand, cannot stop t thinking about it.  He carries the grudge and he carries the pain.  So very sad.

When the grudge occurs between mother and father, the children are the innocents that suffer as a result.  Those cases are among the hardest I have had to handle on the bench.  The couple is so blinded by their rage against the other that they cannot recall the reasons they fell in love and married in the first place.  And, tragically, they cannot see the terrible damage the grudge has done to their children. 

An awful joke about a terrible disease holds a nugget of caution for us all:  Beware the unquenchable power of the grudge. 

Thursday, September 4, 2014


In the olden days, if a person got a speeding ticket, for instance, he could sign the back of the ticket (which meant he plead guilty), call the courthouse for the fine amount and send the ticket and a check by mail to take care of the matter.

Lots of people chose the other alternative:  appear on the court date indicated on the ticket.  The would then either plead not guilty and the matter would be set for trial or they’d plead guilty with an explanation – something they wanted the judge to know before the plea was accepted or the fine imposed.

The days when these matters were set on for hearing was called the arraignment calendar, or simply, traffic court.  I rather looked forward to those days.  If the 70-year-old who had been driving for over 50 years appeared on her first traffic ticket, I could accept the plea, but waive the fine in recognition of a half century of good driving.  I could take other matters into consideration as well.  And if traffic court fell on Christmas Eve, well sometimes the Christmas spirit would influence the amount of the fines levied that day.

That was all very good, but it did take time.  And not just the judge’s time – court administration, the bailiff, it all added up.  So, over time, more matters were added to the list of charges that could be handled without a court appearance – the payable list.  Later, a person could call into the courthouse with the ticket number, find out what the fine was and take care of it over the phone with a credit card.  Most recently, a statewide center was established to handle payable tickets from all over the state – just call in with your credit card and in a matter of minutes, the case would be resolved.  No need to take a half day off of work so you could go to court and settle up.

Very convenient.  Very cost effective.

But, in many cases, very unfair.  Many folks don’t know that if you plead guilty to, say, driving without insurance, that your drivers license will be suspended for 30 days.  Or, if you call in your plea to driving after suspension, your license will be suspended for an even longer time. 

Sometimes, I would like to see that young person with their third underage consumption charge.  Are they chemically dependent and need counseling or treatment?  Putting them on probation might help save a lifetime of misery.  But now, they can simply call it in and pay the fine.

But, the budget is always a major concern, so I doubt very much that these cases will ever go back on the “mandatory court appearance” list.

Not all change is progress.  

*  *  *  *  *  *  *

Sorry this was late being posted.  No electricity this morning!  Then at judges conference all day...

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:


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.

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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…

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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….

*  *  *  *  *  *  *
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.”

*  *  *  *  *  *  *

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