Thursday, June 26, 2014

Middle Drawer on the Right

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

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

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

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

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

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

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

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Next Week:  Artifacts

Thursday, June 19, 2014

Unhappy Customers

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

Some days, I can relate to Fred.

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

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

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

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

Ah, the good old days. 

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

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

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

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

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

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Next Week:  Second Drawer on the Right

Thursday, June 12, 2014

A Judge's Religion

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

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

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

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

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

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

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

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

I do the best I can with what I have.

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Next Week:  Unhappy Customers

Thursday, June 5, 2014

Sentencing Departures

When a person convicted of a felony offense (for which a prison sentence is possible), the Court is required to consult the Sentencing Guidelines to determine the appropriate sentence.  The Guidelines consist of a table with the crimes listed on the left from least serious (e.g., possession of marijuana) to most serious (e.g., murder).  Across the top are numbers, representing the defendant’s prior criminal record, from zero points to six points.  Special rules apply when the defendant has more than six prior offenses or have sex offenses.

The Guidelines tell the Court when a person should be sent to prison or if he should be placed on probation.  The judge has the authority to decide what the conditions of probation should be, which could include a fine, treatment, community service and county jail time of up to one year.

The law also provides that, in certain circumstances, the judge may depart from the guidelines and sentence the defendant either more leniently or more harshly than the Guidelines provide. 

Some of the most difficult cases I have faced over the years involve the decision of whether or not to send a defendant to prison when that’s what the Guidelines provide. 

In one case, involving charges of violation of a domestic abuse no contact order, the Guidelines called for a prison sentence.  There was no agreement between the attorneys.  The victim hoped to eventually reconcile with the defendant, which was a consideration in my decision.  Here are some excerpts from the Memorandum I filed in that case, explaining my decision to place the defendant on probation and not send him to prison: 

            The Court notes the victim impact statement from the family of the victim.  They ask for the maximum incarceration possible, followed by a lengthy probationary period when Defendant can receive the treatment and help he needs.  These are mutually exclusive goals.  I can either send Defendant to prison for the maximum period allowed or I can place him on lengthy probation.  I have chosen the latter.

            I am well aware of the risks being taken here.  If the unthinkable happens, it is my door upon which the television reporters will knock. 

            Having carefully (and I may say, prayerfully) considered the options here, I have concluded that the best way to avoid the unthinkable is to depart from the Sentencing Guidelines, place Defendant on a lengthy period of probation, and give him all the support available to turn his situation around and remain a law-abiding citizen.

The Defendant is over halfway through his probation.  So far, so good.  I continue to pray that he will succeed. 

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Next Week:  Judges and Religion