Ex Parte Communications

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

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

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

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

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

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

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

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Next week:  Excuses, Excuses

Prison Tours

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

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

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

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

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

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Next Week:  Ex Parte Communications

A Beautiful Young Woman

She was a beautiful young woman.  19 or 20 years old, with a wonderful face and a Barbie Doll figure.  As gorgeous as this young woman was, she did not flaunt her beauty. 

The beautiful young woman approaches the bench and pleads guilty to no Minnesota driver’s license.  I ask her what she needs to do to get her license, and she tells me.  I offer to continue the case four to six weeks so she can get her license, and she tells me, “I don’t think I can, your Honor.  I report to Marine Boot Camp the week after next.”

My heart sinks, and I want to cry.  This plea is happening at the beginning of a troop surge in Iraq.  I know that this beautiful young woman will likely be deployed to a war theater when she completes her training. 

And I know that the odds are greater that she’ll be sexually assaulted by one of her comrades than be killed in action in Iraq or Afghanistan.

One in three of active duty women serving in the U.S. military have reported being the victim of sexual assault while serving.  That is about double the rate for civilians. 

So, I sat on the bench and told the beautiful young woman how grateful I was for her service to our country, all the while containing the urge to scream at her, “DON’T GO!  PLEASE, DON’T GO!  DON’T PUT YOURSELF IN THAT HORRIBLE AND DANGEROUS SITUATION!”  But, I maintained my “Judicial demeanor”, keeping order in the courtroom and moving the calendar along.

As a judge, people pass in front of the bench day in and day out.  They may spend 10 minutes before me, or they may be a party in a trial that takes several weeks.  Then, they pass out of my life and back to their own.

In my 26 years on the bench, probably hundreds of thousands of people have appeared before me in court.  Of that number, there are only a handful of people and situations that I wonder about days, weeks or years later. 

That beautiful young woman is one of those.  I hope and pray that she completed her service in the Marines whole in body and spirit and her honor intact. 

But, no time for more reflection on that case.  It’s another day, and another full courtroom of people that will be inextricably bound in my life for at least 15 minutes. 

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Next Week:  Prison Tours

Child Victim Statement

In criminal cases, the victim normally has an opportunity to tell the judge the impact the crime has had, either in court at the time of sentencing, by written statement read before court, or by comments to the probation officer preparing the presentence investigation to assist the judge in making the sentencing decision.

Some of the most distressing victim statements I have considered involve victims of sexual assault.  They are really difficult to hear or read. 

Perhaps the most difficult victim statement I have read was from the victim in a child pornography case, and her mother and stepfather.  When she was a small child “Alice” (not her real name, or the name used in the pornographic movies), was horribly abused by her father.  The depredations committed on this helpless girl were filmed and distributed among viewers of child pornography.  Here are excerpts from her statement:

“I am living every day with the horrible knowledge that someone, somewhere is watching the most terrifying moments of my life.  I am a victim of the worst kind of exploitation.  Unlike other forms of exploitation, this one is never ending.  Every day, people are trading and sharing videos of me as a little girl being raped in the most sadistic ways.  I wonder if people I know have seen these images.  I wonder if the men I pass in the grocery store have seen them.  Because the most intimate parts of me are being viewed by thousands of strangers, I feel out of control.  I feel like I’m being raped by each and every one of them.  They are gaining sexual gratification from images of me at ages 10 and 11.  So many nights I have cried myself to sleep thinking of a stranger somewhere staring at their computer with images of a naked me on the screen.  I have nightmares about it.

“Some of these perverts have tried to contact me.  I wish I could one day feel completely safe, but as long as these images are out there, I never will.  Every time they are downloaded I am exploited again, my privacy is breached, and my life feels less and less safe.  I only ask that those who have exploited me be brought to justice to hopefully defer some others from doing the same and to lessen my shame.”

One case of child pornography is one too many.  I hope to never preside over such a case again.

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Next week:  A Beautiful Young Woman

Star Tribune Commentary Piece

The Minneapolis StarTribune published a commentary by me yesterday, explaining why I chose to retire and have the Governor appoint my replacement rather than simply letting my term expire and be filled by the election process.

If you are interested, you can find the commentary at http://www.startribune.com/opinion/commentaries/245896651.html

26th Anniversary

This week marks the 26^th anniversary of taking the oath of office to serve the people of Sibley County, the First Judicial District and the State of Minnesota as a District Court Judge.  Paraphrasing my first law partner, mentor and friend Everett Young, 26 years seems like a very long time when you’re looking ahead to it.  When you look back on it, however, it seems like it has just flown by.  So it is with me.

So many changes!  From typewriters and paper telephone messages to computers, e-mail and voicemail. 

I have had the chance to work with extraordinary people during my service as judge.

I have worked in Sibley County with three excellent Court Administrators (Cheryl Dummer, Nancy Harms and Karen Messner) as well as the most excellent Deputy Court Administrators.  I have had 16 different staff attorneys, or law clerks, assisting me with legal research and serving as a sounding board for the decisions I’ve made as judge.  And I have worked with two terrific court reporters (Jerry Goodroad for the first 24 years and Paul Lyndgaard for our last two years).

I’ve spent a lot of time in the car.  I’m approaching 250,000 miles driven on official business over the past 26 years. 

I have noticed some changes over the years.  Types of cases that I was able to decide and move on 20 years ago are sticking with me more.  I have commented (and written in this blog) about my blessing and curse:  I forget the case as soon as I’ve finished with it.  While that is generally true, cases where children are being hurt (or worse, hurt children are hurting other children) stick with me.  I know I have to decide, but with these cases, there always is a level of uncertainty and the decision I make is not so easily forgotten.

This week, I have sent my formal letter to the Governor, advising him that I will retire at the close of business on July 10, 2014.

If you run into me with my Smartphone, I can show you, to the second, how many days, hours, minutes and seconds are left before I retire.  One person I showed that to said, “Boy, you must really hate your job!”  No, I love my job.  This is one of the ways that I am getting ready to leave a career that has truly been a blessing to me. 

But, come July 10, I’m pretty sure I’ll be ready!

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Next Week:  Child Pornography Victim Statement

An Impressive Place to Go to Work

The Walt Disney movie, The Mighty Ducks, starring Emilio Estevez, was filmed in Minnesota and released in 1992.  One Friday afternoon, when the film company was scouting locations, I received a telephone message:  Could I open the Sibley County Courthouse for an advance person to scout it for the courtroom scene in the movie?  So it was that I met the lady at the courthouse on Saturday morning and gave her the grand tour.

Built in 1916, the Sibley County Courthouse boasts Doric Columns facing to the south and a grand rotunda in the center of the building.  I recall talking with an older Winthrop resident when I first started practicing law in 1974, who told me he was at the cornerstone laying of the courthouse in 1916, when speeches were made and an exhibition boxing match was given by famous St. Paul boxers, the Gibbons brothers, Tom and Mike.

Over the years, likely to attempt to save on heating costs, the skylights on either side of the rotunda were covered up, as was the rotunda.  Water had infiltrated, causing paint to peel away in sections of the rotunda and the surrounding ceiling.  The Courtroom itself had its high ceiling lowered and also had peeling paint and the ornate crown molding around the ceiling line was damaged in several spots.

In the 1990’s, the County Board embarked on a restoration project which opened up the skylights, repaired the rotunda and restored the crown molding around the ceiling of the courtroom.  They did a wonderful job restoring the building’s former beauty and making it functional again.

The advance person from the film company spent a couple of hours in the courtroom, in the rotunda area, shooting about three rolls of film.  I like to think we came in second to the Stearns County Courthouse, which had a larger courtroom, making it more suitable for the film equipment.

In more recent years, the courtroom has been modified to make it a modern technology space.  A state of the art sound system has been installed as well as a system to assist hearing impaired persons.  An interactive television system is built in, and monitors on the bench, counsel tables and for the audience are available, as well as a drop-down screen on which the ITV can be projected for jurors.  There is a document camera, which permits exhibits to be shown on all the screens in the courtroom, as well as connections for computers to be plugged in for display.  Most recently, wireless internet has been made available for use by attorneys and the public.

It is a pretty neat place to go to work!

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Next Week:  Anniversary