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

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

I Always Wear This Dress to Court

It was just a typical calendar of traffic violations, petty misdemeanor and misdemeanor arraignments.  The defendants would approach the podium, one by one.  I’d ask if they understood their rights and the charges against them.  I’d ask if they wanted time to talk with an attorney.  Then, I take their plea and set it for trial if the plea is not guilty, or impose a fine or other conditions if the plea is guilty.

The case was called.  The charge was driving after revocation.  The young woman approached the podium.  She was very well-endowed, with a slinky, silky, clingy, low-cut dress and (how shall I put this delicately?) no “visible means of support”.  Clearly, this was not “appropriate courtroom attire”.

I do not mention courtroom attire until the case before me is resolved.  I don’t want the Defendant to worry that I may be harder on them than normal, simply because I disapprove of the way they have dressed to come to court.  I want the defendant to concentrate on the matter at hand, tell me what I need to know and have their questions answered before bringing up their attire.  Thus, I waited until the plea was entered and the sentenced imposed before addressing the defendant.

“You know, Ma’am,” I said, “that dress would probably be very nice for a cocktail party or other social event, but it just isn’t appropriate to be worn in a courtroom, especially by one who is appearing before a judge on a criminal matter.”

The young lady looked most surprised when she said, “But Judge, I always wear this dress when I go to court!”

Suppressing the smile that wanted to come out, I commented, “That may be, Ma’am, but I strongly suggest you dress more conservatively if you ever find you have to go to court again.”

She mumbled something to the effect she would take my advice and headed for the door.

As she left the courtroom, I heard her boyfriend, seated in the back of the room, say, “I told you not to wear that dress!”

We proceeded with the rest of the cases on the arraignment calendar.  When we took the midmorning recess, the bailiff approached me, with a smile on his lips, and said, “Judge, I’m sure glad you didn’t tell her to dress for court like she dresses for work.  She’s an “exotic dancer” by trade!”

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Next Week:  Sentencing Departures

Politics and Judges

This week, the filing period opens for many legislative and state offices.  Judges, too, must run for election every six years.  This would normally be my year to run, but I have submitted my letter of retirement to the Governor and he has declared my seat to be open and filled by appointment after I retire in a few weeks. 

It accurate to say that many candidates have had some degree of political activity.  When I was appointed in 1988, a condition of becoming a judge was to give up partisan politics.  We could not make contributions to candidates, put up a sign on our lawns supporting a candidate, make endorsements, attend their rallies or even attend a caucus.  Frankly, about the only political thing we could do was vote.

And this was just fine with me.  Honestly, I did not want anyone who may appear before me to wonder if I were playing politics with the important matter that was being presented.  I have endeavored to treat all persons appearing before me equally:  Members of the party I used to belong to, as well as members of the opposing party; rich or poor; Caucasian or minority; etc.

The United States Supreme Court has ruled that I now may participate at least to a limited degree in political discourse.  Judges and candidates for judgeships may seek political endorsements from parties, for instance.  The public has a right to know where a judge or judicial candidate stands when deciding which judicial candidate to vote for. 

While it is true that there is not a lot of information available to voters when casting their ballots for judges, I still think it is a mistake to announce a position on any of the “hot button” issues that may arise in a judicial election.  There are two reasons for this:  1) If that issue subsequently comes before the judge, there would be a legitimate question about how fair and impartial the judge could be, given the previous statements and 2) More importantly, judicial decisions more often than not turn on a fact or detail specific to the case before the court.  It is just impossible to predict what given set of facts may be presented to a judge in any case. 

If a judge a pre-announced an intention to rule one way or the other, the judge may certainly be disinclined to go against the pre-announced position rather than appear to have “broken a campaign promise”. 

It is a mistake to insert judges into partisan political election campaigns.

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Next week:  I Always Wear This Dress to Court

Epitaphs

What will be my legacy?  How will I be remembered as a judge – not to mention as a husband, a father, a man?

I know some will say I was a good judge.  Others will not be so kind.  Because I have decided an important matter against them, I am stupid, arrogant and much, much worse.  I know this, because I have seen their comments about my decisions and me personally. 

At this time in my career, just weeks before I will retire, that I would think of my legacy to my profession is certainly to be expected.  What will they say at my funeral – hopefully after a long, happy and healthy retirement?  What might be my epitaph?

An epitaph is a short inscription on a tomb or mortuary monument about the person buried at that site.  I don’t intend to have an epitaph on my gravestone, but I occasionally wonder what one might say.

Perhaps it would be a line from a Court of Appeals decision reviewing one of my rulings.  The one I have in mind was actually written by a friend of mine, who was a year behind me in law school.  My decision was affirmed, but the ruling was hardly a ringing endorsement of my legal reasoning.  Boiled down to its essentials, as an epitaph, it would say:

Judge McCarthy:  Not clearly erroneous!

Actually, if I could choose my epitaph, I would steal one from another, much more prestigious judge.  Thurgood Marshall was the first African American member of the United States Supreme Court.  Before his appointment to the highest bench in our country, he was a leading attorney in the civil rights movement.  Among other cases, he was the lead attorney on the Little Rock (Arkansas) school desegregation case with Wiley Branton, the father of one of my closest friends, Richard Branton.  As an aside, I had the privilege of meeting and dining with my friend Richard and Justice Marshall’s widow, Cecelia Marshall (a giant in the Civil Rights Movement in her own right) in 2007.

Justice Marshall commented that, if he could choose his epitaph, it would be:

He did the best he could with what he had.

None of us are perfect.  None of us can be right 100% of the time.  But if we use all the information that is reasonably at our disposal, use our God-giving talents and insights (as well as a little inspiration from Him), act in good faith and always do our best, it has to be good enough.

He did the best with what he had:  That would be a very nice remembrance for anyone.

*****

Next Week:  Politics and Judges

Constitutional Issues

Most of the decisions I make are guided by statutes and cases from the State of Minnesota.  Rarely have I had to refer to decisions of the United States Supreme Court to guide my deliberations.  We just don’t have those big, Constitutional issues before us in State District Court very often.

I did have a case, however, where there was no state law and I needed to rely on a US Supreme Court decision.  The facts of the case were quite interesting:  An alarm went off after midnight at a business, indicating a break-in.  Numerous squad cars responded.  While several officers investigated at the scene, several others fanned out in the surrounding area to try to locate witnesses or suspects.

A car with three men inside was stopped not far from the business.  They could not give a reasonable explanation why they were in the area at that time of night, so were each put in the backseat of a separate squad car until the Investigator could arrive on the scene to question them.  This process took over an hour.

About 45 minutes into the wait, the officers with the suspects received a call from the officers at the scene:  sneaker prints had been found in the dust near the building.  Did the suspects have sneakers?  In fact, they did.  The sneakers were taken from the suspects without their consent and the tread on the sneakers closely resembled the tracks near the business.

The case came before me on the defendants’ motions to suppress the sneakers, that is, not allow them to be shown to the jury, because they were illegally taken by the officers.

This is one of those technical, but very important areas of the law.  Were the suspects under arrest or merely detained when the shoes were seized?  The United States Supreme Court said there is no hard and fast rule as to how much time passed before a detention turned into an arrest.  So, I held that the detention amounted to an arrest and the seizure of the shoes as unconstitutional – the shoes would not be admitted into evidence. 

The prosecutor appealed my decision, which was affirmed by the Court of Appeals.  One of my colleagues commented after the decision came down, “Well, Judge McCarthy, I see the Court of Appeals has joined you in error!”  Turns out, he was right!  The Minnesota Supreme Court took the case and said my interpretation of the law was not correct.  The shoes would be received in evidence and the matter was sent back to the District Court for trial (before a different judge).

At the trial, with the shoes and other evidence presented, the three defendants were found not guilty.  A most interesting outcome to a most interesting case.

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Next Week:  Epitaphs

Making Policy

In 1997, the judges of the First Judicial District elected me Assistant Chief Judge.  Now, the Chief Judge has the authority, and often, the headaches that go along with administering an organization with 33 judges, as well as the support staff for each of the seven counties and for the administration office.  The Assistant Chief’s main obligation at the time was to serve on the Conference of Chief Judges, which consisted of the Chief and Assistant Chief Judge of each of the ten judicial districts in Minnesota.  Representatives of the Court of Appeals and the Supreme Court would often join us during our deliberations, and the Chief Justice of the Supreme Court was welcomed whenever he or she could make time to join us.

The Conference of Chief Judges would address budget and policy issues statewide for the District Courts of our State.  The Conference established our budget requests for each legislative session, as well as addressing any issues of policy or budget that was requested from the legislature.  Often, members of the Conference, as well as the administrators, would be called upon to testify at legislative hearings. 

It was most interesting to learn how the different districts approached/ the same issues.  The large caseloads in the bigger counties – Hennepin and Ramsey – required their judges to approach issues in different ways.  For instance, in each of those districts, judges were assigned to Family Court, or Juvenile Court for a period of time.  Those judges did nothing but family or juvenile law for that time.  Quite a difference from the calendars I would have, which routinely mixed family, juvenile, civil and criminal in the same day! 

Often the issues we would deal with included how to establish standard procedures that would work as well in Hennepin County as it would in Sibley.  Tricky work! 

It was such a privilege for me to serve with 19 of my judicial colleagues from across the state to grapple with the big issues of the moment.  It also enabled me to advocate for one of my favorite issues – using technology to assist the judicial system to perform its critical functions.

The Conference of Chief Judges has now been replaced with the Judicial Council, which consists of the Chief Judge of each District, as well as representatives from the Appellate and Supreme Court and from District Court Administration chosen from among the ten District Court Administrators.  The mission of the Council remains similar to the Conference:  To provide justice through a system that assures equal access for the fair and timely resolution of cases and controversies.

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Next Week:  Constitutional Issues