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

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

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