Legally Speaking: Judges Behaving Badly

John G. Browning May 28, 2008, 11:59am

Judges have very difficult jobs. I know – I've seen a lot of them in action over the years.

Whether state or federal court judges, at the trial or the appellate level, judges are charged with the task of making the right call. Acting within the bounds of what the law requires and what the evidence supports, jurists reach conclusions that can have life-altering consequences.

History has borne witness to the judiciary's deregulation of industries, the breakup of monopolies, and assuming control of educational and correctional institutions. Our Supreme Court has hastened the exit of one president in Richard Nixon and the entrance of another following the Bush v. Gore decision.

Often, judges are at their best when coming up with creative solutions to problems. For example, in Wilkes-Barre, Penn., recently, Luzerne County Judge Peter Olszewski Jr. was frustrated with the steady stream of offenders who left prison no better than when they arrived. So when faced with three Spanish-speaking men convicted of criminal conspiracy to commit robbery, Judge Olszewski felt compelled to break the cycle.

He gave the defendants a choice: go to jail, or remain on parole so long as they learn to read and write English, earn their GEDs, and get full-time jobs.

Meanwhile, in Oklahoma, U.S. District Judge Vicki Miles–LaGrange had to deal with a lawyer whose professionalism left something to be desired. Attorney Gerald Pignato was facing sanctions for a series of abusive remarks made in letters to opposing counsel.

Among other comments, Pignato told his opposing attorney to "Be like a potted plant and sit quietly in the corner," accused that lawyer of making "phony sermons," and cuttingly remarked that the lawyer couldn't "say anything in a page or less," and seemed "to thrive on creating havoc."

How do you deal with a lawyer's lack of courtesy? If you're Judge Miles-LaGrange, you order that lawyer to write an article on civility and publish it in the Oklahoma Bar Journal. As an example to others, Mr. Pignato has also been ordered to include an explanation of why he is writing the article.

Judges, however, are human and make their share of mistakes. Recently, the State Commission on Judicial Conduct issued public warnings to two judges. One of these jurists, Tarrant County Court-at-Law No. 1 Judge Brent Keis, has already been discussed in "Legally Speaking" for an April 2007 incident in which he shared some novel thoughts on slavery with an African-American attorney named Nuru Witherspoon.

Among other comments, Judge Keis purportedly told Witherspoon's clients (one of whom was a plaintiff in a personal injury matter) not to "bet on black." Judge Keis also got into a discussion with Witherspoon about the transport of Africans destined for slavery in America, and allegedly claimed that the fact that weaker, more sickly slaves had died during this Middle Passage resulted in the slave population being physically sturdier.

The State Commission found that Keis' behavior violated Canon 3B(5) of the Texas Code of Judicial Conduct, which mandates that a judge shall perform judicial duties without bias or prejudice; Canon 3B(6), which forbids a judge from showing bias or prejudice in his words or conduct; and Canon 3B(8), which requires that a judge give every person with a legal interest in a proceeding, or that person's lawyer, the right to be heard. In addition to the public warning, Judge Keis was also ordered to complete an eight-hour course on racial sensitivity by mid-September.

If that strikes you as a slap on the wrist, then how do you punish a slap directed to another part of the anatomy? In December 2006, 47th District Court Judge Hal Miner of Amarillo was at a local law firm's holiday party when he approached a female attorney and slapped her on the buttocks. He later encountered the same attorney and, according to the State Commission's findings, "his hand made contact with her buttocks again."

Judge Miner acknowledged that the allegations were "basically true except that I did not think it would be offensive to her."

The Commission found that Judge Miner's conduct violated Article 5, §1-a(6)A of the Texas Constitution. Besides issuing the public warning, Judge Miner was also ordered to complete an 8-hour gender sensitivity and sexual harassment course. Just don't call him "Spanky."

While these incidents may have been embarrassing, imagine how U.S. Bankruptcy Court Judge Robert Somma feels. In February, Judge Somma – one of five federal bankruptcy judges in Massachusetts – was arrested on a charge of driving while intoxicated after rear-ending a pickup truck at a traffic light. When officers questioned Judge Somma at the scene, he was wearing a dress and makeup. Judge Somma pled no contest to a first degree misdemeanor charge, and agreed to pay $600 in fines and penalties.

However, despite initially resigning from his bench on Feb. 15, an outpouring of support from other judges and lawyers led Judge Somma to express second thoughts. He told Massachusetts Lawyers Weekly that "contrary to my initial belief....the media frenzy occasioned by this episode would not be an impediment to my continued service as a judge."

Ultimately, Judge Somma's fate rests with the U.S. Court of Appeals for the First Circuit which appointed him to a 14 year renewable term in 2004.

Does the DWI charge and his cross-dressing equal a lapse in judgment for Judge Somma? Perhaps; but after seeing his post-arrest photo, maybe someone should also tell Judge Somma what a fashion "don't" it is to wear white shoes after Labor Day.

Finally, we come to California Judge James M. Brooks, a one-man Judicial Hall of Shame. In April, the California Commission on Judicial Performance issued a decision publicly admonishing Judge Brooks for conduct during the trial of an employment discrimination suit. In between cracking jokes with the defense attorney, the jurist made a hand-lettered sign with "Overruled" on it to hold up when overruling the plaintiff attorney's objections.

He also used a system of soccer-style "red cards" to punish attorney behavior, made inappropriate comments during the reading of deposition testimony, and even permitted the defense lawyer to mock the plaintiff's testimony by singing the "Twilight Zone" theme music.

But this isn't Judge Brooks' first run-in with the Judicial Performance Commission. In 1996, he received an advisory letter addressing comments of his that reflected ethic bias: telling an undocumented Hispanic defendant that he had "more names than the Tijuana telephone book," for example; repeatedly referring to Hispanic defendants as "Pedro;" and issuing a bench warrant for an Asian defendant for "ten thousand dollars or twenty thousand yen."

Another advisory letter followed in 1999, and in 2003 Judge Brooks was privately admonished for conduct in another case that included referring to the parties as Nazis. Also in 2003, the appellate court reversed one of Brook's trial verdicts, basing its reversal in part on the appearance of bias.

In 2006, the commission publicly admonished Judge Brooks for conduct in two different cases. In one of them, after a litigant blamed his failure to appear for a deposition on a heart condition, Judge Brooks said "I wonder what's going to happen when we put you in jail, Mr. McMahon. Your little ticker might stop, you think?"

In the employment discrimination case with the "Overruled" signs and the soccer cards, the appeals court ordered a new trial after Judge Brooks created a "circus-like atmosphere." People participate in our civil justice system with faith in the integrity of the judiciary, and as part of a quest for the truth.

If they wanted a circus, they'd call Ringling Brothers.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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