Judge Not, Lest Ye Be Judged
by Edgar J. Steele
Judge not, that ye be not judged.
For with what judgment ye judge, ye shall be judged:
and with what measure ye mete,
it shall be measured to you again.
-- Matthew 7:1,2
April 19, 2002
99% of the lawyers give the rest of us a bad name. That's my stock joke assessment of the legal profession. But it's the profession that's the joke, and that, sad to say, is no joke.
I have no problem with calling them as I see them where lawyers and the legal system are concerned. When it comes to judges, however, I tend to pick my words much more carefully. I could never use that 99% comment about judges, because it is something for which I could be disbarred. Seriously.
But, there's more than one way to skin a judge...er...cat. For example, all the judges in Idaho and most of them everywhere else are....(drum roll, please).....LAWYERS!
Hah! Go ahead. Just try to disbar me for calling judges lawyers. It oughta be against the law, given the implications of that imprecation. After all, "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..." Idaho Rules of Professional Conduct, Rule 8.2(a).
Yer a lawyer, Judge. Neener, neener, neener....
It would almost be worth losing my bar ticket if they were to nail me for that.
While a reverse prohibition does not exist, and I have seen proof aplenty, with vitriol by the gallon spilling from the bench over friend and foe alike through the years, generally judges refrain from making public statements critical of lawyers or litigants that have appeared before them.
That's why I was stunned to see Judge Charles Hosack's "Guest Column" printed in the local newspaper, the Spokesman Review, two days ago. You can see it for yourself here:
"Jury Trial Invaluable to Community" - Guest Column by Judge Charles Hosack
Judge Hosack presided over Keenan v. Aryan Nations, et al. in the summer of 2000. Richard Butler was the primary et al. I was Butler's defense lawyer and my life has never been the same since the selfsame Spokesman Review did its best to paint me as one of Butler's adherents, rather than simply his retained lawyer.
Contrary to the SR's big headline last year about my losing my libel case against them (on a short-sheeted summary judgment motion), that issue is now before the Idaho Supreme Court, and I am determined one day to have my day in court over the issue.
Judge Hosack had a great many things to say in his "Guest Column" - among them:
"The trial confirmed the value of the jury system to our community." Until this jury and the one that got OJ off with murder, I had always felt the same way. This case taught me that the rules go out the window when one of the litigants is a celebrity. It even stretches to the lawyers. Of course, my client, Richard Butler, was a celebrity, too - but of the sort that gives lawyers nightmares - now I know how Jack the Ripper's lawyer would have felt during trial if they had ever caught him.
There was one lady on the jury that I thought was going to orgasm every time my much-celebrated opponent, Morris Dees, rose to speak. Needless to say, she stared daggers at me, as though I was responsible for the unrequited nature of her lust.
The result in these cases is what is known as a runaway jury. OJ's jury ran one direction and Richard Butler's jury ran the other.
There is an interesting little side story about that trial which has never before been told, but which seems somehow appropriate here. Dees is known as something of a womanizer. My wife is a babe. She attended much of the trial under an assumed name to avoid reporters and other undesirables. At one point, when Dees' path crossed hers, Dees smiled and made strong "coming on" body language moves toward her in the hallway. She curled her lip and all but spat upon him as she passed. She says he couldn't have looked more surprised, had she kneed him in the groin. Eat yer heart out, Dees. Neener, neener, neener. Yer a lawyer, you...you...lawyer, you.
"In America, our judicial system calls 12 people off the street (in a fair and orderly way), and charges them with the sacred trust of being fair and impartial jurors to find the truth, achieve justice, and decide the case." Yep. Until this case, I have always been impressed with how a veil of purposefulness seems to enshroud a jury once sworn, and how the members then strive to attain justice. Since then, I have had the misfortune to try another case involving a politically-incorrect and unappealing client who had received a good deal of negative publicity and seen that same dark horse ridden through the jury room at decision time.
"It is juries, deciding case after case, big and small, that enforce our community values and safeguard our individual liberties." Textbook explanation of how it is supposed to work.
"The Aryans hardly reflected our community's values." Oops. Excuse me? Did I hear you right here, judge? Somehow, I thought we were all in this together, that the Aryans are part of our community. But you're telling me that they are not a part of our community, else its values would reflect theirs, at least in part. The old Marxist us-and-them argument which justifies the end result of killing so many. I expected better from you, somehow.
"Indeed, at trial their attorney advocated their right to hate." Incredible, simply incredible. I never did have the sense that you were being fair to my client during the trial, Judge, from pretrial motions right through jury instructions, and this remarkably incorrect allegation proves your having been Dees' cheerleader right from the start. Here, I'll explain it for you in words of one syllable: I fought for their right to free speech.
I'm sure that Dees was out here running this case because it was just "(an)other personal injury trial." And every network had a sound truck in the courthouse parking lot because it was just "(an)other personal injury trial." And there must have been armed sentries on the roof because it was just "(an)other personal injury trial." And the daily lottery for courtroom seats. Yep. Because it was just "(an)other personal injury trial." Yeah, right.
"But the jury in the Aryan trial was deciding a personal injury case. There, the issue was not whether the Aryans shared our values, but whether the Aryans had acted in a way causing harm to others on one fateful day." Gosh, Judge, that must account for the $6.3 million jury verdict in the face of no medical bills, no wage loss and no claimed property damage in this, just "(an)other personal injury trial." Thousands wouldn't believe you, Judge, but I do. Sure.
Let's get this real straight, once and for all. The Aryan Nations trial, from start to finish, was a referendum on their beliefs, attitudes and public statements. No more and no less, certainly. I am simply appalled to hear the trial judge mincing through the room, mumbling that "the issue was not whether the Aryans shared our values."
"The jury believed the plaintiffs and not the Aryans." Wrong. The jury couldn't have cared less about the plaintiffs. The jury hated Richard Butler, though. This trial had nothing to do with the plaintiffs, not really. We could have defended Butler on the issues really being aired, if I hadn't been hamstrung with pretrial orders about what I could and could not put into evidence...and what I could and could not say to the jury, even during closing argument. As an exasperated Paul Newman finally said to the judge in The Verdict, "I don't mind you trying my case for me, Your Honor, just don't lose it." I didn't know it at the time, but we were dead in the water before we picked even the first juror.
"There have been no appeals." Absolutely true, Judge. But why didn't you also tell your audience about having denied Butler's motion for a new trial, or about your refusing his request for a waiver of the $9 million bond he would have had to post to appeal or his request that you cut the obscene verdict down to something that resembled reality, so that Butler could post a bond and go up on appeal? Instead, you make it sound as though Butler acquiesced to the jury's outlandish condemnation of him and his followers.
"The jury verdict not only stands, it has been widely accepted as a statement by our community." Absolutely true. No free speech for nazis. That's the statement. Come to North Idaho and keep your mouth shut unless you agree with us, or we will take everything you own. Some statement to be known for.
"The greatness of America is that we tolerate even those who oppose our own values." Will you please just reread this statement of yours, Judge? $6.3 million. No meds, no wage loss, no PD. Now, that's some price for tolerance, if what happened in your courtroom represents tolerance. You can't have it both ways, Judge. You can't claim to be tolerating them if you disallow them a role in our community in the first place, as you have.
Remarkable. To hold a position of power over the Aryan Nations and myself, as its lawyer, that Hosack did and then go public with statements like this. Fortunately, Idaho has recently added paragraph (c) to Rule 3.6 of the Rules of Profesional Conduct: "(A) lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client."
Hey, Judge Hosack. Yer a LAWYER! Neener, neener, neener. And yer mother wears army boots, too.
Ahhhhh, I feel much better, thank you.
I don't much care for Gerry Spence, celebrated trial lawyer for Karen Silkwood and Randy Weaver. To those who think he's for the underdog, you should know that Dees was consulting with Spence during the Aryan Nations trial. But, I do tend to agree with one thing that Spence has to say: he hates all judges. Every single one of them. It is said that the County Clerk is the natural enemy of the trial attorney, but I think it must really be the trial judge.
Remember that little fat kid in Third Grade who sat in the front row? Always raising his hand and offering to do things for the teacher? Always had the right answer to every single math problem, even those maddening story questions? Remember when she came in one day and announced that the class would hold elections for class officers and who would like to be class president? Remember how the little fat kid's shoulder nearly dislocated from the speed with which he threw his arm up into the air? Remember him? That little fat kid is a judge today.
Many have asked why I decided not to run for judge in the current election. Because I don't want to be a judge, that's why. I think there must be something fundamentally wrong with anybody who actually wants to sit in front of defendants, saying "You live," and "You die." There should be a test given to every lawyer today, with a single question: "Would you ever like to be a judge?" All those responding in the affirmative should be barred forever from becoming a judge, if not taken out on the spot and shot.
I intended to run in the current election only because I so wanted to take on Michaud, the current local District Court judge, in the candidate forums. But, he announced his retirement.
I also would have run if "good ol' Phil" had filed for judge, as so many said he would. (The evil DA from the McGuckin affair, some will recall.) But Phil didn't file.
If I ran and actually won, I would have had to demand a recount. Nobody wants that.
Besides, I want to be able to run against good ol' Phil for DA (actually, called the "Prosecuting Attorney," here in Idaho) in two years' time. Tough to do from the bench.
I have some very distinct ideas about legal and judicial reform.
For openers, we break the back of the lock that lawyers have on the profession and the bench. People with 2.5 gpas and 50th percentile LSAT scores should be allowed to become lawyers. Law School isn't necessary and the Bar Exam actually reflects reality. "Reading for the law," is what it used to be called and it's how this country's founding father lawyers got their tickets.
Let's get a little reality breathed
into the field.
Then, judges should be drawn from the ranks of lawyers, who must serve - unpaid - after five years in practice, as judges for a full two weeks every quarter. Judges couldn't sit in judgment of cases involving their specialty, either. Let's get a little simplifying of issues going on here.
And the bar associations become mere ornaments and continuing education vehicles, with actual oversight of the profession by citizen-dominated commissions.
And trial participants - lawyers, litigants and juries - get to vote on how the judge handles each case, with the results mandating just how much continuing education each judge must endure every year. Really bad judges spend more time in class than in legal practice, earning a living, until they shape up. They have to keep judging for free, though, until they amass enough penalty points to be suspended from practice altogether.
"But, what do we do with all the current judges and lawyers?" you might ask. Shakespeare really was right, you know. We must all get a real job and never be allowed to practice law again.
After all, it
worked with the air traffic controllers, didn't it?
Copyright © Edgar J. Steele, 2002
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