Giving a judge “the hand”
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Usually will get you into trouble. Consider the “kerfuffle” between Judge John Bayly, Jr. and Liyah Brown, a public defender. They got into a petty dispute over whether Brown’s client was homeless and after an escalating argument during which the judge apparently told her to let it go, he asked marshalls to “step her back”, which ended with her in handcuffs and the recipient of a pat-down and a trip to the lockup.
Later on, the judge declined to hold her in contempt, and last week the DC Judicial Commission determined that he violated the code of conduct for judges.
A commenter at WSJ’s Law Blog provides additional details:
The gist of it is this: It was a status hearing on a discrete topic. The lawyer persisted in raising a point that the judge thought was irrelevant to the purpose of the hearing. The judge gave her a moment to make the point, and, when it took longer than he wanted, he told her to sit down and he would re-call the case after calling the other cases on the docket (with dozens of status hearings to deal with). The lawyer refused to leave the lectern, and she kept talking. The judge twice or three times told her again to leave the lectern. The last warning was that he was about to hold her in contempt. The lawyer then made the talk-to-the-hand gesture, cocked her head, and said, “I don’t know what’s going on up there.” At which point the judge told the marshal to step the lawyer back. When the judge re-called the case a little later, he expressed regret that the matter had come to this, and he declined to cite the lawyer for contempt of court.
The hand. Yeah, that’s not a good idea. Confrontations in the courtroom happen and they aren’t that rare. However, the confrontation usually occurs when the judge makes a ruling you disagree with or forces you to trial when you’re not prepared - all in the course of zealously advocating for your client. Heck, there have been a few times when I’ve recognized the distinct possibility of being held in contempt before the hearing started, anticipating that things would go south (thankfully, it has never come to that).
But this…this is just asking for trouble, in my opinion. If this were indeed a peripheral, irrelevant matter, then I can’t see the point in persisting with it or the point she was trying to make by persisting with it.
You’ve got to learn to fight your battles and I don’t think this is one I would have chosen to fight at that time.
HT: Ed.
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I am not a fan of imperious judges, but it seems to me that the judge really didn’t do anything wrong here. He probably could have handled the situation better, i.e., instead of arguing with counsel, simply said, ok, I’ll let you make your arguments, after I deal with the dozens of other cases. That probably would have gotten the lawyer to stand down. However, an abject refusal to leave the podium is contumnacious, and thus makes the contemnor subject to arrest, and handcuffing and shackling is what happens to you when you get arrested (I imagine anyway).
What is galling, and what should get judges booted, is when the judge fans the flames, e.g., name-calling or other denigration of the attorney or litigants. What makes that so appalling is the inability to respond in kind. And that makes it tyranny, petty tyranny, but a tyranny all the same.
For example, a judge in NYC used to call prosecutors “Nazis”. That judge should have lost his judicial immunity if the prosecutor responded in kind and got found to be in contempt.
When I saw the title, I thought it was going to be a post about this story.