Category Archives: judges

Fighting John Murphy: It gets worse

Everyone’s heard of Fighting John Murphy by now: the judge who acted like an immature tyrant and punched a public defender in the hallway.

He’s agreed to go to anger management and take a paid leave of absence, despite this glowing, fawning biographical piece in the Wall Street Journal that highlights his extensive military history.

Unsurprisingly, the chief judge of his judicial district hasn’t taken too kindly to Fightin’ Murphy’s actions and has issued a strongly worded statement.

Surprisingly, Judge Kopf of Hercules and the Umpire authored two posts yesterday, both seeking to minimize and absolve Fightin’ Murphy of responsibility in this fracas. The first one alleges that the PD laid the bait and the judge took it. Which is just completely absurd if you’ve watched the video. When he got pushback, he clarified that the judge’s behavior was unacceptable, but understandable given the context that the public defender was an “ankle-biter”.

I don’t know what that means. Is that euphemism for a zealous advocate for one’s client? Then I’m an ankle-biter too. Does that give a judge license to humiliate me in open court and then threaten to beat me and then actually lay a hand on me?

This mentality of Fightin’ Murphy and the implication of the “context” of Judge Kopf is evidence of an all-too familiar prevailing sentiment of the public and court personnel toward public defenders. We are scum, lower than the clients we represent and, as Rodney Dangerfield said, we don’t get no respect.

To try to justify Fightin’ Murphy’s actions is to perpetuate that myth that we are annoying irritants, who are relegated to the ankles of the giants that roam the courtrooms: the judges and prosecutors. They are the ones doing good; we are miscreants who are so low that we can never reach beyond their feet.

But you know who’s the only one who’s ethically challenged? Fightin’ John Murphy. The video that has gone viral is only a few minutes long. When you watch the entire video, you will see that the judge does something insidious: he gets the lawyer banished from the courtroom and then returns and proceeds to talk to the represented defendant and tries to get him to waive his speedy trial rights – something that the lawyer refused to do. Luckily, the client refused as well. He then proceeds to talk to the next defendant, also represented by Weinstock.

[Video is below the fold. Sorry, but it autoplays, so be warned.]

Judicial thuggery: FL judge assaults public defender (Update)

[2nd Update: A second post, highlighting further ethical violations by the judge.]

[Update below]

An outrageous video out of Brevard County, Florida (why is it always Florida?), in which a judge is seen verbally abusing a public defender who is ready for trial and refuses to waive his client’s right to a speedy trial, and then, according to the audio and witnesses, assaults the public defender in the hallway.

Here’s the mind-boggling video:


Here is the dialogue:

“If I had a rock, I would throw it at you right now,” Murphy said.  “Stop pissing me off.  Just sit down.  I’ll take care of it.  I don’t need your help.  Sit down.”

“I’m the public defender, I have the right to be here and I have a right to stand and represent my clients,” Weinstock said.

“Sit down,” Murphy said.  “If you want to fight, let’s go out back and I’ll just beat your ass.”

“Let’s go right now,” Weinstock said.

That’s completely reprehensible behavior from a judge. Granted, Weinstock probably shouldn’t have taken him up on his offer, but sometimes you need to stand up for yourself.

The incident continues, because a man wearing robes who doesn’t know how to behave in court, certainly has no qualms about escalating when in the hidden recesses of his power palace:

Weinstock’s supervisor told Channel 9 Weinstock thought they would just talk out the problem, but he said there were no words exchanged, just blows thrown by Murphy.

“The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck,” said Blaise Trettis, public defender of the 18th Judicial Court. “There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

The judge wasn’t arrested and wasn’t immediately reported for disciplinary action. Both of those are unacceptable. The ethics committee shouldn’t need anyone to report this to them to start an investigation. And the state’s attorney’s office needs to review the video and conduct interviews immediately to determine if criminal charges should be filed. This isn’t just an assault on an individual, this is an assault on the system itself.

Judges, of all people, are supposed to understand and believe in our judicial system, what with them being the guardians of justice and whatnot. They should have a firmer grasp on the roles each party has to play in the adversarial system. His behavior here shows that he thinks there are laws for everyone except him.

This person doesn’t deserve to wear the robes and have the power to decide the fates of countless others before him, who are, in reality, just as disempowered as the public defender.

Do you believe, for one second, that if the public defender had put his hands on the judge, that he wouldn’t have been tased, handcuffed and put in lockup by the marshals before you could dial 911?

When judges like these start to believe in the myths about their own greatness and power, you get judicial abuses like these that aren’t just metaphorical.

Update: Looks like Judge Kopf has posted on this and in his post he lays the blame on the public defender for setting up the bait and the judge for taking it. I think his perspective might cloud his judgment here a bit, unless you consider refusing to roll over on your clients’ speedy trial rights a “bait”, in which case, I guess it makes it obvious that some view this as no more than a game.

SC public defender forgets meaning of adversarial

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What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.

This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)

The complaint has been filed by Attorney Desa Ballard:

A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.

In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.

Even judicial opinions spin their facts (updated)

[Update below] What, really, is a fact? The word, which seemingly should have one simple definition, in fact does not.  For example, in science, a “fact” is an observation that has been repeatedly confirmed and for all practical purposes is accepted as “true.” In law, on the other hand, a “fact” is what 6 people say it is. In other words, it’s not a validation of what actually happened, but what reasonably could have happened. A fact is also determined based on a rather narrow, limited universe: some things aren’t taken into account and conclusions are made by ignoring other, contradictory events.

One example of this is if you read any appellate court opinion by a Connecticut court written in the last decade or so, almost all of them will have a recitation of the “facts” that begins with the following sentence:

The jury could reasonably have found the following facts

Invariably, this recitation is skewed toward the interpretation of those “facts” that supports the court’s eventual decision. If you need to uphold a questionable stop of a car on the road, highlight the helpful police officer’s testimony while downplaying or even ignoring frame-by-frame video evidence.

Two days ago I wrote a post about a juror who demonstrated that she believed the defendant to be guilty even before the presentation of evidence and who was “bullied” into stating that she could be fair despite those prejudicial beliefs. At the time i wrote the post I didn’t read the opinion. A helpful commenter has provided a link to the opinion. It perfectly illustrates the point I’m making here. First, let’s remember from my post that the transcript revealed that the juror made several assertions that she would not be able to be fair:

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

So let’s go take a look at the opinion. Find the Control and F keys on your keyboard. You’re going to need them. In the opinion, the judge explains that the trial court, before the evidence, explained to the panel that the case involved allegations of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. At the time jury selection occurred, both the prosecution and the defense questioned the jurors including Juror 112, who did not indicate any problem with judging the case fairly.

Then it starts getting messy:

Seeing is disbelieving: in spite of video edition

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This is not a trick question: what do you think has superior recall of the facts – your memory or a video of the incident?

No prizes for guessing correctly. But despite that, 5 judges in the State of Indiana went with their imaginations discretion in ruling [PDF] that a car had actually swerved into oncoming traffic despite the fact that it had not, and thus a police officer was justified in pulling the driver over for the horrifying crime of having a BAC level of 0.09.

Around 1:00 a.m. on October 15, 2011, Deputy Casey Claeys of the Elkhart County   Sheriff’s Department was following another vehicle down County Road 4. Deputy Claeys later   testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.”

Okay, so that’s what the cop says. What does the video say?

[T]he trial court stated it “reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant’s vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto the white fog line.”

Are you laughing or crying? I can’t tell. I’m doing both. So the video doesn’t support the proposition that the car left the roadway. Remember the officer said that it had veered off the road. Veered. Off. The. Road. Meanwhile the video shows that maybe it touched the white line.

So how do you reconcile that? Magic and the power of being a judge:

The trial court noted, however, that it was “quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.”

Got it? The officer’s memory is that much better than a video recording of the event.

This is important because if the car hadn’t actually left the roadway or god forbid, veered across a line for a second, the officer wouldn’t have any reasonable suspicion to make a traffic stop, which led to the arrest.

They need some reason – a traffic violation, say – to pull you over. Then when they notice you making ‘furtive movements’ and describe your eyes as ‘glassy’, they can arrest you for being drunk.

But this? This really just obviates the need for recording, because if the video can be superseded by an obviously biased officer’s “recollection” of the incident, then they can claim that their recollection is that you were driving with your windows down, AK-47s blasting into the air while screaming “fuck tha police” and taking exaggerated swigs of Crystal while simultaneously pissing on a photo of George Washington and wiping your ass with the American flag.

That scenario is just about as absurd as what the judges ruled in this case.

But no, you keep believing in the system.

Update: Scott wrote about this earlier in the week.

Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

fuck-you2

Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.