Should lawyers be disciplined for criticism of judges?

Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?

Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?

Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”

Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.

Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:

Rule 8.2. Judicial and Legal Officials

(a) 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, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(4) Engage in conduct that is prejudicial to the administration of justice;

I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.

As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.

And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.

The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.

As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.

But we are all lawyers. The irony is lost on us.


  1. What do you call a lawyer with an IQ of 50? Your Honor.
  2. Yes and no.

In Colorado, you’re a victim only if you support the death penalty

Colorado, which apparently still has the death penalty, is currently trying Edward Montour for the beating death of Eric Autobee, a correctional guard. Montour was serving a life sentence for another killing at the time, so the prosecution is seeking the death penalty.

Except, according to Bob Autobee, Eric’s father, Eric was against the death penalty and so is he.

For months now, Bob Autobee has been making a stand against the prosecutor’s decision to seek the death penalty, even protesting outside the very courthouse where his son’s killer is being tried.

“I don’t want my son’s name attached to this lynch mob,” Autobee told The Denver Post.  Autobee said that during a meeting with [District Attorney] Brauchler last year, he told the district attorney he would fight his decision.

Brauchler declined to comment, citing the ongoing case. But in a statement he released after he announced his decision in April, Brauchler said in addition to the family’s wishes, he must also consider the safety of corrections officers.

As a death penalty opponent, I do have a biased view of this: I think that the prosecutor should exercise rare discretion in seeking the death penalty and take into account the  victim’s and any family’s opinions on the death penalty, almost always erring toward the side of not pursuing death. But Colorado has the death penalty and I suppose the prosecutor is within his rights to seek it.

But he wants to go a step further and not only seek the death penalty, but prevent Autobee from telling jurors that he and his son are opposed to the death penalty. Autobee has made his peace with Montour and forgiven him for his actions, but the jurors, who are also supposed to make highly individual moral decisions shouldn’t be told any of that, according to the prosecutor.

A prosecution motion filed Jan. 6 argues that Colorado law allows victims to testify about the impact a crime had on them but not about their opinions on the death penalty.

I’m not sure that’s entirely accurate, but I’m no expert on Colorado law. I do think, however, that if the shoe were on the other foot, the prosecution would have no problem allowing Autobee to express his fervent desire to see Montour hanged or shot.

Andrew Cohen at The Atlantic makes the same point:

Colorado law “only guarantees the right of the victims to discuss the harm that resulted from the crime,” Brauchler argues, and this limits “evidence from the victims to the characteristics of the victim and the impact of the crime on the victim’s family.” It is “not the court process that can be attacked by the victims,” prosecutors assert, before claiming that Montour’s Eighth Amendment rights will be implicated if the Autobees speak out in his favor. You don’t need to be a lawyer, or a juror, to understand that this is a terrible argument. And Brauchler cites no controlling Colorado law in support of it.

In fact, as Cohen points out, it’s quite the opposite:

In their response, the Autobees’ attorney seem incredulous as they recite the provisions of Colorado law that support their view. “A crime victim,” they told the court, has the “‘right to appear, personally or with counsel, at the sentencing proceeding and to adequately and reasonably express his or her views’ regarding ‘the type of sentence which should be imposed by the court.'” Under Colorado law, the Autobees added, “prosecutors are required to support — not oppose — this right by ‘inform[ing] each victim of’ his or her ‘right to ‘express an opinion at the sentencing hearing or any sentence proposed to the court for consideration” (emphasis in original).

It just seems a little bloodthirsty to me to actively prevent Autobee from expressing his feelings about the trial. Victims come in all shapes and sizes and yes, in this day and age some will oppose the death penalty. This cherry picking by the prosecution of who gets to be a “victim” based on whether their political views align is disgusting and yet another reason why the implementation of the death penalty is so flawed.


Mandatory-minimums are a tool of convenience

There is apparently a new bill being proposed in Florida’s legislature that will, according to Gawker, legalize the firing of “warning shots”. Here’s a link to the bill [PDF] and here’s Gawker’s description of it:

Despite years of negative publicity over Florida’s “Stand Your Ground” self-defense law, lawmakers are close to expanding it to protect gunmen who fire warning shots or wave weapons in a threatening manner—and they’re doing it with a bill written by a top NRA lobbyist, Gawker has learned.

The current bill would amend the state’s expansive Stand Your Ground law—which permits residents to use deadly force in numerous circumstances—so that it also allows the nebulous “threatened use of force.” In effect, it means that gun owners could walk free for brandishing their gun in a threatening manner or firing a shot indiscriminately to “warn” a potential assailant.

That also means gun owners would get blanket immunity from the state’s “10-20-life” law, which mandates an automatic 10-year sentence for anyone accused of flashing or using a gun in the commission of a felony. Numerous Florida politicians, including Jeb Bush, have long credited that measure with significantly decreasing the state’s gun crimes.

Assuming the reporting is accurate, two related things are noteworthy: first, that hypocrisy and politics go hand in hand, given that the mandatory-minimum sentences were championed by the very same NRA in 1995. Second that mandatory-minimums are bullshit.

I don’t want to get into the politics of guns and gun owners and gun ownership, but it should be pretty obvious that something has changed the NRA’s stance on harsh penalties for some forms of gun ownership, possession and usage.

Is it race? Is it soaring gun sales and a desire to avoid contributing to the incarceration and incapacitation of a generation of potential gun buyers or the realization that mandatory-minimum sentences are idiotic?

I hardly think it’s the last of those three possibilities, but it should be. It should be that for everyone, regardless of political or NRA affiliation. So while it is sure-fire clickbait to blast the NRA for their stance on this bill, maybe the intelligent piece would look past the obvious politicking and focus on the real evils of giving so much sentencing power to prosecutors.

The NRA flip-flop on mandatory-minimums should tell you more about M-Ms than about the NRA.

Expert bullshit

From an unpublished Mass opinion1, consider the following description of the testimony of the state’s “expert” witness – a police officer and decide whether it was admissible or not:

First, referring to the cocaine and its packaging, the prosecutor asked [Detective Paul] Quinn whether he could offer an opinion as to whether ‘someone possessed these with an intent to distribute, or if they had it for personal use?’ In response, Quinn stated, ‘My opinion based on this in front of me and nothing more would be it would be with the intent to distribute it.’

[Second,] Quinn testified, ‘You know, if I stopped a guy who had nine bags, and he pulled out a burnt pipe and said, Officer, I just got paid, I’m going to get high, and he had those physical characteristics along with the pipe, I might give that guy the benefit of the doubt . . .

[Finally] Quinn [testified] regarding the physical characteristics and economic behavior of typical crack cocaine users, suggesting that the heavy-set defendant looked like a seller not a user and that a user would want to get his ‘money’s worth,’ and therefore would buy an ‘eight ball’ not nine twenty-dollar bags.

In this case, the court ruled that all of this testimony was improper and went beyond the scope of his “expertise”2.

But how similar is this testimony to others that you see routinely in drug trials? How many times has testimony like this been admitted, relied upon and upheld? How many times is a cop an “expert” based solely on nothing but his own inflated sense of his own abilities?

If you are a juror in a trial and a cop testifies as an “expert”, feel free to ignore that testimony and substitute your own common sense instead. Because usually they testify about bullshit like this.

  1. Commonwealth v. Johnson, 2013-P-0220 (Kafker, Milkey & Hines)
  2. Whatever that may be.

The lesson is that people are always guilty, even if they’re not.

David R. Cameron, distinguished professor of political science at Yale and a member of the State of Connecticut’s Eyewitness ID Task Force has written one of the most incomprehensible and bizarre opinion columns in the New Haven Register.

The feeling I got after reading that column is similar to the feeling I get after reading briefs written by the prosecution: one struggles for a sizeable chunk of time with where to start in response. As my favorite law professor used to say: it’s not even wrong.

Cameron uses three recent trials in New Haven Part A to illustrate the lesson that more evidence of guilt is better for conviction than lesser evidence of guilt and that without such additional evidence, guilty people will be found not guilty.

No, I’m serious.

Cameron tells us the tale of three trials conducted in recent months, all of which resulted in either acquittals or mistrials. He starts off by presenting unfiltered pro-prosecution evidence in each case:

In October, a jury found Jermaine Scott, 33, not guilty of murdering Marquise Baskin, 26, on June 19, 2010, in a parking lot behind Winchester Avenue. It did so despite the fact that a relative of Scott’s who had taken care of him since he was a child told police in a taped interview that she saw him in the parking lot with a gun, saw flashes of gunfire and heard gunshots.

In November, a jury found Tyrick Warren, 20, not guilty of conspiring with Rajoun Julious to rob John Henry Cates, a 57-year-old homeless man who was murdered on Jan. 3, 2010, near the corner of Huntington and Newhall streets. But it was unable to reach a unanimous verdict on the charges of felony murder and attempted robbery, despite a taped statement in which Warren implicated himself in the crime. The judge declared a mistrial.

And a week ago, Superior Court Judge Jon C. Blue granted a defense motion for acquittal in the trial of Kenta Wilson, 22, for the murder of Timothy Mathis, 25, on Sept. 3, 2011, in a parked car on South Genesee Street on the grounds that the state had not proved its case beyond a reasonable doubt. The motion came after a prosecution witness, Alfonso Dixon, refused to acknowledge that he told the police that several days after the shooting Wilson told friends he shot Mathis. Dixon was sentenced to six months for contempt of court.

He then goes through the rest of the evidence, essentially arguing that there were very good reasons why each judge or jury could not and did not convict the defendant. He boils down the similarities in each to:

But in all three, the prosecutors relied heavily upon a taped statement by an eyewitness, the defendant himself or an acquaintance that unambiguously implicated the defendant only to have the eyewitness, defendant or acquaintance subsequently recant, claim the statement was made under pressure, or refuse to acknowledge having made it.

Just in case you weren’t clear, he doesn’t believe any of this eyewitness recantation pressure nonsense, because clearly no one’s ever falsely confessed or misidentified the perpetrator. It’s understandable that a lay professor isn’t up on wrongful convictions across the country. It’s not like he’s on a task fo-oh.

And then he makes this really absurd conclusion:

However persuasive such statements may sound at the time to investigators and however useful they may be in demonstrating probable cause, they are quite likely to be recanted or otherwise denied later on at trial, especially if they were made by someone who is related to or acquainted with the defendant or by the defendant himself.

It is the fact of kinship that causes recantation, not the possibility that the statement may itself have been obtained under coercive circumstances. Cameron completely ignores this possibility again, so he’s either drunk or trolling everyone with this.

And let’s not forget the lesson he wants the good guys to learn from this:

That means investigators and prosecutors need to realize that judges and/or juries will usually need some corroborating evidence — ideally, forensic evidence — in addition to such statements in order to prove guilt beyond a reasonable doubt; probable cause isn’t enough.

I don’t even know where to start. What is he saying? That confessions aren’t enough because they’re only probable cause, and probable cause is not proof beyond a reasonable doubt?

That prosecutors should “find” some physical evidence because without that murderers and killers are going to go free because they can simply magically say they didn’t do it and juries are so stupid that they automatically believe all recantations?

I’m sorry this post is so rambling, but I literally do not know how to comprehend and deconstruct the vast amount of stupid that is this opinion column.

Wouldn’t it have made more sense for his opinion column to be about reminding prosecutors and police that they should only pursue cases in which there is proof beyond a reasonable doubt and to not try to convict people who are quite apparently not guilty?

That’s not what he writes, though, because surprisingly for someone who comes from his position, he too is of the all too common mindset that once police and prosecutors arrest someone, we have full faith that they’ve got the right person and all that’s left is a matter of meeting the ministerial burden of proof BRD and any prosecution that fails to meet that pro forma hurdle is a victim of cheating, dishonest witnesses and incompetent juries and “liberal” judges.

Never once does he demonstrate the understanding that maybe, just maybe, in each instance the verdict was the just one and the only one that upheld the integrity of the legal system.

But shit like that doesn’t get you on task forces now, does it?


TX man thinks he’s better than the TN public defender system

First, in Texas, a man was charged with multiple murders and the prosecutor is deciding whether to seek the death penalty. In that case, his lawyer is a kid named Maverick Ray1. Mark Bennett has this to say about Ray:

The cal­low­est young lawyer puts up a web­site in which he calls him­self “The Law Offices of Mav­er­ick Ray” (he has one office), “An Expe­ri­enced Hous­ton Sex Crimes Lawyer Your Free­dom Can Depend On” (he has been licensed for less than eight months and been hired on one felony sex case), “the Assas­sin of Sup­pres­sion” (Har­ris County records show no granted sup­pres­sion motions in drug cases), “Houston’s pre­mier DWI Attor­ney” (I won­der what Gary Trichter or Troy McK­in­ney, or Lewis Dick­son, to name but three of Houston’s top DWI lawyers, with decades of expe­ri­ence each—[edit: not to men­tion Tyler Flood]—would have to say about that), “often opt­ing to let a jury deter­mine whether some­one was truly intox­i­cated rather than the highly flawed Field Sobri­ety Tests, Breath Tests, or Blood Tests” (Dis­trict Clerk records do not show him try­ing a sin­gle DWI case in Har­ris County dur­ing those eight months).

Maybe all of this can some­how be ratio­nal­ized in a cal­low young lawyer’s mind, but it just isn’t true. Mav­er­ick is a nice kid, but I think he’s com­mit­ting large-scale fraud on poten­tial clients. Even if it’s fac­tual, it’s decep­tive. I am sad­dened and dis­ap­pointed, and I see no way for this to end well for him.

But—for now at least—it works. Ray gets at least three new cases a week on aver­age, mostly felonies. I don’t know how much he’s charging—whatever it is, it’s too much—but it doesn’t take big fees to turn 94 cases in a lit­tle over seven months into seri­ous money.

Walker County District Attorney David Weeks, the prosecutor who’s deciding whether to seek the death penalty, has this to say about Mr. Ray:

Weeks also challenged the defense attorney’s qualifications to try a capital case Friday morning. Ray has only been out of law school for six months. There are concerns that his lack of experience hampers Lewis’ right to a fair trial, thus bolstering Lewis’ chance at an appeal if he is found guilty.

Kraemer had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel.

“I am extremely troubled about Mr. Ray’s lack of knowledge and training in taking this case,” Weeks said. “(Capital murder) is the most difficult and integral criminal case we have in this state.”

Mr. Ray’s response – “the defendant has the right to choose his own attorney” is the correct response, but also the wrong, glib response. I’m not sure there’s a single attorney, no matter how talented, in the United States, who is qualified to handle a death penalty case within the first 5 years of practicing as a lawyer.

Meanwhile, in reality:

“Because of the state’s filing of a death motion in this case, our office quite frankly lacks the resources to defend a death penalty case,” [Nashville Assistant Public Defender Mike] Engle told [Criminal Court Judge Randall] Wyatt in court Monday morning.

Engle said the American Bar Association estimates that a typical death penalty case requires upward of 2,000 hours of preparation. He explained that the office only has a few attorneys qualified to defend capital cases, two of whom are already on one case, and one of whom is retiring soon. The others, he said, have supervisory duties over other public defenders, making it impossible for them to take on a case of the magnitude of the one against Jenkins.

The ABA standards for death penalty representation [PDF]2 are lengthy and involved. They require hours and months of training, tutelage and study. They are not to be taken lightly, or glibly.

Mr. Ray seems to be making the same mistake that most attorneys who aren’t that sure of themselves make: acting too sure of themselves. The best ones will admit what they know and don’t know and the best new ones will recognize this early on.

It’s one thing to tout yourself as the “premier DUI lawyer” only 6 months out of law school. It’s quite another thing to take on the defense of a death penalty case. Even if it is Texas.

Update: Tornado Mark, in his gentle, kind way is soliciting advice for the Maverick in re: his capital representation. Be sure to add your two cents.

  1. Real name.
  2. Here’s an interesting law review article on the ABA guidelines and their impact on death penalty jurisprudence.