James M. Redwine

Internet class

When Mercy Seasons Justice

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Photo by Peg Redwine

For the past two weeks as a member of the National Judicial College’s faculty I have helped to present an online continuing education course to judges from several states. A significant portion of the course involved an examination of America’s penal system.

In general, the continuum of criminal justice runs from Deuteronomy, 10:21, to Shakespeare’s The Merchant of Venice, Act 4, scene 1. Deuteronomy provides:

“Thine eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

But Shakespeare’s Portia pleads with Shylock to show mercy:

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.

….

It is an attribute to God Himself; And earthly power doth then show likest God’s when mercy seasons justice.”

Gentle Reader, you have already discerned the Devil is in the vast distance of details between these two extremes. How should we as judges of our fellow humans devise and apply a sentence that is just for the individual in court and society in general?

The State of Indiana’s Constitution provides a foundational mandate for judges when it comes to designing and imposing sentences that both follow the law and are just; just to the defendant, to any victims and to the general public. Article I, section 18 demands that as to Indiana’s legal system:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

For judges to be “Strict Constructionists” and conservative followers of the Indiana charter, vengeance may play no role while reformation must be the goal. One of my fellow National Judicial College faculty mates was Judge Timothy Brauer from Oklahoma. The Oklahoma Constitution provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

Article II, Bill of Rights,

Section II-6.

As a member in good standing of both the Indiana and Oklahoma Bars, I am bound by the Constitutions of both states. Oklahoma’s reference to justice not being for sale reminds of Socrates’ admonition to his judges in the Athenian Senate:

“A judge’s duty is not to make a present of justice, but to give judgment; and judges are sworn to judge according to the laws, and not according to their own good or pleasure.”

Plato’s Apology of Socrates.

The wisdom of basing a system of justice on mercy instead of vengeance has been recognized for thousands of years. Jesus knew society prospered when the Golden Rule and not rule by gold was the standard. And WWII war correspondent Ernie Pyle reminded all of us, especially judges:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

As judges should learn, all they have to do to do their duty in imposing sentences is to strictly follow the applicable law which includes the divine judicial quality of not straining at mercy.

Photo by Peg Redwine

One Ringy-Dingy

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iPhone picture by Peg Redwine

Lily Tomlin’s character, telephone operator Ernestine on the TV show Laugh-In, set the standard for bad telephone service. Laugh-In was on NBC from 1969-1973. In 2022 life has overcome art. At least Ernestine was human. Today, robots and recorded messages insulate businesses from the needs of customers. Good luck on getting through a telephone “menu” to speak with someone who will admit a company’s responsibility for poor service.

Things were bad enough before COVID-19 and our current no-one-ever-goes-in-to-work society. But after more than two years of encouraging everyone to avoid contact with anyone many people apparently see any request for service as a borderline criminal assault.

It has been a while since I looked at a college course catalogue, but I suspect some schools must be offering a major, on-line of course, in how to prevent anyone from accessing a service. Perhaps one can pursue a Ph.D. in telephone menu construction. A favorite ploy is to have a recorded answering service that starts off with, “Please listen carefully because our options have recently changed.”

We all know that’s not only demeaning but is also almost certainly untrue. The only changes any company ever makes to its phone options is to obfuscate them further until we despair of ever getting to speak to a human being. The days of simply punching “0” to hear a non-mechanical voice are long gone. Now the R2-D2 robot used to add layers of dross instead of answers to our questions, directs us to some website once we exhaust the non-access menu options. Of course, should we fall into the Inferno of a company’s website we had better not be susceptible to thoughts of self-harm and should avoid having any sharp objects within reach.

It is a telling fact that Alexander Graham Bell (1847-1922) who patented the first practical telephone would not have a phone in his study because it interrupted his work. Bell set the standard toward which all contemporary companies strive; the elimination of any telephone conversations at all. I suppose I should not mention this possibility.

Is it not strange that in a world where even grade schoolers have iPhones and teenagers text the person right beside them that we cannot get anyone to answer the darn phone! Of course, some of the worst, that is, most obnoxious offenders of the “never answer a customer’s query” policy are the government agencies we pay with our tax money to ignore us. Do such “services” as the IRS and VA come to mind?

On a related topic, can we talk about telephone etiquette in general? I suggest if a politician or a political party wishes to up their poll numbers, they pay attention to basic phone courtesy and re-teach the phone manners our parents demanded. You remember, Gentle Reader. Do not call someone and start with, “Is this James?” Begin by identifying who you are and why you are calling. Call only at a decent hour and never during a football game. If you get an answering machine, leave a clear message and a return number by speaking slowly and distinctly. In other words, treat phone contacts as you would in-person contacts and that includes companies and agencies we need to access for services. And by the way, “Thank you and goodbye”.

Mayberry We Miss You

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In December 1991 my family and I ate at Luby’s Cafeteria in Killeen, Texas. There was no trace of the bodies, blood and shattered glass from the October 16, 1991 mass shooting. We still felt their presence. Although I remembered the city riots of the 1960’s and 70’s and had closely followed the violence of 1968, the utter randomness of the Luby’s murders stoked more personal concerns. To slaughter people one did not even know struck me as much more horrendous than the misguided criminal actions of zealots.

While America’s 20th century experience with deadly violence from 1900 up to the 1960’s was extensive and tragic, as Jasmine Henrique reported in her article Mass Shootings in America: A Historical Review (Global Research News, 2013), the victims were almost always members of the killer’s own family or were the unfortunate object of a felonious act such as a specific, intentional robbery that was committed in secret. However, in most of the last half of the 20th century and the first nineteen years of the 21st century America has endured public mass killings of persons who were strangers to their murderers.

Memories of Luby’s came back to me as I participated in an internet class on judge and courthouse security taught by my friend and fellow faculty member Judge D. Neil Harris from Mississippi. Judge Harris along with other faculty of the National Judicial College including me are teaching a six-week course to seventeen judges from across America. Of course, it is not just the judiciary that needs to be concerned about security.

If you recall, when this course on general judicial topics started three weeks ago I suggested in this column there was much we modern judges could learn by examining how courts and judges arose originally. That is when humans considered net-working to be making friends with the folks in neighboring huts. As for court security in those bygone days about all that was required was for the judge to treat people who came to court as the judge would want to be treated. This worked pretty well until the world began to fill up with people who were not comfortable living in a smaller area.

But now, as William Wordsworth (1770-1850) might say, “The world is too much with us”. Or as Henry David Thoreau (1817-1862) might have nostalgically wished if he were in charge of courthouse security, “That security system is best that restricts the least”. Unfortunately, we can no longer simply return to nature. The world has moved on.

Whereas in 1950 there were 151 million people in the United States and it seemed space was infinite, in 2019 we have 327 million and it has become difficult to stretch out. Mayberry, our TV town of 2,000, has metamorphosed into what feels like a megalopolis from sea to sea and from Mexico to Canada. Sheriff Taylor, who did not even carry a gun, ordered Deputy Barney Fife to carry only one bullet and keep it in his shirt pocket.

It may be that over population has impacted our behavior. Dr. John Calhoun (1917-1995) studied population density using lab rats as subjects. While many other scientists point out humans are not rats and are more able to adapt as conditions change, it may be our precipitous increase in mass shootings of random victims has come about as, at least, a partial result of population density. In their analysis of Calhoun’s theories, Doctors Edmund Ramsden and Jon Adams in their article Escaping the Laboratory: The Rodent Experiments of John B. Calhoun & Their Cultural Influence (Journal of Social History, Spring 2009) stated:

“As population density (of the rat city) increased it became evermore difficult for an individual to control the frequency of social contact. The result was unwanted interaction, leading to adverse reactions such as hostility and withdrawal, and ultimately, to the type of social and psychological breakdown seen during the latter stages in his (Calhoun’s) crowded pens.”

To solve a problem it helps to understand the cause of the problem It may be there are more valid causes for mass shootings than increasing population density. If so, they should be defined. However, if our teeming mass of humanity is contributing, we should address it and use our Homo sapiens adaptability to assuage the carnage. Regardless, whatever the etiology of increasing societal, including courthouse, violence there is no doubt is is occurring.

As reported by Timm Fautsko, Steve Berson and Steve Swensen of the National Center for State Courts and the Center for Judicial and Executive Security, there were 199 incidents of courthouse violence from 1970-2009 with an increase noted each decade. As they posited:

“We live in a time when threats against judges and acts of violence in courthouses and courtrooms are occurring with greater frequency than ever before.”

As much as I yearn to return to Mayberry and rely upon my mother’s stated advice, “Jimmy, just be nice”, the evidence overcomes the myth. Society, including the judicial system, must face the reality of a 21st century world. Security is necessary. That is why the Indiana Supreme Court in its Administrative Order AD19 requires each county court system to develop a security plan, seek approval for that plan, implement that plan and update the plan every two years.

I do not like it and my guess is neither does the Supreme Court. However, I, and I believe they, know it is necessary.

The Circumspect Caveman

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If you read last week’s column you probably noted the current general topic is judicial education. Specifically, the focus of last week’s session was the definition of what is a judge and how did the concept of judging arise? We went back about 130,000 years to the hypothetical, and questionable, theory that Homo sapiens may have existed in North America before it had a name. The reason we are delving into these arcane mysteries is because the National Judicial College in Reno, Nevada has tasked some of its faculty, including me, with teaching an annual on-line course to judges from across North America. By design the course concentrates on general and basic aspects of what judges do and how and why they do it. So let us return to last week’s pedagogical construct of a truly elemental judicial system, that is, caveman justice.

You may recall we visited three hypothetical aboriginal families inhabiting a tiny cluster of huts. A dispute between two of the families had arisen over possession and use of certain flowers. Those two families agreed that instead of fighting with clubs they would agree to submit the matter to a member of the third family for a decision; voila, the first judge and the first court. But why would the dueling litigants accept the judge’s decision? Why not just ignore the judge’s imposed resolution and go back to trial by combat. How could the ancient society have confidence the judge was right, or if not completely right, at least fair? Judicial ethics were born. And that was the subject matter of this week’s NJC class.

If we assume the judge wants his or her family to enjoy the benefits of a peaceful community and we assume cooperation on such things as mastodon hunts by everyone is a benefit to all while bashing skulls is a benefit to none, we can find a basis for accepting a decision by an impartial judge. The rub, of course, is how to ensure the contentious parties believe the judge is impartial. That is why a large part of America’s judicial system places restraints and requirements on the behavior of judges. Judges, just as our caveman judge, have no armies nor do they have the power to raise revenue. All judges have to enforce their decisions is public confidence in the judge, or, at least, the overall judicial system.

So with our nascent judicial system from 130,000 years ago our judge could not play favorites and the two contesting parties would have to have confidence he/she was, in fact, impartial. People can accept a less that ideal resolution of their legal problem if they are convinced it was arrived at without prejudice. Therefore, our caveman judge must not talk to one family about the dispute outside the presence of the other family. And the judge must not accept favors from either family. Also, the judge must not voice any out of “court” opinions about the merits of the case.

Well, Gentle Reader, you might surmise there are a few more legal system details for mankind to work out other than our caveman justice. However, it all comes down to our judges must not only be fair, we must believe they are fair.

 

In The Beginning …

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Mr. A.H. Holloman owned and operated a gravel pit near the small town of Frederick, Tillman County in southwest Oklahoma. The pit is about one half mile wide and 7 miles long. Holloman discovered numerous artifacts of ancient human occupation in the pit in 1920. The supposed age of the items suggested modern civilized Homo sapiens created them 130,000 years ago. However since this conflicted with the generally accepted theory that Homo sapiens arose in the Olduvai Gorge in Tanzania, Africa 60,000 to 80,000 years ago, the scientific community discarded the archeological evidence at the Holloman dig for many years.

Then Professor David Deming of Oklahoma University published an article claiming modern humans may have originated in Oklahoma. Deming (born 1954 in Terre Haute, Indiana) graduated from North Central High School in Indianapolis, Indiana then graduated from Indiana University in 1983 with a BS degree in geology. He earned his PhD in geophysics from the University of Utah in 1988.

As a matter of full disclosure, I am an IU grad and currently live in both Indiana and Oklahoma. Most importantly, I garnered all my information about Professor Deming and his research from Wikipedia. At least it wasn’t Twitter.

Anyway, as a member of the faculty of the National Judicial College in Reno, Nevada I am currently helping to teach an on-line course to sitting judges. The course concentrates on courthouse security, ethics, court technology and what are the proper roles and behaviors for America’s judges with an emphasis on rural courts and judges new to the Bench. A rural court is defined as a jurisdiction having one to three judges and a less urban atmosphere. Mr. Joseph Sawyer, long-time NJC staff and faculty member, is in charge of the course that relies on several experienced judges as teachers.

At our first class session for 2019 which was Thursday, September 12 the general discussion pertained to what cultural purposes do judges serve and what do and should citizens expect when they attend court. In other words, what, if anything, other than wearing black robes and pontificating do Americans perceive judges to do?

Since I had just last weekend read about Professor Deming’s work, as we engaged in class discussions about the proper role of judges, I merged my thoughts of history and modern judicial culture. I asked myself what is it you, that is I, have been doing as a judge for the past 39 years and has any of it mattered other than to provide me a paycheck? Basically, what is a judge and what should be a judge?

While I should have been concentrating on the interesting comments of my fellow faculty members and our student judges I found myself musing about the folks that inhabited the Holloman gravel pit about 130,000 years ago. That’s probably about the time society decided we needed some way other than clubs to resolve disagreements. I envisioned three families of the earliest Homo sapiens existing in proximity in three separate huts. Let’s imagine the wife of the man in hut number 1 decides to decorate her hut with flowers that only grow beside hut number 2. Wife 1 gathers up the flowers and wife 2 takes umbrage. The husbands of 1 and 2 each grab a club and mayhem is in the offing when the wife in hut number 3 suggests a meeting run by her husband, ergo the first judge.

The judge suggests a compromise whereby the flowers are shared and the wives in huts 1 and 2 work together to beautify both huts as well as the judge’s hut with the participation of wife 3 (was this our first courthouse?). Crisis averted. Peace restored. Justice done. A system of justice created.

Gentle Reader, I confess that in my humble opinion, judging really is about that straight forward. All the rest is just window dressing.

 

The Harder Right

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Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.

We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”

You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.

That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.

And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”

Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.