James M. Redwine

Internet class

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.

Why A Blindfolded Justice?

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You may know that for about twenty years I have been serving on the faculty of the National Judicial College where judges teach other judges to be judges. The NJC has a fairly high-tech approach due to needing to reach judges from all across America and in many foreign countries. About six years ago the College asked me and five other faculty judges to conduct a seven-week Internet class. Each faculty member is assigned areas of concentration. Mine are Court and Case Management and Judicial Ethics. If you have followed Gavel Gamut recently you may recall the other faculty and I just completed this year’s course.

Now, this week you and I could address the vicissitudes of Hoosier football or the most salacious sexual harassment scandal. Perhaps we could delve into the mysteries of competing religious philosophies or even this week’s almost certain to occur mass shooting. But I know my audience, small though it may be, and I am confident you would prefer to reflect upon the issues I hammered into the student judges via the Internet. Let’s get right to it.

May we start with the simple question, “Why do we even have Courts?” This topic might feel a little broad and somewhat amorphous. So, why don’t we narrow our focus and discuss just one court, say the Posey Circuit Court; What is its purpose?

Posey County government has numerous elements but each part can be reasonably placed in three general categories: (1) Executive, such as the Board of County Commissioners, (2) Legislative, the County Council; and (3) the Judiciary, which consists of two courts, Superior and Circuit.

The Commissioners are hired by Posey County voters to plan and execute short, medium and long-term functions, such as roads, jails and courthouses. The County Council is charged with managing the funding of all county services. I do not mean to ignore the important duties of such officers as the Prosecuting Attorney, the Sheriff, the County Clerk, the Treasurer, Assessor, Auditor and many other public servants. However we are painting with a very broad brush here; general, three-branch democracy is our subject.

Officials who engage in executive or legislative functions are not only allowed to, they are encouraged to advocate for certain policies and positions. Should Posey County have zoning and, if so, what kind? Can Posey County afford to hire more workers, and, if so, how much should they be paid? In county government there are thousands of important and often competing interests and interest groups to be advocated for and against. These are proper functions of those two branches of Posey County government. Therefore, it is altogether fitting that politics are involved. Policies are advanced and the voters decide whose policies they prefer, Democracy at work.

But, what happens when competing interests reach a conflict or an impasse? Where do citizens look to get a problem resolved? Where is there a fair arbiter? And, most importantly, where can citizens go with confidence the arbiter is not biased for or against either side? Of course, it is the Court, HOPEFULLY. However, if the Judge is perceived to be beholding to particular groups, a political party for example, people may fear any decisions the Judge makes is based less on fact than favor.

Perhaps next week you can be regaled with an even more in depth exposition of what I taught the judges about judges who may be perceived as partisan instead of blind to the identities and attachments of the people who have to appear in front of the Judge in Court.

All God’s Judges Got Robes

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Each fall for the past several years I have helped teach an Internet course on continuing education to judges. The National Judicial College located in Reno, Nevada organizes the six-week curriculum and selects members of the NJC faculty to teach judges from across America and even some foreign countries. Each weekly segment is led by one faculty member who is assisted by five others. My assigned area is Court Management. The course is supervised by two full-time staff members of the college who operate the complexities of the technology required by the participation of judges by computer and telephone from numerous far-flung locations. Joseph Sawyer and Danielle Harris of the NJC are in charge of the course and tasked with the “cat-herding” job of running both those judges who take the classes and we judges who teach it.

When I think about continuing education for judges I get an image of mothers from New York to Hawaii sending off their little judges dressed in black robes and equipped with new gavels embossed with the admonition: “Don’t Hit Anyone”. Before I was an attorney and had to deal with judges and before I became a judge and had to deal with other judges I never gave a thought as to how judges learn to be judges. Until reality struck me, I just assumed judges knew what they were doing the moment they began to decide the fates of those who were brought to court by law and life. Oh, if that were so!

However, since that is definitely not so, we need places to teach judges how to judge the same as we need to teach electricians not to touch a hot 220 line. The National Judicial College where judges who have already made numerous errors can teach other judges how to avoid them is one such place. The NJC states its mission as “Pursuing education | innovation | advancing justice with the support of individuals and organizations dedicated to preserving and improving the rule of law”.

In the teaching of Court Management I suggest a judge first think about what purposes she/he wants their court to accomplish; what is the desired mission? If a pioneer were going from St. Louis to Colorado he might paint a slogan (mission statement) on his wagon, “Pike’s Peak or Bust!”. He really does not plan to live on Pike’s Peak but the mantra can help him stay focused when a wagon wheel comes off in Kansas.

About thirty years ago members of my staff gave a great deal of thought to our purposes as a court. We were not unhappy with the court’s direction back then but we wondered if there were better ways to manage the Posey Circuit Court. So my long-time Court Reporter, Katrina Mann, my Chief Probation Officer, Rodney Fetcher, another long-time Court Reporter, Kristie Hoffman, another long-time Probation Officer, Mark Funkhouser, my then Court Administrator, Sam Blankenship, and I brainstormed for weeks about what our goals should be and how we could accomplish them.

Short-term, mid-range and long-term elements of planning, strategy, operation, record keeping and innovation were considered. We sought and received important input from the attorneys and other office holders. What we concluded we wanted the Posey Circuit Court to do was to help make Posey County, Indiana a better place to live by helping to resolve instead of exacerbating problems between and among our citizens who needed the court’s services.

We slowly and incrementally instituted a system of resolving conflicts in which the most important actors are the people who are in conflict; say a divorcing couple with children. Our Mission Statement guides us but it is only a guide, not an immutable law. For now I will set forth the Mission Statement then in future columns discuss the “Devil in the Details” of how we actually strive to attain our goals. 

Mission Statement of the Posey Circuit Court

The mission of the Posey Circuit Court is to help create a community in which individuals, families, and entities are encouraged and facilitated to resolve legal problems among themselves and to provide a forum in which legal issues that are not privately disposed of are fairly and efficiently decided according to applicable law in an atmosphere of mutual respect and positive innovation.

Over the years there has been a great deal of tweaking of our approach as new staff members have supported the main goals of conflict resolution and helping Posey County citizens repair their relationships. You are already aware this is a work in progress. Perhaps next week we can begin to flesh out the bones of our theory.