James M. Redwine

Judicial

Distancing

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President Lincoln reportedly used to occasionally sit on the back steps of the White House and talk to old friends who might just drop by. President Truman used to play poker at his Key West, Florida White House with ordinary folks. President Jackson invited the hoi polloi to his inauguration and they came and trashed the White House. There was a time America’s leaders thought of Americans as equals, or at least not as persona non grata. Now there are fences and armed guards at the White House and the only time a president makes personal contact with Americans is to have a photo op. Democracy is now pretty much non-democratic.

Our politicians often ascribe the responsibility for this metamorphosis to need for security, that is, fear of contact with us. I suggest it has more to do with their desire to just pick up their tax payor funded paychecks while being left alone. Kind of like getting COVID-19 checks not to work. Anyway, my experience in working for the public has been that it has not been a concern for my security or anyone else’s that has brought about such distance between public servants and the public. But it comes more from a realization that there simply is very little difference between those who control the government and those who are controlled by it, and the controllers are afraid that will be found out. At least that is true with the judicial branch and the legal system. I invite you, Gentle Reader, to return with me to at least one incident from those “thrilling days of yesteryear” to help me illustrate my concerns about the loss of direct connection to our office holders.

When the State of Indiana used justices of the peace to process most minor legal matters such as driving offenses and small civil claims, the “courts” were often held in the homes or store fronts owned by the justices. One would appear before some non-formally trained person who would dispense justice in a relaxed atmosphere and at little cost. Then we “improved” the system by requiring legally educated and licensed judges and publicly financed court facilities. Everything became more complex, costlier and more distant.

In Posey County, Indiana the County Court that replaced the Justice of the Peace system in 1975 was jammed into a portion of the 1927 Memorial Coliseum Building. The original coliseum was built as a community center. It had a swimming pool, a gymnasium, a stage for shows and a pool table. The new County Court, including the judge’s chamber, took up three small rooms next to where the pool table was. And another feature was the closet in the approximately 20-foot by 30-foot courtroom where the Daughters of the American Revolution ladies kept their regalia to be used in their meetings that also were held in the courtroom.

When I was the Chief Deputy Prosecuting Attorney for Posey County, 1976-1978, I tried six-person jury trials in that courtroom. As we had no separate jury room we would try a case then leave the jury in the courtroom alone to deliberate on their verdict. Everyone in the courtroom could reach out and almost touch everyone else. Of course, there was little pretense of confidentiality. I know it sounds bizarre but it worked okay and no one, including the judge and the attorneys, could arrogate themselves into special status. Please let me tell you about one of my favorite cases from that halcyon time.

I was a little younger then and one of the cases I prosecuted involved a misdemeanor charge against a Billy ______ who was about my age. Billy represented himself in the jury trial. After Billy and I traded accusations and insults during final arguments the judge gave the case to the jury then ordered the courtroom cleared except for the jury. Billy and I stepped out to the adjoining room where both a soft-drink machine and the pool table were located.

As we attempted to ignore one another, Billy turned to me and said, “Hey, Jim, do you play pool?” As I grew up in Pawhuska, Oklahoma at a time when the only thing other than the ball field was the pool hall, of course I played pool.

“Yeah, Billy, I play pool and I can beat you at that too. By the way, I thought you did okay in court, but be prepared for the gavel to fall.” I was much more sure of myself then.

“Jim, do you want to put anything on the pool game?”

“No, Billy, that would be illegal; go ahead and break.” I did not mention that a portion of my tuition at Oklahoma State University came from non-legal lucre.

Well, we played as the jury was busy deciding they didn’t care if I thought Billy was a menace to society; they sided with Billy. Since that trial Billy and I have had several contacts of the legal variety and you may note Billy is still playing pool but now my pool table is in my barn.

In my opinion, America could use a reprise of some of that by-gone legal system where the people who are processed and those who do the processing are not separated by layers of convolution. As Eva Peron might say, ♫ I’ll keep my promise, don’t keep your distance.” ♫

The Cure for Black Robe Fever

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In response to both the states of Indiana and Oklahoma’s CLE requirements I am currently engaged in a forty-hour online Mediation course presented by the National Judicial College in Reno, Nevada. I may subject you, Gentle Reader, to the exciting content of this course before long. Hey, why should I have all the fun alone. But for this week I thought you might prefer another of those true courtroom dramas such as the one presented in last week’s column about my service as a prosecuting attorney that helped keep me from falling too deeply into the Black Robe Syndrome. The case that today’s column is about occurred about 25 years ago in front of me in the Posey County, Indiana Circuit Court. To my chagrin, I confess it is all too true and was first confessed to by me in a Gavel Gamut article on August 07, 2006 and appears in the book Gavel Gamut Greetings from JPeg Ranch.

The whole embarrassing courtroom episode reminded me of Dorothy’s serendipitous traipse along the Yellow Brick Road in the land of Oz with the cowardly Lion, the Scarecrow and the Tin Man in search of a brain for the Scarecrow, courage for the Lion, a heart for the Tin Man and the Wizard of Oz for Dorothy. When the mighty Wizard of Oz is finally seen for what he really is by Dorothy his façade of omnipotence gets shattered.

It is probably a good thing that we sometimes have false images of our leaders.  I remember my feelings of dismay when I was told by one of my grade school teachers that the painting of George Washington that hung in our classroom and in which The Father of Our Country looked so stern and powerful portrayed General Washington with his lips tightly pursed because he had ill-fitting false teeth.

And I will not disclose at what advanced age I still clung to Santa Claus and the Easter Bunny.  I might have been slow to catch on but I was happier than my peers.

We may be wrong, but most humans believe in pomp and circumstance and the regalia of office.  Police officers have badges, soldiers have uniforms and presidents have Air Force One.  We do not need to know about what happens behind the scenes.

Then there are judges.  Judges have courthouses, high benches, gavels and those flowing black robes. Hey, it’s kind’a cool. And, of course, some judges have spouses who are not so easily impressed by all the accoutrements since they see their judges asleep on the couch in dingy tee shirts and torn Levi’s.

But what brings the old “feet of clay” sharply into focus are those unexpected events that occur in court where some citizen decides to act like this is a democracy and he or she is an American.

While there are many instances where I have been made to realize that the trappings were for the office and not for me personally, my wife Peg’s favorite story involved a case from about ten years ago where I was imparting great judicial wisdom and admonitions to a young woman who had been found guilty of stealing.

As I was regaling the full courtroom with the majesty of the law and how it fell so heavily on this poor young miscreant, all of a sudden the huge double doors in the back of the courtroom burst open and a large woman with her hair in curlers wearing a housecoat and bunny slippers charged up towards my bench. She was the young woman’s mother and she was not amused and certainly not impressed by my lecture to her daughter.

The lady stopped just behind the bar that separates the hoi polloi from those who are paid to serve them. She stood to her full height and said very loudly:

                     “If you weren’t wearing that long black dress, I’d come up there and slap your face!”

Then she turned and marched slowly and grandly out the back of the courtroom giving me what for the whole time.  The packed courtroom was split between amazement and amusement.

As for me, I knew how the old Wizard of Oz felt.

Mox Nix

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American soldiers stationed in Germany picked up the German saying “Macht nichts” and anglicized it to Mox Nix. Either way it means, it doesn’t matter, kind of short hand for don’t sweat the small stuff. If you read the Gavel Gamut entitled “Wheat from the Chaff” you might recall the general topic involved the American legal system’s treatment of high-profile cases such as the George Floyd/Derek Chauvin matter. Judge Cahill in that Minnesota jury trial was faced with several issues related to publicity about the case. The judge was asked to change the venue of the jury trial out of Hennepin County, MN; he refused. The judge was asked to sequester the jury; he refused. And he was asked to recuse himself as judge; he refused.

The basis for each of these requests from defendant Chauvin was imputed bias because the judge, jury, victim, defendant and witnesses were from Hennepin County and, there might be prejudice due to personal experiences with the local area and populace, or from the pervasive local media coverage. The defense asserted the judge and jury would perforce decide the case not based on the evidence but without regard to the proven facts, or worse in spite of them.

While I have no position as to the validity of such allegations in the Chauvin case, in general, it strikes me that such fears evince disdain for the character of judges and jurors. Do those who aver a trier of fact would find someone guilty or innocent based on personal bias in the face of admitted evidence proving the opposite really think so little of their fellow citizens? Haven’t we all had to make many difficult choices that often go counter to what we would prefer? Then why would we assume others are made of lesser stuff than we? If we were the judge or jury wouldn’t we swallow hard and decide the case as required by the law and the evidence in spite of what we might wish the facts to be? So why not afford our fellow citizens that same consideration?

Does that mean no case should ever be venued or no judge should ever recuse? Absolutely not and I was neither the judge nor a juror in the Derek Chauvin case so I take no position on whether Judge Cahill erred or whether the jury based its verdicts on improper factors. Those issues are now going to be reviewed by the Minnesota appellate courts which will have the duty and ability to ascertain whether the trial was fairly conducted by the judge and proper verdicts returned by the jury.

Most judges and most jurors most of the time have the ability and character to recognize when their personal feelings and news accounts must be set aside if a just verdict is to be reached. In those circumstances where human frailty overcomes treating others in court the way we would expect and like to be treated, we do have appellate procedure as a safeguard. Most cases are decided in circumstances where extraneous matters could be influential on the outcome. However, America’s legal system and the citizens who are responsible for operating it have the ability to sift the wheat from the chaff and they have the character to know when to say Mox Nix.

The Wheat From The Chaff

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The Sixth Amendment to the U.S. Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been Committed ….”

Our Declaration of Independence raised these issues and complained of King George III:

“For depriving us in many cases, of the benefits of trial by Jury; (and) For transporting us beyond Seas to be tried for pretended offenses.”

The Book of Matthew uses the example of separating edible wheat from its husks as an analogy about dividing the good from the bad. In our legal system we almost always assign this task to judges with probably less than 3% of criminal cases being determined by a jury. The recent case involving the death of George Floyd, Jr. and the conviction of Derek Chauvin is one of those extremely rare jury events. However, this is not a column about that media saturated matter that took place in Hennepin County, Minnesota. I do predict that two of the issues raised by Chauvin when he appeals the guilty verdicts will be whether trial judge Peter Cahill should have granted Chauvin’s motions to change the venue of the trial and to sequester the jury. Those specific assigned errors will fall to the Minnesota state appellate judges and maybe work their way over to the federal judiciary before the saga crawls to an unsatisfactory halt. Shakespeare was right about the Law’s Delay. George Floyd, Jr’s. death was May 25, 2020.

What this week’s column is about is the American legal system’s mental gymnastics involving the relative imbalance between trial judges’ assumed ability to be objective versus that of jurors. Perhaps a few specific examples might help define the dichotomy. During my forty years as a trial judge in a small, rural county with only two judges I was faced countless times with having to process cases about which I had personal knowledge. For example, a crime might be reported then the police or sheriff’s department would present me with a sworn affidavit in support of a request to arrest someone and/or to search their home. A great amount of detail about the alleged crime and the suspect would be laid out before me. Then later I would sit as judge on the case.

Another fairly frequent circumstance might be I would know both the named victim and the defendant. I would sit on the case. In fact, I have remained as the deciding judge on countless cases at the request of victims, defendants and their legal representatives because they all wanted the cases resolved without delay and excessive cost and because everyone, including me, assumed I could separate the wheat from the chaff and both follow the law and be fair and objective. If I could do so, so can jurors. Black robes are a symbol not an inoculation against biased decision making. Facts are what matter, not irrelevancies unconnected to the case at hand.

There are cases where judges should not serve and where the pool from which jurors are selected should be changed. But usually judges and other people have the ability to take on the sacred mantle of administering justice whether they wear a black robe or not. Our legal system should afford to the citizenry that pays for it the same respect we assume for judges who are paid by it.

The delay, expense and great inconvenience caused by changes of venue and juror sequestration should be a last resort. This was true when we gained our independence and communication was untimely via printing presses and quill pens. How much rarer should such dire remedies be when finding a venue and jurors who have no knowledge of a case would require a trial beyond Mars?

A Delicate Balance

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Five-foot, four inch tall “Little Jimmy”, James Madison, Jr. (1751-1836), applied his gigantic intellect to melding the Natural Law theory of John Locke (1632-1704) and the Separation of Powers theory of Charles Montesquieu (1689-1755) into the Constitution of the United States. Locke and Montesquieu postulated that all things being equal no person should harm another in his/her life, liberty, health or possessions. They, along with Madison, also believed that every person who has power is apt to abuse it. Therefore, governments are necessary to keep individual power in check but the power of government must also be kept in check.

According to Edgar Bodenheimer (1908-1991) in his treatise on jurisprudence:

“The basic idea of the American Declaration of Independence as well as the Bill of Rights is the recognition of the natural and inalienable rights of life, liberty, and property, as conceived by Locke, while the main body of the United States Constitution is a practical application of Montesquieu’s doctrine of separation of powers. The connection between these two doctrines in the American government is made by the theory of judicial review. The United States Supreme Court has held that, in order to guarantee the enforcement of natural rights, the power to make laws must be separated not only from the power to execute laws, but also from the power to review laws with their regard to their conformity with higher principles, as recognized by the United States Constitution. Thus, in the United States the courts, and especially the United States Supreme Court, have assumed guardianship over natural law.”

See Bodenheimer, Jurisprudence at p. 146

This separation of powers has served America well since 1789. As is to be expected in matters as complex as government and politics the powers of the three branches have each waxed and waned from time to time. However, we have always managed to keep our democracy by remaining moored to the rock upon which it was founded. Just as our founders recognized that individuals and governments will abuse power unless checked, they also recognized the danger and guarded against any of the three branches having unfettered power. The wisdom of Madison, et. al., is once again being tested. Has the Executive Branch gone outside its traces and incited violence against the Legislative Branch? Has the Legislative Branch blurred the boundaries that should keep all three branches separate by both charging an impeachment and then filling the role of the Judicial Branch by having one of its own members serve as the presiding officer at the trial? And, has the Judicial Branch been marginalized because the Chief Justice of the Supreme Court will not be serving as the neutral and detached trial judge as designed by our Founders.

For as Bodenheimer points out, “Any abuse of its power by the legislature should be curbed by the Judiciary Branch of the government, to which falls the duty of declaring void all statutes which are repugnant to the Constitution.” See Bodenheimer, Jurisprudence, at page 148. Perhaps Chief Justice John Roberts and the rest of the Supreme Court are anticipating being confronted with such an issue later.

The crimes that were committed on January 06, 2021 are being investigated and several alleged perpetrators have already been identified and charged. Numerous others will and should be. America’s normal criminal justice system can fairly and efficiently provide due process to those involved. If Donald Trump committed any state or federal crimes either on or before January 06, 2021 he can be prosecuted separately from the impeachment. And if a pardon is considered it would cover only federal offenses.

In our current test of our charter’s application, the Legislative Branch has filed an article impeaching the head of the Executive Branch, former President Donald Trump. It is alleged he engaged in:

“[H]igh crimes and Misdemeanors by inciting violence against the Government of the United States” on January 06, 2021 and for in the months preceding January 06, 2021 repeatedly issuing false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the America people or certified by State or Federal officials.

The Article of Impeachment was returned against President Donald Trump on January 13, 2021 while he was still the acting President. On January 25, 2021 after Donald Trump’s term had ended, the Article of Impeachment was sent to the Senate for trial. The Senate has set the trial to begin February 09, 2021 with Senator Patrick Leahy, Democrat from Vermont, to preside and the senators to serve as jurors.

Article I, Section Three, of the U.S. Constitution provides that in the trial of the President of the United States the Chief Justice of the Supreme Court shall preside. For reasons not yet fully explained, Chief Justice John Roberts will not be involved, so only two of our three equal branches of government will be embroiled in this matter of grave national concern. It is suggested that this is because Donald Trump is no longer President. However, that does not take into consideration the bed rock reason why the Founders made it mandatory for the Judicial Branch to be involved.

The impact of this omission upon public confidence in the fairness of the process is worthy of consideration. After all, it is not Donald Trump’s fate that is most important, but the country’s faith in the process that determines that fate. However, this faith might be shaken by a trial where the role of a “neutral and detached magistrate” is filled by a member of the body that both files and prosecutes the charge. Symbolism is important and a level scales of justice is one of our nation’s most potent and delicately balanced symbols.

Attenuation

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From The Ford Library Museum Website

The season of our discontent is set to begin February 08, 2021. Soon we will be forced to talk to our spouses again and eat an actual meal instead of gobble chicken wings during commercials or at half-times. I can feel the ennui closing in. ♫ It is a long, long time from February to September ♫ when football season returns. It is not that I have no interest in other sports, but other than the Olympic downhill ski race and the baseball World Series I just do not want to watch them on television. On the other hand, I will gladly spend four hours watching Goadie Bowl Tech and Reyfert Hogart Junior College drop passes and fumble kick-offs. Such pursuits as yard work and household chores quickly fade in the afterglow of a football game. Ah well, perhaps it will give me an opportunity to ask Peg what she has been doing since September 2020. Also, I might give some thought to such things as our battle with ’Ole 19 and our political malaise.

Perhaps I can combine my concerns about the end of the football season, the Corona Virus and such political madness as the January 06, 2021 assault on our Capitol including its impending impeachment imbroglio. After all, President Gerald Ford was the hero or villain, choose one, of the President Richard Nixon impeachment controversy and President Lyndon Johnson often alleged Ford’s decisions were affected by Ford’s having played too much football without a helmet. Gerald Ford played center on the University of Michigan football team. Ford graduated from college in 1935, an era when leather helmets were in vogue. For safety reasons leather has been gradually replaced with the rock-hard plastic we now use. Hello, spearing or targeting penalties and TIB’s (traumatic brain injuries). However, from an esthetic viewpoint, the hard plastic provides a better surface for team logos and sticker awards for hard hits.

Football and politics do have some similarities, and when it comes to dealing with misdeeds in either, the legal concept of attenuation is relevant. With football a hard hit with his helmet by one player against the head of another player can be analyzed by re-tracing backwards from the hit. While not even the player himself, or now perhaps herself too, may know for sure if he intended permanent harm, the referees and the re-play booth can carefully review and discuss the event. This may disclose guilt or innocence of the player but is he the only one to blame?

The fanatics who cheer on teams often call for the players to “fight’ or even “kill ’em”. One’s teammates may urge super aggression. Coaches spend months in conditioning drills and two-a-days pre-season practices explaining how starters push the limits while bench setters are more timid. And what about the player’s parents? Who is responsible for engendering mayhem instead of mercy?

The same type of analysis is an element of our criminal justice system. When there is a lynching, how far back the causal chain should punishment go? Is it just the one person who slips the noose over the victim’s neck? What about the on-lookers, the news media that fanned the flames, the leaders who gave rousing speeches, the sworn law officers who did not intervene and the rest of the community who acquiesced in silence either during or after the lynching? Perhaps an entire country might be responsible or even a silently accepting world. How do we decide whether we are applying appropriate punishment or simply burning a few witches to shoulder the blame for everyone?

Then, of course, we need to look at the dynamics of the attenuation itself. Who is making the choices about whom to burn? Are the decisions just or are they just decisions because the ones who execute them have the power to do so? And most importantly, are we a better society because of the choices or are we simply fomenting more targeting? Finally, where and how does it end?