James M. Redwine

National Judicial College

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

President Wilson Was Right

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President Woodrow Wilson’s Fourteen Points set forth a vision of a WWI peace treaty based not on total victory for any one country but a permanent peace for all countries founded on generous terms of self-determination and economic recovery. Germany sued for peace thinking it would be treated fairly, but mainly France and Great Britain joined by several other countries demanded Draconian subjugation of Germany including ruinous reparations. The Treaty of Versailles in 1919 was a testament to vengeance, not peace. It also led directly to WWII.

If there is no war like a civil war for hatred and carnage, there is no dispute like a conflict between neighbors for animosity. Ukraine and Russia have had a common but transitioning border for many years. Millions of people in both countries can speak both Ukrainian and Russian. The two cultures are deeply intertwined even though there have been several border conflicts between the countries. Much as next door neighbors may fall out over property line disagreements countries with a common border may fall victim to the old axiom, “Good fences make good neighbors.” In like manner, when there is a breach in the “fence”, repairing good relations may require a generosity of spirit on both sides and perhaps on the part of third parties seeking to become involved.

My good friend, Judge D. Neil Harris of Mississippi, serves on the faculty of the National Judicial College. He teaches other judges about courthouse security. Judge Harris has found that the type of court cases that are most likely to result in outbreaks of courtroom violence are property line disputes. He advises judges to be particularly alert when disputes between neighbors must be resolved in court. There is something visceral about such personal matters that makes forgiveness more difficult. As the world found to its chagrin after Versailles and WWI, even when wise people know that “Blessed are the peacemakers”, stiff necks are often the approach when neighbors must negotiate.

Ukrainian President Volodymyr Zelensky says he has been negotiating with Russian President Vladimir Putin for two years and is eager to negotiate a cessation of the current hostilities if Putin agrees. The rest of the world should allow Ukraine and Russia autonomy for their efforts to achieve a permanent peace. Such countries as the United States, Poland, China or Belarus may confuse their own agendas with those of Ukraine and Russia and, just as at Versailles in 1919, peace may be only temporary when the neighbors make up under false pretenses or when pressured to do so by outside forces. Perhaps the rest of the world should bite its collective tongues as Ukraine and Russia, hopefully, apply Wilson’s Fourteen Point type wisdom that was so tragically ignored at the catastrophic ending of WWI.

To Your Health (VÁSHE ZDARÓVYE)

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At Coffee Bean, Moscow, 2003, picture taken by Peg Redwine

Whomever President Biden nominates to the U.S. Supreme Court, apparently Ketanji Brown Jackson, if confirmed by the Senate, will serve for life. If you have read Gavel Gamut recently you may recall I have called for a ten-year term limit for all federal judges. Although our federal judges are not of the same ilk as Russia’s President Vladimir Putin, his twenty-two years in office with the opportunity to run for another six-year term in 2024 might help illustrate why term limits are worth considering.

Russia’s Constitution gives Putin much more autonomous power than our President or any of our nine Supreme Court justices. However, as almost all things in life, political power is a matter of degree. The photograph that Peg took of me reading a Russian newspaper in a Moscow coffee shop in 2003 contains a headline showing, in English, that Putin was announcing his intention to run for re-election. He was first elected president in 1999.

From our cave man days we have recognized that power corrupts and that the more and the longer a person has power the more he or she is tempted to abuse it. Putin has abused his immense power by invading Ukraine. Of course, he asserts his actions are required by the allegedly genocidal Ukrainian officials who are supposedly suppressing Ukrainian citizens, many of whom are culturally connected to Russia. Stalin and Hitler would have been proud of such an analysis; their terms of office should have been limited to zero.

When the National Judicial College sent me to Russia in 2003 to teach Russian judges how we in America conduct jury trials, Peg and I spent a few days in Moscow and a little less than a week in Volgograd, the old Stalingrad. We met and enjoyed many Russian citizens and often reflected on how lucky we were to have been born in America. We saw groups of unemployed young men wandering aimlessly along Tverskaya Street, Moscow’s main thoroughfare, carrying multiple bottles of beer and wine in their arms. When we attended the seminar in Volgograd, alcohol was more prevalent than educational materials and American rock and roll music was more popular than questions about how to afford civil rights via jury trials. The Russians appeared to be eager to escape the harsh realities of the Russian economy. Perhaps that is Putin’s true motivation, to take the minds of everyday Russian citizens off their harsh existence.

How ironic it is that Russia has invaded Ukraine when the lives of the Ukrainians are as drear as those of the Russians. Peg and I have often noted that nobody who was sober did much smiling in either country. Perhaps the Russian government is wanting to reprise its former use of the fertile fields of Ukraine in the feeding of the Russian populace. Once Ukraine was Russia’s bread basket. Now it barely feeds itself. But Russia may hold out hope for greener pastures anyway.

Many pundits are opining that Putin’s real goal is to be the new tsar of a reconstituted Soviet Union. Maybe so, but if he wants to win the hearts and minds of the Ukrainian people, and perhaps those in Latvia, Estonia, Belarus, Moldova and even those of his own Russian citizens, he ought to refer to the Bible’s Book of Isaiah, Chapter 2, verse 4 and beat the Russian swords into plowshares. What the Ukrainians need, and the Russians too, is not more armaments but more economic development, not more soldiers but more farmers and store clerks.

That is an approach that the NATO countries should consider. For the trillions of dollars in soon to be lost military “aid” from America, Germany, France, Italy, Great Britain and others so willingly lavished upon Ukraine, we could “sanction” Putin with economic benefits to Ukraine and other at-risk countries on Russia’s borders. Yes, such an approach might make those countries more ripe for conquest but, if we use the same type of diplomacy we so successfully applied in the Marshall Plan, we might win friends instead of guaranteeing ourselves a nuclear powered enemy with terrible resolve. Perhaps we should ♫ study war no more ♫ and encourage Putin to do the same with honey, not vinegar. After all, the vast amount of vinegar we are wasting our precious assets on is just being used to make everyone involved more bitter.

Welcome to Ukraine

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As I retrieved my luggage at Boryspil Airport outside Kyev, Ukraine the last week of December in 1999 I was surrounded by a jostling mob of drably dressed male cab drivers shouting for my attention in an amalgam of Ukrainian and Russian. I chose the aesthetically thin one who said “Best” in English. He loaded my large golfclub caddy, my suitcase and my backpack into his precarious looking tiny Trabant vehicle with a cracked front windshield. Once we left the airport for Kyev I understood why the passenger side window was down; the roller was broken.

It was dark. It was bitterly cold. It was snowing. The trip to the “four-star” Hotel Dnipro in downtown Kyev took about half an hour and the driver did not want Ukrainian hryvnia (pronounced grievna) but American dollars. I later learned he probably would have been ecstatic with $5.00, but I paid him $30.00. He insisted on pulling my heavy golfclub caddy into the lobby. The caddy was filled with lesson plans and Walmart trinkets for the Ukrainian judges that the National Judicial College had sent me there to teach. After I starting teaching classes, I found the Ukrainian judges were as thrilled to receive the plastic Harry Potter toys I had brought to give away as prizes as we Americans might have been to get expensive sports paraphernalia from our favorite team.

I checked in, gave up my passport with a twinge of indecision, and was directed to my room on the seventh floor. I was not given a key but was simply told I would be in room 702. When I got off the elevator, I found a woman wearing a large shawl sitting at a plain wooden desk in the cold hallway. I used my fingers to show her my room number and she opened an unlocked drawer containing the keys to all the rooms. She did not ask for I.D. She just handed me my key. I kept it in my possession for the whole two weeks I was there.

The door to my room reminded me of the pasteboard type construction used for cheap, portable closets in the 1950’s. The room had a single metal bed, a small metal table with two metal folding chairs and a window looking out onto an alley. There was a metal dowel rod, but no hangers, for hanging clothes and the restroom had a commode, a sink and a tiny shower that I soon found spurted out green water. I spent two weeks on bottled water and a lot of soap.

The room was about four paces long and three paces wide. Once I moved my luggage in, I could barely turn around. I had hardly got in my room when the telephone rang and a female voice said, “Anna”. I responded, “No, you have the wrong room.” The woman said again, “Anna” then she added in a Ukrainian accent, “You want?” I was a little slow but finally got it. I said thank you but, “No”. The cab ride and Anna were just the beginning of my introduction to the Ukrainian economy.

After I kind of unpacked I decided to seek out a sandwich and a beer at the snack bar on the second floor. The bar was near the doors to a small casino where two uniformed dealers, one male one female, were behind black-jack tables. I was the only potential customer. I had the uncomfortable feeling I was the only game in town so I slowly backed away from the casino and went to the bar.

The bar was about twice the size of my room with a semi-circular formica topped bar and five stools like those one might find at a small-town drugstore counter. There were four small metal tables with armless metal chairs. When I entered the bar there was a male bartender who indicated in Ukrainian and with gestures they had no food, only potato chips. There was a large man sitting on one of the stools and at one of the tables a thin woman, everyone was thin, sitting alone holding an unlit cigarette.

I ordered a bottle of beer and received one with an unreadable label. I took the bag of chips and the beer to an empty table and sat down. Almost immediately the woman moved to my table and sat near to me. She looked to be about thirty years old. She asked in English if I would buy her a beer. I was surprised at her excellent English and told her so. I did not respond to her request. She said she could tell I was American as she had once lived in New Jersey while going to college. After a few minutes of talking, she managed to convey to me what her second job was.

She said she was a medical doctor who was employed by the government but she had not received any pay for three months. After I explained I was not interested in her second job she just sort of smiled and pointed to the large man at the bar. She said, “That is my husband.” She said their only child, who was sixteen, was home alone. She said they could not afford more children, but wanted more. Then she began wiping at her eyes. I shook her husband’s hand and left.

The next day I went for a walk to the center of Kyev and found Maidan Nezalezhnosti (Independence Square). Two shabbily dressed men were staring at the non-operating fountain. In a rusty dented metal bucket, they had a few worn tools. It was very cold as they made a few half-hearted attempts to work on the fountain. Then one of them just threw down the bucket and they walked away. I assumed it was a real-life lesson in the old Russian/Ukrainian/socialist aphorism, “The government pretends to pay us and we pretend to work.”

As I walked the main streets, occasionally but not often, an automobile would be flagged over by a uniformed police officer. The exchange of demanded money was not even attempted to be hidden.

The next two weeks as I taught approximately two hundred Ukrainian judges about America’s judicial system, I was told the government was supposed to pay each judge the equivalent of $350 dollars per month and provide living quarters for each judge’s family. However, the judges told me they were paid sporadically and had to share an apartment with other judges.

I did learn that many, but not all, of the Ukrainian judges despised Russia and that it was wise on my part to call the capital Kyev (Kāev), not Kiev (Kēev) and when I said goodbye, I should use the Ukrainian “do pobachennya” not the Russian “do svidaniya”.

I do not know how much American judicial knowledge I imparted to the Ukrainian judges, but about the only “honest” economy I did find in Kyev were the black markets set up in the courtyards of the huge churches. I frequented them several times and bought about $1,500 worth of marvelous local items such as Ukraine’s delicately painted eggs. I filled my then emptied golfclub caddy with numerous wonderful mementos for the trip home.

As I was preparing to leave Ukraine for the U.S. via the airport, the uniformed customs officer asked me if I had anything to declare. I at first answered, “Yes”, and pointed to my golfclub caddy. The customs official looked me in the eye and she said again, “Do you have anything to declare?” I said, “No”, and brought the souvenirs home while leaving my American dollars in Ukraine.

I liked the Ukrainian people very much but the living there is hard. I hope Russia does not invade, but if it does, I hope the Russians bring food and jobs and not just more misery. The Ukrainians have it tough enough already.

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.

 

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