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Tuesday, June 20, 2006

Judges and Rising Above It All

Judges often will use sanctions to compel lawyers to follow rules, and one of the most important rules lawyers must follow is timeliness. Fines are a common sanction imposed on lawyers who can’t meet deadlines or show up on time. Judges, however, sometimes will issue sanctions that impact a substantive aspect of the case being litigated. For instance, if a lawyer files a motion late, the judge may refuse to consider the motion. Never a good thing.

In Ohio, a judge apparently has taken timeliness sanctions to a new level: when the prosecutor in a child sexual assault case was half an hour late for trial, the judge dismissed the case. Now, in my years of practice, I cannot recall many lawyer sins from the judicial perspective much graver than showing up late for a trial. But, I also can’t say I ever saw even the most unforgivingly punctilious judge toss a case to punish the prosecutor for something unrelated to the merits of the case. The news video of this story—which surprisingly includes an interview with the judge herself—suggests that an earlier clash between the prosecutor and judge may have contributed to some bad judicial decision-making. Perhaps this story is proof of why “judicial temperament” is viewed as such an important quality for judges.

Posted by Brooks Holland on June 20, 2006 at 01:20 PM in Current Affairs | Permalink


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Eh Nonymous -
So your argument is that it is, in fact, best practise (or even merely acceptable) for a Judge to throw a spanner in the works of a rape case in a fit of pique?

Of course the man can be re-indicted; regardless of whether I saw Dan's comment (I did), as much was said by the prosecutor in the news link provided by Brooks. But that he can be re-indicted is beside the point - the point is that this action, in a case of this nature, is conduct unbecoming of a Judge. Either she is being honest in her explanation, and this was just about an attorney being late, or she is being dishonest, in which case this was a reprisal for his questioning her impartiality; you can take your pick which you believe, but I would suggest that neither possibility speaks well of the temperament and judgement of Judge Gallagher. If there were a really good defense of her conduct, one would think she would have offered that one in her interview; that she did not suggests that there is none.

Even if Gallagher's behavior could be defended in some abstract sense for a hypothetical trial for some lesser crime, the particulars of this case make it indefensible. This was a trial where a young man stood accused of raping a nine year old child. If this was your daughter who had been raped, would you be so sanguine about this? If this were your son who was accused of raping a nine year old girl, would you be so sanguine about this? You would not be. This isn't some dry, probate case where there is no "victim" or a "violent perpetrator"; this is a case where one of two things happened: either an innocent man is having his exoneration delayed because of Judge Gallagher's attitude problem, or, if he's guilty, a dangerous criminal is having his freedom extended.

That ham sandwich is not only indictable, it would show a damned sight better judgement in this case than did Gallagher. The only possible defense is that this was an extraordinary lapse of judgement, entirely atypical of her character, record and temperament. It may conceivably be possible to defend Gallagher, as a general matter, but it is not possible to defend her on this judgement call.

Lastly, although I fail to see the relevance, I don't leave my email address on Prawfs only because every time I do, a deluge of spam descends. I do, however, usually leave the URL of my blog, which is coincidentally my own name - and if it were up to me, it wouldn't be possible to comment anonymously at all.

Posted by: Simon | Jun 21, 2006 4:26:49 PM

It looks like Simon, in a froth over the victim's safety, simply failed to read the comment posted over an hour earlier by Dan.

A ham sandwich could be re-indicted. There's no "criminals walking the streets" as a result of this action. All it does is give the prosecutor a big black eye, and permanently affect interactions between that judge and that prosecutor's office.

The judge is not an embarassment. The judge is a judge. The judge is not arrogant. You, Simon, are arrogant. You throw around accusations because your feelings are hurt, but I'm guessing you weren't there. My guess is you're just irate, a harmless commenter on a blawg who thinks they know better than the judge because hey, they're reasonable.

Knock it off. You should know better. Also, "[email protected]" is not an e-mail address. Does prawfsblawg require one? If so, they should stop. Those who wish to comment anonymously should be able to do so, without the hassle of obtaining a non-personal e-mail address. And if you're going to ban those who use "not a real person" e-mail addresses, you'll have to get rid of me. Not to mention people like Juan Non-Volokh (nee Adler).

Posted by: Eh Nonymous | Jun 21, 2006 2:35:44 PM

Hey, the judges in Rhode Island have pulled similar stunts for years. We had a judge try to ban Alan Dershowitz from his court -- forever -- because he criticized the RI judiciary on the radio. Dershowitz, who had no intention of ever appearing before that court, sued and got the sanction rescinded. Law prof Carl Bogus has chronicled a host of remarkable RI stories under the title "The Culture of Quiescence" [available on SSRN]. Judicial temperament indeed!

Posted by: RCinProv | Jun 20, 2006 7:25:44 PM

The mind boggles. A trial to determine whether or not a nine year old girl was raped, and a Judge pitches the case because a prosecutor hurt her feelings? "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges," and - on the evidence presented - to call Gallagher's behavior irresponsible or improper seems to gravely understate the matter.

Ohio Const., Art. IV §06(3): The judges of the courts of common pleas and the divisions thereof shall be elected by the electors of the counties, districts, or, as may be provided by law§17:Judges may be removed from office, by concurrent resolution of both houses of the general assembly, if two-thirds of the members, elected to each house, concur therein; but, no such removal shall be made, except upon complaint, the substance of which shall be entered on the journal, nor, until the party charged shall have had notice thereof, and an opportunity to be heard.By one means or another, I think this is the sort of arrogance that demands a reckoning sooner, or later.

Posted by: Simon | Jun 20, 2006 3:00:06 PM

Brooks, fascinating stuff, but it looks like the victim "will get justice" after all, since the prosecutor can simply re-indict and the judge in this case has promised to recuse herself when that indictment reappears. See http://www.ohio.com/mld/beaconjournal/news/state/14861139.htm
That said, I wonder about the many other kinds of cases where lawyer misconduct is held against the state or the defendant when such misconduct is "orthogonal" to the merits of the case. As a normative question, should citizens be able to sue prosecutors for malpractice such as missing statutes of limitations, or showing up late for a case that gets dismissed even after the jury has been impaneled? I assume as a legal question the issue is largely mooted by immunity defenses.

Posted by: Dan Markel | Jun 20, 2006 1:45:25 PM

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