I sometimes have trouble explaining to clients that there really is no such thing as the State of Connecticut. The concept is an abstract noun, a legal fiction. The state is something akin to a necessary placekeeper in a vast equation. Like God, it is ever present and always absent.
But it feels different when you are standing in the well of a courtroom and a judge intones state versus you. All at once, this fiction acquires power. Clients then begin to wonder: If the state is prosecuting, does that mean the the prosecution is working hand in glove with the Department of Children and Families, the tax man, the Department of Motor Vehicles, the entire administrative apparatus of all things bearing the state's seal? After all, if the state exists, doesn’t it form intentions, have plans and otherwise coordinate its activities?
In fact, the answer is no. If the state has a personality, it is diseased. The state is a schizophrenic. Not only does the right hand not know what the left is doing. It is far worse. The state doesn’t even know how many hands it has. It is a cacaphonous beast, the stuff of myth or legend. Its no wonder we fear it.
This is nowhere so evident as in our courts, where the state struts, huffs and puffs in pursuit of something called justice. The state prosecutes crime, saying it seeks justice. And justice, we sometimes rhaphsodize, is eternal. Make that eternally scattered.
Consider the following: In the criminal courts, cases that are not resolved by way of a plea are typically placed on something called the “trial list.” Presiding judges in the various judicial districts throughout the state anxiously fondle their lists. Moving cases, closing them out by verdict or plea, that’s justice for the men and women monitoring the assembly line. So lawyers and clients are told they are on one-hour and two-hour notice. Cases can be called to trial at any time, except that they aren’t. Most cases molder on trial lists and go to seed several times over before trial every takes place.
It sometimes happen that one lawyer’s cases are called in to trial at the same time in different places. This is state schizophrenia at its best. Two presiding judges demand a lawyer’s presence. There is no centralized planning system, no coordination, not even much communication between courthouses on the matter of scheduling. When two judges want the same lawyer at the same time, something has to give. The presiding judges square off like gunslingers, posturing to see who has the biggest gavel.
I am caught between two judges right now, and my clients may well suffer. I am ordered to appear in one court soon for a manslaughter trial. I asked for a date certain long ago so that I would have time to prepare a difficult case. We try a lot of cases in my office. I can’t do business on a two-hour notice basis. I’ve got trials booked well into the spring of next year.
But that did not matter to another presiding judge. I am ordered to appear in a child sex case. The schedule of the child sex case conflicts with the manslaugher case. I alerted the second judge to my scheduling conflict, but the order to appear still entered.
Both judges have conferred and tried to iron out the obvious problem here: I cannot be in two places at once. But neither judge appears content with when I can be available. Discussions appear to have broken down. So I am now soon ordered to be in two places at once by the schizophrenic principalities in the judicial branch. Didn’t Dickens say that law was an ass?
So which trial do I prepare for? How do I explain this to clients? How is respect for a judiciary that cannot coordinate a statewide docket fostered amid this mess? It would not be hard to come up with a master plan to govern such conflicts were the state a well-ordered personality. But we know the state is a legal fiction. It acts through individuals with interests all their own. Sometimes those interests have little to do with justice. Sometimes the state is simply schizophrenic.
Reprinted courtesy of the Connecticut Law Tribune.
Showing posts with label Connecticut Judiciary. Show all posts
Showing posts with label Connecticut Judiciary. Show all posts
Thursday, September 17, 2009
Sunday, February 22, 2009
Connecticut Judiciary: Confirm Westbrook
Let me get all the confessions out of the way first: Many years ago, I was an editorial writer for The Hartford Courant. After that, I hired and supervised a young trial lawyer named Dawne Westbrook in a law firm in which I was a partner. She is now a friend. And I have publicly supported her nomination as a judge. Enough disclosures. Let me now come to the point:
Westbrook should be confirmed to sit as a judge of the Superior Court of the State of Connecticut. Period.
The Hartford Courant called this into question this morning in a piece of journalism that looks, frankly, like muckraking for mere purpose of, well, raking muck.
Westbrook submitted her name as a candidate for a judge more than a year ago. She was vetted and approved for consideration. Then her name lingered, as do so many, in a netherworld. She needed political backing from someone to get her name before the governor. While she waited, she kept at the practice of law and engaged in public service.
In the fall of 2008, she was asked to serve on an entity known as the Citizen's Ethics Advisory Board, an unpaid position that polices the conduct of public officials. She turned up for her first meeting on September 25. She voted a couple of times to table matters, and she sat through an executive session of the group. Then a staff member on the board handed her state statutes governing the body. She noticed that it had a revolving door provision that prohibited employment by the state for one year after leaving the board.
After consultation with ethics gurus, she submitted a letter removing herself from the board a couple days after her first and only meeting. Her career on the committee lasted for about one meeting. She did not vote on any matters of substance.
A columnist at The Courant is now raising questions. Is this an illegal appointment? Why didn't Westbrook tell lawmakers she served for an afternoon on the ethics board? The suggestion is that either she or the governor's office has been careless in putting her name too soon before lawmakers as a potential judge.
This is sound and fury signifying little more than the need to fill a weekly column in a daily newspaper with something that looks like public service. In fact, it is a disservice to common sense.
A revolving door ethics policy is designed to assure that there are no conflicts of interest arising from joint loyalties and cross-cutting commitments. Westbrook's tarry on the ethics board was barely long enough to warm a seat. There is no danger of conflict or compromise.
Fortunately for Westbrook, the state's Attorney General's Office has already weighed in on a virtually identical case involving another judicial candidate. According to the the Attorney General, notwithstanding a provision in the law requiring that a candidate who once served on a board with a revolving door policy wait for appointment, the law does not carry a sanction or remedy. Thus, lawmakers are free to appoint Westbrook or not to appoint her.
I've known Westbrook for a decade. She is honest. She is smart. She is a woman of good judgment and integrity. She is exactly the sort of person we should want on the bench. Hijacking her candidacy on the basis of a journalist's reading of the law would be a sad, sad mistake.
In the case of The Hartford Courant and Dawne Westbrook, the paper's sound and fury signifies nothing. There is no conflict, and if there was a technical violation of the law, lawmakers are free to assess it for what it really is: a sign that the ethics board really ought to take better care to orient members about what they are, and are not, free to do.
This sideshow has no doubt been deeply embarrassing to Westbrook. It ought not to derail her judicial candidacy. An afternoon's service is hardly grounds for disqualification. Now, let me go change the kitty litter box. I've got just the newspaper to line it with.
Westbrook should be confirmed to sit as a judge of the Superior Court of the State of Connecticut. Period.
The Hartford Courant called this into question this morning in a piece of journalism that looks, frankly, like muckraking for mere purpose of, well, raking muck.
Westbrook submitted her name as a candidate for a judge more than a year ago. She was vetted and approved for consideration. Then her name lingered, as do so many, in a netherworld. She needed political backing from someone to get her name before the governor. While she waited, she kept at the practice of law and engaged in public service.
In the fall of 2008, she was asked to serve on an entity known as the Citizen's Ethics Advisory Board, an unpaid position that polices the conduct of public officials. She turned up for her first meeting on September 25. She voted a couple of times to table matters, and she sat through an executive session of the group. Then a staff member on the board handed her state statutes governing the body. She noticed that it had a revolving door provision that prohibited employment by the state for one year after leaving the board.
After consultation with ethics gurus, she submitted a letter removing herself from the board a couple days after her first and only meeting. Her career on the committee lasted for about one meeting. She did not vote on any matters of substance.
A columnist at The Courant is now raising questions. Is this an illegal appointment? Why didn't Westbrook tell lawmakers she served for an afternoon on the ethics board? The suggestion is that either she or the governor's office has been careless in putting her name too soon before lawmakers as a potential judge.
This is sound and fury signifying little more than the need to fill a weekly column in a daily newspaper with something that looks like public service. In fact, it is a disservice to common sense.
A revolving door ethics policy is designed to assure that there are no conflicts of interest arising from joint loyalties and cross-cutting commitments. Westbrook's tarry on the ethics board was barely long enough to warm a seat. There is no danger of conflict or compromise.
Fortunately for Westbrook, the state's Attorney General's Office has already weighed in on a virtually identical case involving another judicial candidate. According to the the Attorney General, notwithstanding a provision in the law requiring that a candidate who once served on a board with a revolving door policy wait for appointment, the law does not carry a sanction or remedy. Thus, lawmakers are free to appoint Westbrook or not to appoint her.
I've known Westbrook for a decade. She is honest. She is smart. She is a woman of good judgment and integrity. She is exactly the sort of person we should want on the bench. Hijacking her candidacy on the basis of a journalist's reading of the law would be a sad, sad mistake.
In the case of The Hartford Courant and Dawne Westbrook, the paper's sound and fury signifies nothing. There is no conflict, and if there was a technical violation of the law, lawmakers are free to assess it for what it really is: a sign that the ethics board really ought to take better care to orient members about what they are, and are not, free to do.
This sideshow has no doubt been deeply embarrassing to Westbrook. It ought not to derail her judicial candidacy. An afternoon's service is hardly grounds for disqualification. Now, let me go change the kitty litter box. I've got just the newspaper to line it with.
Thursday, January 29, 2009
What's Wrong With Group Voir Dire?
Connecticut’s constitution is unique: Alone among its counterparts, it guarantees that each lawyer picking a jury will have the right to question potential jurors individually. But it does not follow from this right that all other jurors should be sequestered during that questioning. Connecticut lawmakers could save a fortune and speed the administration of justice by eliminating routine individual sequestered voir dire.
It is a commonplace that jury selection often takes longer that the presentation of evidence. Perhaps that is as it should be. Jury consultants often claim that trials are won or lost well before evidence is presented.
But most of these jury consultants work in states other than Connecticut, and only Connecticut has individual sequestered voir dire in every jury case. Most states, and the federal courts, operate on the basis of group voir dire. And pioneering jurists in Connecticut, led by Connecticut Superior Court Judge Linda Lager, are encouraging the practice here.
I tried it once before Judge Lager and it worked well. Obtaining my client’s consent was easy. We were in state court on an unreasonable force case arising under the Fourth Amendment. The case could as easily have been brought in federal court. I’ve tried scores of these cases, and I told my client that in my view it mattered not how the jury was selected so long as the lawyer, and not the judge, was able to ask questions.
In federal court, the system favors what I call "God in the box" voir dire. A federal judge sits atop Mount Sinai and barks out questions that sound like commands. Jurors timidly assent, only rarely asking to approach to discuss what is really on their minds. Federal jurists seem to panic when lawyers ask questions, and lawyer-conducted voir dire is not permitted in the federal courts as a matter of right. The result is a jury selection process that has the look and feel of bidding at a slave auction.
Chief Justice Chase Rogers has convened a committee of lawyers and judges to study voir dire. The panel is considering recommending group voir dire. The recommendation does not go far enough. Group voir dire should be the norm, with exceptions granted only for good cause shown or in special types of cases. Some states, for example, permit individual sequestered voir dire only in capital cases, where jurors are required to dance the morbid tango known as "death qualification."
The panel is said to have two primary concerns.
First, will folks be candid if they are part of a group? The answer is yes. A well-trained lawyer can conduct group voir dire. The key is to get venire people talking to one another. This method of doing voir dire can be learned in a weekend. Gerry Spence’s Trial Lawyers’ College offers such training across the country. My experience is that it is far less terrifying for jurors to acknowledge their views in front of their peers than it is to sit alone in a jury box with everyone staring at them.
Another concern is that the panel may be tainted by someone blurting something out. Let’s rehearse the old canard here: A properly instructed jury is presumed to follow the law. Instruct panel members not to relate particular knowledge about the case or parties, but to ask for a sidebar on such questions. Should someone blurt out a general statement of opinion, participants should regard it as a gift. I was once able to question a group in the courtroom of U.S. District Judge Dominic Squatrito. My client was notorious. When a panelist blurted out scorn for the client and case, I was able to use the opinion to question others. Candor is a gift rarely given in voir dire.
Lawmakers looking to save money can do so easily: Enact a statute requiring group voir dire in all but a handful of cases. Then get out of the way of a court docket that learns to walk after decades of limping.
Reprinted courtesy of The Connecticut Law Tribune.
It is a commonplace that jury selection often takes longer that the presentation of evidence. Perhaps that is as it should be. Jury consultants often claim that trials are won or lost well before evidence is presented.
But most of these jury consultants work in states other than Connecticut, and only Connecticut has individual sequestered voir dire in every jury case. Most states, and the federal courts, operate on the basis of group voir dire. And pioneering jurists in Connecticut, led by Connecticut Superior Court Judge Linda Lager, are encouraging the practice here.
I tried it once before Judge Lager and it worked well. Obtaining my client’s consent was easy. We were in state court on an unreasonable force case arising under the Fourth Amendment. The case could as easily have been brought in federal court. I’ve tried scores of these cases, and I told my client that in my view it mattered not how the jury was selected so long as the lawyer, and not the judge, was able to ask questions.
In federal court, the system favors what I call "God in the box" voir dire. A federal judge sits atop Mount Sinai and barks out questions that sound like commands. Jurors timidly assent, only rarely asking to approach to discuss what is really on their minds. Federal jurists seem to panic when lawyers ask questions, and lawyer-conducted voir dire is not permitted in the federal courts as a matter of right. The result is a jury selection process that has the look and feel of bidding at a slave auction.
Chief Justice Chase Rogers has convened a committee of lawyers and judges to study voir dire. The panel is considering recommending group voir dire. The recommendation does not go far enough. Group voir dire should be the norm, with exceptions granted only for good cause shown or in special types of cases. Some states, for example, permit individual sequestered voir dire only in capital cases, where jurors are required to dance the morbid tango known as "death qualification."
The panel is said to have two primary concerns.
First, will folks be candid if they are part of a group? The answer is yes. A well-trained lawyer can conduct group voir dire. The key is to get venire people talking to one another. This method of doing voir dire can be learned in a weekend. Gerry Spence’s Trial Lawyers’ College offers such training across the country. My experience is that it is far less terrifying for jurors to acknowledge their views in front of their peers than it is to sit alone in a jury box with everyone staring at them.
Another concern is that the panel may be tainted by someone blurting something out. Let’s rehearse the old canard here: A properly instructed jury is presumed to follow the law. Instruct panel members not to relate particular knowledge about the case or parties, but to ask for a sidebar on such questions. Should someone blurt out a general statement of opinion, participants should regard it as a gift. I was once able to question a group in the courtroom of U.S. District Judge Dominic Squatrito. My client was notorious. When a panelist blurted out scorn for the client and case, I was able to use the opinion to question others. Candor is a gift rarely given in voir dire.
Lawmakers looking to save money can do so easily: Enact a statute requiring group voir dire in all but a handful of cases. Then get out of the way of a court docket that learns to walk after decades of limping.
Reprinted courtesy of The Connecticut Law Tribune.
Wednesday, January 21, 2009
Attacking A Judge For Using His Discretion: The Case Of Thomas P. Miano
Storm clouds are gathering over the Connecticut General Assembly as lawmakers consider the reappointment of Superior Court Judge Thomas P. Miano. A bitter fight is expected, and the focus of that fight is the judge's sentencing decision in the case of State v. Burke. A good jurist should not be immolated on a smouldering heap of half-truths. Judge Miano should be appointed to another eight-year term.
Edward Burke III was charged with possession of child pornography, a serious charge befitting serious consequences. At the time he was accused, lawmakers had not declared that there was a mandatory minimum prison sentence for a conviction. In other words, a judge had lawful discretion to give a man a suspended sentence if justice so required.
A good lawyer in such a case assesses quickly the character of the state's evidence. If it is looks as though the state has it right, and that is not always the case, a client is told to get treatment immediately. The hope and aim is that the client will be evaluated a low risk to reoffend. If the evidence is lawfully obtained, delay is used to prepare the best possible package for eventual sentencing. This appears to be what Mr. Burke's lawyer, John Maxwell, did.
At the end of the day, both the state and the prosecution agreed that Mr. Burke would face a sentence of up to four years behind bars. Mr. Burke retained the right to argue for a suspended sentence and no prison at the time of sentencing. The state agreed to such a sentence.
On sentencing day, the defense produced evidence that Mr. Burke was genuinely remorseful, that he had been evaluated by experts and was not a risk of reoffending, and that the public was protected by his new status as a sex offender required to seek treatment. The state had an opportunity to argue against the sentence and to present any information it liked to the court.
Judge Miano let the man walk. He found that the purposes of deterrence, rehabilitation and punishment were best served in this way.
The judge was then denounced by the community of Avon. Legions of pretty people in gingham dresses and pressed suits cried foul. Norman Rockewell's peace was disturbed; something needed to be done about this predator in their midst lest lust pollute all that is good, true and beautiful in that the best of all possible worlds.
Federal prosecutors were enticed to prosecute anew. The law states with logic unsalted by any sense of equity or fair play that a different sovereign may charge you with an offense identical to the one to which you just plead before another sovereign. The right hand and the left do not clap in unison.
This was a shocking result, and it sent ripples throughout the defense bar in the state. I was concerned about what the federal prosecutors were up to, and here is what I learned: The federal government prosecuted because prosecutors did not believe that Judge Miano took adequate account of the seriousness of the images in Mr. Burke's possession. These were not mere images of the Coppertone kid sporting a tan. There were films of shocking sado-masochistic violence.
Mr. Burke was prosecuted by the federal government and sentenced to three years imprisonment under federal sentencing guidelines.
Since the time of Mr. Burke's arrest, state lawmakers have deprived judges of discretion to walk folks convicted of most child pornography crimes. Lawmakers have tightened the screws, as is their right.
As lawmakers consider renomination of Judge Miano I fear they will indulge in a species of the retrospective fallacy. They will apply today's lens to yesterday's event and find old news disturbing. It should not be.
Judge Miano imposed a lawful sentence. No one questions that. What he did was exercise discretion given him by lawmakers. The fact that the outcome was unpopular should be of no moment in the renomination fight. Judges are paid to make difficult and sometimes unpopular decisions as they uphold the law in the face of popular passion. When the state tried to keep another sex offender, David Pollitt, behind bars after he had served his sentence, a judge had to say no. That is justice and courage.
Rather than seek to destroy Judge Miano, before whom I have appeared and in whom I detect no bias in favor of defendants, lawmakers should stop and consider a simple truth: The administration of justice knows no rule that one size fits all. Lawmakers make general rules and then give judges the discretion to apply them in particular cases. That is what Judge Miano did.
Any failure in the state case against Mr. Burke, and I am not conceding there was any, is really a failure of advocacy on the state's part. If the images were so shocking and so disturbing as to require prison, it was the state's job to make the necessary record. Apparently, that was not done. The state agreed a walk was potentially appropriate.
The Miano renomination fight is important. We do not want a judiciary ruling in fear of a lawmaker's shadow. Refusing to renominate Judge Miano for an unpopular choice demeans the judiciary and renders all of us more susceptible to the passions of the moment. That is truly terrifying, and has been throughout recorded history.
Judge Miano deserves renomination.
Reprinted courtesy of The Connecticut Law Tribune.
Edward Burke III was charged with possession of child pornography, a serious charge befitting serious consequences. At the time he was accused, lawmakers had not declared that there was a mandatory minimum prison sentence for a conviction. In other words, a judge had lawful discretion to give a man a suspended sentence if justice so required.
A good lawyer in such a case assesses quickly the character of the state's evidence. If it is looks as though the state has it right, and that is not always the case, a client is told to get treatment immediately. The hope and aim is that the client will be evaluated a low risk to reoffend. If the evidence is lawfully obtained, delay is used to prepare the best possible package for eventual sentencing. This appears to be what Mr. Burke's lawyer, John Maxwell, did.
At the end of the day, both the state and the prosecution agreed that Mr. Burke would face a sentence of up to four years behind bars. Mr. Burke retained the right to argue for a suspended sentence and no prison at the time of sentencing. The state agreed to such a sentence.
On sentencing day, the defense produced evidence that Mr. Burke was genuinely remorseful, that he had been evaluated by experts and was not a risk of reoffending, and that the public was protected by his new status as a sex offender required to seek treatment. The state had an opportunity to argue against the sentence and to present any information it liked to the court.
Judge Miano let the man walk. He found that the purposes of deterrence, rehabilitation and punishment were best served in this way.
The judge was then denounced by the community of Avon. Legions of pretty people in gingham dresses and pressed suits cried foul. Norman Rockewell's peace was disturbed; something needed to be done about this predator in their midst lest lust pollute all that is good, true and beautiful in that the best of all possible worlds.
Federal prosecutors were enticed to prosecute anew. The law states with logic unsalted by any sense of equity or fair play that a different sovereign may charge you with an offense identical to the one to which you just plead before another sovereign. The right hand and the left do not clap in unison.
This was a shocking result, and it sent ripples throughout the defense bar in the state. I was concerned about what the federal prosecutors were up to, and here is what I learned: The federal government prosecuted because prosecutors did not believe that Judge Miano took adequate account of the seriousness of the images in Mr. Burke's possession. These were not mere images of the Coppertone kid sporting a tan. There were films of shocking sado-masochistic violence.
Mr. Burke was prosecuted by the federal government and sentenced to three years imprisonment under federal sentencing guidelines.
Since the time of Mr. Burke's arrest, state lawmakers have deprived judges of discretion to walk folks convicted of most child pornography crimes. Lawmakers have tightened the screws, as is their right.
As lawmakers consider renomination of Judge Miano I fear they will indulge in a species of the retrospective fallacy. They will apply today's lens to yesterday's event and find old news disturbing. It should not be.
Judge Miano imposed a lawful sentence. No one questions that. What he did was exercise discretion given him by lawmakers. The fact that the outcome was unpopular should be of no moment in the renomination fight. Judges are paid to make difficult and sometimes unpopular decisions as they uphold the law in the face of popular passion. When the state tried to keep another sex offender, David Pollitt, behind bars after he had served his sentence, a judge had to say no. That is justice and courage.
Rather than seek to destroy Judge Miano, before whom I have appeared and in whom I detect no bias in favor of defendants, lawmakers should stop and consider a simple truth: The administration of justice knows no rule that one size fits all. Lawmakers make general rules and then give judges the discretion to apply them in particular cases. That is what Judge Miano did.
Any failure in the state case against Mr. Burke, and I am not conceding there was any, is really a failure of advocacy on the state's part. If the images were so shocking and so disturbing as to require prison, it was the state's job to make the necessary record. Apparently, that was not done. The state agreed a walk was potentially appropriate.
The Miano renomination fight is important. We do not want a judiciary ruling in fear of a lawmaker's shadow. Refusing to renominate Judge Miano for an unpopular choice demeans the judiciary and renders all of us more susceptible to the passions of the moment. That is truly terrifying, and has been throughout recorded history.
Judge Miano deserves renomination.
Reprinted courtesy of The Connecticut Law Tribune.
Sunday, January 18, 2009
Drawing Swords In Connecticut; Appoint Judges For Life
Connecticut does not elect its judges, and for that I am truly grateful. Judges who bow and scrape for approval have a tendency to use their discretion in the service of the lowest common denominator. But every eight years, each judge in Connecticut does face reappointment by lawmakers. And that process is almost as bad as facing election. It would be a far better thing if judges were appointed for life.
Consider the case of Judge Patricia Swords. She is a former state prosecutor. I've appeared before her. Her demeanor is stony. No humor. No sense of a mind at play or a spirit attuned to the human drama of lives hanging in the balance. She sits. She rules. She presides, Sphinx like, staring no doubt into the middle distance of what she perceives to be justice's thicket.
In my view, the law of opposites generally applies in the appointment of judges. Former prosecutors can be a good defense judge; former defense judges might be good prosecution judges. A former prosecutor know from experience when the state is bluffing, just as a former defender knows smoke does not always mean fire.
Judge Swords breaks that mold, according to some. She is a pro-prosecution judge. Or so it is rumbled among the anonymous millworkers of the defense bar. So when she faced confirmation hearings recently, she walked into a buzz saw. One defense lawyer, John Schoenhorn, appeared at her confirmation hearings to complain that seven years ago, in 2002, the judge had not granted a necessary continuance when a client's original counsel fell critically ill. Put another way, the judge abused her discretion by insisting the new counsel proceed immediately.
That is troubling, and it is the sort of stuff of which appeals are made. Schoenhorn, former president of the Connecticut Criminal Defense Lawyers Association, is known to be brash and outspoken. His testimony about a by now ancient incident that even the judge admits was probably an error looked peevish and self-serving.
But Schoenhorn looked like Solon when contrasted to Hartford Senator Eric Coleman. Coleman is a part-time lawyer of middling skill. He told fellow senators that he wanted Sword's hide because she had once jailed a client of his for violating a protective order. The Appellate Court agreed with Coleman, declaring that the judge erred. It was the only one of 25 decisions involving her rulings that led to a reversal. But the Senator is still peeved six years later. Simply put, Coleman doesn't look very senatorial in the role of chief masher of by now old, old, old sour grapes.
Judge Swords was narrowly approved for reappointment to another eight year term. The Senate was evenly divided on the question. It took a tie-breaking vote from the Lieutenant Governor to tip the balance in her favor.
Lawmakers are now wondering whether they need a better way to monitor judges. One leading Democrat wonders whether the time has come for more systematic evaluation of judges. But of what will that evaluation consist? Litmus tests of whether the judges ruled in favor of this client or that? Scorecards on whether a judge has a good demeanor? Will trade association of lawyers now lobby for the judges of their choice, with defenders ratting out pro-prosecution judges, and prosecutors targeting those judges perceived to yield too much to the defense?
I prefer an independent judiciary. Just the other day, I was in chambers discussing a case with the prosecution and a judge. A close call arose, and the judge mentioned his fear of what lawmakers might say years down the road if he made a close call. That's not justice. That's tap-dancing in anticipation of what passions may roil lawmakers. Far better to appoint judges for life. Remove them for high crimes and misdemeanors. To do otherwise is to make judges cower before folks with suspect agendas.
Consider the case of Judge Patricia Swords. She is a former state prosecutor. I've appeared before her. Her demeanor is stony. No humor. No sense of a mind at play or a spirit attuned to the human drama of lives hanging in the balance. She sits. She rules. She presides, Sphinx like, staring no doubt into the middle distance of what she perceives to be justice's thicket.
In my view, the law of opposites generally applies in the appointment of judges. Former prosecutors can be a good defense judge; former defense judges might be good prosecution judges. A former prosecutor know from experience when the state is bluffing, just as a former defender knows smoke does not always mean fire.
Judge Swords breaks that mold, according to some. She is a pro-prosecution judge. Or so it is rumbled among the anonymous millworkers of the defense bar. So when she faced confirmation hearings recently, she walked into a buzz saw. One defense lawyer, John Schoenhorn, appeared at her confirmation hearings to complain that seven years ago, in 2002, the judge had not granted a necessary continuance when a client's original counsel fell critically ill. Put another way, the judge abused her discretion by insisting the new counsel proceed immediately.
That is troubling, and it is the sort of stuff of which appeals are made. Schoenhorn, former president of the Connecticut Criminal Defense Lawyers Association, is known to be brash and outspoken. His testimony about a by now ancient incident that even the judge admits was probably an error looked peevish and self-serving.
But Schoenhorn looked like Solon when contrasted to Hartford Senator Eric Coleman. Coleman is a part-time lawyer of middling skill. He told fellow senators that he wanted Sword's hide because she had once jailed a client of his for violating a protective order. The Appellate Court agreed with Coleman, declaring that the judge erred. It was the only one of 25 decisions involving her rulings that led to a reversal. But the Senator is still peeved six years later. Simply put, Coleman doesn't look very senatorial in the role of chief masher of by now old, old, old sour grapes.
Judge Swords was narrowly approved for reappointment to another eight year term. The Senate was evenly divided on the question. It took a tie-breaking vote from the Lieutenant Governor to tip the balance in her favor.
Lawmakers are now wondering whether they need a better way to monitor judges. One leading Democrat wonders whether the time has come for more systematic evaluation of judges. But of what will that evaluation consist? Litmus tests of whether the judges ruled in favor of this client or that? Scorecards on whether a judge has a good demeanor? Will trade association of lawyers now lobby for the judges of their choice, with defenders ratting out pro-prosecution judges, and prosecutors targeting those judges perceived to yield too much to the defense?
I prefer an independent judiciary. Just the other day, I was in chambers discussing a case with the prosecution and a judge. A close call arose, and the judge mentioned his fear of what lawmakers might say years down the road if he made a close call. That's not justice. That's tap-dancing in anticipation of what passions may roil lawmakers. Far better to appoint judges for life. Remove them for high crimes and misdemeanors. To do otherwise is to make judges cower before folks with suspect agendas.
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