In one of my recent posts, I uttered a remark that I said was common around criminal courts:
Nobody ever said criminals were smart.
That statement kicked up enough private comments that I’m glad I’m no longer an active judge and so I don’t have to worry about having to respond to a complaint at the Judicial Qualifications Commission. I did get a few of those in my day, but only one got past the front-end screening.
Every judge I know has a shortlist of lawyers who are complete pains in the ass. They bleed all the fun out of law practice because they are stupid or unskilled at controlling crazy clients or inclined to try every case just to prove they will.
(Russell digression™ In that last category, I mean everything. Every lawyer — at least early in their career — has had to go to trial with cases they knew they would lose, for any number of reasons. Most commonly, you have summarized the cards in the other side’s hand and expressed the opinion that a trial against those cards would be like drawing to an inside straight — but they have more money than good sense and so insist on a trial.
Then, take divorce cases. Please. Take all of them. To my students, I summed up my preference for a criminal docket over a family law docket this way:
Would you rather deal with good people at their worst or bad people at their best?
Some people get so mean during a divorce that they will push the case to trial when everything worth fighting about has settled. I once had to go to trial over a vehicle that was not worth what the trial would cost. I told my client that I believed the judge would award him the truck but I would have to charge him over three times what the truck was selling for in the current “for sale” ads. My advice was to let her have the truck, buy another one just like it, and take his witnesses and legal team to Matt’s El Rancho with the leftover money. Apparently, the truck represented some principle that had escaped my notice, so I was glad when the judge let my client have it.
Another reason for preferring a criminal docket to a family law docket is that I do, gods help me, love the law. Criminal law changes very quickly; family law moves slower than just about anything except property law. I find the work more enjoyable when the law is a moving target.)
I was explaining that judges have a lawyer list for pains in the ass and a (thank goodness) shorter one for dishonest lawyers. My way of dealing with the pain in the ass list was to put those cases at the top of the docket if they were trials before the court but, if they were jury trials, punt them to one of the weeks when I would be in my graduate program at the University of Nevada and let a visiting judge deal with the pain in the ass.
The prosecutors hated this because they had to be prepared to try anything, but I expected those cases to be gone when I got back. The lawyer needed to be present with her client prepared for trial. She looked at the length of the list and where her case was and decided the visiting judge would not reach her, so her client was not present and neither was she by the time her case was called. The visiting judge ordered a warrant for her client’s arrest.
He was arrested a couple of weeks after I got back from Nevada. The arresting officer was used to that lawyer screwing up cases, and so he listened to the client when he said she never told him to come to court and brought him to me rather than booking him. After hearing his story, I believed him, so I released him on another personal recognizance bond and told him I needed to talk to his lawyer before the close of business that day.
As he left, he commented that the deputy who did not book him saved him from missing an important business meeting. I told him I was glad it worked out, but there would have been no warrant “if he had a competent lawyer.”
This was true. Even if everything had been as she thought, a normal lawyer would have called the court coordinator later that day to find her new setting and at that time, the warrant would have been found and could have been recalled before her client got arrested.
For my truthful remark, she complained to the Commission on Judicial Conduct about whatever they called “conduct unbecoming” back in the brown shoe days.
I got a call from the person assigned to deal with me. How about I accept a public reprimand and we all move on?
No. My defense would be truth, and I wanted a hearing where I would go through six or eight cases and prove she was generally incompetent.
“Truth is not a defense.”
“I don’t care, as long as the voters get to hear the truth.”
They came back and offered a “private admonishment,” which I accepted because I could not claim I didn’t make the statement and I did not have to agree with the admonition.
Not every or even most odd stuff lives on the criminal side of the docket. I was once trying a plain vanilla collection case — a plumbing contractor claimed he had not been paid for installing a building full of hot tubs.
I’m just guessing the money might have disappeared when the business model died in the herpes epidemic. It had come to appear unwise to use public hot tubs that rented by the hour.
Checking to see if the claim had been properly presented, the defense lawyer asked if the business owner knew when payment was due.
“Sure. We went over the three rules of plumbing on the first day.”
“Three rules of plumbing? What are those?”
In the silence, the plumber finally piped up and asked if he had to answer.
“There’s been no objection, so you need to answer.”
The first rule is that payday’s on Friday.
The second is that shit runs downhill.
And the third rule of plumbing is: Don’t bite your fingernails.
Back on the criminal side of the docket, I was reminded by critics of the remark that touched off these memories that not everybody who appears on the criminal docket is a criminal. Attaching that label requires at least one trial.
One day, I was calling the criminal trial docket when I heard a prosecutor hiss “Bullshit!”
The prosecutor handling the government’s files was a fiery young lawyer, the daughter of a retired Irish policeman. When I say “fiery,” I refer to her style of jury argument. At normal docket calls, she could put up an impression of a normal human being.
I advised her to approach the bench and be a little more specific. She came up and told me the style of the case and I opened the file.
The boys in the vice squad had gifted us with a prosecution for “sale of obscene devices.” I don’t remember the particulars, but it would be dildos, vibrators, cock rings….those are the easy cases, but a riding crop is just a riding crop if you only use it on a horse and if you slide a pillow under her butt to improve the angle, you may have created an obscene device.
Colleen said she did not want to try the case because “that’s where I get all my toys.” Before I could say, “me too,” she was heading across the street to find another prosecutor.
A motion to dismiss a criminal case comes with a blank in the middle for a reason. Lately, they had been writing “in the interest of justice” for an all-purpose escape hatch used, for example, if a case was going away in return for a military enlistment back before the military enacted rules against it.
(Russell digression™ We did not, of course, quit dismissing cases in return for enlistments. The prosecutor had to get a bit more creative in writing the motion to dismiss and everybody had to get on board so compliance could be checked.
Most of them turned into good troops. Somehow, the drill sergeant always seemed to find out, so their nickname would become “J.D.” Juvenile delinquent, get it? It was not a high status and they would bust their butts to leave it behind.)
A different prosecutor came in and dug into the files. By and by, he handed me a motion to dismiss. The reason he had written in his own hand was, “sounds like bullshit to me.”
I signed it.
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Previously Published on Medium
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