Judicial Ethics Quiz: The Cranky Judge

Judge Clarke (L) and artist's representation (R)

Judge Clarke (L) and artist’s representation (R)

A three-judge panel in California found misconduct in Judge Edmund Clarke, Jr’s treatment of one or more jurors in a jury pool for a murder trial.

Your challengeGuess which of the incidents was found to be an abuse of judicial power and authority.

A. Judge Clarke also told a potential juror who wrote that she had only $25 in her checking account that “every one of these lawyers spent more than that on lunch today.” He excused the juror, and after she left, Clarke told everyone in the courtroom how much the juror had in her account. When a second potential juror disclosed he had only $33 in his checking account, Clarke again announced the amount and said that his savings put the other juror “in the shade with that big account.”

B. Judge Clarke reduced another juror to tears reprimanding her after she appeared to change a form to indicate that she did not speak English, which he found incredible. She said  had lived in the United States for 25 years. Clarke said,

“Most people that have been in this country for 10 years have picked up enough English. [Twenty] or so, they’re moving right along. And 25 years is—so you better have a different reason why you want to be excused than that.” 

After she began weeping loudly because, she said later, she was ashamed because she didn’t speak English, he dismissed her from the panel.

C. Finally, Judge Clarke became annoyed at a juror who had written on her hardship form, “Having Severe Anxiety!!” next to her drawing of a frowny  face. “I work as a waitress and make minimum wages, plus I’m planning a wedding in two months and all of these things, especially this courthouse are aggravating my anxiety terribly. On the verge of a meltdown!” Clarke  excused her from jury duty,  but when she added that the clerk who was checking in potential jurors was “really disrespectful” to everyone, he  told the woman that she could stay in the hallway and tell him more at the end of the day. When the dismissed juror insisted that she had to leave, he said,

“No, you’re staying. You’re staying You’re staying on. I’ve been a judge for seven years. No one’s ever complained about my clerk. But I’ll be happy to hear your complaint at the end of the day. So go to the hall and stay and come in, act like an adult and you can face her and tell me everything she did wrong.”

The woman did as she was ordered and apologized to Clarke after waiting for an hour court to be adjourned. The judge  asked her how she would have felt if he came to the restaurant where she worked and criticized her in front of everyone, saying, 

“If you came here thinking that this was going to be Disneyland and you were getting an E Ticket and have good time, I’m afraid you have no sense of what is going on in this building. Now, seven years ago the first clerk that was assigned to me, she’s still here. The only clerk I’ve ever had. One juror, in all that time, out of thousands, has ever complained about her. That’s you. You can leave now knowing that’s what you accomplished.”

D. All of the above.

Take the poll, and then go to the answers after the jump.

The three judge panel found that only C constituted a breach of judicial ethics. The Commission on Judicial Performance, charged with making the final ruling based on the panel’s recommendation, agreed regarding that incident, writing…

We conclude, as did the masters, that Judge Clarke’s disparaging and discourteous treatment of juror 7122 violated canon 3B(4), requiring a judge to be patient, dignified and courteous to jurors and others who appear before the court. The judge was dismissive of the juror’s claim of anxiety, lectured her and made condescending comments about acting like an adult and not treating the court like Disneyland.We independently conclude that this conduct also violated Canons 1 (a judge shall uphold the integrity of the judiciary), 2 (a judge shall avoid impropriety and the appearance of impropriety), and 2A (a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), and constitutes prejudicial misconduct.

The Commission also found that the judge’s “disparaging and retaliatory treatment of a juror who was simply voicing a complaint about how a clerk was treating jurors would be considered prejudicial to public esteem for the judiciary in the eyes of an objective member of the public,” and that making the juror wait for an hour in the hall for her dressing down violated Canon  3B(5) (a judge shall perform judicial duties without bias or prejudice) and
constituted an unjudicial act by a judge acting in his judicial capacity.

To put it more succinctly, Judge Clarke behaved like a bully, not a judge.

While the three judge panel only found misconduct in the treatment of the Juror in C, however, the Commission’s vote was D, “All of the above.” In the case of the woman he did not believe couldn’t speak English, the Commission found that the judge “violated his duty under the canons to be patient, dignified
and courteous to those who appear before him.” They also found that his treatment of the two jurors who disclosed their lack of assets constituted “conduct
prejudicial to the administration of justice that brings the judicial office into disrepute,’ concluding,

Even if Judge Clarke thought he was engaging in humorous banter, joking about a juror’s limited financial resources and revealing personal financial information in open court, particularly when the juror expressed that she did not want that information to be disclosed, is manifestly discourteous and undignified.

 

I suppose I agree that treating jurors like this undermines the willingness of citizens to give their time to the important civic duty of jury service, but:

1. The judge was obviously having a bad day, and could have been cut some slack. I think if he had not been admonished earlier for some harsh comments in a trial, this episode may have been handled with an unofficial phone call.

2. Judicial staff takes a lot of abuse, and I admire the judge for his loyalty to his clerk. One trait that I despise is people who bully or denigrate lower level employees–clerks, receptionists, secretaries— when they don’t have the courage to confront the people who are in charge. He crossed into bullying territory with juror C, however….though….

3. …drawing a frowny face on a note to a judge should carry extra consequences.

4. The panel found the judge to be unethical because he accused the juror in B of lying. If he had just reprimanded her for never having the respect for her country and fellow citizens to learn to speak English, I’d be applauding. She should be publicly criticized for that. It embarrassed her? Good.

__________________________

Pointer: ABA Journal

30 Comments

Filed under Etiquette and manners, Government & Politics, Law & Law Enforcement, Professions, Quizzes

30 responses to “Judicial Ethics Quiz: The Cranky Judge

  1. Other Bill

    What does a finding of judicial misconduct entail exactly? It must be pretty draconian if you’re leaning towards giving this guy a pass.

    • It’s a big step to a career crash. It essentially put him on probation, with another breach leading to efforts to remove him. Except for his tendency to be nasty or make bad jokes at the expense of others–abuse of position, essentially—he’s apparently a good and respected judge. Just a jerk.

      • Other Bill

        Are there so few judicial candidates that we need to be careful to keep jerks on the bench?

        • Good judges are worth keeping if possible. If possible. This judge was wrong four times, and should be warned and watched.

          • Addendum: here is my bias.I suspect the judge feels as I do. People should do jury duty, and not try to get out of it. It’s one of the few direct democracy opportunities to serve justice in the community. Broke? Tough. Anxious? Deal with it. And don’t lie to get out of service. I suspect the judge is royally sick of people trying to weasel out of being a good citizen. I’m not sue sending the message that trying to avoid jury duty will involve getting crap from the judge is such a bad idea.

            • Other Bill

              True. However, this judge is the embodiment of the judicial system to these people in the jury pool. He can make these points in an admirable, eloquent, considerate way. How many lawyers do you think he’s scolded during his career for being out of line? And sure, he’s arguably underpaid compared to what he could make in private practice, but that’s the deal he’s made. Regular hours, regular pay, perhaps some sort of pension and health care. No difficult clients, no difficult partners, no rent to pay, no payroll to meet, no bills to collect or write off.

              Frankly, I could never imagine being a judge. Too boring. Sitting there for five or six hours a day listening to witnesses lie and lawyers making specious arguments. And I certainly don’t have a judicial temperament. But this guy signed up for it. There’s just no excuse for a judge being a Weisenheimer. Leave that to the Judge Judys of the world.

  2. Maybe juror B WAS lying. What is wrong with a judge calling out a juror who he thinks is malingering in order to avoid jury duty? Isn’t a judge supposed to have some training and ability to judge credibility?

  3. Chris

    4. The panel found the judge to be unethical because he accused the juror in B of lying. If he had just reprimanded her for never having the respect for her country and fellow citizens to learn to speak English, I’d be applauding. She should be publicly criticized for that. It embarrassed her? Good.

    That’s appalling, Jack. It is no one’s business whether this woman speaks English other than hers and her family’s, and I see no reason why she should be “publicly criticized” for it in front of total strangers by an irrationally angry judge. She has no legal duty to speak English. This is an abuse of power by a government official to target a citizen who simply didn’t behave the way he thinks she should.

    • She has an ethical duty to be a participant, and a productive one, in society. Learning the language is a core duty of citizenship, and not doing so inflicts a burden on everyone else. What do you mean, it’s none of our business? There was an example right there: she can’t be a juror. She can’t teach her kids English. She costs communities a fortune by requiring them to publish everything in her language. She wastes my time because I have to sit through phone messages twice, in two languages because she won’t bother to learn the language all business and government is conducted in. If she’s a citizen, she handicaps her ability to find employment, or to do it well. She vastly increases the likelihood that I’m going to have to pay to keep her out of the street. How can you possibly say that’s not my concern?

      No, there’s no law, because unthinking liberals have beaten back all attempts to declare English the official language, and the Constitution says that you have a right not to speak as well as to say what you want, and talk in clicks and grunts if you choose. Fine. Grunt. It is also legal to be illiterate, and to lie around watching TV all day, just waiting for your check. But that doesn’t make it responsible or good citizenship, and we not only can but should tell such people to be responsible.

      The fact that you find basic civic obligations appalling, Chris, is a symptom of where your societal ethics system breaks down.

      • This goes to the matter of life competence, and I’ve been meaning to post on the topic for a long time. Thanks, and I am being sincere, for reminding me to get the list up. All life competencies are essential, we all have a duty to develop them, none are mandated by law, but all are basic ethical obligations of living with others.

      • I just realized something: If she can’t speak English, she can’t be a naturalized citizen. Based on the wording of the description of the situation, she most likely isn’t a natural-born citizen either (and natural-born citizens should absolutely speak English). Does the pool of potential jury members include non-citizens? If so, why is that the case, since they are less likely to be familiar with the legal paradigms in the U.S.? (Putting aside for the moment cynical remarks about citizens’ familiarity with legal paradigms…)

      • Chris

        Jack, even if I accept every part of your argument as true and fair, that still doesn’t justify a judge publicly berating and humiliating her for not speaking English. There are a lot of life skills people should have but don’t. I don’t believe public humiliation is the answer. You have no idea why this woman has never learned English, and neither does the judge. His response was completely inappropriate even if the thought behind it was valid.

        • Nonsense.

          If he’s the point of contact in our society where her irresponsibility is causing the friction, he has every right to reprimand her for her irresponsibility.

          If she’s at the DMV and can’t communicate with whichever desk worker she’s trying to communicate with, that DMV employee has every authority to remind her she ought to learn English.

          If she’s in a car wreck and can’t communicate with the other driver, HE OR SHE has every right to reprimand her. If she can’t communicate with the recovery truck driver HE OR SHE has every authority to reprimand her.

          If she’s holding up the line at a grocery store because she can’t speak english, the bagger has every RIGHT to reprimand her, as does everyone stuck in line BEHIND her.

          The really really really irresponsible ones after her own irresponsibility has been evaluated are those in her life who HAVE NOT encouraged her to learn English yet!

          • Chris

            If she’s at the DMV and can’t communicate with whichever desk worker she’s trying to communicate with, that DMV employee has every authority to remind her she ought to learn English.

            Impressively wrong! The DMV employee actually has the authority to find another DMV employee who speaks Spanish–not a particularly difficult task. If a DMV employee does what you incorrectly say they have the opportunity to do, he or she will likely be fired, and justly so.

            If she’s in a car wreck and can’t communicate with the other driver, HE OR SHE has every right to reprimand her. If she can’t communicate with the recovery truck driver HE OR SHE has every authority to reprimand her.

            I was once rear-ended by an older Hmong woman who did not speak English. She called her daughter and I spoke to her. She wrote down her insurance information and everything was handled smoothly. I didn’t even think to berate her for not speaking English. For one, she wouldn’t have understood me. For another, “not being a dick” is a pretty good ethical principle.

            “If she’s holding up the line at a grocery store because she can’t speak english, the bagger has every RIGHT to reprimand her, as does everyone stuck in line BEHIND her.”

            See above, re: “getting fired,” “being a dick.” I’m not sure whether or not a bagger would be engaging in illegal discrimination here, but they would almost certainly be violating company policy–generally speaking, employees aren’t encouraged to “reprimand” customers unless in extreme circumstances, and a customer not speaking English certainly doesn’t amount to that–at the Wal-Mart I worked at for three years, that was called “Tuesday.” Where do you live that this is such an unusual, anger-producing circumstance that requires employees to actively tell someone how to live their lives?

            If I were in a grocery store line and an employee pulled this shit, I’d reprimand him, not the poor customer.

            • Bless your heart. But it is adorable how your inability to comprehend the ability of people to be civil, have candor, and deal in proportion clouds yours ability to realize that we all can correct one another without, how do you put it… berating them?

              I shudder to think the world you envision where every corrective interaction is screaming fest.

              It’s nice that the Hmong woman could get a translator. Nice. File that away under moral luck.

              • Chris

                You used the word “reprimand,” which has the word “berate” listed as a synonym. You were factually incorrect when you said that employees have the right to reprimand Spanish-speaking customers. This is a firable offense in most workplaces.

                • You and your left win penchant for conflating partially synonymous words with similar shades of meaning but with vastly different additional connotations.

                  You didn’t learn your lesson from before when you were schooled on your obfuscation when you used “humiliate” instead of “was embarrassed”?

                  Just stop.

                  Yeah, berate and reprimand have similar connotations. But it’s their differences that matter.

                  Just stop. Your word games border on dishonest.

                  • And if it makes you feel any better, exchange any time i used the term “reprimand” with “seeks to improve through corrective discourse of a well worded and polite but candored conversation”.

                    Man. You really gotta stop.

            • On the one hand, I completely agree that being mean to people is not a good way to handle most situations, both when the other person is just going about their business as well as when they are acting hostile themselves.

              On the other hand, while a person may have the legal right to not learn how to communicate effectively with the vast majority of people around them where they live, it’s still a terrible idea, and that should be made clear to them. Communication is a very important meta-skill.

        • The Commission obviously agrees with you, not me.

          Nonetheless, shaming is a legitimate part of social control, and shaming by an authority figure is especially effective. She said she was embarrassed, and anyone who can’t speak English after decades as a citizen should be embarrassed—if it motivates her to finally make the effort to learn the language, it’s an easily justified utilitarian win-win. She benefits, society benefits, and the only cost was a moment of embarrassment before strangers she would never see again.

    • I’m going to nitpick here, because I think people are too quick to draw lines about who can “judge” people and who cannot. What parts of her family get to declare her languages their business? Spouse? Minor children? Adult children? Parents? Siblings? Extended family?

      You don’t get to choose all of those people, so why should you be more answerable to your siblings, for instance, than to a random nobody like me?

      I can’t say more than that without being redundant with Jack’s comment.

      • Chris

        I’m not seeing how your question is relevant, EC. Even if the whole of society is affected by this woman’s lack of English speaking skills, you can’t think public humiliation is a proper response?

        • Intending to publicly humiliate someone is an unethical motivation. But whether or not someone ends up HUMILIATED after a perfectly LEGITIMATE, justifiable, and well-handled reprimand is Moral Luck.

          • To be clear, I think you are being intentionally obfuscatory when you use the term “humiliation” which though carries some synonymous meaning to the original word “embarrassed” that Jack used, actually has shades of meaning far more malicious than those of Jack’s original terminology.

            He said “if she was embarrassed. Good”. Which is shades of meaning less offensive and painful than “humiliated” which carries connotations of malicious intent on the act of the “humiliator”.

        • My question is only tangentially relevant. That’s why I referred to it as nitpicking. It has nothing to do with humiliation. I was just wondering whether you think the woman’s siblings have more of a right to criticize her than I do regarding not speaking the language of where she’s lived for so long.

          I’m a huge fan of criticizing people without humiliating them (though I wasn’t always…). It’s a vital skill in order to have any expectation that the criticism will be taken seriously by the people who are being criticized.

  4. Errol

    Although the woman said she can’t speak English she may well have been like many immigrants to a country, that is she can speak good enough English to get by in everyday life, but when it comes to something more important like jury duty, then her English skills are not good enough to fully understand the nuances of what is said in the courtroom in order to participate in the deliberations of the jury and make a final decision of whether or not a defendant is guilty. I think that anyone accused of a crime deserves at a minimum, a jury that can follow the proceedings of the court in order to do their job competently.

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