The link led to this post that seems to suggest that "hard-assed" appellate judges look like the one in the picture to the right. The post notes that the "physiognomy of a hard-assed judge" is basically a robe above which is perched a face with a high forehead and beard.
What I found most telling was that the proximate cause of the "hard-assed" characterization for the appellate judges in question, was a prosecutor who was apparently playing fast and loose with the record and was caught at it by the judges. I guess I am more than a little surprised that the author of the post seems to think that judges getting upset about a lawyer lying to them was much ado about nothing.
I don't know about other judges, but in similar circumstances, I would also be more than a little upset. It is bad enough when any lawyer is caught lying to a court. Aside from the fact that it is unethical to deliberately mislead a tribunal, your credibility as an advocate, both in that case and any future case before any of those judges, is toast.
I suppose that some lawyers think that appellate judges aren't likely to be very familiar with the trial record and perhaps in some courts that may even be the case. On the other hand, the culture on my court and, I suspect on most other appellate courts, is to be very familiar with all portions of the record that relate to the issue(s) on appeal. In my court, you are very likely to get caught if you pull a stunt like this.
It is even worse if, as here, the prevaricating lawyer is a prosecutor. The law holds prosecutors to a higher standard than other lawyers (even on appeal). During a long former career as a prosecutor I prided myself on that fact and I have no problem insisting that prosecutors meet that higher standard when they are in my court.
If in the collective judgment of the three-judge panel a prosecutor was deliberately misrepresenting the record, we would not "have him clapped in irons" but the majority of my colleagues and I would likely have admonished him in open court for violating the ethical rules, terminated his oral argument immediately and written a letter to the disciplinary arm of the bar signed by all three judges, complaining about the ethical breech and enclosing a transcript of the argument or brief and the appropriate pages of the record.
By the way, just to set the record straight, I look nothing like the picture above. We "hard-assed judges" look more like this:
7 comments:
I think the prosecutor may be used to other courts... or other states. I've seen atrocious misrepresentations by prosecutors in appellate briefs which go unmentioned by judges; I've seen atrocious misrepresentation of both the record and issues on appeal by an appellate panel itself in parental rights termination appeals.
But for the most part I'll agree with you, as I have at times been very much surprised by how well the panel knows the record on appeal, and even by reference in their opinions to obscure points in the record which were not referenced in either party's briefs or during oral argument.
True hard-assed appellate judges have their own series of superhero comic books: http://www.thecomicshop.com.au/covers/comics/0/2000adpresents-11-fleetway-nm.jpg
As a fellow appellate judge, I've been reading your blog since its inception and always enjoy your insightful commentary.
Greetings "Hard Ass Judge"
Re: your comment: "The law holds prosecutors to a higher standard than other lawyers (even on appeal)" etc.
Then why not hold them to a higher standard of accountability?
This isn't meant to be argumentative, but lack of accountability is the common denominator in most mischief we cause one another.
Human nature being what it is, people who have a pass on accountability are more likely to break the rules than people who don't have it.
Especially if there's a payoff.
In the adversary system, the payoff's winning. A shield against penalties for rule-breaking is a sanction to break them.
Why not ensure more honest trials by eliminating, or at least,severely curtailing prosecutorial & judicial immunity when either break the rules?
Best wishes,
William F. McIver II, PhD
127 West 96th. St. (PHA)
New York, NY 10025
Not that the "hard-ass" appellation isn't a complement, but why associate with Dredd?
I guess the conclusion of the story of the un-able prosecutor and his tangle with the appellate panel bears out Judge McIver's point quite well. As far as I can tell, nothing serious happened to the guy. However, I think he was young enough to be scared straight. The incident definitely stuck in my mind and all the bluster from the bench was probably a net positive for the clerks in attendance, not to mention more excitable members of the bar.
The Studio (Apartment) is Floodlit.
Having just argued pro se before the NJ Appellate Court regarding my denial of unemployment benefits, I can honestly say that the NJ Court system is crooked and broken.
The Applellate Court allowed three (3) unrequested extensions of time to the Deputy Attorney General for response to my brief.
Then the Deputy Attorney General's office deliberately mailed their response to an undeliverable address instead of to me.
Then the Assignment Appellate Court Clerk didn't include my Answer to the DAG's Response to the panel of Appellate judges.
Then the Appellate Court didn't review the case de novo and gave no reason in denying benefits other than stating "my arguments din't have sufficient merit."
Yes, these three Morristown NJ Appellate Court Judges are hard-asses. They're also crooks for abusing their power and failing to honor the law.
Boy falsely charged with felony for carrying sugar
February 11, 2006
BY JUSTINA WANG
A 12-year-old Aurora boy who said he brought powdered sugar to school for a science project this week has been charged with a felony for possessing a look-alike drug, Aurora police have confirmed.
The sixth-grade student at Waldo Middle School was also suspended for two weeks from school after showing the bag of powdered sugar to his friends.
The boy, who is not being identified because he is a juvenile, said he brought the bag to school to ask his science teacher if he could run an experiment using sugar.
Two other boys asked if the bag contained cocaine after he showed it to them in the bathroom Wednesday morning, the boy's mother said.
He joked that it was cocaine, before telling them, "just kidding," she said.
Aurora police arrested the boy after a custodian at the school reported the boy's comments. The youngster was taken to the police station and detained, before being released to his parents that afternoon.
"This is getting ridiculous," said the boy's mother. "They treated my son like a criminal. .. . This is no way to treat a 12-year-old kid."
East Aurora School District officials declined to comment on the case, citing privacy issues.
The district issued a written statement, which said: "The dangers of illegal drugs and controlled substances are clear.
Could get probation
"Look-alike drugs and substances can cause that same level of danger because staff and students are not equipped to differentiate between the two."
The school handbook states that students can be suspended or expelled for carrying a look-alike drug.
Penalties for juveniles are decided on a case-by-case basis, but if convicted, the sixth-grader could likely face up to five years' probation, said Jeffery Jefko, deputy director of Kane County juvenile court services.
Juveniles who have prior criminal records could also be placed in a residential treatment program if convicted, he said.
You should take a look at the prosecutor's actions in this case:
http://christopher-king.blogspot.com/2006/05/kingcast-presents-prosecutor-albrecht.html
Peace.
Post a Comment