Tag Archives: Courting Murder

How to Tell a Judge He (or She) Screwed Up

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My guest today is retired judge Bill Hopkins, author of Courting Murder, published in OCtober 2012 by Southeast Missouri University Press. 

“When Judge Rosswell Carew makes the gruesome discovery of two corpses on a riverbank in the Missouri Ozarks, he’s plunged into a storm of deadly secrets that threaten both him and his fiancée, Tina Parkmore. Unsatisfied with the way the authorities are conducting the investigation, Rosswell, who’s always nurtured a secret desire to be a detective, teams up with an ex-con, Ollie Groton, to solve the case before the killer can murder again. Rosswell uncovers a maze of crimes so tangled that he must fight his way to a solution or die trying.”

(The information in this blog is drawn from The Honorable Robert W. Gettleman’s article in the American Bar Association’s Section of Litigation’s Practice Essentials articles, available online here, and from my twenty years on the trial bench and five years as an administrative law judge.)

“I’m going to tell you how to diplomatically tell a judge that he (that’s used as an inclusive pronoun) has screwed up. You can use this information in your writing when you want your character–whether it’s a judge, lawyer, or party to the lawsuit–to realize that something bad has gone wrong during a lawsuit.

This article covers only criminal jury trials.

If you use the methods outlined here, you’ll no doubt get fewer nasty letters from lawyers complaining that you’ve mangled the legal system, but this information is being given as is, with all faults, and there are no warranties, express or implied. (I’ve been waiting years to use that useless phrase.)

Know your stuff. I’ve made my share of errors and have received nasty reviews from appellate courts. But your judge should know his stuff. If he makes a mistake on the admission of evidence, then you must do your homework and find out what the correct ruling would be. Let’s say that your jurisdiction does not allow a spouse to testify against the other spouse. The prosecutor in your case has a wife that’s dying to spill the beans on her husband (the defendant). The defendant objects but the court (that’s what lawyers call the judge when they’re trying to be nice) allows it. You will have to learn about privileged communications in your state and why the judge’s ruling is wrong.

Ask for a sidebar. That’s when the judge and lawyers discuss something out of the hearing of the jury but in front of the jury. Juries are human and when you do that, the jury will think that what just happened (i.e., the error the judge made) is a lot more important than it really is. If you want your character to bring attention to the error, have him ask for a sidebar. If you want him to minimize the error, have him ask for a short recess.

Your character must always be respectful towards the judge, regardless of what kind of idiot you have sitting on the bench. Once a judge makes a ruling in the courtroom, all argument ceases, unlike what I’ve witnessed in television shows, movies, and books. Muttering and eye rolling doesn’t impress the judge, much less continued arguing.

If the error is that the judge sustained an objection to a question that is clearly okay to ask, then have your character rephrase the question. If your character is the prosecutor and he asks, “Officer, was the defendant drunk?” and the defendant’s objection is sustained, have the prosecutor start over. “Officer, did you have reason to believe the defendant had consumed alcohol?” And so on.

Always make a record. One of the best things I learned in judges’ college–yes, there really are such things–was to make a record. If your character wants a bloody iron pipe entered into evidence and the court sustains the other party’s objection, then he should make an offer of proof. (This is often done outside the hearing of the jury.) The lawyer who wants the pipe entered into evidence will have a chance to show and tell the judge why the pipe should be entered into evidence. Unless your character is the prosecutor (most of the time, a prosecutor can’t appeal a not guilty verdict) and the judge still refuses, then, assuming your character is convicted, he will have a record to show the court of appeals.

Writers are constantly asking me legal questions for their stories. I’m happy to answer them, but the best answer is usually, “Ask a lawyer or judge in your area.” If you live in a big city, that may be a bit harder than living in a rural area where people are more likely to know each other. But, for example, if you live in a big city, go visit the courthouse and watch a few criminal jury trials. If you’re polite and have a business card showing the judge or a lawyer that you’re a writer, they may be willing to answer hypothetical questions.”

***

Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, and Sisters In Crime. Bill is also a photographer who has sold work in the United States, Canada, and Europe. He and his wife, Sharon (a mortgage banker who is also a published writer), live in Marble Hill, Missouri, with their dogs and cat. Besides writing, Bill and Sharon are involved in collecting and restoring Camaros. Courting Murder is his first mystery novel.

Judicial misconduct = good story options

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Last week, I shared articles about two judges and what made them great and kept them going. But judges do go bad, and make big mistakes. Ethical lapses, even criminal mistakes. (They make mistakes about the law, too – retired Missouri state court judge and mystery writer Bill Hopkins will talk about that here this fall, when his first mystery, Courting Murder, debuts.)

A state court example: A Montana justice of the peace developed a drug addiction. Worse, he went “doctor shopping,” getting methadone prescriptions from three doctors in different communities. News accounts in the Billings Gazette report that he resigned from the bench after being charged with 34 felony counts of fraudulently obtaining dangerous drugs.

34 counts. Criminy.

State court judges can be disciplined for misconduct on and off the bench. State court judges are disciplined by the Judicial Standards Commission (or local equivalent – remember, terms and procedures vary state by state), typically a regulatory commission under the auspices of the state Supreme Court. Most commissions include a mix of members from the judiciary, the bar (lawyers), and the public. A complaint triggers an investigation, which will be dismissed if the judge is exonerated. If not, the judge may be disciplined for committing willful misconduct in office, or violating the state’s Canons of Judicial Ethics. In Montana, those Canons expressly prohibit “conduct prejudicial to the administration of justice which brings the judicial office into disrepute, or impropriety.”

There’s a range of possible discipline, from private admonition to forced retirement. Local options vary, of course, and will depend on the severity of the conduct, any prior incidents, and aggravating or mitigating factors.

What will happen in this case? Anybody’s guess. The judge’s defense lawyer, a hard-hitting fellow, hints at a plea agreement. The judge has already resigned. If he hadn’t, and is convicted, he’d likely be removed from office. If he’s convicted after trial, or pleads guilty to any felonies, he’ll be disbarred as well. Felony convictions, of course, are Very Bad, and result in all but automatic disbarment. (Lawyer discipline is discussed in detail in Books, Crooks & Counselors.)

A federal court example: A federal judge used his official email account to forward a racist joke about the president. He acknowledged his inappropriate behavior, but rejected calls to resign. Federal judges are appointed for life. The incident is being investigated for potential misconduct, which could lead to impeachment. If tried and convicted, he would be removed from office. But as the law professor quoted in this Reuters story  notes, that’s highly unlikely. His behavior was incredibly stupid–and calls his judgment into question–but isn’t the type of misconduct likely to result in removal. On the other hand, if a state court judge had done the same thing, local reaction might force his resignation.

Judges are as human as the rest of us. If a judge is a major or minor character in your story, you can use major or minor misconduct in many ways. Use it make the judge more human, to lead to more crime, or to trigger a cover-up. Use it to make her vulnerable to blackmail, if her actions are discovered. Use it to put your lawyer, cop, or PI protagonist in a quandary, unsure what to do with the information. The possibilities are, like all human failings, endless.

Update: The federal judge initially announced that he would take senior status, but the Billings Gazette reported in April 2013 that he would retire fully on May 3, following a March 15 order in the judicial conduct investigation, which is confidential pending an appeal.