The Face of Evil May Be Behind The Judge’s Bench

February 13, 2009

Judge: Miss West, are you trying to show contempt for this court?’ Mae West: On the contrary, your Honor, I was doin’ my best to conceal it.’ (During a trial in which she was accused of indecency on stage) “The thing to fear is not the law, but the judge” Russian Proverb “One bad apple ruins the barrel” —————– History is replete with judges who are open to bribery, who serve special interests or who are otherwise corrupt.  We often read of judges who are sanctioned or prosecuted for misconduct. When a person dons a judge’s robe her character and values don’t change. Despite the long history of judicial misconduct, I still was surprised to read about this kickback scheme in the February 13, 2009 New York Times. Quoting excerpts from the article: [O]n Thursday . . . judge Mark A. Ciavarella Jr., and a colleague, [judge] Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care. . . . While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to…

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Cameras in Judge Gertner’s Court? Not Quite Yet

January 22, 2009

The Boston Globe reports that U.S. District Judge Nancy Gertner has stayed last week’s decision allowing a motion hearng in the Tenenbaum music downloading case to be “narrowcast” on the Internet, pending an appeal to the First Circuit by the RIAA.  Apparently, the RIAA feels strongly enough about this issue to ask for immediate appellate review, and Judge Gertner agreed to keep cameras out of court, at least for the moment. My take? Cameras in the courtroom should be within the discretion of the judge, who exercises control over that courtroom, and the First Circuit should deny the RIAA’s appeal.  The more that the public sees what goes on in our federal courts, the better for our judicial system.

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Will Massachusetts Lose Judge Saris to the CAFC?

January 17, 2009

According to the front page of the January 12, 2009, National Law Journal (above the fold), Massachusetts U.S. District Court Judge Patti B. Saris is on the “short list” to be appointed to the Court of Appeals for the Federal Circuit – the so-called “science court” that sits in Washington D.C. and hears patent appeals from all of the U. S. District Courts in the United States. When it comes to patents, Judge Saris is the “stand out” judge in Massachusetts. She’s shown a liking and a knack for patent litigation, and lawyers who draw her in their patent cases are appreciative.   She also is active on “the circuit,” speaking at seminars and events where judges are asked to share their thoughts on patent law issues – in other words, she’s an authority on the subject, and her influence extends far beyond her court room. The NLJ has an extensive article, the main point of which is that the CAFC, which has 12 judges, is expected to lose as many as half that number to retirements in the next few years.   Not only is Judge Saris on the short list of about 10 candidates for the CAFC, but she is one of only three judicial candidates. Needless to say, it would be a blow to the Massachusetts federal bench if it lost a judge of this caliber, but it would…

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Gatehouse Media v. The New York Times: Ready for Trial, Counsel?

January 6, 2009

When I discussed the copyright case Gatehouse Media v. The New York Times over the weekend I hadn’t reviewed the court docket, and hadn’t been aware that Judge William Young had pulled the trick that he is famous for (at least locally): when a party requests a preliminary injunction, he responds by ordering an expedited trial. And I do mean expedited. The case was filed on December 22, 2008. Docket entry 13, issued the same day, states in relevant part (cleaned up a bit for readability): Electronic Clerk’s Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/22/2008 re MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Gatehouse Media Massachusetts, Inc. The Court rules denying Motion for TRO; because the matter will be collapsed with a trial on the merits. The Court is reserving ruling on Motion for Preliminary Injunction; ( Jury Trial set for THE RUNNING TRIAL LIST AS OF 1/5/2009 09:00 AM before Judge William G. Young.); Counsel are to cooperate with one another re: discovery. Counsel are to contact the clerk as to the schedule. A 4 week jury trial is scheduled for Jan 5 at this time.  If counsel settle the case, a phone call is all that is necessary. Translation – be ready for trial at 9:00 a.m. Monday, January 5, 2009, nine business days after suit…

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Famous Trials

January 5, 2009

Trials. We love them, we hate them. If you’re a client, you really hate them.  Or at least you should. There are moments of high drama, but the vast majority of trials are as boring as watching grass grow. Even trials that attract the prurient interests of the public (think OJ or Spector), that force the world to watch with morbid fascination, are, for the most part, boring.  Why do you think that Court TV shows only the “highlights”? Nevertheless, if you take an important trial and boil it down to its essence – take out all the tedium, the voir dire, the endless sidebars and evidentiary disputes, the scientific/technical testimony that is often incomprehensible, the marginal witnesses that everyone in the courtroom dozes through — and leave just the heart of the the case, what remains can be fascinating. Law Professor Douglas Linder has done just that at his site, Famous Trials. There you can read about trials ranging from Socrates in 399 B.C., to the 9/11 trial of Zacarias Moussaoui in 2006. As the trials move into the so-called modern era, the coverage expands in detail. The site contains many trial transcript excerpts, multimedia files, and more.  It is truly a labor of love, and a service to the world.  Or at least those few who are interested in this kind of stuff.   Check it out here.

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Really Judge Murphy. Really !?!

December 19, 2008

Massachusetts Superior Court Judge Ernest Murphy won a $2 million libel verdict against the Boston Herald after the Herald incorrectly reported that he had said that a 14 year old female rape victim should “get over it.” Fair enough, but that was not the end of the story. The Herald appealed (ultimately losing), but during the appeal Judge Murphy sent two letters to Patrick J. Purcell, owner and publisher of the Herald, which led to today’s SJC decision publically reprimanding Judge Murphy for this incident. Here are quotes from the letters, taken from the SJC reprimand. The letters proposed a meeting between Judge Murphy and Patrick Purcell, were hand-written on Superior Court stationery, and proposed a luncheon meeting between Murphy, Purcell and (presumably) the Herald’s insurer. The letter went on to tell Purcell – to “have one person … at the meeting…. Under NO circumstances should you involve [counsel in the lawsuit] in this meeting…. You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting.” In the postscript, the judge writes that it would be “a mistake … to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question. In fact, a BIG mistake.” The letter of March 18, 2005, states, “[Y]ou have a ZERO chance of reversing my…

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Judge Ralph Gants: SJC’s Gain Will Be BLS’s Loss

December 1, 2008

Today’s Boston Globe reports that Governor Deval Patrick will nominate Superior Court Judge Ralph Gants to the seat on the Supreme Judicial Court now vacated by Justice John Greaney. This is a great nomination – Judge Gants is truly a superstar of the Massachusetts Superior Court – without question one of the best, if not the best, minds on the state trial court. He has reportedly been on the “short list” of potential nominees for the last few weeks, and there was little question in my mind that he was the outstanding choice on that list. I expect his nomination to the SJC to be approved by the legislature in a heart beat. Judge Judith Fabricant has been the number 2 judge in this session (the BLS2 session) since Judge Van Gestel’s retirement, but it’s unclear if she will provide what has become a tradition of leadership and excellence in the relatively short period of time since the BLS was created, or even whether she is interested in taking on the responsibility of leading the BLS. Being the “BLS1 Judge” is a significant commitment, and not every judge is well suited to this responsibility. Most of Judge Fabricant’s experience (before her appointment to the Superior Court in 1996) was as a criminal prosecutor and then an assistant attorney general. Whether she feels that she has the depth of experience appropriate…

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The (very) Confusing State of the Law of Evidence in Massachusetts

November 29, 2008

“Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted. Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982)” “The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence. Massachusetts Guide to Evidence, Section 1.1  (Supreme Judicial Court, November 2008)” History does not repeat itself, but it does rhyme Mark Twain _____________________________ On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.”  The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public. Anyone reading this with some historical perspective has to wonder, and here’s why. The Federal Rules of Evidence (FRE) were enacted into law in 1975, after ten years of preparation.  This was a very big deal – the rules codified centuries of “common law” of evidence – judge-made law that could vary from court to court. It had taken almost 40 years from the enactment of the Federal Rules of Civil…

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An Interesting (although admittedly not terribly useful) Fact About the Supreme Court …

November 14, 2008

… courtesy of Jeffrey Toobin – The current Supreme Court is the first court in U.S. history where all nine judges are federal appeals court judges. The court that decided Brown v. Board of Education in 1954 had only one justice who had been a judge of any kind on any court anywhere (Associate Justice Sherman Minton).

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Our AG Before the Supreme Court

November 12, 2008

Are state forensic laboratory reports prepared for criminal prosecutions testimonial evidence? If they are, they are subject to the Confrontation Clause of the U.S. Constitution (“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”), and the lab technicians behind them may be challenged under cross examination. If not, well …. This was the issue before the Supreme Court on November 10th, when Massachusetts Attorney General, Martha Coakley (wiki page here) argued for the Commonwealth in Melendez-Diaz v. Massachusetts.  It’s worth noting that for the most part, state attorneys general (who are essentially administrator/politicians) rarely represent their states before the Supreme Court, although it’s not entirely unheard of. Lyle Dennison on ScotusBlog summarized the arguments as follows: Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern. The case, at its core,…

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Supreme Judicial Court Chief Justice Margaret H. Marshall's 2008 Annual Address

October 30, 2008

Thank you, President McIntyre for the honor, and great pleasure, of addressing this annual meeting. Fair and independent courts need dedicated lawyers. The rule of law needs both. That is why, among so many reasons, I am delighted to be here: to thank this Bar Association, to thank each of you, for partnering in justice with our courts. This has been a turbulent year. In politics. In terms of climate change. And now, a financial crisis of unparalleled dimensions. The cataclysm on Wall Street reverberates on Beacon Street. Revenue sources for state government are fast declining, and predicted to decline further. … Continue Reading

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Using and RSS to Follow a Case in Federal Court

October 23, 2008

Assume you’re interested in Jones Day v. Blockshopper, pending in U.S. District Court for the Northern District of Illinois. Go to and click on the link US District Courts’ civil case filings. You can search for the docket of any federal district court case to find the case in Justia. Justia follows the Jones Day case here. If you click on that link and scroll down you’ll see the docket entries for the case (the last entry is #52 as of my writing of this post). You can click on the items to see filings and court orders. Click on the “RSS” feed link on the top right of the Justia page for this case. Choose the RSS feed that you use. I use, and once I click on the RSS feed I can select IGoogle. If you don’t have an RSS feed go to and sign up. You are done – every time you check your iGoogle page you will see the titles of recent docket entries for this case, and you can click through to see the entry in more detail and access a filing or court order. You can follow as many cases as you like in this manner.

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