by Lee Gesmer | Feb 13, 2009 | Courts, What Were They Thinking
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 keep the centers filled.
Senior Judge Arthur E. Grim . . . was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention. . . .
If the court agrees to the plea agreement, both judges will serve 87 months in federal prison and resign from the bench and bar. They are expected to be sentenced in the next several months. . . .
Prosecutors say the judges tried to conceal the kickbacks as payments to a company they control in Florida.
I’m surprised by how often clients ask me whether judges in Massachusetts are on the up-and-up. I answer that they are, and with rare exceptions I believe that to be true. These clients are businesspeople involved in civil cases, not alleged criminals. Yet, they approach the civil courts with a degree of suspicion and mistrust that sometimes is alarming. It’s not unusual for a client to imply that a judge might be “bought off” by someone on the other side of the case, of just ask openly if this happens.
Directly or indirectly, millions of people will hear about these two Pennsylvania judges. Their crimes will become part of permanent the fabric of the U.S. legal system. The message is far worse than simply “some judges can be bought.” The message is that on their own initiative, some judges will use their position of power to enrich themselves, even if it causes enormous and lasting harm to the people (in this case minors), who appear before them. Judges everywhere in the United States are diminished by this scandal.
by Lee Gesmer | Jan 22, 2009 | Courts
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.
by Lee Gesmer | Jan 17, 2009 | Courts, Patents
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 be a great honor and opportunity for Judge Saris.
by Lee Gesmer | Jan 6, 2009 | Copyright, Courts
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 was filed. Maybe we’ll reach you, maybe we won’t (that four week case may settle), but you’d better be ready. Oh, and enjoy the two holiday weekends between now and then.
This is classic Judge Young, and he’s been doing it from the first day he was appointed to the federal bench over 20 years ago.
The moral: if you file a suit in federal court and you are seeking a preliminary injunction, be prepared for the risk that you might draw Judge Young, in which case, be very prepared. A super-expedited trial like this favors the defense, since the plaintiff will have great difficulty preparing for trial in two weeks. Assuming you don’t want to be prepared for trial on the day you file suit, the way to avoid this, in this district, is to file suit and see what judge you draw. If you draw Judge Young, you can decide whether you want to file for a PI and risk an immediate trial. There’s no law that states that you must file your PI motion simultaneous with the complaint, but filing the PI motion simultaneous with filing suit deprives the plaintiff of that choice.
In this case, Gatehouse Media could have adopted a different strategy, as follows:
- File suit and see what Judge is assigned to the case. If Judge Young is assigned, do not file a preliminary injunction motion, knowing that this risks an immediate trial.
- As you publish your local news each week, file copyright registrations for each issue. This is inexpensive, and so simple it could be done by an intern or paralegal. If Boston.com adds towns (beyond Newton, Needham and Waltham), register the weekly publications for those towns as well.
- By registering the copyrights within three months following publication, Gatehouse Media would be entitled to recover statutory damages for each publication, as well as attorney’s fees incurred in prosecuting that infringement. Statutory damages may be as great as $150,000 per infringement in cases of “willful” infringement – that is, $150,000 per publication. If Boston.com is aggregating and publishing the Gatehouse Media news for Newton, Needham and Waltham each week, Boston.com is looking at potential damages of as much as $450,000 per week. By the time the case goes to trial in the ordinary course (say a year), Boston.com is risking damages in the tens of millions of dollars. Would that financial risk be likely to lead to a settlement favorable to Gatehouse Media? You betcha!
by Lee Gesmer | Jan 5, 2009 | Courts
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.
Oscar Wilde, 1895
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.
McMartin Pre-School, 1987
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.
by Lee Gesmer | Dec 19, 2008 | Courts, Humor, What Were They Thinking
Judge Ernest Murphy
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 jury verdict on appeal. Anyone who is counselling you to the contrary … is WRONG. Not 5% … ZERO. AND … I will NEVER, that is as in NEVER, shave a dime from what you owe me….” (Emphasis in original.)
Photocopies of the letters are attached to the CJC’s Hearing Officer Report, here.
OF course, Purcell did show these letters to his lawyer, the meeting never took place, the Herald published the letters in the paper, and the Herald filed a complaint with the Commission on Judicial Conduct, leading eventually to the SJC reprimand.
All of which leads to a few questions:
Really Judge, did you really think that Patrick wouldn’t show these letters to his lawyer? Really!
Did you think it might send the wrong message for a judge to use official stationery for personal business? Not once, but twice? Did you think that this might be perceived as a misuse of the power of your office? Really!!
Really Judge Murphy, did you think that writing a letter of this nature would reflect positively on the integrity and prestige of the Massachusetts judiciary? Did it occur to you that these letters might come across as being, well, sorta creepy?
Did it occur to you that it might be perceived as a misuse of the enormous power wielded by a judge to suggest that the party you had sued could not prevail on appeal? Could that have suggested that you had some influence with the appeals process, or might be able to affect the outcome in some manner? Really!!
Really Judge Murphy, you claimed not to know that the Code of Judicial Conduct contained an express prohibition against use of judicial stationery for personal purposes, but as a judge haven’t you heard the expression, “ignorance of the law is no excuse”? Really!
You suggested that Purcell meet you at the Union Club of Boston, one of our fair city’s oldest and “woodiest” men’s clubs, which was formed in 1963 and didn’t allow women members until 1980? Didn’t you think this might be viewed as a bit of a cliche? Why not the McDonalds on Washington Street? Really!
Oh, and really Judge Murphy, didn’t it occur to you that the Boston Herald might publish these letters for all the world to see? After all, the Herald is a newspaper with a reputation for being very aggressive, so didn’t you think that they would eat this up and use this to publically embarrass you? Really!?!
p.s. – Judge Murphy is permanently disabled as a result of the Herald defamation incident, and therefore is no longer on the bench.
p.p.s. – apologies to SNL, Seth Meyers and Amy Poehler. Really.
p.p.s. – if this whole Judge Murphy thing leaves you shaking your head in bewilderment, you are not alone.
by Lee Gesmer | Dec 1, 2008 | Business Lit. Session, Courts
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 to head the BLS remains to be seen.
It’s also worth observing that the Business Litigation Session is not a “statutory” court – it was formed in 2000 as a pilot project, and exists at the discretion of the Chief Justice of the Superior Court. Without a strong and committed leader (as Judge Van Gestel was), and as Judge Gants was beginning to prove himself to be), the future of the BLS is not certain.
So, the BLS’s loss of Judge Gants leaves the BLS in limbo – will Judge Fabricanttake over BLS1? If so, will she provide the level of quality provided by Allen Van Gestel and Ralph Gants? Who will become the new “number two” at the BLS?
Finally, it’s worth observing that the BLS appears to have emerged as a “feeder court” for the SJC – first Justice Margot Botsford (who was the BLS2 Judge before Gants), and now Judge Gants have gone from the BLS to the SJC. Whether this is coincidence (or whether the BLS attracts the best judges on the Superior Court) is open to debate, but the phenomenon is worth noting.
by Lee Gesmer | Nov 29, 2008 | Courts
“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 Procedure for these evidence rules to be codified. The FRE motivated many states (whose evidence laws are independent from the federal rules and from each other) to adopt some version of the FRE, often with modifications, but with enough uniformity that a lawyer going from state A to state B could be confident that the vast majority of the rules would be identical or similar. Forty-two states have adopted evidence rules based on the federal rules.
Only eight states have failed to do so and, no surprise, Massachusetts is one of them.
But, it hasn’t been for want of effort.
In 1982 the SJC rejected a proposed codification of evidence law (what would come to be referred to as the Massachusetts Proposed Rules of Evidence, or the “Proposed Rules”), stating that the Proposed Rules would require coordination with the Legislature to modify state statutes, that the Proposed Rules departed too much from the FRE, and that adoption would restrict the development of common law rules of evidence (the latter being the whole point, one might argue). (See Handbook of Massachusetts Evidence, Section 1.1). However, the SJC invited litigants to cite the rules, and for that reason the Proposed Rules have been a factor in Massachusetts evidence law for the last 26 years.
In fact, it became common practice for lawyers and judges to use three bodies of law to support evidentiary arguments – the common law, the Federal Rules, and the Proposed Rules. And so, in Massachusetts, the law of evidence advanced in a patchwork manner, with trial judges and the appellate courts adopting some rules from either source, rejecting others, and no one quite sure what body of law would be persuasive in a particular instance. The authors of various evidence treatises were kept busy trying to keep track of these developments, so lawyers didn’t have to untangle this mess.
Of course, nothing is forever, and there’s no reason why the Massachusetts courts should be hindered by efforts that are now ancient history. And so, it came to pass that in 2006 the SJC established an advisory committee to develop a “Guide” to evidence, leading to the SJC’s endorsement of the Guide to Evidence in November 2008.
While the Guide is not statutory law in Massachusetts (and therefore is not strictly “binding” on the courts), it appears that everyone involved in its creation and endorsement has decided that it is an accurate statement of the law, at least at this time. Therefore, it is the “most” persuasive statement of the law on any topic of evidence, at least for the time being. Of course, not being statutory law, any judge or court can chose to disregard it – in fact, a future SJC could easily rule that a particular provision of the Guide (or even the entire Guide) is no longer useful, and relegate the document to the legal dust bin.
However, at least for the present, the Guide to Evidence should be the first (but not the last) place any lawyer with an evidentiary question should go to get a handle on the law. Hopeful, the Proposed Rules are now obsolete, and lawyers can ignore them, but I wouldn’t count on it.
by Lee Gesmer | Nov 14, 2008 | Courts
… 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).
by Lee Gesmer | Nov 12, 2008 | Courts
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, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?
Kennedy initially saw a potential problem if the Court were to answer yes to that question. He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check. . . .
Jeffrey L. Fisher, the Stanford law professor arguing for the right to confront the lab chemists, had the significant benefit of Justice Antonin Scalia’s seemingly unqualified support. Scalia, who has made himself the chief protector of the Confrontation Clause, was ready to bolster Fisher’s argument at critical points, repeatedly making the point that crime lab reports are drawn up precisely to link physical evidence to the accused, and to support the prosecution’s case.
There were only a couple of points on which Fisher was significantly pressed. Justice Kennedy, aside from worrying over the potential impact on courts and trials, suggested that even if lab chemists had to show up for trial to defend their reports, they might not have much to say that could be of aid to the defense, so why call them? Justice Samuel A. Alito, Jr., echoed Kennedy, wondering whether Fisher was “arguing for an empty exercise.” And Justice Ruth Bader Ginsburg indicated that, if a chemists’ testimony was so potentially valuable to the defense, it could call the chemists to the stand on the defense side of the case.
Fisher sought to deflect Kennedy’s points by saying that having the right of confronting a lab technician was not producing heavy burdens where that practice actually exists. To Kennedy and Alito, he argued that confrontation would not be “fruitless” and should be available to defense counsel who deems it of potential value. To Ginsburg, the professor said that leaving it to the defense to summon the chemists would be to shift the burden of making a case from the prosecution to the defense. “It is the prosecution’s duty to put on witnesses” to make its case, he said.
Massachusetts Attorney General Martha Coakley had trouble from the outset drawing distinctions between eyewitness testimony for which confrontation is required and crime lab reports, as Justice David H. Souter, along with Scalia, pushed the point. She also failed to impress with a key point both in her brief and her oral argument: the Court has never had a confrontation case involving a lab report.
Before long, Justice Kennedy was stressing to Coakley the arguments he said she had to be making, and mildly chastized her when she did not do so. When he asked her to comment on why California was not having problems with confronton over lab reports, she at first responded that California was one of 35 states supporting Massachusetts in the case (only to have Chief Justice John G. Roberts, Jr., point out that she was in error on that). Then she said she had no information on California, but contended that confrontation of the kind would be “an undue burden” in Massachusetts.
As she was preparing to close, the Chief Justice asked for Coakley’s reaction if a lab test report was the central issue in a case, she said it would be “a bad strategic decision” to rely only on a report of that kind. But Kennedy sharply retorted: “That’s a non-reason.”
Of course, as all lawyers learn, you can rarely determine the outcome of a case based on the comments of judges from the bench, so Martha Coakley may pull off a win in what is likely to be her first and last appearance before the Supreme Court.
by Lee Gesmer | Oct 30, 2008 | Courts
Chief Justice Margaret Marshall
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
by Lee Gesmer | Oct 23, 2008 | Courts
Assume you’re interested in Jones Day v. Blockshopper, pending in U.S. District Court for the Northern District of Illinois.
Go to Justia.com and click on the link US District Courts’ civil case filings. You can search for th
e 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. 
Video Tutorial
Choose the RSS feed that you use. I use iGoogle.com, and once I click on the RSS feed I can select IGoogle. If you don’t have an RSS feed go to iGoogle.com 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.
