Lowering the Bar

Judge Jumps the Gun on Declaring Defendant Guilty

The evidence against Joseph Nee, on trial for allegedly plotting a Columbine-style attack at his high school, seems to have been fairly strong.  Or at least you could infer that from the fact that the judge in his bench trial announced to a crowded courtroom that the State had proven its case, and was then reminded that closing arguments had not yet been made.

I have always thought that oral argument was a little bit overrated, but it is nice when the judge at least pretends to listen.

It wasn't very clear why the judge jumped the gun, but he seems to have forgotten that closing arguments had not been made yet and instead proceeded to read his decision from the bench at 10 a.m. February 14.  Those expecting to hear two hours of closing argument were surprised to hear the judge begin, "The Commonwealth has proved this case beyond a reasonable doubt."

The defendant's attorney noted at that point that closing arguments had not yet been made (the State's argument may have been the day before, but the defense at least had not spoken).  That was probably a bit awkward.  Judge Grabau recognized his mistake and directed Nee's lawyer to continue.

Two hours later, the judge convicted Nee again.

Nee and another student were accused in 2004 of planning an assault on Marshfield High School.  Nee reported the plot to police but was eventually arrested himself after others said he was actually the ringleader.  Nee will be sentenced on Tuesday, presumably only once.

Link: Boston Globe

Pants Judge Ordered Out of Office

Reports last week that Roy Pearson would lose his job were confirmed on Tuesday, when the panel that oversees administrative law judges in D.C. had a letter hand-delivered to him at about 3:30 p.m., telling him to vacate his office by the end of the day.  Although the ruling was not a surprise to Pearson, it is still pleasant to think of him receiving a letter giving him just 90 minutes to get out of the building.

Pearson, as you likely know, is now notorious for his failed lawsuit against his neighborhood dry cleaners demanding $56 million (originally $65 million, but revised to be more reasonable) for claims relating to a pair of lost pants.  He has been squatting in his office since his term ended in May, waiting for the committee to make a decision, and continued to draw his $100,000 salary during that time, apparently for doing nothing.  The committee's ruling does not prohibit Pearson from continuing to do nothing -- they just want him to do it somewhere else and are going to stop paying him for it.

Sources told the Washington Post that Pearson's lawsuit did not play a significant role in the decision not to reappoint him (which is unlikely).  Instead, the committee claimed that, after reviewing Pearson's past judicial decisions and listening to audiotaped proceedings, it found he did not demonstrate "appropriate judgment and judicial temperament" (which is unsurprising).  The committee also said Pearson had been "combative" with supervisors and colleagues -- his decision to write a 14-page letter to the mayor asking him to remove the chief administrative law judge for the District might have factored into that one -- and had failed to comply with agency policies when drafting opinions.

Pearson is appealing the dismissal of his case against the dry cleaners, and may well appeal his own dismissal, too.

Link: Washington Post

Judicial Candidate Asks Donors for Money; Says They Will Need Him in Court

A pastor running for a Philadelphia judgeship told potential donors in April that they should contribute because they were "going to need [him]" later, raising concern that he was suggesting he would show favoritism to contributors.  "I'm telling you all just like it is," said Willie Singletary to what the article described as "a crowd of fellow motorcycle enthusiasts."  "I need some money.  I got some stuff that I got to get [done]," Singletary said, "but if y'all can give me $20 . . . You're all going to need me [in court], am I right about that?"  The issue came up again last week after a video of the statement showed up on YouTube.

Singletary, who is a pastor, made the comments while he was at Malcolm X Park in Philadelphia conducting the annual "Blessing of the Bikes."  (He asked for the campaign contributions to be put into the "offering bucket.")  Singletary was in the news earlier this year after it was revealed that, at the time he won the Democratic primary, he had over 50 unpaid traffic citations, including at least one for reckless driving, and owed over $11,000 in unpaid fines.  A bench warrant was issued for Singletary's arrest in May, but his father paid the fines at that point.

Given those facts, it only makes sense that Singletary is running to be a judge in Philadelphia's Traffic Court.

Singletary's attorney, Richard Hoy, came to Singletary's defense.  "He hasn't done anything wrong," said Hoy of the statement to the potential donors.  Everyone needs a friend in traffic court.  You need a friend in traffic court.  He was just promising people they would get a fair trial."  Well, more specifically, he was promising the members of a group defined by its love for driving that they would get a "fair trial" in traffic court, as part of a request for donations from the members of that group.  I'm just saying.

Judges in Philadelphia Traffic Court do not have to actually be attorneys -- and Singletary is not -- though they do have to take a course and pass an exam, which if I remember right is what I did to become an attorney, more or less.  It also appears that judges in Philadelphia Traffic Court do not have to actually be able to drive -- and Singletary cannot, at least until his license is reinstated, which will not be before 2011.

Link: CBS News

Judge In $54 Million Pants Case Soon to Be Former Judge in $54 Million Pants Case

Sources report that the D.C. Commission on Selection and Tenure of Administrative Law Judges has voted not to reappoint Roy Pearson for another term as an administrative law judge.

Pearson caused both outrage and (among amateur legal humorists) delight by suing his local dry cleaners for $65 million dollars in a claim based on a pair of lost pants and a "Satisfaction Guaranteed" sign.  (Pearson later said he would not claim damages for the pants, which reduced the stated value of his claim to only $54 million.)  Pearson lost, but is appealing.  The dry cleaners has since closed.

The commission members declined to comment after their 90-minute meeting on Monday, but sources "who spoke on the condition of anonymity because of the sensitive nature of the case" confirmed that the vote had gone against Pearson.  The decision is not final until the commission drafts a letter formally notifying Pearson, a letter that sources said might go out early next week.

Pearson, of course, can be expected to appeal an adverse decision.  That case would likely be consolidated in the D.C. Court of Appeals with Pearson's appeal of his loss in the dry-cleaning case.

Link:  Washington Post
Earlier: Lawyer Seeking $65 Million for Pants-Related Fraud
Earlier: How the Damages Were Calculated
Earlier: Judge Who Lost Pants Loses Case

Inappropriate Judicial Commentary, #37

"Nice butt."

This comment, by a male judge with reference to a female criminal defense attorney, resulted in a disciplinary ruling yesterday by the New York Commission on Judicial Conduct.  The judge argued that he had only parroted a comment that the woman's client made.  But, as the article put it, "the panel noted that the jurist not only quizzed three other male defendants on whether they agreed with the evaluation, but then mentioned it again" to the attorney, asking her "Is that so bad?"

The commission found that the remark was "an aberration" given the judge's past record, but decided it was bad enough to warrant a public censure.

Link: New York Daily News

Appellate Court Rules Judicial Snoozing Did Not Make Criminal Trial Unfair

Two men who were each convicted and sentenced to more than ten years in prison will not be getting a new trial just because the judge repeatedly fell asleep during the first one, an Australian court ruled this week.  The majority in the 2-1 decision said that the judge's tendency to doze during trial proceedings was "regrettable," but had not been shown to have resulted in a miscarriage of justice.

Judge Michael Grove, who wrote the majority opinion, conceded that the trial judge had not been "bright-eyed," in fact had repeatedly "nodded off," and "on other occasions, notably when he was heard to snore, was asleep in a real and practical sense."  Nicely done.  How about, "periodically displayed a level of consciousness that perhaps was not all it could have been"?  Having covered the range of sleepiness standards, however, Judge Grove then ruled that it didn't matter on these facts, finding that for a judge to be "constantly attentive is not a fundamental requirement."

Dissenting judge John Basten believed, however, that the men should be given a new trial.  Noting evidence that the jury was distracted by the judge's snoring while one of the defendants was presenting his evidence, he found it a reasonable possibility that the judge's conduct -- or lack of conduct -- could have influenced the jury.  Unless the sleepytime periods in question were "insignificant," he wrote, he believed it was better as a general matter to require a trial judge to be "present and conscious" during the entire criminal trial.

The trial judge in question retired in 2005, a year after the trial, and was later diagnosed with sleep apnea.  His case was one of 15 cases of "judicial sleepiness" examined in a paper published in May in Sleep, the professional journal of the American Academy of Sleep Medicine.  (Other cases allegedly involved the War Crimes Tribunal at The Hague, and the U.S. Supreme Court.)  According to a summary on the University of Sydney's website, the paper "asserts that occupational sleepiness in white-collar monotonous workplaces, such as courtrooms," is not uncommon.  When it strikes behind the bench, said a professor quoted in the summary, it may be a serious problem.

"Clearly judicial sleepiness threatens the integrity of the judicial system," he said, "and there would seem to be a need to develop preventative or monitoring strategies in judicial systems to prevent it occurring."

Link: Yahoo! News
Link: University of Sydney

Judge Pearson Appeals in Lost-Pants Case

The Legal Times reported today that Judge Roy Pearson, who lost a bench trial in June in his $54 million lost-pants lawsuit against Custom Cleaners, has appealed.

Pearson, who shed actual tears during the trial and yet seems to have garnered no sympathy, filed on Tuesday with the D.C. Court of Appeals despite the fact that the defendants withdrew their pending motion for attorney fees.  The Chung family said it had been forced to spend $82,000 in fees to defend against Pearson's claims, but in an effort to "extend an olive branch" -- and probably also because they have already collected nearly $100,000 via fundraisers and donations -- they withdrew their fee motion on Monday.  Pearson appealed anyway.

He will lose.  But not for a while -- the Legal Times noted that the average overall time necessary to resolve an appeal to the D.C. court is 575 days, so Pearson will be entertaining the world for at least another year, and of course could still appeal to the U.S. Supreme Court.  And I wouldn't rule out the International Court of Justice after that.  All for a case that really belonged before Judge Wapner, if anywhere at all.

Chris Manning, the Chungs' attorney, said yesterday that Pearson had chosen "desperate irrationality over common sense" in deciding to appeal.  I feel sorry for his clients, of course, but you know, if people didn't choose desperate irrationality over common sense on a fairly regular basis, I wouldn't have nearly as much to write about.

Link: Law.com

"Too Drunk to Remember" Excuse Deployed by Federal Judge

News outlets in Denver are reporting that the chief federal judge in Colorado is facing some questions over credit card charges incurred at the "Diamond Cabaret" in downtown Denver.  For you cynics out there thinking that a place called the "Diamond Cabaret" is necessarily a naked-lady place, just because you happen to be right this time doesn't mean you should rush to judgment in the future.

The judge managed to run up $3,000 in Diamond-Cabaret-related charges during a two-day period, a rather startling amount.  Assuming (based solely on Wikipedia research, of course) that a lap dance costs $20 at the Diamond Cabaret, $3,000 would buy 150 lap dances, or an average of 3.12 lap dances per hour for the 48-hour period in question.  Assuming that the judge spent only ten hours per day at the establishment, the average increases to 7.5 per hour.  Put another way, and after doing more Wikipedia research, I would estimate that $3,000 is sufficient for roughly ten continuous hours of lap dancing.  That seems unlikely, although the Guinness Book apparently does not track this statistic for record-keeping purposes, but it do help put the amount in perspective, do it not?

Anyway, it was a whole lot of something, or at least that was how the judge's wife felt about it.  The charges appear to have at least contributed to the decision to end their three-year marriage, and led to some difficult questioning in the divorce proceedings last month.  Asked how he could have spent so much money, a fair question (see above), he testified, "I had had a lot to drink . . . and I don't remember."  That statement is either the truth, or better than the truth, so I'll just assume it's the truth.

The investigative team that broke the story, 9Wants to Know at 9NEWS in Denver, said it had shown the transcripts of the judge's testimony to its legal analyst, Scott Robinson.  The judge "had at least one lost night at the Diamond Cabaret," he opined after careful legal analysis, "and of course that goes to the question of whether that is acting with at least the appearance of impropriety, contrary to the code of conduct for federal judges," which is quite similar to the code for those married to women who are married to federal judges.

The report did not say whether the judge faced any disciplinary action based on the appearance-of-impropriety standard or any other applicable rules.

Link: 9NEWS.com

Pants Judge Notified He May Not Be Reappointed

The Washington Post reported on Wednesday that, after due deliberation and a thorough and thoughtful consideration of all the evidence, a D.C. judicial commission seems to have finally reached the painfully obvious conclusion that Roy L. Pearson, he of the 65-million-dollar pants, should not be reappointed to be an administrative-law judge.

Unfortunately for the people of D.C., however, it looks like the firing process will still drag on for quite some time.  After many weeks of consideration, the members of the Commission on Selection and Tenure of Administrative Law Judges has finally reached a consensus -- to send Pearson a letter.  The vote was not to fire Pearson but to "formally notify" him "that he may not be reappointed to the bench."  Does anyone really need formal notice by now that this is a possibility?  If Pearson does, that is probably just another reason not to reappoint him.

The letter, described as a "key step" in the process, apparently cites not only Pearson's lawsuit against his arch-enemy, Custom Cleaners, but unspecified facts about "his work as a judge the past two years."  In addition to judicial acts, the letter also cites Pearson's sending of certain e-mails questioning the competence and integrity of one Tyrone T. Butler.  This is considered significant since Mr. Butler happens to be the Chief Administrative Law Judge for the District (and also a member of the commission considering Pearson's fate).

Generally, business experts do not recommend direct personal attacks against one's boss, especially when you are new to the job.  But Roy L. Pearson marches to the beat of a different drum.  Butler reportedly has had trouble deciding what position to take on the matter, which is strange given Pearson's long-standing campaign against him.  Less than three months after starting work, Pearson fired off a 14-page letter to the mayor accusing Butler among other things of "demonstrably poor judgment," which seems awfully ironic now.  He also described Butler's leadership as "Mafioso-style."  A 33-page letter followed in February 2006.  All this apparently started because of a minor misunderstanding over when Pearson's initial two-year term began, which suggests demonstrably poor judgment on someone's part.

Pearson now has 15 days to file a rebuttal to the letter, and can appear before the commission at its next meeting, in September, if he likes.  In the meantime, the commission has also said that it is carefully reviewing an number of other applications.

Link: Washingtonpost.com

Judge Halverson Suspended by Nevada State Commission

The Nevada Commission on Judicial Discipline issued an interim order today (July 25) suspending Judge Elizabeth Halverson pending a final determination in the disciplinary proceeding against her.  The order means that after reviewing evidence and holding a hearing, the Commission has concluded that Judge Halverson "poses a substantial threat of serious harm to the public and to the administration of justice."  More specifically, it found substantial evidence to believe that she:

1. is "without sufficient legal abilities to conduct trials in criminal cases without threat of serious harm to the public or the administration of justice;"
2. "has not treated staff and litigants with patience, dignity or courtesy," and created a hostile work environment for her staff;
3. failed to diligently perform her duties "by falling asleep on at least one occasion and possibly more while on the bench during a jury trial;" and
4. failed to cooperate with other judges and court administrators.

If you've been following this story -- and it's gotten enough attention outside of Nevada to have shown up in the ABA Journal -- this will not come as any surprise to you at all.  The order, which was posted today and which you can find here, is 26 pages of goodness about Judge Halverson's badness.

First, the suspicion that the judge doesn't have the ability to conduct a trial stems in part from incidents in which she met with juries when the lawyers were not present, including during deliberations, and at least once "decided to dine with the jurors in the courtroom during the course of the trial -- an event unheard of as far as the commissioners participating in this case are aware."  The Commission also noted that Halverson was removed from cases by one or both parties (exercising a "peremptory challenge" to get another judge) about twice as often overall as all other judges combined.

Second, the Commission found credible the testimony of Johnny Jordan, who was Halverson's bailiff, at least for a while.  He seems to have understood at the outset that he would have to help her with her shoes, for reasons apparent from this picture.  But she also made him, among other things:

• maintain the correct ice/water ratio in her glass at all times;
• make her lunch every day;
• cover her with a blanket when she was resting (in chambers and not on the bench, I guess);
• pick things up after she threw them on the floor; and
• work 12-hour days even when trial was not in session.

There was also some touching and inappropriate commenting, but you get the picture.  Also testifying was Ileen Spoor, a staff member who said she was mistreated, and also said that Halverson  would put people under oath and make them answer her own personal questions.  This included Halverson's husband (who by the way is a convicted felon), who was sworn in to answer certain questions about their marital relationship that weren't specified and which I don't even want to think about.

Witnesses testified that Halverson had indeed snoozed on the bench, the best detail about this being that poor Johnny Jordan had to try to wake her up without also pissing her off, which he would try to do by slamming a door.  (It didn't work.)  The Commission concluded here that "sleeping in court, whether there is a jury present or not, is not appropriate behavior for any judge."  Seems fair.

Finally, Halverson did not "cooperate."  She did not cooperate to the extent that after she no longer had a bailiff, she showed up with her own private armed bodyguards without telling the courthouse staff in advance.  This caused concern (and got her barred from the courthouse temporarily earlier this year).

The upshot is that Halverson is now suspended, and the state supreme court immediately unsealed the Commission's order (which does not bode well for the future of her judgeship, probably).  Those of you who are not required to maintain the correct ice/water ratio in anyone's glass might want to read it, and feel better about your current work situation.

Link: Harmless Error (a Nevada law blog)
Link: ABA Journal

No Reconsideration of Verdict in Pants Case: Appeal Looms

No surprises here -- Roy Pearson's motion for reconsideration of the verdict against him in the lost-pants case was swiftly denied by Judge Judith Bartnoff.  She ruled on Monday that the 35 pages of his motion did not include any new argument or authority that might justify a different result.

She continues to be way too restrained, in my personal opinion.  The Monday order was only five paragraphs long and this seems to be as ugly as it got: the judge wrote that Pearson's "continued insistence that the 'Satisfaction Guaranteed' sign in the defendants' dry cleaning store is an absolute, unconditional guarantee that the defendants must accede to any customer demand for satisfaction, no matter how unreasonable or even false" had already been "presented in his pretrial statement, his trial brief, and his arguments at trial," and was not getting any more convincing.

But maybe it will make more sense on appeal.  (Hey, fifth time's the charm.)  The Post says that Pearson "is expected to appeal Bartnoff's verdict in a couple of weeks," and although it doesn't say why it expects him to appeal, that seems like a fair prediction based on Pearson's past stubborn refusals to face reality.

The other report I found of today's order didn't really provide any additional details, but it did provide what is, as far as I know, the first public glimpse of The Pants, seen here taking questions at a press conference after the hearing:

The Pants: "Can't we all just get along?"

A fundraiser is to be held on July 24 to help the defendants with the legal bills they have incurred.  I can tell you this: if they want to raise some money by selling The Pants, I'll buy them.  I think they would make a great first exhibit in the Lowering the Bar Museum of Legal Oddities, hopefully followed by the Contract Written in Blood, the "Bong Hits 4 Jesus" Banner, one of those defective Japanese supertoilets that were occasionally catching fire, and maybe a toga from the parties they used to have at Abu Ghraib.  Not necessarily in that order.

Link: Washington Post (Marc Fisher)
Link: WUSA9.com (covers the DC area)

Judge Pearson Ignores Standing Eight-Count, Staggers Back Into Ring

Apparently unable to live without being mocked daily, and desperate to not be reappointed as a D.C. administrative law judge, Roy Pearson has now asked Judge Judith Bartnoff to reconsider her dismissal of his $54-million-pants lawsuit.  In his motion for reconsideration, which is comprised of no fewer than 35 pages (longer than most briefs and much too long for a virtually-always-futile motion for reconsideration), he accuses Judge Bartnoff of a "fundamental legal error":

The court effectively substituted a guarantee of satisfaction with "reasonable" limits and preconditions for the unconditional and unambiguous guarantee of satisfaction the defendant-merchant chose to advertise for seven years.  That was a fundamental legal error.

How does somebody who can't understand that the statement "Satisfaction Guaranteed" should be interpreted "reasonably" by a court even get a driver's license, let alone an appointment to a judgeship?  I guess if they unconditionally guaranteed his unreasonable satisfaction, they have to be his slaves for life, or until Roy Pearson feels satisfied, whichever comes first.  Hard to argue with that logic.  Roy, I know -- why don't you make them sew you the world's biggest pair of pants?  Wouldn't that feel satisfying?  Maybe your ego could wear them.  Yes, have your new slaves make you the world's biggest pair of pants, and then have your ego stomp around in them with your slaves peeking out of the monstrous cuffs as it lays waste to the District of Columbia, in brutal revenge for the District's failure to recognize the legal genius of its master, Roy Pearson.  Only then shall the wrong done you be truly avenged.

Roy hasn't thought of that yet, or at least it's not in his motion.  What is in the motion, apparently as a reply to the cleaners' motion last week asking that Pearson pay the $83,000 legal fees they incurred because of his lawsuit, is this astonishing claim:

Plaintiff [Pearson] therefore seeks reasonable attorneys' fees in the amount of $425,000 for excellent legal work performed under extremely trying circumstances - including holding down a more than full time job.

A statement proving that (1) as noted above, Roy Pearson doesn't know what "reasonable" means, (2) he also doesn't know what "excellent" means, and (3) being a dummy of this caliber is not something you can achieve on a part-time basis.  You have to be willing to work overtime.

Link: Washington Post (Marc Fisher)
Link: CBS News

British Judges and Lawyers No Longer Bewigged

Britain's Lord Chief Justice, a position similar to our own Chief Justice, but lordier, announced today that judges and lawyers in that country will no longer be required to wear the white wigs that they have been practicing under since the 17th century.  The British judiciary has been reviewing the wig issue for the last several years, which, frankly, seems like kind of a long time to have to think about whether or not somebody should wear a wig.

A survey of the British bar in 2003 showed that two-thirds of respondents thought the wigs should go, at least in civil cases. A majority wanted them retained in criminal cases, saying, according to the report, that the purpose of the wigs was still too important to ban them in such cases.  That purpose?  Those who endorse wiggery argue that the wigs provide judges and lawyers with "an air of authority as well as anonymity."

First, it is possible that excessive British respect for authority figures who look like this

is the reason they no longer have an empire. Second, anyone whose "anonymity" is preserved by wearing a wig probably isn't wearing it right.  So these seem like weak arguments to me.  They seem to have been enough, however, to ensure that British criminals will still be sentenced to harsh punishment by people wearing comical wigs.  But the wigs will no longer be required on heads appearing in civil and family court.  The new rules will also allow lawyers to dispense with "wing collars and bands," whatever those are, while judges will need "just one gown in future instead of a variety of colourful outfits currently required."

The new policy was announced today by the head of Britain's judiciary, Lord Nicholas Addison Phillips of Worth Matravers (pictured above), whose ridiculously long name is thought to confer upon him an air of authority as well as anonymity.

Link: AP via Yahoo! News

Washington Post Says Pants-Case Judge Should Not Be Reappointed

The Washington Post has an editorial today saying that Judge Roy Pearson, he who formerly sought $65 million for a pair of lost pants and related outrages, should not be reappointed to his position as an administrative-law judge in D.C.  The Post seems to believe that a judge should show good judgment:

Mr. Pearson was poised for a new 10-year term when publicity about the pants suit caused the judicial tenure commission to put a hold on the process. If it is interested in maintaining the credibility of an office charged with deciding civil infractions of D.C. rules, it should act quickly to foreclose any possibility of Mr. Pearson's reappointment. That he showed such poor judgment in pursuing his own case should disqualify him from deciding those of others.

In the comments to a post about this editorial on the Wall Street Journal's excellent Law Blog, views range from He Did Nothing Wrong to Society's At Fault to Send Him to Gitmo to (my favorite) He Should Be Barred From Wearing Pants.

Link: Law Blog - WSJ.com
Link: Washington Post editorial ("Dressing Down")

Judge Who Lost Pants Loses Case

Wasting no time this morning, Judge Judith Bartnoff ruled in favor of Custom Cleaners, saying they had not violated the D.C. Consumer Protection Act by failing to satisfy Judge Roy Pearson as to the whereabouts of his pants, despite having posted a sign reading "Satisfaction Guaranteed."  Pearson will receive approximately zero of the 65 million dollars he originally claimed.

According to Post reporter Marc Fisher, Judge Bartoff's ruling (which I haven't personally read yet) is "extremely cautious and detailed," spanning some 23 pages.  While she seems to have been very restrained and not particularly critical of Judge Pearson, she did award the defendants their costs in the case and will decide later whether to award them their attorney fees, which seem to have been considerable.

Basically, Judge Bartoff ruled that "Satisfaction Guaranteed" does not create an absolute, unconditional guarantee.  Instead, she held, any unfair-trade-practice claim alleging a failure to meet expectations is measured by the expectations of a reasonable person.  Her rejection of the proposed whatever-it-takes-to-satisfy-Roy-Pearson legal standard is something of a setback for Roy Pearson, but a step forward for common sense.

Link: CBS News
Link: Washington Post (with link to decision)
Link: Marc Fisher (Washington Post)

Decisions Loom in $54-Million-Pants Case

According to Washington Post bloggers, a decision in the Pants Case is expected by Monday, possibly this afternoon.  With any luck, the court's opinion will be available for immediate posting and review.

Also, Marc Fisher reported this week on the status of Roy Pearson's bid to be reappointed to another term as a D.C. administrative law judge notwithstanding the furor surrounding his antics in the lost-pants extravaganza.  Pearson's initial two-year term expired on April 30, but the three-member commission that decides whether to reappoint judges still has not made a decision in his case.  Apparently that is because it doesn't currently have three members -- one member's term expired at the end of April and the mayor hasn't appointed anyone new yet.  Probably says something about District government that they can't get around to appointing anyone to the appointment panel that will decide whether to reappoint the man who is now the most famous administrative law judge in the history of administrative law judging, and not for good reasons.

Note that a reappointment would be for a ten-year term, not just another two, which is only the duration of an initial term.  The commission can remove an ALJ during his or her term, but still.

The D.C. Office of Administrative Hearings helpfully provides a link to the 2001 statute that established it and that now sets forth the standards for appointing ALJs.  It appears that, when the law was passed,

Administrative adjudication in the District of Columbia [suffered] from the general perception, and in some cases the reality, of unqualified hearing officers who lack[ed] the qualifications to fairly and properly adjudicate the cases before them.

Obviously, the law instantly rendered that a thing of the past.

Shall Judge Roy Pearson be appointed to a full ten-year term as ALJ?  You decide.  Among other requirements, the 2001 statute provides as follows:

Sec. 11. Administrative Law Judges.

(a) Administrative Law Judges shall be accountable and responsible for the fair, impartial, effective, and efficient disposition of cases to which they are assigned by the Chief Administrative Law Judge.

* * *

(d) To be eligible for appointment, an Administrative Law Judge shall:

(1) At the time of appointment, be a member in good standing of the District of Columbia Bar and remain in good standing throughout his or her tenure . . .Sec. 12. Powers, duties, and liability of Administrative Law Judges.

* * *

(5) Possess judicial temperament, expertise, experience, and analytical and other skills necessary and desirable for an Administrative Law Judge . . . .

Seems to me that Section 11(d)(5) is the show-stopper here.  Unless valuing a lost-pants case at $65 million (subsequently revised to $54 million) demonstrates the analytical skills "necessary and desirable" for an ALJ in the District, this alone ought to make Pearson not eligible for reappointment.

In the meantime, Fisher reports, Pearson is still drawing a six-figure salary although he is not currently performing any duties other than making the District of Columbia look ridiculous.

Link: Raw Fisher
Link: OFF/beat

Judge No Longer Barred From Courtroom, Still Being Sued by Staff

Over the last few months a drama of enormous and comical proportions has been playing out in a local court in Las Vegas.  Elizabeth Halverson, a 49-year-old district judge, is at the center of the controversy and is now under investigation by the Nevada Commission on Judicial Discipline.

Halverson worked as a law clerk in the district court for nearly a decade before being fired from that job (I haven't been able to learn why).  Having been fired as a law clerk, the next logical step was to run for a judgeship.  She lost, but tried again in 2006 and this time won.

Allegedly, Judge Halverson quickly became the terror of her courtroom, according to her own staff, at least two of whom are suing her.  Her bailiff, who is suing for discrimination, claimed that she treated him like a "house boy," engaging in games like throwing a pencil on the floor and ordering him to pick it up.  (Sure, that's great fun, but still.)  He also alleges she ordered him to give her back massages and foot rubs.  Halverson's court clerk has called the judge's behavior "vile, angry, and degrading," and she should know since the judge apparently referred to her as "the evil one" and the "anti-Christ."  Attorneys do not seem to have been too happy in that courtroom either -- a video clip on YouTube shows Halverson insisting that a jury is impossibly deadlocked, although jurors had been deliberating only about two hours.  (That's frustrating, but not nearly as bad as judicially mandated foot rubs.)

A May 28 column by Jane Ann Morrison of the Las Vegas Review-Journal details a meeting between Halverson and three other judges who had been asked to meet with her because of concerns over possible hostile-work-environment claims.  Strangely enough, Judge Halverson explained everything to their satisfaction.  It appears that the bailiff insisted on rubbing Judge Halverson, despite her repeated requests that he stop.  (I think I forgot to mention that Judge Halverson weighs approximately 425 pounds.)  He also insists on making her lunch.  It also appears that her staff actually prefers to show up at 6:45 a.m., almost two hours before the judge does, though they too have been asked not to engage in this early-arriving behavior.  Nor does the judge understand why her staff would be offended by her treatment of her husband Ed (a convicted felon, according to some reports).  If it bothers them that she calls him a "bitch," then fine.  The bitch won't come to chambers anymore.

The upshot, of course, was that Judge Halverson seems to have blamed everybody else for the alleged problems, and did not admit she had done anything wrong.  One of the judges then suggested "psychological help."  If she got any, it didn't take.  Halverson was actually banned from her own courtroom in May, after she insisted on bringing her own bodyguards to the courthouse and also insisted they not be required to pass through normal security checks.  She has since been let back in, apparently after agreeing that the bodyguards could stand down.

According to Morrison's May 31 column, Halverson is being investigated by the Discipline Commission for an unknown number of violations, and could be removed from the bench, something that Morrison says many are hoping for.  Although I have to say, as the children in this Halverson campaign commercial point out, she sure does have a cute dog.  And that's good enough for me.

Link: Las Vegas Review-Journal (May 28)
Link: Las Vegas Review-Journal (May 31)

UPDATE: The Mega-Pants Trial Continues

The pants trial is being covered today by Marc Fisher, a Washington Post columnist and blogger.  You can follow his coverage at the link below.

Fisher's first Day Two post describes the cross-examination of Judge Pearson, which began with The Unveiling of the Pants.  Consistent with his opening statement, it appears that Judge Pearson is sticking to a rather extreme position on what "Satisfaction Guaranteed" actually means.

Also, Fisher's column on Day One is definitely worth a read.  Among other new details, we learn that Pearson's opening statement included the words, "Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices."  As a reminder, the business practices in question now are purportedly limited to whether their "Satisfaction Guaranteed" sign was a lie.

Link: Raw Fisher (blog)
Link: Fisher's Metro Column (Day One)

Live-Blogging From the Pants Trial

Not me, unfortunately, but at least someone is doing it.  Emil Steiner of the Washington Post is live at the trial of Pearson v. Custom Cleaners, which did in fact go to trial this morning and may or may not conclude today.

As of 3:35 PM Eastern time, Plaintiff had called no fewer than eight witnesses, including an 89-year-old wheelchair-bound WWII veteran who compared the actions of the Custom Cleaners proprietors to "what the Nazis did during the Holocaust."  Finally, Pearson himself took the stand -- only to break down in tears when telling his story.  Highlight: Pearson "did not want to litigate, he said, but he felt that D.C. consumer protection laws gave him no choice."

At last report, at 3:55 PM ET, Pearson finished his testimony and "proceeded to dive into the exhibits."  That suggests that the case will not finish today, unless the defense just rests to get this farce over with.

Link: Emil Steiner, OFF/beat (Washington Post).

Trial of Judge's Lost-Pants Claim Set to Begin

According to the website of the firm representing Custom Cleaners, the trial of Judge Roy Pearson's $54-million-dollar lost-pants claims is set to begin today or tomorrow in District of Columbia Superior Court.  Apparently Judge Judith Bartnoff is presiding over another trial that is running longer than expected, one that someone apparently thinks is more important than getting closure on the pants allegations.

To date, I've been unable to determine whether Pearson was reappointed to another ten-year term as an administrative-law judge.  That appointment was to be considered recently, but, some would say, the pants dispute (for my Spanish readers, el ensayo de los pantalones) has cast some doubt on Pearson's objectivity and common sense.  If anyone knows whether he was reappointed, please let me know.

Updates to follow.

Link: Manning & Sossamon

Pakistani Supreme Court Intervenes in Song-Lyric Dispute

Those of you worried about an activist Supreme Court may want to consider how bad things could be.  Reuters News reported yesterday that Pakistan's Supreme Court had intervened to order a pop singer to change the lyrics of one of his songs after a college girl complained that she was getting teased about them.

I can think of a lot of songs, or even entire genres of music, that I would like to see dealt with, but this is a very slippery slope.  And I'm pretty sure that few Americans would want an institution like our Supreme Court to be the one that decided what was okay to listen to, given that the average justice is a white 70-year-old who is 89% male.  (My statistical analysis could use some work, I guess, but you get the idea.)  So this is a bad plan, generally speaking.

The Pakistani court didn't see it that way, though -- it seems to have intervened, possibly on its own initiative, after a girl whose name appeared in the lyrics wrote to a newspaper saying that male students were teasing her by singing the song.  She said she had stopped going to college because of the harassment.  The report said that the court "summoned" Abrar-ul-Haq and "asked" him to omit the name of the girl "and some other objectionable words in his lyrics."  Haq said he would abide by the court's decision, which was probably a good choice.

Link: Yahoo! News

Further Details Emerge on $65-Million-Pants Lawsuit

We learned more this week about the lawsuit by a D.C. administrative law judge against his diabolical neighborhood dry cleaners, who allegedly lost or stole or set fire to or irradiated or otherwise acted tortiously towards a pair of pants that he dropped off for cleaning four years ago.

WARNING: these people
want your pants

You'll recall that the bulk of the damages were calculated in a very straightforward manner under the D.C. consumer-protection statute.  Applying the simple equation

X=1500D*V*W
(where X=1500 x [number of Days violation persisted] x [number of Violations] x [(number of Wrongdoers])

yields a total of $64,800,000.  It is not clear yet how the judge derived 12 violations from one pair of pants, so assuming he is just a bit optimistic there, a more reasonable lost-pants valuation would seem to be $5.4 million.

A new detail is that an additional $15,000 was claimed in order to compensate the plaintiff, who obviously can no longer use this neighborhood cleaners, for the cost of having to rent a car each weekend for a ten-year period in order to go to another one.  Based on rough calculations, that comes out to just $15.64 per day, which again is a very reasonable value for car rental.

The remaining $647,500 claimed by the judge appears to be a combination of litigation expenses and time, and his "mental suffering, inconvenience and discomfort."  At least some of the "discomfort," however, may be due to the alternative cause of the judge's pants having become "uncomfortably tight" in the first place, damages that he could have mitigated.

Finally, the publicity over the lawsuit has led some of these unscrupulous Internet people to dig up the opinion from Judge Pearson's divorce proceedings a few years ago, in which he was demanding support from his wife.  Consistent with his current tactics, he sought sanctions at least twice, demanded the judge recuse himself, filed multiple motions to compel his wife to respond to his 248 requests for admission, and, according to the trial judge, "in good part [was] responsible for driving up" everyone's legal costs, "including threatening both the wife and her lawyer with disbarment" which created "unnecessary litigation."

No news yet on whether Judge Pearson, who is up this week for another ten-year term as an administrative law judge, will be reappointed.

Link: CNN.com
Link: Pearson v. Vanlowe (Va. Ct. App. 2005) (on FindLaw.com)

Lawyer Seeking $65 Million for Pants-Related Fraud

Marc Fisher wrote in the Washington Post on Thursday about a titanic legal dispute that is unfolding in our nation's capitol, where an attorney (who I will refer to here only as "Attorney" for various reasons) has been battling with a local cleaners ("Cleaners") for years now over some pants ("Pants").

It seems that in 2002, Attorney asked Cleaners to clean Pants.  Cleaners lost Pants, later admitting its error and compensating Attorney with a check for $150.  (Apparently these were high-quality Attorney Pants.)  But the dispute seems to have been acrimonious, because Cleaners told Attorney he was no longer welcome there, although this was resolved in some fashion that caused Attorney to continue to use Cleaners.

But the Pants Dispute was almost certainly still in Attorney's mind when the next Pants issue arose in 2005.  Attorney had a new job that required him to wear suits every day, so that he needed five times as many Attorney Pants ready to wear.  Attorney also found that his existing Attorney Pants had somehow become "uncomfortably tight."  Attorney returned to Cleaners with Pants on May 3, 2007 (it is unclear whether these were the same Pants, so I will refer to these as "Second Pants"), and asked Cleaners to let the waist of Second Pants out two or three inches so that he could wear them on May 6.  But Second Pants were not ready that morning.  Indeed, said pants were nowhere to be found.  Anger followed.

Have you seen these pants?

One week later, Cleaners found a pair of pants that it believed to be Second Pants.  But Attorney said Second Pants had pinstripes, whereas these ("Third Pants") were gray.  Anger increasing, Attorney pointed to representations that Cleaners made in signs posted on the premises, including "Satisfaction Guaranteed," and "Same Day Service."  Eventually, he sued, claiming the broken sign promises constituted fraud.

This has been going on for two years now, and Attorney's settlement demands have continued to escalate, along with Cleaners' attorney fees.  Originally, he demanded $1,150 for a new suit.  This was apparently rejected, but as legal bills continued to mount, Cleaners offered $3,000, then $4,600, and eventually $12,000, enough for ten new suits even at Attorney prices.  But this is no longer enough for Attorney.

Attorney now seeks damages including litigation costs, the value of the time he has had to spend on the litigation, the value of "mental suffering, inconvenience and discomfort," and the costs of leasing a car each weekend for the last ten years (the report did not explain that one).  Also, because Attorney is suing under the District's handy Consumer Protection Act, he also claims damages under that law's provision that imposes damages of $1,500 per violation (Attorney claims 12 "violations"), per defendant (three members of the family who run Cleaners), per day (1,200 -- probably the limitations period of the CPA).  Total damages claimed?  $65,462,500.

Oh, also some new pants.

And that's just for Attorney's own claim.  Although the case is somehow going to trial in June, a D.C. judge did at least reject Attorney's attempt to turn the case into an action on behalf of the general public (all D.C. residents).  This is a common feature of consumer-protection statutes, and while it may be beneficial in some cases it also is susceptible to abuse, which is why you get someone claiming with a straight face to be representing all members of the public in a case that is based on a pair of pants.  In rejecting that claim, the judge said that "the breathtaking magnitude of the expansion" Attorney sought had caused the court "significant concerns that the plaintiff is acting in bad faith."  "Significant concerns" -- really?  Let's not rush to judgment, your Honor.

Meanwhile, it is entirely possible that the whole dispute, which you will recall began over the alleged loss of Second Pants, is completely unnecessary.  Cleaners' attorney told the Post that he has a perfectly good pair of gray wool pants hanging in his closet, bearing a tag that he says matches Attorney's receipt.  "We believe the pants are his," he said.  Whether the mysterious pants are in fact Attorney's pants will apparently be fought out in the arena of D.C. Superior Court sometime this summer.

Link: Washingtonpost.com
Link: Video report from local news

Bar Complaint Charges Judge and Prosecutor With Repeated "Ethical Lapses," If You Know What I Mean

The article did not mention the phrase "conflict of interest," but it probably is one if a judge is having an affair with a prosecutor, especially if she also appears before that judge with her clothes on.

A judge in Douglas County, Colorado, has resigned after being accused of having an affair with a prosecutor that seems to have lasted about six months and included numerous in camera hearings.  (Veteran readers will know where to put the air quotes in that sentence.  One has also filed a motion asking me to create a joke using the word "debriefing," and I have taken that under advisement.)  The prosecutor also prosecuted at least two cases before the same judge without disclosing the relationship.  It was later disclosed, likely with a vengeance, by the judge's wife when she learned about the matter in December.

The disciplinary complaint could result in punishment up to and including disbarment, for, as the complaint puts it, "degrad[ing] the sanctity of the courtroom" on numerous occasions.

Link: Rocky Mountain News

Non-Weeping Anna Nicole Judge Busted For Pot

Previous reports in the Anna Nicole Smith case have focused on Judge Larry Seidlin, whose bizarre and often weepy judging behavior was so entertaining.  This week, however, the first judge to hear proceedings in that matter, Lawrence Korda, was also in the news, charged with smoking marijuana in a city park.  Korda was smoking pot while sitting under a tree on Sunday, according to police who (according to the AP) were training nearby.

The choice to smoke pot while in view of rookie cops in the middle of training exercises would be only the latest example of a very poor decision by someone involved with this case, but it's not clear that's really what happened.  The Miami Herald simply reported that officers patrolling the park "caught a whiff of cannabis."  The AP report also said that the three officers had "field-tested" the cigarette to make sure it was pot, which I thought was interesting but the report did not elaborate.  The judge was given a misdemeanor citation, but was not arrested.

Korda was previously in the news for insisting that a battered wife seeking a restraining order speak in English in order to get it, instead of her native Spanish.  That resulted in sensitivity training for all judges in Broward County, according to the Herald.

Of course, reporting on this is mainly just an excuse to get another crack in about Judge Seidlin, and the AP reporter put it nicely, saying that Judge Seidlin had "carved his own slice of celebrity from the televised hearings with his relentless one-liners and blubbering announcement of his decision."

Link: AP via SFGate.com
Link: Miami Herald

Behind Door No. 2, One Year in Jail

A judge in Brooklyn was reprimanded by New York's Appellate Division this week for sentencing a man to 11 months in prison for acting as lookout for an armed robbery -- not because the sentence was too harsh, but because he (arguably) forced the defendant to play "Deal or No Deal" while the jury was deliberating.

At the end of one day of deliberation in People v. Nicholson, the jury told Justice Joel Goldberg that it was deadlocked.  It was 3:30 on Friday, and one juror had to be absent on Monday, so deliberations would be delayed three days if a verdict wasn't reached.  Justice Goldberg told the jury to keep trying.  But he also had a proposition for Mr. Nicholson.

First, Nicholson could wait for the jury to return.  It might acquit him, or it might convict him, in which case he would face a minimum of five years in prison.  Or, the judge said, Nicholson could waive his right to a jury trial and accept the judge's verdict: guilty on a lesser charge and one year in prison.  "I heard the testimony in the case," he told the defendant, "and in good conscience I do not have any trouble finding the defendant guilty of participating in the crime."  So.  Deal?  Or no deal?  Just then, the jury informed the judge that it had reached a verdict.  The pressure was on.

Nicholson was allowed to phone a friend, or at least a few minutes to talk to his attorney and his mom, but the judge then needed his final answer.  (Sorry for mixing my game-show metaphors like this.)  "I hate to say this is a game show," he told Nicholson, but "five minutes to four -- I don't know what to say but the options are yours. . . . I can't keep the jury waiting much longer."

He took the deal.  The judge then conceded he was a little "uncomfortable" with what he was doing -- normally a sign you should stop doing something -- but said a deal was a deal.  In fact, he said "If I hear by word of mouth that the verdict is not guilty I am still going to sentence you to one year . . . I can always say this guilty verdict was based on time pressure rather than one really thinking it through."  Nicholson was sentenced to a year and served 11 months.

As you might expect, jurors said they would have acquitted Nicholson.  He appealed and eventually (long after Nicholson had served his sentence) the 2d Department court reversed, calling the bargain improper and coercive.  While it would have been okay to promise a "minimum sentence" in return for a bench trial, the court said, it was not okay to suggest to the defendant that the jury would likely find him guilty and to predetermine guilt and the sentence as part of the offer.

Judge Goldberg received a reprimand, the lowest-level rebuke possible, and the conviction will be removed from Nicholson's record.

Link: Law.com

Judge Queries Whether Defendant Wants a Piece of Him; Is Censured

Earlier this month, the New York Commission on Judicial Conduct voted to censure an Albany city judge for inappropriate conduct.  Actually, I guess they described it as "deplorable" and "utterly inexcusable," but you decide.

The censure is based on two incidents involving Judge William Carter. In November 2004, a defendant who was being arraigned in the judge's courtroom got angry and said he did not want to continue because he thought the proceeding was illegal. According to the report, Judge Carter then "left the bench, threw off his glasses, dropped his judicial robes and rushed toward the defendant, records show."

"You want a piece of me?" he asked the defendant. Whether the defendant did want a piece of him is unknown, as officers separated the two.

Four months later, while he was still under investigation for the first incident, Judge Carter suggested to police officers that they should "thump the sh*t out of" a defendant who they claimed had made an offensive gesture toward the court.  "If you are so upset about it," said the judge, "why don't you just thump the sh*t out of him outside the courthouse, because I'm not going to do anything about it."  There was some suggestion that this comment was made sarcastically, but that does not always come across well in print.

Judge Carter was supported by a number of attorneys who said he was a thoughtful and caring judge who had simply made a mistake.  The commission voted to censure rather than remove the judge from the bench.

Link: Yahoo! News
Link: Carter Decision -- NY Commission on Judicial Conduct

Judge Admonished About Cheering for Seahawks

Earlier this year I reported on an incident in Washington where a superior court judge had asked all those in the courtroom to shout "Go Seahawks" before being seated.  (As you may or may not recall, the Seahawks were in the Super Bowl last year.  They came in second.)  Dissatisfied with the response, she demanded a second, louder cheer.  Having created a suitably festive atmosphere, she then sentenced a defendant to 13 years in prison for manslaughter.

Some of the spectators, in particular the stepmother of the man who died, objected to the cheer and Judge Grant later apologized, and in fact filed a judicial-conduct complaint against herself.  "Although my intentions were to defuse the courtroom situation," the judge stated, "I realize now the inappropriateness of my opening comments."  The AP reported this week that the state Commission on Judicial Conduct had issued the judge an admonishment, a written reprimand that is the lowest level of punishment possible, somewhat in the same way that the Seahawks administered the lowest level of punishment possible to the Steelers during the Super Bowl.

Link:  AP via FindLaw.com

Lowering the Bar Cited as International Precedent

As many of you know, I have long had two primary goals for this enterprise:

1. to provide some entertainment for myself and other attorneys (and friends of attorneys) slogging away at their various billing stations, and
2. to be cited as authority in a brief filed with the Supreme Court of the Philippines.

Today I can at least be sure that one of those goals has been met.

I mentioned in the "Lowering the Bar" presentation I did two weeks ago that I had heard from Judge Florentino Floro, who I had written about twice before.  You may recall that Judge Floro was dismissed (or "separated") from the bench in Malabon City, a suburb north of Manila, after questions arose about his practices of starting court days with a reading from the Book of Revelations, conducting faith-healing sessions in chambers, and consulting three "mystic dwarves" named Luis, Armand and Angel for advice and predictions of future events.  As Judge Floro was a judge, that seemed to fall within the scope of this project and I did mention him a couple of times.

Judge Floro emailed me (and a number of others who had written about him) a couple of weeks ago, primarily to thank everyone for writing about his case.  He noted that he was appealing his case, forwarded us some pleadings, and was kind enough to answer a few questions.  Here's an (edited) summary of the answers:

LoTB: First, what is the difference between a separation and a dismissal?  Is it possible you could be reinstated?  If so, would you want to be a judge again?  Was it fun to be a judge?

JF:  Dismissal, under our laws, carries with it perpetual disqualification & DISBARMENT. . . . I believe that the laws are in my favor. But, I cannot tell you what will be their votes. . . . I would want to be a judge [again]. It is not fun, since I am honest. I had to wake up 6 am and sleep at 9pm and week ends I pen decisions; it is nightmare. But, my neighbor judges, they come to court, 10 am, deal only with juicy cases and they put in the backburner the not juicy ones; they play golf, 1 pm. This is not an exaggeration, since their staff and fixers do all the jobs.

LoTB: Second, why did the press say that Luis, Armand and Angel were “dwarves”?  Was this a mistranslation of “dwende,” the mischievious spirits believed to reside in anthills (also translated “gnomes”)?  Are they truly of small stature?  Did they help you with your opinions, and if so, do they have any legal training?