I have spent much of my professional life dealing with the
adverse consequences of drinking and driving. When the
crashworthiness doctrine took hold across the nation after the U.S.
Court of Appeals for the 8th Circuit issued its decision in
Larsen v. General Motors1 in 1968, individuals
involved in high kinetic energy collisions began filing lawsuits
against motor vehicle manufacturers in significant numbers. Since I
represent motor vehicle manufacturers, I defended many, many
lawsuits where the injured persons were occupants of vehicles
operated recklessly by impaired drivers. Drunk drivers can do great
damage to themselves and to others.
With that personal history in mind, one might understand why I was
loathe to criticize The Boston Globe for publishing its
three-part "Spotlight" series on the perceived inadequacies in
prosecution of drunk drivers in bench trials in the state district
courts. Drunk driving is a serious crime that deserves the full
attention of our police departments, vigorous prosecution by our
District Attorneys, and swift and sure punishment by our judicial
officers when the crime has been proved.
As each part of the series appeared in print, I read them with
trepidation,
fearing that The Globe's investigative
reporters would "out" judges for making rulings based on some
hidden quid pro quo. Memories of "Operation Greylord" in Cook
County, Illinois, came to mind. There, attorney Terrence Hake,
posing as a corrupt Cook County prosecutor, led the FBI to a ring
of judges, lawyers, clerks and police officers who fixed criminal
cases (including murders) in exchange for bribes. Fifteen judges
and 48 lawyers were convicted in federal prosecutions. Dan Webb and
Tony Valukas, the U.S. attorneys supervising the litigation, became
preeminent lawyers as a result of 10 years of highly publicized
prosecutions.
But, with the last of the three Globe articles, I
breathed a sigh of relief. There were no allegations of corruption;
there were no bagmen secretly delivering cash to judges in exchange
for acquittals; there was no quid pro quo. Some District
Court judges were criticized by The Boston Globe for being
too lenient in bench trials, holding the prosecutors to a standard
of proof that reporters thought was improvident. The Globe
did not comment in any substantial way on the judicial officers'
constitutional obligation to uphold the law and to demand that the
state prove its cases beyond a reasonable doubt. And The
Globe failed to offer up even a scintilla of evidence that the
targeted judges acted improperly in any specific case.
Not satisfied with the impact of its three-part "spotlight"
series, The Boston Globe later published a fourth article
on its front page above the fold. Upholding journalistic
"standards" set by the News of the World, the Daily
Mail and the (other) Globe, The Boston Globe
trashed several District Court judges for sitting in cases where
the defense lawyer had some ephemeral connection to them. One judge
was criticized for attending a female friend's daughter's wedding
(because her estranged husband was a renowned criminal defense
lawyer who routinely practiced in that court). Attending a friend's
wedding is, in The Boston Globe's view, the sine qua
non of impropriety. How ridiculous. And how terribly
unfair.
The bar has an obligation to stand in defense of judges who are
unfairly targeted by such gutter snipes. And we shall do so.
Sensational journalism, and the overly aggressive and mean-spirited
tactics that underlie it, raises a more fundamental problem for the
bench and the bar. In striving to assure our citizens a fair,
efficient, scholarly and neutral system of justice, we demand that
serious candidates for judicial office demonstrate a rich and
varied legal experience, professional engagement with the legal
academy and the bar and a history of service to their
community.
We search out candidates with demonstrable judgment and an
appropriate judicial temperament wizened by decades of experience
and success as lawyers, and by a life well lived among society at
large. We want judges who have a life -- not a life reflected in a
rearview mirror. We want judges who have a current, ongoing
understanding of their communities -- not a memory based on years
gone by. Judges are, or should be, stalwart members of the
communities they serve. They should be held up high by their
neighbors as examples of how citizens should live. Judges should
not be seen as old codgers living in darkened houses behind drawn
drapes. Judges should not fear engagement with society; they should
not have to abandon lifelong friendships just by taking office. How
does driving judges into cloistered lives make any sense?
Sensational journalists, who paint ordinary social behavior as
illegal, improper or corrupt, do a great disservice to the public.
The Code of Judicial Conduct does not require candidates for
judicial office to sever their lifelines to friends and colleagues
once they take office. Canon 4 explicitly authorizes judges to
speak, write, lecture, teach and participate in other activities
concerning the law. Likewise, Canon 5 provides that judges may
write, lecture, teach and speak on nonlegal topics, participate in
civic and charitable activities and engage in sports, social and
recreational events.
Disqualification from a proceeding under Canon 3 arises where
the judge has a personal bias or prejudice toward a party (or has
personal knowledge of disputed facts concerning the proceeding),
served as a lawyer in the matter in controversy (or practiced law
with a lawyer who did), has a financial interest in the matter, or
a close relative (within the third degree of relationship) is a
party or lawyer in the proceeding. In mandating that a judge
conduct himself "in a manner that promotes public confidence in the
integrity and impartiality of the judiciary," Canon 2 explicitly
recognizes that judges will necessarily bring to the bench "family,
social or other relationships" and instructs him to avoid having
such relationships influence his judicial conduct. Judges are
parents, neighbors, friends and people with opinions, habits and
world views. And that is a good thing.
District Court judges routinely see the same Assistant District
Attorneys, Bar Advocates, private defense lawyers and police
officers over and over again. A Judge's knowledge of the players in
a District Court criminal session is an unavoidable reality, but
also a very practical benefit to the Court and a constituent
element in the just and speedy resolution of the Court's criminal
docket. That a Judge may attend a wedding, play in a golf
tournament or share a cocktail at a bar event with those same
prosecutors, defense lawyers and police officers says nothing at
all about the integrity of the Judge or the fairness of proceedings
in his Court.
The Massachusetts Bar Association insists that trial judges be
fair and impartial, and that, in accordance with Canon 1, they
observe high standards of conduct so that the integrity and
independence of the judiciary is preserved. Holding the
Commonwealth to its burden of proof in all criminal cases is
certainly part of a trial judge's sworn duty.
When I bring to mind the cadre of experienced and successful
members of the trial bar, I wonder who among them would actually
want to take the bench in today's environment. The pay is wholly
inadequate, if not second-rate; the working conditions are
horrible; and the media stands ready to sell newspapers at the
price of a lawyer's lifelong effort to build a reputation. There is
little that the bar can do to prevent judicial assassinations by
tabloid journalists. But the bar can and should make known to the
media, legal commentators and self-proclaimed ethicists and the
public at-large that judges can and should remain vital members of
their communities.
1 391 F.2d 495 (8th Cir. 1968)