There Goes the Judge

Could a long-simmering tiff over a lawyer's right to dismiss a judge turn into a bench-clearing brawl?

Hennepin County District Court Judge Jack Nordby figures he probably lets just about every defendant who comes before him for arraignment out on bail. That's right, every single one. "I don't remember any defendant I have not released or set bail for at an amount I thought he or she could pay," he says.

For Judge Nordby, this is a matter of principle, based on what he says is a strict interpretation of the Minnesota Constitution. To the judicial oversight group WATCH, however, the judge's practices present a serious threat to public safety. In fact, WATCH (which stands for We're at the Courthouse) was so concerned about Nordby's record on bail that last month it took the unusual step of sending a letter to Hennepin County Chief Judge Kevin Burke requesting that Judge Nordby not be allowed to handle the hearings at which initial bail requests are usually made.

Burke denied the request, but the day after the letter arrived, Nordby began his day on the bench by delivering a blistering rebuke. He defended his views on bail, chastised WATCH for "attempting to manipulate the management of the courts," and then he explained how he thought such conflicts should be handled. In doing so, he had waded into a long-standing--but rarely publicized--courthouse controversy.

Take it or leave it: Hennepin County Chief Judge Kevin Burke wants an end to judge-shopping by attorneys and outside groups
Daniel Corrigan
Take it or leave it: Hennepin County Chief Judge Kevin Burke wants an end to judge-shopping by attorneys and outside groups

Under Minnesota law, attorneys who believe that a client's case won't fare well before a particular judge can ask to be assigned to someone else's courtroom. The first time a lawyer asks, the case automatically goes to another judge, no questions asked. But if someone doesn't like the second judge, they have to come up with good reasons to dump him or her.

Nordby pointed out that this mechanism exists precisely to compensate for the bias WATCH fears: "I came [here] expecting that some or all of the county attorneys appearing here on bail questions may decide to remove me," he told a full courtroom. "I believe they have an absolute right to effect such a removal, assuming they obey the rules in doing so, and should not be criticized, much less disciplined, if they do this--even if they do it en masse."

In a controversy that has never quite come to a full boil, the decades-old rule splits the legal community fairly neatly down the middle: lawyers support the status quo, while judges are looking for reform. Lawyers see the rule as one of the few tools they have to combat a given judge's prejudices and idiosyncrasies--perhaps a record for being lenient on batterers or of treating female defendants especially harshly. The rule allows attorneys to move a ticklish case onto more neutral ground without insulting a judge they will have to appear before again and again.

But, to judges, the slope between the rule's fair use and its abuse is slippery indeed: Many feel attorneys use removals to "shop" for a sympathetic judge; others call the practice inefficient, arguing that changes in judicial assignments make it even harder for court administrators to juggle already chaotic calendars. On top of that, few judges acknowledge allowing their biases to influence their courtroom decisions.

In recent years judges have begun seeking to change the practice. The Conference of Chief Judges--the policymaking body for the district courts and an advisory committee to the state supreme court--has proposed making it harder to bump a judge from a case, in part by compelling attorneys to spell out why they want a change. Under the proposed system, an attorney could ask a judge to step down from a case. If the judge refused, the attorney would have to take the request to the chief judge in that county and outline the reasons for wanting a different courtroom assignment. That way, the council reasons, abuses will fall.

Judges, you see, can be prickly about these things. "You resent it," says Nordby, who reckons he gets "filed on" in criminal cases more often than any other judge in Hennepin County. "It's a personal insult. It hurts your feelings. But lawyers have clients and they have a duty to those clients, if they believe a judge won't be fair." Yet he parts company with his judicial colleagues on proposed changes to the rule, ardently supporting attorneys' ability to remove a judge without having to say why.

Lawyers exercise this right for just about any reason imaginable. Michael Cromett, assistant state public defender, explains that some judges gain a reputation for tending to rule one way in particular cases. "There are certain judges that attorneys think have blinders for certain areas," he explains. "They're generally good judges, but in some cases they're not. One judge"--like most practicing attorneys, Cromett won't say who--"has a blind spot for child victims or crimes involving animals. I wouldn't want a client charged with one of these crimes coming up in front of this particular judge." Other judges may have a harsh demeanor in the courtroom. Often, personal issues come into play.

Dakota County District Court Chief Judge Leslie Metzen, who served on the administrative committee of the Council of Chief Judges while it drafted the proposed change, says judges want to change the rule because they feel it has been abused. "As the rule stands now, if a judge is removed no reason is stated," she says. "That judge has no idea why a lawyer would be removing them." If attorneys had to give reasons, she claims, "those abuses would stop." For example, the proposed changes would prohibit removals for "an impermissible purpose, including, but not limited to, race, gender, religion, sexual orientation." It does not, however, include any provisions for ensuring that this does not happen.

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