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Take It Up with the Judge

Jonathan Stavole

The September 7 edition of the Star Tribune carried a story about Judge Harvey Ginsberg's last day on the bench. The way the story played it, Ginsberg, a 13-year veteran of the Hennepin County bench, spent his day on June 12 sentencing a babysitter for killing an 8-month-old boy left in her care. According to the article's unattributed opening paragraphs, he'd examined several gruesome photos of the baby on life support and listened as relatives poured out their grief.

Then he went home, learned his son's bike had been stolen, and lost his cool. He tracked down the boys he thought had taken the bike and wound up slapping a 14-year-old. The day after the June incident, Ginsberg went on medical leave; two months later, he pleaded guilty to one count of misdemeanor assault. According to a statement he issued at the time, he'd received treatment for stress and anxiety and "unfortunately, the results of those efforts have been less than we hoped for."

Strictly speaking, the story was accurate. But if the paper had probed a little deeper, it might have unearthed a series of once-confidential complaints lodged against Ginsberg a year earlier with state ethics watchdogs. Even in its own archives it would have found material suggesting that, stressful job or not, Ginsberg's temper has landed him in hot water several times over the last two decades.

The distinction between a judge who lost his temper due to a hard day on the bench and a judge who just plain has a temper problem is important: Ginsberg recently asked Gov. Tim Pawlenty to grant him early retirement at age 50 with a medical disability pension. And while the attorneys, clerks, and other workers who have spent time in Ginsberg's courtroom over the years are reluctant to speak publicly about a sitting judge, privately some say they are unwilling to support his petition.

Ginsberg says he's taken responsibility for his mistakes, and believes the outstanding issues are medical. "It was the sentencing of a woman who had killed an eight-month-old child that ultimately led to my decision to apply for retirement," he says in response to written questions submitted by City Pages. "It was the culmination of years of difficulty and despondency. I prepared a request for a leave that day. I was going to deliver it to the chief judge when he returned from an out-of-town trip. Unfortunately, that same day was the day my son's bike was stolen. I'm not proud of what I did, and stood up and took the consequences.

"The request for a medical retirement is not based on my perceived temper or personality," he says. "It is based upon over 10 years of increasingly significant anxiety, stress, and depression. It is a medical issue. It is not a political or personality issue. It is documented with medical records going back nine years. Others have tried to make this political and personal. Shame on me for not trying to get help for what was happening to me earlier. Shame on them for stooping so low."

There is no question that judges are under tremendous pressure to clear dockets clogged by impossible numbers of cases and that they earn less than many of their private-sector cohorts. To add insult to injury, they must campaign every six years just to keep these elected positions. But at the same time, judges are among the most powerful public figures around, wielding absolute authority over the fate and freedom of those who come before them. If the complaints against Ginsberg are accurate, landing in the wrong judge's courtroom on the wrong day can be a frightening proposition.

The state Board on Judicial Standards is currently considering several complaints against Ginsberg stemming from cases he heard in May and June of 2002 at Hennepin County's Ridgedale "satellite" court. According to one complaint, 66-year-old Dorothy Stalnaker appeared before Ginsberg on Tuesday, May 2, charged with driving around a police barricade in Minnetonka. When Ginsberg called Stalnaker's case, he allegedly commented that she didn't "look like the type of person who would drive around police barricades," unilaterally dismissed the charge against her, suggested that the people in the courtroom give her clean driving record a round of applause, and finally handed Stalnaker, who appeared confused, a few dollars to buy herself a cup coffee.

Ginsberg admits dismissing the charge and giving the woman money, but says the applause was spontaneous. He notes that the prosecutor present did not object to the dismissal at the time.

A week or so later, on May 10, a prosecutor representing Minnetonka, Gina Brandt, and defense attorney Rachael Goldberger were prepared to present Ginsberg with a plea agreement in the case of Jonathon Guyer, who was charged with misdemeanor animal cruelty. When Guyer's turn came, Ginsberg began to read the case documents. Instead of accepting the plea, according to the ethics complaint, Ginsberg, referring to Guyer, "stated words to the effect of 'Let's kill him.'" The judge then demanded to see Guyer and his attorney in chambers, where he also summoned three deputies.

 

"Upon the deputies' arrival in Judge Ginsberg's chambers, Judge Ginsberg ordered Mr. Guyer to pick one and told Mr. Guyer that he was going to order the deputy to take off his gun, go into a locked cell alone with Mr. Guyer and fight," the complaint states. "Mr. Guyer initially declined to pick a deputy, stating: 'I don't want to sir.' Judge Ginsberg then screamed, 'pick one.'" Ignoring the plea agreement, Ginsberg went on to schedule a trial.

Ginsberg denies much of the story, but does admit telling Guyer that "if he did in fact hang a pit bull from a tree that perhaps the odds would be more even if he picked an unarmed deputy to fight." Not long after the meeting, Ginsberg sent a letter apologizing to Goldberger and her client. "My comments to your client were not appropriate, unfortunate, and I regret them," he wrote.

Just three days after hearing Guyer's case, according to the complaint, Ginsberg was presented with the misdemeanor assault and disorderly conduct charges filed against Dustin Jones. Jones, who did not have an attorney, tried to plead guilty to both charges. Ginsberg accepted his plea on the disorderly conduct charge, but didn't address the assault charge. The Minnetonka prosecutor handling the case objected, and Ginsberg replied that if she didn't like it, there existed a host of formal remedies. "You know what they are," he said. "Feel free to take them."

Finally, on July 31, Desyl Peterson, city attorney for Minnetonka, Minnetrista, and St. Bonafacius, filed a formal complaint with the state board against Ginsberg. She also asked the Ridgedale judge in charge of assignments to temporarily refrain from giving Ginsberg any cases being handled by her or the lawyers she supervised who appeared in his courtroom during the episodes in question. The next day, according to the complaint, Ginsberg called Peterson and said that the attorneys should have confronted him directly with any discontent, and that in his view, at least one of the complaints arose from a personal conflict between attorneys that had nothing to do with him.

Ginsberg was accidentally assigned a case involving one the aggrieved attorneys, Laurel Hersey, the following February. As Hersey attempted to get a different judge, according to the complaint, Ginsberg described her to the court gallery as a "petty prosecutor." Six weeks later, he telephoned the clerk who had been in the courtroom that morning and asked whether his behavior had been out of line.

"The comments made by Judge Ginsberg were not retaliatory in nature but simply acknowledged that the adversarial process would proceed with evidence gathering and testimony if necessary," Ginsberg's official reply says of his call to Peterson. In addition, he denies calling Hersey petty. He says he merely explained to the courtroom that she was having him removed, there was no other judge available, and they would be inconvenienced by having to come back another day.

By way of explaining his phone call to the clerk, Ginsberg says that he was "trying to control the volatility of the medications he was taking and sought guidance from people with direct contact with him in the courtroom every day [and is] unclear what, if anything, he could have possibly done wrong by asking the question."

 

There was no formal code of ethics for U.S. judges until 1924, when a federal judge was appointed commissioner of baseball. He refused to resign his judgeship and scandal ensued. Today, most states rely on a model code of ethics issued in 1972 by the American Bar Association.

In Minnesota, complaints are received by the state Board on Judicial Standards, which can respond with actions ranging from private warnings to public censure. The board may make a recommendation to the state Supreme Court on the resolution of the case. Only the justices can remove a judge from the bench. The board's activities are confidential unless it is determined that a judge made a mistake that warrants public discipline.

The system is designed to protect judges from an onslaught of gripes by people upset by unfavorable decisions, while protecting the public from judges who step over the ethical line, explains Marie Failinger, a professor of law at Hamline University. Minnesota's system is regarded as one of integrity.

Still, people who work in the criminal justice system--those in the best position to see objectively what's going on--often don't complain for fear of retribution. "In rural areas it's very difficult to complain because often there is no other judge to go to," says Failinger. "An attorney could be in front of that judge for the rest of their career." Even in larger communities, lawyers often fear that filing a complaint will hurt their clients in the future.

 

In the fall of 1999, Carlton County Judge Dale Wolf was removed from the case of Donald Blom, convicted of killing Moose Lake convenience store clerk Katie Poirer. After Blom backed out of a guilty plea, Wolf tried to convince him to change his mind. Blom's public defenders objected. In response, Wolf first lambasted them in public and then ordered them off the case.

Wolf eventually checked himself into the Mayo Clinic, where he was treated for bipolar disorder. After a 14-month medical leave, the Board on Judicial Standards issued a public reprimand. Normally, such conduct warrants stiffer punishment, the board noted, but Wolf's illness and efforts to seek treatment were taken into account. Public defenders from the office that complained about Wolf still appear before him.

Unlike Wolf, Ginsberg doesn't want to return to the courtroom. And ultimately, it will be up to the governor to determine whether he is entitled to a pension. There are those who argue that the daily stress of being a judge doesn't completely explain Ginsberg's behavior. Indeed, they note that Ginsberg has faced periodic allegations of erratic and inappropriate behavior for more than 20 years. Even when outgoing Gov. Rudy Perpich appointed him to the bench in January 1991, Ginsberg, a former assistant Hennepin County attorney, was being accused of abusing his authority by interjecting himself into a case involving a man with whom he'd had a traffic dispute.

According to published reports, in 1990, Ginsberg used license plate numbers to track down George Ender, who he believed cut him off in traffic. He then confronted Ender. Three nights later, he claimed he received a death threat from an unidentified caller whom he assumed to be Ender. Ginsberg learned that Ender was on probation for a 1987 cocaine possession conviction, and, according to state Court of Appeals documents, wrote a letter to the judge handling Ender's case, urging her not to dismiss the charges against him at the end of his probation as originally ordered. Though Ender complied with the terms of his sentence, the charges were not dismissed. He filed an appeal, accusing Ginsberg of "gross impropriety." The state Court of Appeals eventually dismissed the charges against Ender, arguing that he should have had a chance to dispute Ginsberg's letter.

Coverage of the appeal in the Star Tribune at the time pointed to two other episodes in which Ginsberg allegedly lost his temper. In 1981, Ginsberg was accused of harassing and threatening two men who were involved in a dispute with their business partner (a woman who is now Ginsberg's wife) over ownership of a Minneapolis hair salon. A Hennepin County judge issued a restraining order against Ginsberg, which was lifted two weeks later when he agreed to stay away from the salon.

And in 1984, Ginsberg was sued by a driver who claimed she was forced off Highway 62 in Edina after a car with plates registered to Ginsberg pulled out in front of her, swerved, and then stopped abruptly, forcing her to drive over the median and into oncoming traffic. A judge ultimately ruled against the woman, blaming the accident on a "phantom" vehicle. Ginsberg, who denies any involvement in the accident, adds that using it "as an example of anything is wrong and unfair."

At the time, Ginsberg's former colleagues in the Hennepin County Attorney's office were quoted describing him as a fair but zealous prosecutor with a hot temper. In response, the paper reported, "Ginsberg said he will work on self-improvement on the bench. 'I feel very strongly that for whatever faults I have I try on a daily basis to try and improve them.'"

 

According to Ginsberg's response to the complaints filed with the Board on Judicial Standards, about a year ago, the board proposed that he accept a public reprimand and at the same time agree not to discuss the details of the allegations. He says he refused and requested a hearing.

In August, just days after Ginsberg announced that he would plead guilty to the assault of the 14-year-old who allegedly took his son's bike, a panel was appointed to consider the complaints filed almost a year earlier. Headed by former Supreme Court Justice Edward Stringer, the panel--which has taken so long to convene because of budget constraints--will hear testimony in early December and will go on to recommend whether the board should take disciplinary action. If the panel does recommend discipline, the case may then go to the full Supreme Court.

 

For his part, Ginsberg has said he welcomes the opportunity to address the charges. "I have handled over 10,000 cases in 12 1/2 years as a judge," he says. "I've admitted when I was wrong. I stood up and took my lumps. I continued to do the work assigned, never asked for a medical leave, and kept my vacation time to a minimum, despite the fact the it was increasingly difficult for me to do so. I worked as hard as anyone and never asked for a thing. I accepted assignments others didn't want to do. I thought I could handle the mounting anxiety, stress, and depression on my own. I couldn't. If I had sought more assistance earlier maybe a number of things would have been different. But I can't change yesterday."


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