Mike Cernovich, over at Crime & Federalism, has been doing a bit of writing recently about — well, about social problems which are not necessarily — at least not straightforwardly — related to the law.  At first, I was disinclined to read, because the “law dog” in me was hungry.  I wanted to read something specifically discussing something interesting, but related more directly to the law.  But Mike is such an interesting writer that I kept on reading article after article.  (I periodically play “catch up” with the blogs, like his, that I like to read, but just can’t get to every day.)

Mike’s articles like “American Rage” and “Is Omar S. Thornton a Black Joe Stacks?” are thought-provoking looks at racial and economic disparity within the United States.  By the time I reached “Links: The United States is a Farce Edition” and “Illegal Immigration: Self-Interest Disguised as Morality,” I knew I was going to write this article.

The light went off because I’ve been thinking for some weeks about something specific a judge did in one of my cases.  Something with which I’ve been struggling to come to grips.  Something that demonstrated a clear-cut bias.  You know, like having an ex parte discussion with the victim, who just happened to be a law enforcement officer, and then trying to call me to task for what the officer told him.

And then there was an article about gay marriage and the utter destruction that Vaughn R. Walker has allegedly brought down on the heads of all who value marriage and rational societies by “de-legitimizing” marriage.

Now there is the new debate over illegal immigration and the desire to “fix” the problem by fucking up our Constitution.

My brain sometimes latches onto what I call “an inchoate idea” — something I realize I’m thinking about, but cannot quite put into words — and then it just “stews.”  While it’s stewing, anything else I read seems to be read on multiple levels.  One is the level of simply understanding what was written.  Another is me trying to think what I think about it.  But when something significant is “stewing” inside me, as it has been, then everything I read is somehow savored in a slightly different way than it might be otherwise.

It’s kind of like adding a “new” spice to a sauce while cooking.

And just like that, I don’t always know what’s going to come out of it.

What I think I’m getting right now is the flavor of recognition.  I know now why all the above articles — and what I thought previously was inordinate dwelling over a judge’s mistake — seem like they go together for me.

It’s the subtle interplay of a lack of understanding on the part of the judiciary and a lack of education on the part of “the People.”

Both are part of a recipe for disaster.

In McIlheran, aside from the obvious ignorance and bigotry, I see a complete lack of basic knowledge regarding the underpinnings of these United States.  McIlheran would, no doubt, think I have this wrong.  From what I can tell, again aside from the obvious ignorance and bigotry, he mistakenly thinks that marriage “always and everywhere” has necessarily been “between complementary sexes: not identical ones.”

Ask any classically-trained anthropologist how true that is.  Or ask a historian. Same-sex marriages have a long history. Even in “Western Civilization.” I’m not going to veer into a detailed disquisition on that.  Suffice it to say if you seek, you shall find. Same-sex unions are not new; neither are same-sex marriages.

And, in all frankness, it would not matter if McIlheran were right as concerns whether marriages have always involved one man and one woman in the past.  He’s not right.  But it doesn’t matter.  Because our United States leaves open the possibility for free people to decide to change that by marrying whomever they wish to marry, even if that person happens to be of the same gender.

What I want to focus attention on, though, is not the issue of same-sex marriage.  I want to talk about what kind of country we have here.  How does the United States work?  Or, rather, more specifically, how does law and the legal system work in the United States?  How come, for example, “the will of the voters” can be “thwarted” by one judge?  One! And why is an allegedly gay judge allowed to make such a critical ruling on whether or not gays and lesbians can legally marry people of the same gender as them?

The first thing any intelligent person should be able to put to rest is the question of whether or not Judge Vaughn Walker’s being gay matters. “He should have recused himself from this case since he is a practicing homosexual,” some have said.  If this actually is true, then why is the obverse not true?  “He should have recused himself from this case since he is a practicing heterosexual,” makes as much sense.

I mean, if someone’s sexuality is going to prejudice him favorably toward this issue, why would it matter whether he was gay or straight?  Is there not as much danger of a heterosexual judge refusing to correctly analyze and adhere to precedent as there is for a homosexual judge?  Do heterosexuals automagically do the honorable thing vis-á-vis homosexuals just because they’re heterosexual?  Or do we have to have a pre-trial, wherein the judge is analyzed by psychotherapists and determined not to harbor any ill feelings towards homosexuals before being allowed to judge them?  Should African-Americans only be judged by non-African-American judges?  Is it good enough for a white judge to sit in judgment of a white person accused of a crime, so long as one of them is Irish and the other is Polish, German, or Scandinavian?

This idea is ludicrous.  But I understand how it is that some people give it credence.  The fault lies with our judges.  Today, increasingly, it really does matter “who the judge is.”  The judge whose behavior has bothered me for so long is proof of that, if you ask me, as are numerous others.

Hell, judges actually promote this idea.  “I am a Law and Order Judge!,” they proclaim when they run for office.  By this they mean that they are pro-prosecution.  In fact, the posters with which they litter our towns will often proclaim “Former Prosecutor,” or just “Prosecutor,” in words nearly as large as their own names.  They’ll also trumpet that law enforcement supports them.  You absolutely will never hear a candidate for judgeship brag about having been a Vigorous Defender of the Accused.  You won’t hear that law enforcement hates them for forcing them to obey the Fourth, Fifth, and Sixth Amendments.  Not going to happen.

Nor do they actually state that they will follow the law without regard to either their own personal predilections, or the nature of the accused individual.  After all, particularly as pertains to the latter point, this could make it appear that they’re willing to coddle criminals.

If judges actually followed the law, regardless of their own personal bent, what they said while campaigning would not matter.  They don’t, though.  And their campaign statements are intended to communicate that point to us.

Thus, judges having taught and promoted to us this truth about how the system works have earned our distrust, our enmity, regarding the way they rule.

It is unfortunate that even the exceptions — the judges who do not allow their own preferences to control — get swept up in this sentiment, because there are so many judges who indulge their preferences rather than follow the law.  But you can’t have the majority of judges brag to the people at election time that they’re the type of person who will slant the rules towards the prosecution and then act all surprised when the people get upset that not all judges will slant the rules the way the people want.

I’m not saying that a judge’s personal preferences should never matter.  To some extent, it is unrealistic to assume that a judge’s personal preferences will not have an impact on how he judges.  Human beings are not capable of completely divorcing their own values from the judgments they ultimately make.  Judges, however, should try harder.  And the pro-prosecution bent of contemporary judges is proof that they do not.

Wha–?  Huh?  Why do you say that a pro-prosecution bent proves judges do not try to divorce their own values from their judgments?  The answer is simple: the laws of our land were originally slanted in favor of accused people.  On purpose.  Our Founders knew that the power and resources of an individual accused person are no match for the power and resources of the government.  This is true even in this time of budgetary constraints.

That old saw about everyone being entitled to a fair trial?  That’s everyone accused of a crime. There’s no constitutional guarantee for the government to get a fair trial.  You want to talk about rights that aren’t found in the Constitution?  There’s a right that’s not found in the Constitution!

Nor should there be.

The reason for this is that being accused of a crime and being prosecuted by the government comes with some serious risks for innocent citizens.  The mere fact that someone has been arrested works against them.  Do you really think the legal fiction of “presumed innocent” applies in our courtrooms?  You haven’t been called for jury duty, then.  You haven’t sat in a courtroom as a lawyer and tried to figure out how to deal with potential jurors who sometimes honestly state, “Well, he was arrested.  He must’ve done something.  He might not have done exactly what he’s accused of, but he did something or he wouldn’t be here.”

Or dishonestly refuse to state it, though they think it.

At any rate, that’s a presumption of guilt.  At least as to “something.”  It is not a presumption of innocence.

Over hundreds of years — with respect to some issues, longer than that — legal experts have learned that the best way to ensure that innocent people aren’t convicted is to tip the scales in their favor.  It’s supposed to be hard to convict someone.

But it’s not.  With all due respect to the prosecutors I know who are good attorneys, you do not have to be a good attorney to win cases if you are a prosecutor.  And there are a number of prosecutors who are most decidedly not good attorneys who prove this every day.  In some cases, you merely need to make the accusation.  (Sex crimes involving children are the most obvious place this is true, but it’s true in many other cases as well.)  Good defense attorneys can win cases.  But a prosecutor has to really screw up for a bad defense attorney to win.

That’s why our Founders, who knew they were establishing a government of laws, and not of men, tried so hard to hamstring the government, to make sure that trials were unfair — to the government.

Governments are typically more powerful than people.  No matter how hard you try to limit them, this is just how it is.  This makes governments potentially dangerous to ordinary people.  Life, liberty, and the pursuit of happiness is not something we can expect to enjoy in the face of an unrestrained government.

This is where the other part of the misunderstanding I wish to talk about comes from.

I have noted that our system was deliberately slanted in favor of accused persons.  This is because, as I mentioned above, it was slanted against the government.  Restrictions were placed on what government could do.

But this is true not just in the arena of criminal defense; it is true with respect to all activities of the government.  Our government was deliberately limited so as to prevent it from trampling over us, whether it was in a criminal trial, or any other area of our lives.

Now, in the United States of America, it has long been believed that the government is a government “of the people, by the people, for the people.”  This is partly true.  This is how it was intended.  We are the government, in theory.  We are in control.

In California — as well as some other states — this form of government has found extreme expression in the Initiative Process.  One or more of “we, the People,” can propose a new law.  If we get enough other people to think it’s a good law, or at least sounds good enough, then “the government” will put it up for a vote by the rest of us People.  And if it passes, it becomes the law that theoretically applies to everyone else, even those who didn’t vote for it.  Even if almost half of us did not vote for it.  It will still apply to all of us.

In fact, it could be a law that only applies to certain ones of us, like gays and lesbians.  Every single gay and lesbian person in our state could vote for, or against, that law, but still lose.  So a law could be passed that only affected every single gay and lesbian.  Every single gay and lesbian could vote against that law.  But it could still pass.

What a great way to oppress people we don’t like.

But the people who founded this United States of America knew that this could happen.  And they didn’t think that was fair.  So when they created the United States of America, they deliberately gave it only certain powers.  The United States of America — the government — we, the People — could only do certain things.  Our collective ability to pass laws only goes so far, because our power only goes so far.  There are limitations.  This is what is meant by “a limited form of government.”

The United States Constitution, which constituted, or created, our nation, is all about limiting government.  Certain powers are given to the government to allow it to do what it necessary to protect our freedoms — to ensure for each of us life, liberty, and the pursuit of happiness as we see fit with minimal necessary interference — and no more.

Fears that limiting the power of government — man, were those guys prescient! — would not be enough caused certain of the Founders to insist upon a Bill of Rights.  This was done not because we needed to know what rights we had.  It was already believed that all of us were created equal and that all of us equally held unalienable rights — rights that no one, not even other voters — could trample.  These rights included, among others, the (again) unalienable rights to Life, Liberty, and the Pursuit of Happiness.

Which, I guess, would include marriage which, for awhile, for many people, brings happiness.  Or so they say.  (In my own life, this appears to be true, but, hey, who am I to speak for everyone else?)

And that brings us back to judges.

In our United States of America, it is judges who interpret the Constitution.  They, as Chief Justice Evan Hughes once put it, are “the safeguard of our liberty and of our property under the Constitution.”  Benjamin Franklin and Thomas Jefferson would have gone farther, downplaying the protection of property; replacing that idea with happiness.

It is imperative, judges, that you remember that our United States were founded on the principle that governmental power is to be mistrusted; it is not to be favored; it is to be limited, by you, judges, both inside and outside the courtroom.  Our Constitution was meant to ensure that.  And you are meant to uphold our Constitution.

“For you will be treated as you treat others.  The standard you use in judging is the standard by which you will be judged.” (Matthew 7:2.)

Recently, I had a situation where two different courts required my presence simultaneously.  This would be hard enough under normal conditions — that is where it involves two separate courtrooms in the same courthouse — but in this instance, one court was in one county; the other was in another.  Neither county, by the way, was my “home” county (i.e., where my home and office are located), so there was quite a bit of early morning, fog-enshrouded driving involved to make even one of these morning appearances.

Now I happen to know that I’m a bit more fanatical about handling all my own appearances than are some other lawyers.  I’m not saying there’s anything wrong with the way those other lawyers work; I’m just saying I prefer to handle my own appearances.  In the last year, I think I’ve had some other attorney make a courtesy appearance for me perhaps 3 or, at the most, 4 times.  I do this not so much for the benefit of the court, but for the benefit of my client.  I’ve found that even for the most basic hearing, where nothing is going to happen except to pick a date for another hearing, the client is more comfortable with me being there.

And, after all, that’s no small part of what I’m paid to do.

In this particular case, which has gone on for quite some time, I believe we’ve had more than a dozen hearings.  The last several have been essentially “status hearings,” because the court informed us some time ago that there was no way it could accommodate us for trial until sometime later in the year.

So when I accidentally agreed to accommodate two prosecutors’ requests for hearing dates in two separate counties set for the same day, I was bothered, but not terribly worried, about how to work it out.  After all, I’d already spoken to the DDA in one county and we had an agreement as to the next court date.

Additionally, I drove to the court the day before to inform the clerk — I deliberately avoided talking to the judge so as to avoid even the appearance that I was trying to have an ex parte conference — of the snafu and to tell her I was trying to arrange for someone to handle a courtesy appearance.  From the clerk, I learned that if I had trouble with this, given that there was an agreement between myself and the DDA already, the court could allow the DDA to represent the agreement to the court, the next date would be set and we would all move on.  This might seem a little odd and I had no intention of doing it that way, but I’ve seen it happen before in other courts.

However, I managed to contact a defense attorney who would be appearing in that courtroom the next day and who graciously agreed to appear for me.  So far, so good.

(Incidentally, I had also explained to the clerk that I could head over there — even though I would be coming from another county — as soon as the first hearing was over.  Again, something like this would not be at all unusual.  However, I was told the court would be selecting a jury in a death case — one of the many cases which is preventing our case from going to trial — and so it was best to have someone make the appearance for me.)

Both cases are important.  For both cases I would prefer to make my own appearances.  But the one case is in a holding pattern; the other is moving forward.  And, in addition to all this, it was the first time ever that I had another attorney appear for me in this judge’s courtroom.  So I didn’t expect there to be any problem.

Now, I don’t know.  Maybe it’s just because the judge is an ex prosecutor.  Hard to say.  But for some reason, the judge was not at all happy about the arrangements I made to handle the fact that I am physically unable to be in two places at once, regardless of the wishes of gods or demi-gods.  As I understand it, the judge — to quote someone not related to my case at all — “threw a fit because you weren’t there.”  According to the transcript that I ordered up, he threatened to remove me from the case if I was not in court the next time.  There were also references as to how old the case was getting, notwithstanding the fact that the delay in our case is caused by the judge’s calendar, not mine (or even the prosecutor’s).

By the way, I learned that the judge was an ex prosecutor — and that he still has quite fond memories of those days — because while selecting his “death panel,” he was clearly beaming as he pointed out to one of the jurors who mentioned having worked at a particular prison that he was the prosecutor who put someone in that very same prison.  For some reason, I’m feeling like Mr. Death-Case Defendant should not be looking for an acquittal in his case.

But I digress.

I also don’t need that little tidbit to tell me that the judge is a former prosecutor.  A few other things suffice for that:  over the last year, the prosecutor in the case has had others stand in for him on numerous occasions when he had conflicting appearances.  To my knowledge, he did not typically contact anyone ahead of time to let them know he would not be personally present.  He certainly did not always contact me.

Perhaps unsurprisingly, not once did the judge suggest he was going to remove the prosecutor from the case if it happened one more time.

“Justice” Thomas — you know, the dude who was appointed to the United States Supreme Court notwithstanding allegations of repeated sexual harassment of a young woman who worked for him when he was a mere judge — says that criticizing judges decision-making is a bad thing.

“Justice” Scalia tells us that we’ve come a long way, baby, to get where we got to today, where the people involved in capturing and convicting “criminals” — with the average American committing three felonies per day, that would be most of us under the new regime — are so professional that we don’t need the exclusionary rule anymore.

And Scott Greenfield, a criminal defense attorney in New York, tells us about a case of a judge who was having an extramarital affair with the prosecutor during a murder trial which resulted in — surprise! — a conviction.

Now, okay, maybe the case would have resulted in a conviction anyway, even if the prosecutor was not screwing the judge.  And maybe the judge wasn’t screwing the defense just because the prosecutor was screwing her.

Fact is, I don’t know.

What I do know is that it’s increasingly hard to imagine how “Justices” like Thomas and Scalia make the arguments they make about the professionalism of those involved in our “modern” legal system with a straight face.

Even more embarrassing than this, though, as Scott notes, is the attempt of the Texas Court of Criminal Appeals to whitewash — Scott’s term, but one which seems indisputable — the behavior of the judge f**cking the prosecutor and attempting to argue that the accused man convicted during that trial was f**cked because he didn’t learn about the affair fast enough.

As Scott quotes the appellate judges — who “conceded that the phrase [intimate sexual relationship] was ‘literally true’” — this illicit act of adultery between a judge and prosecutor during a trial is no big deal.

“Theirs was hardly the torrid relationship of romance novels,” Judge Cochran clarified. It was, rather, “a close personal relationship that, on a few rare occasions, dipped into intimacy.”

Yes, no big deal.  The prosecutor dipped his penis into the judge.  Their relationship thereby dipped into intimacy.  But the conviction was, fortunately, not even dipped into the well of apparent unfairness.

For her part, rather than be ashamed of what she’s done, the judge has asked the attorney general’s office to help her fight back.  (Why not?  Maybe he can get some lovin’, too!)

She was “tired of laying over,” she said, and “getting licked without any input.”  (Adam Liptak, “Questions of an Affair Tainting a Trial” (February 22, 2010) The New York Times.)

Okay.  That’s just too easy.  I’m not going to go there.  I’m tempted.  But I won’t.

Perhaps this is why “Justice” Thomas doesn’t want the rest of us looking too closely into the decision-making processes of judges.

I tell you, it’s like they don’t even try anymore.

Two things should be noted before I “get into it.”  First, whether the court or anyone else believes me on this, I’m writing this because a driving force in my life is the Jewish concept of tikkun olam. In other words, I want to work cooperatively to leave the world a better place than it was when I arrived.  If I can’t do it cooperatively, though, I will nevertheless work to do it.

The second thing is the corollary to that desire: I’m not writing this to further anger the judge (though given the court’s refusal to give serious consideration to this issue, that may be a sadly unavoidable side effect of my comments).  Rather, I wish to explain what I was unable to say due to the chilling effect of the court’s reaction to my off-the-record comment — and to the fact that others had started to filter into the courtroom.  I’m hopeful — since I know some judges read my blog — that this post might help explain why it is the right for the court to change its position on this one issue, and why it should be ashamed if it does not.

So what were we talking about?  And what did I say that so enraged one of the few judges I would love to be able to call my friend?

In a word: “Shackles.”

Okay, maybe you need more of an explanation than that.

One of my “pet peeves” has to do with the practice of shackling juveniles in court.  There’s no other way to put this, so I’m just going to come right out and say it here:  It’s illegal; it’s unnecessary; it’s shameful.

Now I don’t know if other attorneys have pet peeves — things that just set them off — but this one is mine.  It’s not necessarily because I agree with the United States Supreme Court or the Second District California Appellate Court, either, when they said:

[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.  (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)

No, the reason it’s a pet peeve of mine has more to do with the fact that unlike most of the judges in the Juvenile Court system, I have some training and experience — which following the rules applied to gang cops testifying in gang cases, should make me an expert — in the psychology of children and adolescents.  Plus, I’ve read innumerable reports of child psychologists concerning the impact of shackles on the children the court unflinchingly places in them.

Shackles have no place in the courtroom, particularly in the juvenile courtroom.  If we paid more than lip service to the law, I would not even need to write this post.  For the law clearly states:

No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (California Penal Code section 688.)

So how much restraint is necessary for the detention of juveniles in the Fresno County Superior Court?

Consider this:

• While the waiting areas for families of juveniles at the court are quite small and uncomfortable, the courtrooms are massive and architected for intimidation.
• There is an armed bailiff in the courtroom.  I know they carry guns.  I believe they also have tasers.  There is not infrequently more than one such bailiff.
• The kids enter the courtroom — usually in full shackles — from a holding cell the door for which connects directly to the side of the courtroom.
• It is impossible to enter or exit a juvenile courtroom in Fresno County through any door without a special key.
• To get to the door connecting the courtroom to the outside hall, a juvenile would have to get up from his chair, run through or jump over the swinging door that separates the “gallery” from the counsel table, push open a heavy solid (unlocked) door, and run to the next door which, as already noted, he could not open without having first acquired a special key.  All while being pursued by at least one armed bailiff, as noted above.
• Even ordinary defense attorneys such as myself do not have access to these special keys.
• Even with a key, the door cannot be opened from the outside, so no one could assist the juvenile in escaping.
• Even if the juvenile could somehow get out that door, the kid would have to get down to the first floor and past several other armed deputies before he would be outside the courthouse.
• Fresno law enforcement officers are not afraid to shoot people.

In this situation, it is impossible to argue — with a straight face and an honest heart, anyway — that shackles are “necessary for [the] detention” of any juvenile in the Fresno County Juvenile Court.

So why are juveniles shackled?  Because that’s how the Sheriff’s Department wants it.  Oh, I know.  I know.  The law clearly states that

the requirement that the record must show a “need” for shackles “also presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom. A trial court abuses its discretion if it abdicates this decision-making responsibility to security personnel or law enforcement.”  (Tiffany A., supra, 150 Cal.App.4th at 1357, quoting the California Supreme Court case of People v. Hill (1998) 17 Cal.4th 800, 841 [72 Cal.Rptr.2d 656].)

But now matter how much trial courts pretend to follow the dictates of the legislature and the California Supreme Court, the truth of the matter is that the Sheriff’s Department decides who gets shackled and who does not.  Any defense attorney — which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse why “the court deems shackles to be required” in any particular case.  Tell me, judge, if the law says that shackling requires a particularized reason and that the court cannot abdicate responsibility for this decision to law enforcement, then why does it take an hour after a challenge to find out the reason for the shackles?

I’ll tell you why: because we’re lying when we say that the real reason for shackles has anything to do with an individualized case-by-case decision of the court.  It is the Sheriff’s Department who decides which child is shackled and which child is not.

And the Sheriff’s Department wants to shackle these children for the very reason that

placing the criminal defendant in shackles “‘imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense….’ “  (Tiffany A., supra, 150 Cal.App.4th at 1355, quoting People v. Duran (1976) 16 Cal.3d 282, 288 [127 Cal.Rptr. 618].)

In other words, it cows them, makes it harder for them to think of anything — particularly anything the deputies don’t want them to think about — and thus makes them easier to control.  But, as the full context of the quote shows, this is the very reason the California legislature made it illegal to shackle accused adults — let alone juveniles! — way back in 1872.  I might add that it was a lot easier for prisoners to disrupt proceedings and escape in 1872 than it is today!

Most criminal defense attorneys do not protest when their clients — the kids — are brought to the courtroom in shackles.  In fact, I do not believe there is one criminal defense attorney other than myself who regularly comments upon, or objects to, the shackles.  If I am involved in a co-participant case, so that there is another attorney present on the same case, they will sometimes join my objection.  (For various reasons, I have not objected in every case.  However, that, I can assure you, is about to change.)  So to the shame of the courts, we should add the shame of defense counsel.

“Pick your battles,” these defense attorneys tell me.  In other words, the shackling of children is not an important issue in their eyes.  We have other fish to fry.  But this isn’t just any battle.  This is a battle that goes to the core of our rehabilitative efforts for these kids.  If the courts won’t see it, we must help them.

The use of shackles in a courtroom absent a case-by-case, individual showing of need creates the very tone of criminality juvenile proceedings were intended to avoid.  (Tiffany A., supra, 150 Cal.App.4th at 1362.)

Shackling our kids teaches them that they are criminals.  Don’t be surprised that when they come to see themselves this way, they become harder to rehabilitate.  We aren’t just shackling their bodies; we’re shackling their self-image.

Our kids are routinely brought in in shackles because it is the policy of the Sheriff’s Department that they be shackled.  No matter how much we — the court, defense attorneys, prosecutors, probation officers — pretend otherwise, it is the Sheriff’s Department which makes the decision.  And that decision is based upon policy, although the judges, prosecutors and deputies are quick to collude in the lie that it is not if and when they are challenged.  (I’m sorry, judges — especially the one who “inspired” this post — but I’m calling it a lie because a lie is just what it is.  And you all know it.)

Off the record and in unguarded moments, this is readily admitted.  When I first started objecting, I even got statements about this on the record.  The more challenges I bring, though, the more careful everyone becomes with the way they couch their explanations.

Frankly, that’s a further reason the court should be ashamed.

Now, ultimately, this post boils down to this.  The court very much to its credit started this off-the-record conversation by explaining as this particular judge is very kind and good about doing that it’s good to explain things to families, because when they hear phrases like “602″ and other statutorily-required language by the court, they get the impression their kids are just being processed like so much bad meat.  (This isn’t exactly how the court worded it; this is what the court correctly recognized.  The court usually uses nicer words than I do.)  The court noted this can breed disrespect for the court.

As we were talking off the record — and as I already said this is a pet peeve of mine — I chimed in that bringing all the kids into court in shackles does the same thing.  This, as the court itself said, upset the court very much.  In fact, the court stated that it found my comment to be “disrespectful to the court.”  (Oh, the irony.)

Judge, if you do in fact read this, I want you to know something.  I actually have a great deal of respect for you.  As I already said, you’re one of the few judges I’d be pleased to call a friend, if that ever becomes possible.  But you’ve misplaced your anger and concern over the question of disrespect.

As the California Supreme Court so succinctly put it: “the disrespect for the entire judicial system…is incident to the unjustifiable use of physical restraints….”  (Duran, supra, 16 Cal.3d at 290.)

The Internet, for all the good that it has brought otherwise, is still relatively new and unreliable when it comes to the consistent and competent dissemination of information — time-sensitive or otherwise.

This morning, for example, I received a phone call from a program placement counselor.  I had requested my client be evaluated for in-patient placement before an upcoming hearing.  Several days ago, I emailed the evaluator to inform her the client’s family had paid the evaluation and fee and she should proceed.  Now, I’ve exchanged several emails with this evaluator, so I had no reason to think my email would not be received.  But this morning’s message on my voicemail had her asking me to notify her when the family made its payment so she could get started, since the hearing date is fast approaching.  So, I sent her another email, but (to be safe) I also called her (and was forced to leave a voicemail when I could not reach her).

Meanwhile, on this and another blog I maintain, I daily wade through tons of spam to avoid missing comments people might post in response to my articles.

While looking for an old missing email this evening, I happened to run across a different email, concerning the Pace case.  Although I thank the gods it’s not a case to which I’m assigned, I missed the message because my filters kept it from my Inbox folder!

The Pace court stated:

The court acknowledges that Mr. Bridgers,’ Mr. Markel’s, and Ms. Baxter’s [the attorneys who were not notified of the hearing because the court allowed itself to be identified on the Internet as a pornography spammer] absence was not wilful or contumacious. It was, instead, simply negligent because of the manner in which their computer was set up to deal with notices the court issued through its ECF system. While that may explain the absence of plaintiff’s counsel and help to make it somewhat understandable, that is not enough.

And, since “that is not enough,” the court penalized the attorneys by requiring them to pay attorneys’ fees to opposing counsel.

On the one hand, some smug self-righteous and thoughtless individuals might count this as justified on the grounds that the firm responded to its female employees’ complaints by tightening its spam filters when it should not have.  On the other hand, if the law firm had not done this, they will be potentially open to a suit on the basis of creating a hostile work environment for the female employees who complained.  On the other hand — ha! you thought I only had two hands! — the reality is that the courts don’t give a rat’s ass about justice, which requires notice, among other things.  Instead, ironically, they behave more and more as arbitrary, process-oriented, content-blind and unfeeling bits of computer code.  They’re apparently sophisticated enough to hire secretaries who know how to use the Internet (you don’t think the judges themselves actually send email notices to attorneys, do you? half the living judges wouldn’t know how!).  But they’ve never heard of telephones and couldn’t suggest that when the attorneys didn’t show up after an email — EMAIL! — was sent, that someone call the firm so they could send someone to attend the hearing.

What the hell is wrong with you people?  Have we truly reached the point where following imperfect procedures matters more than justice?

Someone, please: shoot me now!