Naming names. My post on Wednesday about vindictive sentencing drew some response, not so much about the principles regarding that topic, but about the particular judge's comments about his displeasure at the court of appeals' reversal of an earlier guilty plea in the case. The day before the post appeared, the Supreme Court had oral argument in a disciplinary case involving the same judge. (Background in this post.)
Arguments in disciplinary cases resemble sentencings in criminal cases: the alleged miscreant's lawyer will tell the judge that his client has been duly mortified by the whole experience, that the whole thing resulted from an error of judgment, that he has learned his lesson, and that he will not ever darken a courtroom again.
Not this time, baby. The judge's lawyer presented the most confrontational argument in this context I've ever seen. And not without reason: the judge was presented with evidence that a defendant might have been kidnapped a witness to prevent her from appearing. In fact, the criticism was directed more at how the judge handled the situation than the fact that he responded to it at all.
But there were several references, in both the judge's lawyer's argument and the comments of the judges, that this was an "isolated" incident. That prompted several readers to comment that if appellate opinions would name the lower court judge involved, a determination could be made just how "isolated" certain conduct was. As it is, had this judge been rebuked by the appellate court for intemperate remarks in the past, the only way disciplinary counsel would be able to determine that would be to pull up all of the appellate decisions involving that judge (who's been on the bench for 19 years) and read them.
But it was not always thus. Ann Kilbane, a top lawyer at one of Cleveland's premier personal injury firms, was elected to the 8th District Court of Appeals in 1998. She had promised to hold trial judges accountable, and set upon doing so by providing the name of the trial judge in the first sentence of her opinions. ("This is an appeal from a jury verdict following trial before Judge ....")
That didn't sit well with some of the more traditional judges. Eighteen months after Kilbane took the bench, the court adopted Local Rule 22(C), which provides
(C) Form of Opinions. Opinions of this court will not identify or make reference by proper name to the trial judge, magistrates, court officials, administrative personnel or counsel for the parties involved in the proceeding below unless such reference is essential to clarify or explain the role of such person in the course of said proceedings.
Undeterred, Kilbane kept right on doing it. She was re-elected in 2004, running unopposed. She died unexpectedly three weeks later.
In truth, though, Kilbane's practice of naming judges was an anomaly. I couldn't tell you how many opinions I've read in the four years I've been doing this blog, and it's extremely rare for the trial judge to be mentioned by name. Even when the 11th District took Portage Municipal Court Judge John Plough to task in one of the most scathing opinions I've ever read (discussed here) it did not once mention his name.
It's hard to see the justification for that, especially in the case of a serial offender like Plough. Even a large appellate court like the 8th develops some institutional memory, and if they observe the same judge doing the same thing over and over, it's at least arguable that they should call him out on it. Indeed, the reaction to Kilbane's practice of simply naming the judge at the outset of the opinion probably had more to do with her personality than the practice. Even former judges I've talked to who were sympathetic to Kilbane acknowledged that she could be openly confrontational. The hostility that this generated can be seen by reading her opinion and the dissenting opinion by future Supreme Court Justice Terrence O'Donnell in State v. Reniff; it's the judicial equivalent of a gunfight.
This week's lawyer marketing tip. As Obama intensifies his search for a new Supreme Court justice, he might think about looking west. This guy, though, is probably waiting for a casting call from Goodfellas II.
I don't know what shouts "professionalism" more: the open shirt or the shades?