Restraints on Judicial ConductAuthor(s): Joseph A. BallSource: Litigation, Vol. 1, No. 1 (Winter 1975), pp. 3-4, 64Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758174 .

Accessed: 16/06/2014 08:26

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 185.44.77.34 on Mon, 16 Jun 2014 08:26:18 AMAll use subject to JSTOR Terms and Conditions

Trial Balloon

Restraints on Judicial Conduct Courtesy in the courtroom is a theme of this issue of the Journal: courtesy lawyer to lawyer, judge to lawyer. If the contest in the courtroom remains on an intellectual plane, no one is hurt. But when tempers flare between

lawyers or between lawyer and judge, the courtroom suffers problems. The

rowdy lawyer presents one problem, but the desire of some judges to bait

lawyers is another and the lawyer is not always in the wrong. If the lawyer is contemptuous, he should go to jail. If jail doesn't cure him, he should lose his right to be contemptuous. But if a

judge is addicted to contemptuous conduct towards lawyers (particularly if he disagrees with their philosophy), or if he is haughty, inconsiderate and

subject to fits of temper, there is

usually no remedy. Some thought should be given to fair treatment for

lawyers as a necessary norm of

judicial conduct. In a recent well-publicized trial,

most of the contempt by lawyers was

provoked by judge and prosecutor. Newspapers gave the judge an award for courage in assessing long jail sentences. The contemptuous lawyers were saved from jail only by the court of appeals. This case illustrates the need for a code of judicial manners which will not interfere with the role of the judge as master of his court? room.

In the early years there was frater?

nity between lawyer and judge in American courtrooms. The bourbon bottle was a necessary prop in the

judge's chambers. Recess was a time to take a tot of whiskey and joke about courtroom problems. Now?

adays judges refuse to see counsel in chambers, let alone drink with them.

Fraternity is no longer possible because of press of business. The

judge and the lawyer are usually social strangers.

by Joseph A. Ball We marvel at the quiet atmosphere

of an English courtroom. The lawyers are polite to the judge and the judge to the lawyers. Membership in the

dining club?Inn of Court?to which

lawyers and judges belong has a

restraining influence on their tem?

pers. Contemptuous conduct towards an English judge is never tolerated. The lawyer would be disbarred or at least suspended. No judge would insult an English barrister. If he did, he would be soundly criticized by the Benchers of his Inn. English manners are supplemented by the rugged dis?

cipline of the Inns of Court. How different from some of our American courtrooms.

Election or reappointment in place of life tenure is suggested as a means of restraint upon judges (particularly federal judges). Some lawyers believe that lifetime security begets displays of temper from the bench. Federal

judges have life terms. Most state

Mr. Ball is a member of the California Bar and a member of the Los Angeles firm of Ball,

Hunt, Hart, Brown and Baerwitz.

judges are elected for a term of years. Perhaps if a poll were taken, lawyers would vote that more federal judges are arrogant than state court judges, but would admit that misconduct is not the exclusive prerogative of a federal judge. Life tenure, therefore, is not the complete explanation of the conduct of intemperate judges. Few

lawyers of this nation would favor the election or reappointment of federal

judges. The public schools of the North and South would never have been integrated by judicial decree if federal judges were dependent upon the goodwill and approval of the voters or their senators. Federal

judges are independent and that

independence must be preserved. Rules of evidence exercise some

restraint on judges. The court has discretion to exclude but not to admit evidence. In 1942, the American Law Institute published a Model Code of Evidence. Its reporter, Edmund

Morgan, hailed the code as a means to restore to the judge his "historic role"'as "master of the trial." The

judge was given unlimited discretion to admit evidence. In 1946, an elite committee of the State Bar of California declared that Morgan's aim was not what the courtroom needed. A judge must be subject to the discipline of the laws of the evidence, the same as lawyers and witnesses.

Except for the rules of evidence there is little discipline provided for courtroom judges beyond good taste and good manners. In every multi

judge judicial district there is at least one judicial tyrant. If it is a one- or

two-judge judicial district, the bar has no recourse but to wait until he dies or is elevated to a higher court. There is a story told of one federal

judge (now deceased) for a western coastal state whose conduct during

3

This content downloaded from 185.44.77.34 on Mon, 16 Jun 2014 08:26:18 AMAll use subject to JSTOR Terms and Conditions

trials was so bad that the bar of his state conducted a campaign to urge his elevation to the circuit court. As a

lawyer this judge was a friendly man. He changed character and disposi? tion when he took three steps up the bench. But the bar of that state should not have been driven to politi? cal tricks to make life tolerable for

lawyers and witnesses in the courtroom of that intolerant judge.

Some states have adopted rules which effectively control the conduct of the few judges who deserve disci?

pline and yet which do not affect the

independence of the many fine

judges of the state court system. One is a peremptory challenge to a trial

judge available to all litigants; another is a commission before whom complaints for judicial mis? conduct can be lodged. These

suggestions strike a tender note

among trial judges, especially federal

judges. Neither plan at the present time has any chance of adoption by the national congress. Arguments against these procedures vary: a cry of judge shopping; a restraint on the

independence of the judiciary. Critics say these plans will not work. But these reforms have had labora?

tory experience; California has

adopted both procedures and their effect on judicial conduct is remark? able.

The Peremptory Challenge The peremptory challenge permits

either party to a lawsuit, civil or

criminal, to file a peremptory challenge to the judge at a reasonable time before trial without cause. The filing of this challenge disqualifies the judge from proceed? ing further as to that cause of action. This is heresy to some judges and to some members of the conservative bar. It is certainly contrary to the common law tradition. But why should any judge sit in on a cause if a

party does not believe he can obtain a fair trial before that trial judge? The court should strive not only for due process of law but for the

appearance of due process. If a judge in a criminal court has so far

departed from the norm of sentence or displayed such intemperance that even his own colleagues consider him an unmerciful tyrant, litigants

should not be required to accept him as a supposedly disinterested, fair and impartial trial judge.

In 1937, the California legislature gave the litigant the right to

challenge a judge in a civil case and

gave the right to challenge a judge to the defense only in a criminal case. The California Supreme Court held that this statute was unconstitutional because the statute gave a party or his lawyer the right to remove a judge who was vested with judicial power by the constitution. Austin v. Lambert 11 Cal.2d 73 (1938). In 1957, a new statute was enacted

?170.6, Code of Civil Procedure) which provided that a party in a civil action had the right to disqualify a

judge by a simple charge of prejudice without factual proof. This was held constitutional in Johnson v. Superior Court, 50 Cal.2d 693 (1958). The court declared: "It is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid

suspicion of unfairness." The court also noted: "Statutes similar to Section 170.6 have been sustained in

every state where they were considered by the court with the

exception of Oklahoma." 50 Cal.2d at 698. In 1959, the statute was amended to extend the right of

peremptory challenge to both parties in a criminal case.

The California statute gives a

party one challenge. There is no second challenge for a continuation of proceedings or on retrial after motion for new trial or appeal. Challenge must be promptly made at least ten days before trial, or if cases are assigned from a master calendar, the challenge must be made at the time the cause is assigned to a judge for trial. No challenge can be filed after trial has commenced.

A succession of peremptory chal?

lenges against a judge in either civil or criminal cases is a subtle form of criticism which does affect the conduct of the trial judge. He must

change his ways or be ineffective. This is some protection from the dis?

graceful departure from good manners sometimes seen in our American courtrooms.

The Power to Remove or Censure

In 1960, California adopted a constitutional amendment which

provided for a commission on

judicial qualifications. The commis? sion commenced to function in 1961. It is loaded with judges: two from the intermediate court of appeal (district court of appeal), two superior court

judges, one municipal court judge, two lawyers appointed by the board of governors of the State Bar, and two public members named by the

governor?nine members in all. The

judges are appointed by the supreme court. The authority of the commis? sion extends to all levels of the California judges.

Complaints which can form a basis of proceedings are misconduct in office, willful and persistent failure to perform duties, habitual

intemperance, conduct prejudicial to the administration of justice which

brings the judicial office into

disrepute, and permanent disability. Complaints are screened and if unfounded are closed without in?

vestigation by letters to the com?

plainant. Complaints are accepted in confidence so as to protect the

reputation of judges against irre?

sponsible accusations. The commis? sion does not investigate complaints based on dissatisfaction with rulings or judgments. It in no way affects the

decision-making power of the courts.

If the complaint has merit, a judge is notified of the charges. The com?

plaint is investigated and the commission decides whether to

proceed with a formal hearing. Few

complaints result in hearing. During the last five years the commission has conducted not more than six

hearings against judges. At the conclusion of a hearing the commission may recommend cen?

sure, removal or retirement. The

supreme court considers the record de novo and issues the orders. The

pension statute of California gives the opportunity for many judges to retire with general pay without a

hearing if mentally or physically disabled.

Fifteen states now follow the California plan for the removal or

(Please turn to page 64)

4

This content downloaded from 185.44.77.34 on Mon, 16 Jun 2014 08:26:18 AMAll use subject to JSTOR Terms and Conditions

Trial Balloon (Continued from page 4) censure of judges. There has been one attempt to introduce this plan in the national congress. Senator

Joseph Tydings urged a subcommit? tee of the Senate Judiciary Commit? tee to recommend similar legislation to the Senate, but a lobby of federal

judges aided and abetted by the extremists of the Senate effectively prevented a favorable vote. The good senators failed to realize that federal trial judges are probably more in

need of the restraints of such commission than any other group of

judges in this world. They claimed that it would affect the independence of the federal judiciary. We heard the same cry in California in 1959. But California judges are as

independent as before. We have lost the senile judge, the drunken judge, the dishonest judge and the

intemperate judge. California has realized that the

impeachment process is cumbersome and inefficient and has substituted instead a commission where a judge is given a fair hearing if someone

complains of his conduct. Good

judges have nothing to fear. Bad

judges are subject to discipline. Something had to be done to restrain certain men who found themselves

possessed with godlike omnipotence. Good taste and good breeding were not enough.

Legal Lore

(Continued from page 58) expected to stand for it. No, I am to stand for it. All you do is return the

verdict; I stand for it. I have said about all I care to

about Franklin. I have said enough. I have said too much.

Reasonable or Absurd?

All I am only asking you, gentlemen of the jury, is to consider his story. Is it reasonable or is it absurd? Lord! This court ought to

adjourn until Monday morning and

try this case with the insanity cases.

Leave out the moral question. Leave out the tradition of a

profession that I have followed for

thirty-five years. Would I take that chance with these gumshoe men

everywhere, their eyes on everyone connected with this case, detectives over the town thick as lice in Egypt?

Gentlemen, don't ever think that

your own life or liberty is safe; that

your own family is secure; don't ever think any human being is safe, when under evidence like this I, with some influence and some respect, am

brought here and placed in the

shadow of the penitentiary. I know my life. I know what I have

done. My life has not been perfect, it has been human, too human. I have tried to help in the world. I have not had malice in my heart. I have done the best I could. I ask you to save my liberty and my name.

The jury was out only thirty-four minutes before they came in. I

thought they wanted instructions from the judge. But the foreman,

Williams, stood up and said he had a verdict and he smiled and called out,

"'Not guilty.'

Trial Notebook

(Continued from page 56) judges have never heard of a voir dire examination of a witness, others know the procedure well and are

quick to cut off examination which

goes beyond its appropriate scope. 7. Ruling from the court. 8. The testimony concerning the

exhibit. Any testimony about the exhibit not necessary as a foundation to its introduction should only come

after it has been admitted into evidence.

9. Give the jury the exhibit or

copies of it. Trial courts usually

permit copies of pictures and

documents to be distributed to the

jury. When you want the jury to look at something during the testimony concerning it, it is useful to have a

copy for each juror or an exhibit

large enough for all jurors to see at once. Giving the jury exhibits is

important, since they are permitted to take them into the jury room for use during their deliberations?a

procedure which heightens the

impact of demonstrative evidence

considerably. However, testimonial exhibits, such as depositions, are

usually not permitted in the jury room, on the theory that the jury will

give disproportionate weight to that

testimony. For a good general discussion, see H. H. Spellman, Direct Examination of Witnesses 98-107 (1968).

If only a portion of an exhibit is

relevant, such as one entry in an entire log or record, it is customary to request the court's permission to read from the exhibit, identifying what excerpt is being called to the

jury's attention. The rule of

completeness, the antidote to unfair

selectivity, permits the opposition to

present explanatory or modifying materials from the same exhibit.

64

This content downloaded from 185.44.77.34 on Mon, 16 Jun 2014 08:26:18 AMAll use subject to JSTOR Terms and Conditions