The Trials of a Common Pleas Judge, Chapter 3, Acceptance (of Sorts) and a Sad Loss

7/26/2019 The Trials of a Common Pleas Judge, Chapter 3, Acceptance (of Sorts) and a Sad Loss

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THE TRIALS OF A COMMON PLEASJUDGE

THE HONORABLE MARK I.BERNSTEIN

PHILADELPHIA,PENNSYLVANIA 2016


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CHAPTER THREE

ACCEPTANCE (OF SORTS)AND A SAD LOSS

MY INVESTIGATIONS IN the chambers and musingscontinued for less than 15 minutes when in arrived awell-dressed dapper man in his mid-fifties followed by

four or five other similarly dressed equally refinedgentlemen who each most politely introducedthemselves by name and by the office he held. They hadme repeat the entire story from the time I awoke thatmorning to the time I had first met Judge Bachmann.We all felt the same amazement I and Judge Bachmannexperienced, but I eventually convinced them as wellthat I was indeed a visitor not from a distant planet nora person of infirmed mind but had come from a distantfuture and that, fortunately or unfortunately, we had allbeen thrown together with no particular thought ofhow possibly to extricate ourselves. Once everyone wassatisfied, and amazed at that same truth, we all agreed


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THE TRIALS OF A COMMON PLEAS JUDGE 2

that I should simply reside with Judge Bachmann as aguest of the City while the brightest minds pondered

what we knew could be only a short visit before asolution was found. We all agreed that in the interimthey should teach me all they could about the law andtheir court and obtain from me whatever experienceand knowledge they could for the improvement ofjustice in Philadelphia. The next few days is a blur as Imet the governor, councilmen, Mayors, Senators andlegislators, scientists, and academics and time after time

retold my story. By sticking scrupulously to the truthwithout trying to magnify my importance I convincedeveryone that for better or worse a miracle hadoccurred.

I became comfortable residing with JudgeBachmann and his many servants at his wonderfulmansion at 22nd and Greene from which we dailywalked to City Hall. I was the guest of the City at theAcademy of Music, the Opera, was fitted for clothingthat matched their styles, and was afforded my owncarriage to take me back and forth to City Hall or onexcursion to visit the Seaport and other parts of oldPhiladelphia. Naturally, being proud of their justicesystem and having accepted me as part of their inner-

circle, my brethren at the bench resolved to teach methe workings of their court, this being of the greatestinterest to me. And of course they wished to show off

how professionally and effectively their courtsadministered justice. Although they believed I was, orat least was sometime in the future to become, a dulycommissioned elected Judge, it was agreed that I should


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not actually preside over any cases until and unless thegovernor and the legislature made the independent

decision that this would be appropriate. We all agreedthat the existential questions presented should anyoneappeal a decision I made as a judge was beyondreasonable appellate review. Nonetheless, inanticipation that this may someday happen, my juridicaleducation began by an introduction to all the 19 Judgesof the Courts of Philadelphia County and theassignment of Court Administrative Judge Biddle as my

guide so I might accurately learn the inner workings ofjustice in the City of Philadelphia in 1913.It would probably amaze the reader to describe

how sincerely and graciously the lawyers, Judges, andthe entire political establishment and indeed all thepeople of Philadelphia took me to their heart andtreated me as an honored guest and to describe how Iwas feted and honored once my arrival becamegenerally known. Indeed, much to my surprise citycouncil voted me an annual honorarium equal to thesalary of a commissioned judge, the exorbitant sum of$13,000 a year (this at a time when a successful lawyerwas pleased to earn $6,000 or $8,000 in a good year).

Perhaps one day I will be called to write a

sociological history comparing the calm, thoughtful,aesthetic manner of life of a time long passed to thechaos and speed of modern life, but since that is not my

purpose let it suffice to say that I was accepted as alearned oddity or curiosity from a different time, whoseeagerness to learn the people of that long gone time andplace wholeheartedly embraced. Since this is intended


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as description of Court life and explanation of judicialconduct I will simply mention without elaboration that

after I had overcome everyones initial disbelief theyhosted a round of lavish parties in my honor where thewealthy elite could question and examine me. I becameaccepted into the civic life of the city, graciously hostedand permitted to stay as a guest of Judge Bachmann whooccupied my chambers many decades before I wasborn. I hope I may accurately describe the legal systemand the particularities of the individuals who occupied

positions of power within that system of justice so longago so the reader may appreciate the judicial philosophybehind my courtroom requirements and behavior.

Very shortly after my arrival, the legalcommunity was shocked by the surprising andsurprisingly unexpected death of the well-respected,though well beyond his time, dean of the bench andbar. Poor Judge Behreneveryone agreed that in histime he was a terrific judge. But by the time I arrived hewas 93 and still presiding. He had been a politicalpowerhouse in his day. A ward leader and a candidatefor Congress who just barely lost and, as theconsolation prize, accepted a judgeship.

Unlike today when we have a mandatory

retirement age and by Supreme Court fiat mandatoryretirement even for senior judges, in 1913 there was nosuch thing. Judges sat forever. Judge Behren had been a

judge for a record setting 36 years and counting. Nopolitical leader, no office holder, not even any SupremeCourt Justice was willing to tell him that it was time toretire. This was in part due to the respect with which


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he was held. But the fact that his son was a State Senatorand Chairman of the Appropriations Committee that

dealt with court budgets could not be discounted as afactor.

Sadly, he had significantly passed him prime. Hehad trouble seeing and hearing and indeed on occasionduring jury trials trouble staying awake. Accordingly,his President Judge mostly presented him with non-jurytrials exclusively. It was known to the entire bar that hislaw clerk, who always sat in the jury box during these

non-jury trials, was signaling the judge on objections,and since every decision was held under advisement theverdict was probably, to some large extent, the work ofhis long-time law clerk as well. Nonetheless, I neverheard any criticism of his decisions, which were usuallyquite appropriate and well reasoned. However, sinceeveryone knew the story of his age-related challenges,attorneys always tried their cases to the law clerk in thejury box. While always meticulously showing respect tothe man on the bench it truly was the law clerk whosereactions signaled to the lawyers how they were doing.Sadly, within a month of my arrival Judge Behren fellrepeatedly and, having broken his hip, died.

The funeral at the First Unitarian Church at 21st

and Chestnut Streets was a sight to behold. While theentire political and legal community presentedthemselves to show their respect, an unfortunate

atmosphere prevailed outside of the church. This was inno small measure due to the glad-handing and renewedof acquaintance that always occurs whenever people ofthe same tribe who have not seen each other for a while


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are reunited. This was particularly true in the timewhen modern communications did not exist, for indeed

even telephone conversations were then rare,unreliable, and of poor quality. But it sadly meant thefuneral had a carnival atmosphere because of politiciansat every entrance and exit touting proposedreplacement candidates for judge, hoping thereby toimprove the chances of receiving the Republican Partyendorsement. These touts, usually accompanied by ayoung man or cute girl handing out campaign buttons

and ribbons, called out to everyone to come meet thenext judge of the Court of Common Pleas. Theproposed new Judge stood at the door makingabsolutely sure of shaking every hand, kissing everywoman, and patting every child on the head, sometimeshaving to literally reach over or push someone aside tomake contact. It seemed there were three such seriouscandidates and two or three other wannabes, usuallyforlornly standing alone wearing ribbons and to my eyea goofy hat to attract attention. It seemed that I was theonly one thinking this behavior odd. I must report thatduring the service itself, which was a fitting tribute toan honest, effective, and well respected Judge, decencyprevailed.

To understand the significance of this oddpolitical behavior at an otherwise solemn occasion Imust explain the selection process for the judiciary as I

came to understand it.

WATCH FOR CHAPTER FOUR

JULY 1,2016

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The Trials of a Common Pleas Judge, Chapter 3, Acceptance (of Sorts) and a Sad Loss