Bullying from the Bench: A wave of high-profile bad behavior has put scrutiny on judges
Judge John Murphy was presiding over a criminal calendar in Brevard County, Florida, when he grew incensed with public defender Andrew Weinstock, who had refused to waive a client’s right to a speedy trial.
Murphy became so angry that, in one of the most famous judicial outbursts, he challenged Weinstock to a fight.
“You know if I had a rock I would throw it,” Murphy, a retired colonel in the U.S. Army Special Forces who served in Afghanistan, told Weinstock. “If you want to fight, let’s go out back and I’ll just beat your ass.”
The two men then went to the hall, where a fracas ensued. Weinstock would later say he was punched by Murphy, while Murphy would insist that Weinstock was the aggressor. The scuffle only ended after a courthouse deputy separated the two men.
Upon Murphy’s return to the courtroom, he presided over eight criminal cases—without a defense lawyer present.
More than 18 months later, the Florida Supreme Court removed Murphy from the bench.
“Judge Murphy’s grievous misconduct became a national spectacle and an embarrassment to Florida’s judicial system,” the justices wrote in an opinion issued in December 2015.
The incident—which was captured on video and can still be seen on YouTube—may have been unusually public, but Murphy isn’t the only jurist to engage in questionable conduct. Across the country, judges are creating embarrassing headlines when they are accused of abusive behavior toward lawyers and litigants.
“Judges hold a position of authority within our legal profession,” says Jayne Reardon, executive director of the Illinois Supreme Court Commission on Professionalism. “In the judicial canons, judges are called upon to be leaders when it comes to civility.”
State and federal codes of judicial conduct require judges to be patient, respectful and courteous to everyone in the courtroom. Despite these admonitions, Reardon, who works to promote integrity and civility in the profession, believes the tenor and discourse among judges, lawyers and litigants have deteriorated as norms of acceptable behavior outside the courtroom have shifted. “What is civility in this day and age is subject to interpretation,” Reardon says. “To try and get back to a situation where we embrace civility and collegiality as a profession is a ways off.”
But Reardon says there’s a lot at stake: public trust in the judicial branch and legal system, respect for the courts, and confidence in the rule of law. Reardon says it’s incumbent on judges to model professionalism in their courtrooms, respect all parties and shut down incivility when it starts.
“We call on judges not only to exemplify courteous behavior and civility but also to require that of other courthouse personnel and lawyers who come before them,” she says.
But it’s no secret that judges don’t always exhibit those qualities. Some of the most high-profile examples of judicial bullying have occurred in criminal cases, where emotions on all sides often run high.
“Unfortunately, the system is full of bullies, even in very high places,” Abbe Smith, a professor at Georgetown University Law Center, observed in a Hofstra Law Review essay. “Criminal defendants are regular targets and so are their lawyers. Getting slapped down, dressed down, and put down is part of the job.”
Smith wrote that in one of her first cases, a judge in Philadelphia criticized her for bringing up a U.S. Supreme Court case. “Are you citing a U.S. Supreme Court case in this courtroom? Do you know where you are?” he asked her.
Smith, who directs the criminal law and prisoner advocacy clinic at Georgetown Law, says she was “probably struck mute for four, five seconds,” before answering that the law set out by the Supreme Court applied in all courtrooms.
Benes Aldana, who serves as president of the National Judicial College, an ABA-sponsored institute for the continuing education of judges, suggests arbiters take this approach: “Start out with Aretha Franklin’s advice of ‘respect,’ and carry it throughout the whole proceedings.”
Aldana, a former chief trial judge for the U.S. Coast Guard and a member of the ABA Judicial Division and Litigation Section, says the burden is on judges to maintain decorum in the courtroom and to ensure civility. The NJC offers a variety of classes and workshops to help judges navigate the emotions and responsibilities of the job.
“Bullying is never OK,” Aldana notes, while acknowledging the pressure judges face on a daily basis. “It starts out with basic respect. You’re in an adversarial process from the beginning to the end. But even though I say in the courtroom the burden is on the judge, lawyers also have responsibility, the clerks, the entire courtroom.”
ABA Judicial Division Chair Toni E. Clarke, a judge in the Circuit Court for Prince George’s County, Maryland, agrees that civility is a shared responsibility and is bringing attention to the issue through the creation of the William D. Missouri Civility Award, an annual honor named after a revered jurist who embodied courtesy in the courtroom. The award will be presented posthumously at this year’s ABA Annual Meeting to Judge Missouri, who served for 25 years in the Maryland court system and died in 2017.
“If you talked to any lawyer who was in front of him, he was fair, he was never mean to lawyers and he wouldn’t tolerate them being mean to each other,” Clarke recalls. “I don’t think anyone dared to disrespect him. He was civil … he treated everyone with respect.”
Clarke adds that while some judges may have an issue with demeanor, in her experience, “I’ve seen lawyers do some ridiculous stuff,” but despite this, “I think most judges do their best to be fair and impartial.”
‘Black Robe Disease’
And when they do go too far, judges can be admonished, face censure or be recalled.
“There are judges who run the gamut from simply overly stern to downright abusive,” says Charles Gardner Geyh, a law professor at Indiana University Maurer School of Law.
But Aldana argues that in an age of political polarization, the public and campaign donors have become more attuned to the judiciary, resulting in more scrutiny of judicial performance. And with a 24/7 news cycle and cameras in the courtroom, bad behavior caught on tape can go viral and destroy careers.
“YouTube has examples of recent events where judges have lost their temper,” Aldana says. “In our civility courses, we not only talk about ways to deal with civility in the courtroom, but the whole mindfulness of our own personal well-being as a judge.”
Steve Zeidman, a professor at the City University of New York School of Law and director of the criminal defense clinic, has dealt with the ire and irritability from judges that is common in the antagonistic and often tragic field of criminal defense work.
He says judges will express their antsiness by writing out orders if lawyers talked too long or interrupt defense counsel to ask questions such as, “Is that all?”
“There is such a focus on speed and efficiency that when defense lawyers try to slow things down to have a conversation about the facts or the law, they are inevitably seen as obstructionist,” he says.
Zeidman adds that judges also can display a temper with criminal defense attorneys when their clients reject plea deals.
When Zeidman was a young defense lawyer in Manhattan, he encountered a judge who reacted vindictively when he learned that a defendant was rejecting a plea deal: The judge scheduled the case to go to trial the day before Zeidman was slated to take a trip to Mexico. Zeidman says he rescheduled his trip and took the case to trial, and his client was acquitted.
He says he later mentioned in a written evaluation of the judge that he was “vengeful, spiteful and tried to ram a plea down a defendant’s throat.”
The judge apparently learned of the evaluation. Zeidman says he was stopped by the judge in the hallway one day and told, “What goes around comes around.”
Zeidman, who served on the New York Mayor’s Advisory Committee on the Judiciary from 2008 to 2010 and from 1996 to 1999, says that judges are often evaluated based on their efficiency—meaning the number of cases they dispose of in a given time period. This focus on moving cases along may contribute to some judges’ impatience on the bench, he says.
Of course, judges face pressures beyond just needing to move their cases along.
“The job of a judge is very isolated, very demanding—very difficult,” says Juanita Bing Newton, a judge for the New York State Court of Claims who now serves as dean of the New York State Judicial Institute at the Elisabeth Haub School of Law at Pace University, which trains judges throughout the state. “Imagine you are sitting there and have the lives of children in your hand,” she says. “Or have to decide whether or not to set aside a verdict in a multimillion-dollar malpractice case.”
She adds that judges, like everybody else, have stress in their lives.
“They have mortgages to pay—have issues with family and home,” she says, adding that the institute offers sessions for judges on wellness and coping with stress.
But beyond simply manifesting stress, some judges also exhibit “black robe disease”—the courthouse lingo describing judges who abuse their authority.
“Black robe disease is very real,” says Larry Turner, the Gainesville, Florida, attorney who represented Murphy at his judicial conduct hearing, and who was also a judge for eight years.
He says it’s easy for judges to lose perspective after they’re on the bench. “All of a sudden everybody is kissing your ring and laughing at your jokes,” Turner says.
“No one tells you when you do something wrong,” he adds. “After a while, you just don’t have any real concept of what kind of job you’re doing.”
“‘Robe-itis’ is the more scientific term,” Aldana says with a laugh. “I think judges need to be aware that even though they’re the judge, the position doesn’t belong to them. It’s one of the things I try to tell new judges is that humility is the No. 1 trait you need to have as a judge.”
One criminal defense lawyer who experienced the wrath of a judge firsthand is Clark County, Nevada, public defender Zohra Bakhtary.
At a hearing in May 2016, Bakhtary was arguing that her client shouldn’t be sent to jail when Justice of the Peace Conrad Hafen told her to stop talking.
“Zohra, be quiet,” he said, according to a transcript of the proceeding.
When she attempted to continue arguing, Hafen said, “Do you want to be found in contempt?”
She started to answer, but was only able to get in a few words before Hafen told her again to be quiet. “Now. Not another word,” he said.
When she again tried to interject, Hafen ordered her handcuffed. He then proceeded to sentence Bakhtary’s client to six months in jail on a misdemeanor petty larceny count. (The client was later freed by a different judge.)
Hafen released Bakhtary a few minutes later. Four days after the incident, Hafen officially entered a finding of contempt against Bakhtary.
Several months later, Clark County Judge Gloria Sturman reversed the contempt finding.
Bakhtary, who currently serves as chief deputy public defender in Clark County, says her job often involves fighting an uphill battle. But she says she hadn’t anticipated the struggle playing out the way it did in Hafen’s courtroom that day.
“When I became a public defender, never in a million years did I expect I would end up in handcuffs,” Bakhtary says.
Hafen lost a bid for re-election in 2016. The following year, the Nevada Commission on Judicial Discipline censured him for several incidents, including the one with Bakhtary. He agreed not to contest the censure and to refrain from serving as a judge in Nevada again.
While Hafen is now off the bench, judicial conduct authorities rarely remove judges for behavior deemed inappropriate.
For example, in California, more than 1,200 complaints against judges closed in 2017, but no one was removed from the bench (though three of the investigated judges either resigned or retired while the complaints were pending). The thirty-nine complaints closed that year resulted in some lesser form of discipline for conduct on the bench. Among the jurists publicly censured was San Diego County Superior Court Judge Gary Kreep, a prominent lawyer in the “birther” movement before being elected a judge in 2012.
In August 2017, the California Commission on Judicial Performance censured Kreep—but stopped short of ousting him—over a number of judicial conduct violations, including that his campaign website and disclosure forms misrepresented his resume, and that he made inappropriate remarks in court.
Among other instances of questionable conduct, he commented on a public defender’s accent and asked if she was a citizen of Mexico.
When she said she was a U.S. citizen, Kreep said, “I wasn’t planning on having you deported.”
He also referred to people by nicknames he gave them. Among the people nicknamed by Kreep were three interns in the San Diego Public Defender’s Office—whom he called “bun head,” “Ms. Dimples” and “Shorty,” who was actually 6 feet 7 inches tall.
Kreep’s creation and use of the nicknames “created an atmosphere in the courtroom that was too informal and lacked appropriate decorum” and didn’t convey appropriate respect, the Commission on Judicial Performance wrote in an opinion filed in August 2017.
While the judicial commission allowed Kreep to keep his job, voters weren’t as forgiving. In November 2018, Kreep lost his bid for re-election.
Turning the Other Cheek
Even where a situation goes entirely off the rails, it’s not a given that judges will be removed.
In Murphy’s case, for instance, the Florida Judicial Qualifications Commission recommended only a public reprimand, suspension without pay for 120 days, a $50,000 fine and other sanctions that stopped short of removal. But the Florida Supreme Court took the rare step of removing Murphy from the bench.
The judges said Murphy’s “egregious conduct demonstrates his present unfitness to remain in office.”
“Furthermore,” they wrote, “where a judge’s actions erode public faith in the courts, removal is appropriate.”
But Turner says there’s more to the story than what was seen on video.
He says Murphy’s use of the phrase “I’ll just beat your ass” meant he planned to verbally scold Weinstock, not physically attack him.
Weinstock said he was hit twice by Murphy. But Murphy said he only took “defense actions,” and that Weinstock was the one who started the physical fight.
Lawyers who appear in court regularly and bear the brunt of judicial outbursts as part of their jobs are much less likely to lodge official complaints than litigants.
In California, the most-populous state in the country, the Commission on Judicial Performance received 1,251 new complaints about 878 different judges in 2017. Attorneys initiated only 4 percent of those complaints, while 86 percent came from litigants or their family and friends.
And in New York, the state with the most active lawyers, the state Commission on Judicial Conduct received 2,143 new complaints in 2017, with 1,832 coming from criminal defendants or civil litigants, and 53 from attorneys.
One reason why lawyers don’t complain is they simply develop thick skins.
“Obviously you become calloused at some point,” says Las Vegas-area attorney Dominic Gentile, who represented Bakhtary in her successful proceeding to vacate Hafen’s contempt finding. “If you don’t become calloused, particularly as a criminal defense attorney, you’re going to do a lot of bleeding.”
Additionally, some attorneys worry that complaining will backfire against themselves or their clients.
Georgetown’s Smith adds that public defender’s offices sometimes hesitate to complain about judges who bully lawyers if the judges are perceived as issuing fair rulings.
She says the people in charge of a public defender’s office will often ask themselves whether a judge who has exploded in court is “somebody we should complain about,” or whether it would be better to “put up with the outburst because it’s a good judge.”
Attorneys have another reason for not complaining—they often work regularly with the same judges and learn to choose their battles wisely. Like many of his colleagues, Geyh, who practiced law in Washington, D.C., says that even when he saw judges who were abusive, he never protested.
“It never occurred to me to complain, because the judge is going to stay on the bench and will just remember you as the guy who complained,” Geyh says. “Judges develop reputations as stern, crotchety and so forth. You just go in there with your helmet on.”
Asked and Answered: “Bullying from the bench: How to cope in court”
ABA Notices - February