The Judicial College trains new judges and tribunal members on how to carry out their duties effectively, and — often as important — how not to do so. They might want to study the case of Judge David Barrett, chief judge of the Enotah Judicial Circuit in Georgia, in the US.
Three weeks ago, Judge Barrett was presiding at a hearing in a criminal case in the Lumpkin County court. A female witness who complained that she had been assaulted was being unco-operative in her answers to questions.
Judge Barrett was frustrated.
He pulled out his gun, waved it in the direction of the witness and told her that as she was killing her own case “you might as well shoot your lawyer”. In Georgia, judges are allowed to keep concealed weapons on or near the bench.
But they are not expected to brandish them, far less encourage witnesses to use them.
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Dan Summer, the lawyer who was questioning the witness at the time, told the local press that he was “a little concerned when it was pointed at me”. He commented, with a degree of objectivity that suggests he will make a fine judge, that the event was “consistent with the judge’s personality of injecting himself in litigation, except this time a little more than he should”.
District Attorney Jeff Langley approached the bench. American lawyers usually ask for permission to do so, at least in television dramas from Perry Mason to Boston Legal, but not on this occasion. He told the judge to put away his gun, and, in a reversal of the natural order, the judge complied with that ruling by an advocate.
No harm was done, except to Judge Barrett’s career. He resigned to avoid a judicial ethics investigation (“I’m not putting up with that for my family”).
Mr Langley reflected afterwards on the judicial conduct and asked himself: “Now was that the proper thing in the courtroom?” Having no doubt considered the incident from all angles, he answered his own question: “I have to say no.”
Judge Barrett is not the first American judge to have disciplinary difficulties with guns. In 1975, the Supreme Court of California upheld the recommendation of the Commission on Judicial Qualifications that Municipal Court judge Noel Cannon should be removed from office. She had committed a number of injudicious acts, including an unfortunate incident in her chambers when she told the bailiff to bring into her court a police officer with whom she had a dispute: “Give me a gun; I am going to shoot his balls off and give him a .38 vasectomy.”
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The frustrations of life in the courtroom have led some American judges to threaten lawyers appearing before them.
In 1983, the California Supreme Court upheld the censure of Harry R. Roberts, judge of the Mono County Superior Court for a number of breaches of proper standards, one of which was his unorthodox response in court to the District Attorney’s announcement that he intended to take the judge’s ruling in a criminal case to the Court of Appeal. Judge Roberts poked the District Attorney in the chest with the judicial finger, told him that he was “chicken” and warned him, “Buddy boy, you’re not going to get away with this.”
Judges also need to try to resist the temptation, however great the provocation, to make threats against, and act violently towards, defendants in their courtroom.
In 2004, Judge William A. Carter had his patience tried by a defendant in proceedings in New York State. The judge took off his glasses, removed his robe, walked into the well of the court, approached the defendant and asked, “You want a piece of me?” A policeman wisely ushered the judge out of court before the defendant could reply. Judge Carter was fortunate to escape with a reprimand.
In 1997, Judge Joseph G. Troisi resigned from the Third Judicial Circuit in West Virginia after an even more extraordinary day in his courtroom in Pleasants County. During a criminal case, the defendant swore at the judge, who stepped down from the bench, walked up to the defendant, bit off part of his nose, spat it out, returned to his seat, and called the next case. Judge Trosi served five days in jail and was ordered to attend a course in anger management.
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Judges who fear that frustration may tempt them to brandish guns in court, threaten lawyers or bite off parts of a defendant’s anatomy should either find a less stressful job or relieve the tension in a less violent manner.
Judge Sheldon Schapiro of the Broward County Circuit was, I think, harshly reprimanded by the Florida Supreme Court in 2003 for keeping on the bench a toy lavatory that made a flushing sound and that he operated whenever he was unpersuaded by legal argument in his courtroom.
The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords