Laypersons, perhaps readers here included, who don’t spend their time in a court of law may not fully appreciate the paradigm shift that has occurred recently regarding certain high-profile cases here in America.
To be clear: Virtually no litigant, and certainly no lawyer representing a litigant, believes that attacking the judge presiding over a case in the courtroom, be it on the courthouse steps or in the media, will in any way help them win their case.
So when a litigant engages in such attacks, he or she is typically doing it for another reason altogether. The litigant and his/her lawyer have likely concluded that they can’t win the case on the merits before this judge; instead, they are trying to somehow amass public opinion for an alternative purpose.
Maybe, in some cases, it is to help the litigant prevail in an election campaign.
Undoubtedly, that’s exactly what Donald Trump was intending when he declared he would deliver closing remarks in his civil case in New York — or at least before the judge conditioned those remarks on the former president not impugning him or his staff. (Indeed, when the judge relented and gave Trump the floor near the end of his team’s summation, he immediately blew right past those conditions.)
Sometimes litigants or litigators, or both, are simply trying to “bait” the judge — that is, to push the judge, possibly angered, to make one or more serious legal errors that can help them to win a reversal on appeal, and potentially gain a new trial. It doesn’t happen frequently, but it does happen. Judges are, indeed, human, and they can be pushed or cajoled to make mistakes.
The public at large, of course, won’t typically realize what’s really going on. Instead, they may come to the mistaken conclusion that such conduct is actually de rigueur — even though, as practicing litigators easily recognize, such conduct is way out of bounds.
So, who are the principal offenders here, and why do they engage in such in-court or after-court behavior?
Donald Trump and the lawyers representing him have made odd and arguably unprofessional comments to the media about the presiding judge, either in the courtroom itself, in the courthouse corridor, on the courthouse steps or, in the case of Trump himself, on his online platforms.
Indeed — at least so far — none have been held in criminal contempt or sent to jail for what they’ve said or done. Probably any other defense team engaging in such conduct would have been sanctioned long ago, and maybe jailed absent a public apology. We have in the past seen lawyers brought up on charges resulting from their offending conduct. We also recognize that lawyers, more so than their clients, should be subject to discipline given the undeniable fact that practicing law is “a privilege, not a right.”
Interestingly, Trump, his lawyers and other supporters say that the conduct on Trump’s behalf is guaranteed by the First Amendment, authorizing a lawyer or a defendant to say virtually whatever they want to say about the judge, the judge’s staff or the adverse attorneys for governmental bodies — gag orders be damned. They essentially argue that it’s totally permissible to disparage the judge or his staff, even when doing do may risk threats to their physical safety, as seems to have been occurring in Trump’s pending cases.
That simply can’t be. While Trump has engaged in such derisive behavior against the judges presiding in his legal cases and against the court system generally, the judges have probably been wise so far to not incarcerate him for his contemptuous behavior, lest he become a martyr — exactly what he wants, particularly in the context of an election campaign.
Make no mistake, though — if a run-of-the-mill defendant were to engage in such conduct, the potential for incarceration, even for a brief stint, would certainly be on the table. The justice system absolutely requires not only respect for the law but also for those who administer it.
Of course, judges must show respect for defendants and their lawyers and cannot direct unwarranted derogatory conduct at them in court. If they engage in such prejudicial behavior, there can — and certainly should — be consequences, either in the appeals process, which might result in the reversal of the verdicts rendered, or in judicial conduct proceedings against the judges individually.
One can surely expect that a defendant will be harmed in the judge’s eyes — and possibly in his or her fact-findings and rulings — if the defendant or the defendant’s legal team acts inappropriately toward the judge or his staff, either in or out of court. But that shouldn’t be the end of it; bad behavior warrants adverse consequences.
Yes, First Amendment protection is designed to let people speak out, even in the context of a legal proceeding. At the same time, it would be almost impossible to argue that “free speech” guarantees the speaker to employ speech that may threaten to obstruct a proceeding by intimidating judges, witnesses or jurors. While attorneys certainly know this — and typically reign themselves in, lest they violate the ground rules — the lay public may be misled by atypical public statements designed to put the justice system and judges on the defensive.
Thought leaders and editorialists undoubtedly know this too. As I see it, it’s their duty to call out bad behavior like this whenever they see it. If they don’t, what’s to stop such behavior from becoming the new normal?
Joel Cohen, a former prosecutor, practices white collar criminal defense law as senior counsel at Petrillo, Klein & Boxer LLP in New York. He is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publishing, 2014), and teaches at Fordham and Cardozo law schools.
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