The Daily Judge
© 2009 Burton Randall Hanson
      Archives - 10.01.2009 - 10.31.2009
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great legal importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He has devoted his entire professional career to the public interest. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com (archived here), contained a personal campaign weblog, possibly the first campaign blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a public interest political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

 "BurtLaw's Law And Everything Else, a Web Site produced by Burton Hanson, is part of the Library of Congress September 11 Web Archive and preserves the web expressions of individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Dates Captured: September 20, 2001 - December 17, 2001"

Special Feature No. 1: The Erin Andrews episode and its relevance to judges, at home, in chambers, and on the road -- Should judges wear their robes even while showering? Highlights include: i) Venues in which judicial 'activity' might be 'caught on camera'? ii) Examples of how judges, other public officials and just plain ordinary people have been 'caught on camera.' iii) BurtLaw's Rule #1 for Avoiding Getting Caught on Camera Doing the Wrong Thing. iv) The MWP perception problem and the Super-Privacy Robe solution. v) The hidden shower-cam and reverse-peephole cam problem and the BurtLaw Ultra 6-B Robe (BurtLaw Basic-Black Bullet-Proof Bullet-Bra Super-Privacy Robe) solution. vi) The President's $2 billion Uplift America Retro-Rerobe-Rebate stimulus program. vii) The swimsuit question and the Rules of Judicial Conduct.

Some of our other current postings. a) Another surprise backbencher in Langdell South, Harvard Law -- Is that Tom Cruise? b) Should judges, other political officeholders get HiNi flu vaccine priority? c) Should lawyers get 'free pass' at courthouse security screening? d) 'Sonia' misses SCOTUS hearing after failing to get out of jury duty. e) More on the feds' reliance on vague laws to 'get' people. f) Annals of overcriminalization, federalization, government by prosecutor. g) 'Shut up,' Silent Cla explained. h) Annals of stat-measured, performance-based legal secretarial selection plans. i) He'll 'blimp' across Texas/ with you in his sights,/ you in his sights.... j) Bob Barr says MN's Judge Magnuson is 'way out of line. k) Witness the American deputy solicitor general in his natural habitat -- the Supreme Court. l) Judge pleads guilty to deflating tire in court parking lot. m) Six SCOTUS justices attend Red Mass, listen to Cardinal's plea on abortion. n) Annals of false claims of rape -- some recommended reading. o) Annals of not-very-nice, not-very-professional Minnesota prosecutions. p) State supreme court tosses thousands of juvie cases cuz of corrupt judges. q) Impoverished judges get a sort-of pay hike. r) Panel takes no action against Kozinski over internet humor. s) The wife and hubby who watch trials together, stay together. t) Fast, loose woman seduces judges. u) Judge is found guilty of patronizing prostitute. v) SCOWIS rejects rule that accepting contributions should require recusal. w) Commission recommends removal of judge who serves on board. x) Board accuses judge of misconduct for chronic lateness, nepotism. y) Verdict is in in Judge Herman Thomas' sex-for-leniency trial. z) Annals of judicial control of clerks of court -- audit reveals problems. aa) Annals of provincialism: Why doesn't city judge live within city limits? bb) Annals of judicial colleageality -- on airing one's linens in public. cc) A tale of two brother judges -- high court removes one, admonishes the other. dd) Court strips judge of role overseeing trust. ee) FLA judge apologizes for campaign conduct, is scolded by panel. ff) Annals of judges caught on tape. gg) Judge dismisses drunk driving charge against ex-judge. hh) Man arrested in courthouse for carrying 'weapon cane.' ii) Top court says rules don't apply to it. jj) Historic Miami Beach courthouse reopens after renovations. kk) Annals of abuse of judicial discretion. ll) MPLS once again pays out big bucks over police misconduct. mm) 'The Justices' will celebrate Golden Anniversary. nn) On judicial independence in Uganda. oo) It's official: Rush Limbaugh is now a top judge. pp) Annals of discrimination against chimps as judges. qq) Chief Justice's hubby seeks dismissal of criminal charge. rr) Judge washes away Mel's 'sin.' ss) Judge gets temporary protective order against lawyer hubby. tt) Regarding Roman - retired prosecutor says he lied in HBO documentary.

 Judge pleads guilty to deflating tire in court parking lot. "A longtime Charles County judge[, Robert C. Nalley, 66,] who deflated the tire of a car that belonged to a woman who parked in a restricted zone outside the La Plata courthouse pleaded guilty Wednesday to tampering with a motor vehicle...." Details (Washington Post 10.28.2009). Earlier. Annals of judicial deflation (The Daily Judge 08.12.2009). Comment. If the judge is a good boy during a probationary stay of entry of judgment, he'll be treated like everyone else who's a first-time minor offender and get the slate wiped clean. That is as it should be. Everyone, even a judge, is entitled to one bite, or -- to use an expression from unemployment comp law -- one hot-headed incident. Further reading. For those "judicial parking fetishists" who are totally obsessed with the topic of judges and their parking (and/or parking lot) problems, back in 2006 we provided convenient links to some of our many relevant earlier entries. These links may be found in the body of our posting titled Sessions judges ask parking spaces for secretaries.

 State supreme court tosses thousands of juvie cases cuz of corrupt judges. "In an unprecedented move, the Pennsylvania Supreme Court yesterday tossed out thousands of juvenile court cases that were 'tainted' by an alleged kickback scheme involving a former Luzerne County judge. The order affects an estimated 6,500 cases handled by then-Judge Mark A. Ciavarella from 2003 through mid-2008. Only about 100 remain eligible to be retried, and those final cases also could end up being thrown out...." Detailed story (Philadelphia Inquirer 10.30.2009). Comment. I've posted numerous entries on this ongoing scandal. See, e.g., Report says two convicted judges ran PA courthouse 'like a mafia family' (The Daily Judge 07.28.2009). In an earlier posting I wrote, presciently: "What to do? Well, it's obvious. The sentences of those 5,000 juveniles are presumptively null and void. It's up to the state prosecutors to prove otherwise, if they can. And many of the kids arguably have claims -- certainly moral and maybe legal -- for big-time monetary compensation...." Judges plead guilty in profiting-from-harsh-juvie-justice scheme (The Daily Judge 02.13.2009).

 Impoverished judges get a sort-of pay hike. "As the Legislature and governor tackle New York's $3 billion budget deficit...Court of Appeals Chief Judge Jonathan Lippman announced...that he would double judges' supplemental allowance from $5,000 to $10,000, to cover items such as uncovered medical expenses, robe dry cleaning, travel, judicial license plates and marriage counseling...." Details (Albany Times Union 10.28.2009). Comment. Huey Long said, "Every man a king." I say, "Every man a judge -- let's give everyone a $10,000 stipend."

 Panel takes no action against Kozinski over internet humor. "[An] opinion released Tuesday by the Judicial Council of the U.S. 3rd Circuit Court of Appeals said the investigation into [Chief Judge Alex Kozinski's] gag list was concluded after Kozinski said he had stopped e-mailing the jokes and 'apologized for any embarrassment to the federal judiciary.' The panel took no action against the judge...." Details (LAT 10.28.2009). Comment. In my Walter Mitty moments, I like to think that my courageous Summer of 2008 posting titled Sir Burton rises to defend Chief Judge Kozinski over porn postings saved the day for the eccentric, conservative Reagan-appointee. Hey, even though I don't always agree with a guy, I'll rise to defend his....

 The wife and hubby who watch trials together, stay together. "It's an unseasonably hot autumn afternoon, and, like many retired couples, Ed and Harriett Neufeld need something to do to pass the time. 'Do you want drug distribution or armed robbery?' Harriett, 77, asks Ed, 79, as they plan their day in Montgomery County Circuit Court...." They've been court-watching for years and have watched over 1,000 trials. "They started their hobby when they began dating in New York and Ed was looking for cheap entertainment. Because courtrooms are open to the public, the two would walk into night court after work or class and see whichever real-life drama awaited them." Detailed profile at Jason Tomassini, Crosswords, coffee and a trip to the courthouse make Aspen Hill couple's day (Washington Post 10.29.2009). Comment. Most court-watchers are retired people, mostly retired men. Visit any large urban courthouse and you'll find them. They often know as much about juries as so-called jury profilers and jury-selection consultants. Smart trial attorneys consult with them. We think it's a great way for retired people to keep active: walk to the bus stop, ride downtown, go to the clerk's office or the administrator's office and find where the juicy trials are, attend them, talk with fellow trial watchers, eat lunch, etc. Further reading. See, my extensive comments, with links, at Homeless man attains celebrity as court-watcher (The Daily Judge 10.25.2006). See, also, Annals of court watching -- 'Christian court watchers' (The Daily Judge 08.04.2007).

 Fast, loose woman seduces judges. "[L]ast night's guest judge Natalie Portman proved that her easy charm translates to cable cooking shows. By folding a ribald double entendre, a drug-related come-on and generous peels of angelic laughter into her rudimentary cuisine speak, the hard-to-please Top Chef judges fell fork-first into Portman's ardent vegetarian spell...." From Julie Miller, Fast, Loose Natalie Portman Seduces Top Chef Judges (Movieline 10.29.2009). Comment. In case you didn't know it, Natalie is a Harvard grad. Harvard grads are notoriously good at seducing -- err, persuading -- judges.

 Judge is found guilty of patronizing prostitute. Jurors in Tacoma found Judge Michael Andrew Hecht guilty of charges of harassment and patronizing a male prostitute. Hecht said the jurors were duped by false testimony by people who were out to get him. Details (News-Tribune 10.29.2009). Link to earlier postings.

 SCOWIS rejects rule that accepting contributions should require recusal. "A deeply divided state Supreme Court[, by a 4-3 vote,] adopted a rule Wednesday that says endorsements, campaign contributions and independently run ads in themselves are not enough to force a judge off of a case...." The rule was proposed by business groups. A proposed rule that would have required recusal if contributions were over a certain amount was favored by the dissenters, which included Wisconsin's renowned chief justice, Shirley Abrahamson. Details (Milwaukee Journal-Sentinel 10.28.2009). Comment. I was a candidate for SCOMN in the general election in 2000. I received 500,000 votes and came in a close second to the incumbent, who received around 1,500,000 votes, and narrowly outspent me, barely topping my $100 with her $130,000. Voters are smart in MN and I don't believe the money differential made the slightest difference. Incumbency does give a candidate a decided advantage in MN and I don't have a problem with that. If I were asked, I wouldn't advocate public financing or campaign spending limits, nor would I necessarily opt for required recusal. What I would argue for would be a) a more-neutral and more-interested press, which invariably supports the incumbent and rarely gives ink to anything about the challenger unless it's to question why on earth he'd want to give voters a choice; and b) better and timelier filing of reports of lists of contributors and amounts given, with the latest lists being posted on the Secretary of State's website in easy-to-access format in full detail a few weeks before any primary election and again before any general election. I think the voters deserve to know, before they vote, which big law firms, which so-called public interest groups, etc., are contributing the big bucks and to whom. For a 2000 position paper I wrote explaining why I was not seeking or accepting any contributions or endorsements, see, Endorsements and Contributions.

 Commission recommends removal of judge who serves on board. "The state's Judicial Standards Commission is recommending that Mecklenburg County Judge Bill Belk be removed from the bench...Belk is accused of having a conflict because he serves on the board of Sonic Automotive. He's also accused of making disparaging remarks about Chief Judge Lisa Bell...." Details (Charlotte Observer 10.28.2009). Earlier postings here and here.

 Board accuses judge of misconduct for chronic lateness, nepotism. "Davidson County General Sessions Judge Gloria Dumas is facing accusations of misconduct from the state's disciplinary board that oversees judges for chronic lateness and for hiring her own daughter...." Details (Tennessean 10.27.2009). Comment. I'm guessing voters would be surprised (but maybe not) if they knew precisely how much nepotism and favoritism there is in the hiring of staff, including law clerks, in some -- but not by any means all -- courts.

 Verdict is in in Judge Herman Thomas' sex-for-leniency trial -- jury acquits him of seven charges, deadlocks on fourteen -- judge orders judgment of acquittal on all charges. Details (Press-Register 10.27.2009). Timeline in the Thomas case, from allegations to resignation to acquittals (Press-Register 10.27.2009). Index to coverage of trial (Press-Register 10.27.2009). Reactions to verdict (Press-Register 10.27.2009). Thomas jurors speak out (Lagniappe 10.29.2009).

 'Shut up,' Silent Cla explained. Recounting the trip from "N. Y. to Grenitch," the young narrator wrote, in relevant part (spelling and grammar of the original):

...about my and my fathers trip from the Bureau of Manhattan to our new home...[i]n some way ether I or he got balled up on the grand concorpse and next thing you know we was thretning to swoop down on Pittsfield. Are you lost daddy I arsked tenderly. Shut up he explained....

Ring Lardner, Jr., The Young Immigrunts (c. 10, 1920). My allusion to this means, of course, that our friend, "Silent Cla"-rence Thomas, the SCOTUS justice who never asks questions at oral argument, has once again made an appearance at a friendly law school before a friendly audience, delivering one of his stock speeches (they all have them) and making one of his stock comments, to wit, that the other justices ask too many qustions at oral arguments and, really, ought to, well, just shut up. Thomas's latest audience to be treated to this bit of wisdom, was the student body ("concorpse"?) at the highly-rated University of Alabama Law School. Asked Thomas rhetorically, "[W]hy do you beat up on [the attorneys] if you already know [how you're going to vote]? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it." Jay Reeves, Thomas: Justices ask too many questions (Montgomery Advertiser 10.23.2009). Comment. Actually, I tend to agree with Thomas's related observation on a similar occasion that "one can do [the] job without asking a single question." I offer two observations: a) the importance of oral argument in appellate decisionmaking is vastly overrated; b) judges who ask a lot of questions often remind me of one of my late mother's sayings, that "Empty railroad boxcars make the most noise." Paul Carrington knew what he was talking about when he wrote:

The primary work of the appellate court is not creative or even particularly intellectual. The personal quality most required for the work is not intellect but care. Care is what is required to read tiresome transcripts and to listen to tedious arguments based on the details of the record in order to ascertain whether a trial judge has strayed from the true path of the law so far as to rest a decision on a clearly erroneous factual determination. Or whether an administrative agency has committed a substantial error 'on the whole record' before it. The importance of this work has been sadly underestimated. It is the essence of the idea of a government of law.

Paul Carrington, "Ceremony and Realism: Demise of Appellate Procedures, 66 A.B.A. Bar J. 860 (1980). Sadly, too many appellate judges in this great country think that appellate judging is basically a) reading briefs and the law clerk's memorandum that summarizes the clerk's reading of the transcript and the caselaw, b) listening to the arguments, c) voting yes or no, and then d) relying on the law clerk to draft the opinion, with e) the judge then doing some editing and fine-tuning. We here at the international headquarters of The Daily Judge prefer appellate judges who are willing to do the drudge work themselves, judges who, in Felix Frankfurter's words about Chief Justice Hughes, "tear the covers off of books" (figuratively, not literally), judges who insist on reading the trial record themselves, and judges who know that actually writing the opinions themselves is an essential part of the process of deciding appeals properly. Further reading. Justice Scalia delivers one of his stock speeches -- again; Scalia's one-man show hits the road again.

 Annals of judicial control of clerks of court -- audit reveals problems. Reporter Jennifer Jacobs has an interesting article titled Audit finds holes in financial oversight at county courts in The Des Moines Register (10.23.2009). She reports that state auditors had discovered a) that there were inadequate safeguards in place in clerks' offices in the trial courts in Iowa to ensure that money received was adequately collected, disbursed, and accounted for and b) too many clerks' office employees have the ability to permanently delete cases from the state court system's online file system. Comment. I'm rather shocked to learn that "The 'case delete program' [used by Iowa courts] deletes all information except the case number, and the deleted information can't be retrieved." Hmm.... Have our friends in Iowa considered the possibility that someone might accidentally or negligently delete a case that ought not be deleted? Are they perhaps too trusting of the inherent goodness of human beings to consider that possibility that someone, an employee or an outsider, might deliberately delete a case knowing there is no justification for doing so? Shouldn't there be a way to retrieve deleted files?

 Annals of stat-measured, performance-based legal secretarial selection plans. Not the Missouri Plan for Secretarial Selection but the Illinois Plan. An immigration law attorney in the Chicago area posted this ad on Craigslist in an "adult gigs" section (whatever that is):

Loop law firm looking to hire a[n] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you. [Emphasis added.]

An applicant responded by e-mail and included, in the words of an attorney disciplinary complaint filed against the lawyer, "a photo, her height, clothing size and her measurements." The lawyer replied, in part:

Our law firm is a boutique firm, concentrating solely in immigration law...You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work...As mentioned in the posting, you will have an annual salary which will depend on your experience and other factors, the range will be from $50,000 to $75,000. In addition, we provide several benefits such as medical, dental, retirement, life, disability. As this is posted in the 'adult gigs' section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate...If you think you're comfortable so far, please let me know and we can proceed with the process...[W]e've actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you're comfortable with that aspect, because I don't want you to do anything that you're not comfortable with. So...we've decided that as part of the interview process you'll be required to perform for us sexually...Because that aspect is an integral part of the job, I think it's necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job. [Emphasis added.]

The applicant complained to the disciplinary folks, who contacted the lawyer who is now charged with a disciplinary offense for posting the ad. He initially denied posting the ad but apparently later, under oath, acknowledged doing so and responding to the applicant as set forth above. Complaint dated 10.21.2009 (PDF), via Michael S. Frisch, 'Adult Gig' Craigslist Post Leads To False Statement Charges (Legal Profession Blog 10.21.2009). Further reading. For links to some of our previous postings on Judicial/legal secretaries, click here. And see, BurtLaw's Legal Secretaries. For links to some of our many postings on Judicial romance, see, Annals of Judicial Romance: Lawyers for death-row inmate allege judge-prosecutor affair. On the related subject of Judges and internet and computer-match dating, see, a) Annals of judicial cyber-dating and 'judicial hellholes.' b) Annals of judicial cyber-dating, part II. c) Annals of judicial cyber-dating, part III -- Which judge named to Supreme Court was a computer dating pioneer? d) Annals of judicial internet dating. On the subject of Options for a lovelorn judge, see our extensive comments at a) Judge publicly admonished for 'inappropriate' relationship with employee and b) Commission says judges can't socialize with courthouse hoi polloi. More on judicial romance. a) Internet-dating judge resigns. b) Annals of Judicial Romance. c) Valentine's Day links. d) Want another post-Valentine's Day downer? e) Judge scolded for romance with lawyer. f) Annals of judicial romance revisited. g) Judge resigns and prosecutor is fired over 'romantic relationship.'

 Annals of provincialism: Why doesn't city judge live within city limits? Tracy Staab, who was appointed trial judge in Spokane ten months ago, is seeking a full term. Staab is opposed in the election by a Spokane attorney named Bryan Whitaker. One of Whitaker's main claims of superiority of qualifications is he lives within the Spokane city limits but Staab doesn't. She does, however, live within the county in which the court is located and that is all the state law requires. Besides, says Staab, judges in the court in Spokane "don't represent the city. The city is represented by a prosecuting attorney. My job is to be a neutral and impartial umpire." Details (Spokesman-Review 10.20.2009). Somewhat related. Neighbor vs. judge (The Daily Judge 09.06.2006); Judge resigns over residency, ballot challenge by neighbor (The Daily Judge 09.12.2006); Judge is accused of 'sham residence' within district plus an inappropriate remark and drawing (The Daily Judge 02.16.2008); The latest on the embattled Judge Servaas (The Daily Judge 08.01.2009).

 Annals of judicial colleageality -- on airing one's linens in public. "Justices on the deeply divided [Wisconsin] Supreme Court hurled dueling statements this week, with one contingent accusing the other of delaying decisions on how to handle requests to force the newest member of the court off criminal cases...." Patrick Marley, Issue of Gableman recusal divides state Supreme Court (Milwaukee Journal Sentinel 10.16.2009). In a number of criminal appeals defense attorneys have filed recusal motions against Justice Michael Gableman, arguing that statements he made in his campaign -- statements that are the subject of a pending ethics proceeding -- create the appearance of a bias by Gableman against criminal defendants. One the one side in the battle of press releases are Chief Justice Abrahamson and Justices Bradley and Crooks; on the other side are Justices Prosser, Roggensack and Ziegler. Comments. a) Justice Holmes once commented indirectly on the myth of colleageality among SCOTUS justices when he referred to the justices as "nine scorpions in a bottle." Colleageality of justices may be thought of as a veneer. Scratch the skin of a seemingly calm, rational justice and you'll find a tiger underneath. b) Contrary to what one retired justice is quoted as saying, this sort of public airing of a court's dirty laundry is not "unprecedented." As regular readers of The Daily Judge are well aware, it happens fairly frequently. See, e.g., commentary at Despite MI budget woes, SCOMI justices will get to keep extra offices (The Daily Judge 09.23.2009).

 A tale of two brother judges -- high court removes one, admonishes the other.
"The state Court of Appeals today removed Joseph S. Alessandro of Westchester County as state Supreme Court justice, but reduced to an admonition a removal recommendation against his brother Francis M. Alessandro, a Bronx Civil Court judge...." The state board wanted them both removed in connection with a 2003 loan made by Francis to Joseph when Joseph was seeking a judgeship and "subsequent omissions on loan applications and financial disclosure forms filed by both brothers." Details at Joel Stashenko, High Court Removes One Judge But Reduces His Brother's Penalty to Admonition (NYLJ 10.21.2009). Comment. The highest courts in this-or-that state may rubber-stamp the recommendations of its judicial and attorney conduct boards. It's nice to see the NY court show some independent judgment and recognize that there are degrees of wrongdoing and not all wrongdoing merits the harshest of penalties.

 Court strips judge of role overseeing trust. "Liberty County Judge Phil Fitzgerald, who's under state and federal investigation for allegations of showing favoritism to prominent personal injury lawyer Glenn Vickery, was stripped Monday of his role overseeing the $2.8 million trust for that attorney's daughter...." The court determined that Judge Fitzgerald, who was trustee when he became a judge and continued to act as trustee thereafter, "improperly allowed [Vickery] to use 900 acres from the trust without paying the trust any rent or taxes after 2004." Details (Houston Chronicle 10.19.2009). Comment. A trustee, whether or not he is a judge, owes a duty to the beneficiary (not to her father) to manage the trust reasonably for the beneficiary's benefit. Ordinarily, a judge ought not serve as trustee, although the codes in various states typically make exception in special circumstances, as when the trust is for a close family member.

 FLA judge apologizes for campaign conduct, is scolded by panel. The judge is Brevard County Judge Michelle Baker. She approved a campaign mailer that "suggested she had 'greater diversity among her contributors' than incumbent Judge Oscar Hotusing, whose supporters she concluded, based solely on campaign finance reports, were mainly criminal defense attorneys. 'What does that say?' the ad continued. The last line, in italics, says: 'What are they trying to buy?'" Details (Florida Today 10.20.2009). Comments. a) Baker has waived her right to appear at a hearing before SCOFLA on the disciplinary panel's recommendation she be reprimanded and required to pay a $25,000 fine, a recommendation she has accepted. The judge whom she defeated has asked for permission to appear. He feels her mailer may have cost him the election. b) Improper tactics to sway the electorate in judicial elections are paralleled by improper (but hidden) behind-the-scenes campaigning of those seeking recommendation by attorney-dominated appointment screening panels and appointment by governors. My view: you can't take politics out of judicial selection. The matter inevitably boils down to, i) Whose politics? and ii) Is the campaigning and selecting going on out in the open or is it behind-closed doors? Which would you rather have -- politics out in the open where it can be responded to and evaluated by the voters or politics behind the scenes and in the governor's office?

 Annals of judges caught on tape. The "typical" story of a judge's getting "caught on tape" involves taping of some judge playing hooky and the tape is aired during "sweeps week" by one of those info-entertainment shows that masquerade as local TV news. This time, however, the judge apparently wasn't doing anything wrong. He was "caught" doing the ordinary everyday things every judge, every person, does -- things like "taking a walk, smoking and visiting a barber shop." But the taped footage was accompanied by a narrator calling the judge's behaviour "eccentric," his turquoise-colored socks "strange," his demeanor as "impatient." The tape was aired on a TV channel owned by Italian Prime Minister Silvio Berlusconi. Why was it aired? Not a few believe it was because the judge in question ruled against Berlusconi in a bribery case. Details (BBC News 10.19.2009).

 Judge dismisses drunk driving charge against ex-judge. The ex-judge in question is Beverley Nettles-Nickerson, who was arrested for drunk driving after police found her asleep and under the influence sitting in the driver's seat of a Hummer with the engine running. Nettles-Nickerson's explanation was she knew she shouldn't drive and had called a friend to pick her up. That is, she was doing the right thing -- not driving or operating the car, just waiting for a ride. Details (Lansing State Journal 10.20.2009). Comment. In many states, including MN, courts have held that a person who sits or sleeps in his car with the keys in his possession while under the influence may be deemed to have been in control of the vehicle while under the influence. See, e.g., State v. Fleck (Case # A08-0072 Minn. App., filed 03.24.2009). Note: SCOMN has granted review in Fleck and will be hearing oral arguments on it on 11.04.2009 in the historic supreme court courtroom in the capitol in St. Paul.

 Man arrested in courthouse for carrying 'weapon cane.' A North Charleroi man is charged with taking a cane with a 17-inch blade inside an entrance of the Westmoreland County Courthouse...[The arrestee] said he bought the cane at a flea market and didn't know the blade was inside...." Detailed story (Pittsburgh Tribune-Review 10.16.2009).

 Top court says rules don't apply to it. "Washington's Public Records Act does not apply to the state's judiciary, the Washington Supreme Court ruled [in a 7-2 decision] on Thursday...The case stems from a public records request,,,[for] access to documents and communications about a City of Federal Way scandal involving the resignation of Municipal Judge Colleen Hartl...[who] stepped down after the exposure of an affair with a public defender who frequently appeared before her in court...." Detailed story (RCFP.Org 10.16.2009).

 Historic Miami Beach courthouse reopens after renovations. "The fresh start breathes new life into the storied Mediterranean Revival-style building, one of seven satellite courthouses in the Miami-Dade court system. Designed after the devastating hurricane of 1926, the building is a neoclassical mix of Corinthian columns and barrel-tile roof...." And, oh, the stories those Corinthian columns and courthouse walls could the one about the "judge [who] ordered an artist to perform community service by painting the judge's portrait on the courtroom wall...." Detailed story (Miami Herald 10.17.2009).

 Annals of abuse of judicial discretion. "A justice of the peace in Tangipahoa Parish[, Louisiana,] turned down a couple's request for a marriage license, because of his doubts concerning interracial marriage. Justice of the Peace Keith Bardwell says he isn't a racist: he marries black couples and he marries white couples -- but not mixed couples...." Details (FOX8Live 10.16.2009). Comment. Bardwell, who's been a JP for 34 years, claims that, like any other judge, he has the right of recusal. He says he doesn't tell mixed-race couple they can't get married, just that he won't do it. He's even nice enough to give them the name and number of another JP who'll do the job. Law school exam question. In what way is Bardwell's claim of right to recuse similar to -- and in what ways different from -- the claim of a licensed pharmacist to refuse to fill an Rx for a so-called "morning after pill"? Further reading. For my campaign position paper advocating legalization of same-sex marriages, which I wrote in connection with my failed 2004 anti-war primary campaign in MN's 3rd District against GOP Congressman Jim Ramstad, click here.

 MPLS once again pays out big bucks over police misconduct. This time around the city paid $65,000 to settle a discrimination lawsuit filed by a woman who was arrested for allegedly getting out of a car and jumping an officer who was subduing her fiance during a traffic stop. The woman's lawyer says video from a surveillance camera showed the woman didn't get out of the car. Details (MPR 10.16.2009). Further reading. Millions for 'police conduct settlements in Minneapolis (Twin Cities Daily Planet 10.01.2009) ("Minneapolis has paid out $11 million for lawsuits or claims against the police department over the past four years"); Minneapolis police brutality costs city some serious cash (City Pages 09.01.2009); MPD Wikipedia entry. Comment. Minneapolis needs a truly independent and transparent civilian reviw board.

 'The Justices' will celebrate Golden Anniversary. "The Rev. & Mrs. Jimmy Justice will celebrate their 50th wedding anniversary on Oct. 16. Mrs. Justice is the former Alvena Louise Bishop...." They live in Hendersonville, NC, and, with their daughters, started The Jimmy Justice Family many years ago, recording their first gospel album in 1974 and their latest just this year. More (Blue Ridge Now 10.12.2009). (Click on the name to visit the group's website.)

 Another surprise backbencher in Langdell South, Harvard Law. One of my One-L classes at Harvard Law School during the 1964-65 school year, when HLS still had Saturday morning classes, was Civil Procedure, taught by the now-legendary Paul Bator, a terrific teacher who had clerked for Justice Harlan at SCOTUS several years earlier and who himself later would be talked of as a possible SCOTUS nominee until he was diagnosed with incurable cancer. That class was held in a classroom then and now known as Langdell South, a typical large HLS classroom with stadium-style seating, with the prof holding forth down on the playing field and the students sitting in a semi-circle around him, with their seats rising row by row. I sat to his left, a couple rows up, with my back to more students and a wall containing a famous oil portrait of Justice Frankfurter wearing a red robe, an academic gown I believe he received as an honor from Oxford University. (It was during my first year that FF died, a big event at HLS, where he had taught, an event that prompted me to write a lively little poem with the refrain, "Felix, the red-robed judge, is dead.") Anyhow, I skipped class the last class before Christmas break because unlike my "flying classmates," I was traveling the old-fashioned way, by train home to MN via Chicago, and had to leave earlier than they did. It was during that class, I learned on returning in January, that Bator, after having gone through the usual Socratic give-and-take over a SCOTUS opinion, basically said, "Why argue over the meaning when we can ask the fellow who wrote it," as he recognized one of the backbenchers. Alums who returned for weekend conferences, etc., frequently sat in on Saturday a.m. classes, sitting in the back row. We students noticed them but paid little attention to them as they slipped in and out, wearing their three-piece J. Press wool suits and carrying their cashmere topcoats. That day, it turned out, one of the backbenchers was Justice Harlan himself and it was Harlan whom Bator formally recognized. With this arguably relevant background in mind, I ask you to flash-forward 45 years to that same classroom as you consider the following:

On Monday, October 5, Prof. Bruce Hay's Entertainment Law class began with a slight twist: renowned lawyer to the stars Bertram Fields '52 was there to discuss his experiences in Hollywood. But the real buzz began when, a little over 30 minutes later, Fields' client Tom Cruise surreptitiously entered the classroom. Immediately met by nervous giggles and huge goofy grins, he flashed his megawatt smile in return, waved, and announced that he was there to see Bert speak; after all, he'd never had a chance to hear him lecture before.

Full story: Jessica Corsi, Tom Cruise plays Harvard Law student for an hour - Noted actor appears with Hollywood attorney Bertram Fields '52 (Harvard Law Record 10.05.2009, as updated 10.09.2009). If I caught your attention with this "fair use" extract, I promise you won't be disappointed if you click on the link to the full story, which is excellent and reveals Cruise to be even more charming and winning than I thought he was. The thumbprint pic, above, is one of several pics in the article. It was taken by Matt Hutchins and was the only one described therein as "Free for use" and then, understandably, "only with attribution and without modification." It depicts Cruise posing with an enlarged version of the Record front page and a regular-sized version of Editor Jessica Corsi, the author of the linked-to story. Further reading. I've mentioned that other famous Bert/Burt, Bert Fields, a number of times in postings in my various blawgs. See, e.g., Former judge under fire for relying on adverse possession to get title to neighbor's land (The Daily Judge 11.20.2007). For a profile of Fields, see, HLS Names in Lights (Harvard Law School Alumni Bulletin Spring 1998). See, also, Wikipedia entry on Fields. Among my various postings on HLS, see, BurtLaw's Harvard Law School (LawAndEverythingElse.Com); Is Harvard Law now in direct control of two branches of our Government? (The Daily Judge 11.08.2009); Two Harvard Law grads botch the oath of office (The Daily Judge 01.21.2009). Just for the heck of it, you might also want to check out the photo, er, story at SmittenKitten, Harvard Law to Help Legalize Weed (College OTR 06.06.2008) (The not unattractive female student depicted in this linked-to story is, I like to believe, representative of the current female student body at HLS, which, sadly for me, was only about 5% when I was there but now, I'd hope, is approaching 50%).

 Should judges, other political officeholders get HiNi flu vaccine priority? Anyone who has worked in government knows that there are people with authority who have clever ways of getting around rules (e.g., smoking bans) and otherwise generally getting favored treatment. Back in 2004 some judges and other public officials felt they were so important that they ought to (and did) get first dibs on the limited number of flu shots then available. See, e.g., Nancie L. Katz, Brooklyn Judges Get Inoculated (N.Y. Daily News 10.21.2004) ("Some courthouse workers complained that the judges got preferential treatment, and charged that some of the judges didn't meet the federal agency's criteria"). Stories about these officials prompted a reasonable suggestion in a letter to the editors of the Detroit News on 10.29.2004: "The federal government should be mandated to provide yearly flu shots for all. To ensure this mandate, the president, federal judges and Congress would get their flu shots last...." This time around, as then, it appears that judges and other political officeholders are not among the CDC's priority groups. If you've been reading the news, you know that "Those groups include health care and emergency medical personnel, pregnant women, caregivers of children under the age of 6 months, children, younger adults, and older adults through age 64 with health conditions placing them at greater risk to flu symptoms." See, e.g., this story (Toledo Blade 10.07.2009). Given the bad press that some judges and other politicians got back in 2004 and given that these people are presumed to have developed antennae that keep them in touch with the vox populi, one would think that this time around we wouldn't be reading stories reminiscent of the 2004 ones. But, alas, we are -- well, sort of. I say "sort of" because politicians and their agents have a way of having it both ways. Consider this item, from a report in The Hill about the plans of The Office of Attending Physician for the U. S. Capitol:

Members of Congress will not receive preferential treatment because of their congressional status, but because many lawmakers have medical conditions they may be considered to be high-risk, said the physician. "Capitol Hill's full of high-risk people: children, tourists, pages, pregnant women and people with chronic medical conditions," he said. "Most of the members of Congress and the Supreme Court have some kind of chronic medical condition simply because of their age…[The CDC is] suggesting right now that [the vaccine is] going to be limited the first couple of weeks and that we target those high-risk groups first."

Jordy Yager, H1N1 vaccines coming for every Capitol Hill worker who wants to get one (The Hill 10.03.2009). Quite a contrast between "the physician's" characterization of the condition of the pols from that depicted in their campaign brochures, which typically contain pictures of them jogging, fishing, hunting, etc. Anyhow, we trust that there are many savvy members of Congress and of SCOTUS who will wait their turn if they really do not fit within any of the CDC's categories for early receivers. One such savvy pol is Gov. Ted Strickland of Ohio. The previously-cited Toledo Blade story states:

Mr. Strickland, at age 68, is not in one of the priority groups. Unlike the seasonal flu, those aged 65 and older have shown a greater resistance to the H1N1 virus than younger populations. Mr. Strickland has already had his seasonal flu vaccination, and said he may eventually get the H1NI, or swine flu, vaccination after the priority groups have been served. "There's no preferential treatment for the governor," said [the director of the Dept. of Health].

Query. Should college football players get priority treatment by virtue of their jock status? See, Editorial: Needed: A shot of good judgment (Daily Emerald 11.29.2000).

 Should lawyers get 'free pass' at courthouse security screening? "Attorneys will be able to bypass security screening at the Lackawanna County Courthouse under a new policy in place at the facility...." Details (Scranton Times 10.12.2009). Comments. a) The lawyers must be in good standing with the local bar and pass a background check. They won't get keys to open doors but will be able to walk past the checkpoint without standing in line with the hoi polloi. Their clients and staff will not get to tag along as the lawyers sail on by. b) We've dealt with this issue before. See, Should lawyers be allowed to skip courthouse security screening? and Lawyers will be screened at courthouse. We generally oppose "judicial privilege" in matters like access to flu shot, exemption from rules against smoking in the courthouse, etc. See, Judicial privilege, Judges ask to smoke despite smoking ban (and comment), and Should judges, other political officeholders get HiNi flu vaccine priority? There are multiple factors involved in deciding whether to allow certain people -- say, all pre-screened courthouse workers, judges, lawyers, etc. -- to bypass screening. If I were a judge, I would feel more secure -- and more comfortable as an egalitarian -- if everyone were screened, but that's just me. One the subject of whether only judges should be exempt, see, Who gets to use courthouse side doors, who gets fined? and Editorial: courthouse screening should be required of everyone (Decatur Daily 08.17.2006). c) On the apparent irrelevance of traditional cost-benefit analysis in the context of courthouse (and most other kinds of) security post-09.11, see, my posting titled Clarke County, AL courthouse is insured against attack by foreigners and The Onion (10.03.2001) (Security Beefed Up at Cedar Rapids Public Library, reporting on Cedar Rapids, Iowa Library Director Glenda Quarles' expression of concerns about foreign terrorists attacking their library: "As caretakers of the most prominent public building in the second largest city in Iowa, this library can no longer afford to take chances"). d) For some of my eccentric views on courthouse security, see, i) How about a courthouse surrounded by & filled with flowers? ii) Prayer Day at the county courthouse. iii) Building courthouses with security in mind. iv) BurtLaw and Montaigne on Court Security. v) Should judges be exempt from airport frisking? vi) Woman 'forced' to remove bra to gain entry to courthouse?

 'Sonia' misses SCOTUS hearing after failing to get out of jury duty. "Though she reportedly tried a number of tactics to prove that she was unfit to serve -- including inventing an infirm grandmother, claiming she had 'psychological problems,' and even citing some of the more inflammatory allegations leveled against her during her Supreme Court confirmation hearings -- the prosecution and defense still agreed upon Sotomayor as a juror...." Sotomayor Misses Supreme Court Case After Failing To Get Out Of Jury Duty (The Onion - Satire 10.12.2009). Comment. According to The Onion report, which presumably is "legit" (after all, it's in print), Justice Scalia told its reporter: "Sonia should have told the judge that she would take a strict constructionist interpretation of the law and make her decision accordingly. That gets me dismissed every time."

 More on the feds' reliance on vague laws to 'get' people. Adam Liptak of the NYT has written an interesting "sidebar" on the federal "dishonest services law," one of those vague criminal laws that federal prosecutors love because, well, it makes their job so easy. See, A Question of When Dishonesty Becomes Criminal (NYT 10.12.2009). Of the dishonest service law Justice Scalia wrote, in dissenting from a denial of certiorari sought by some Chicago officials, that it "has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior" and is so broad that "it would seemingly cover a salaried employee's phoning in sick to go to a ballgame." As Liptak points out, SCOTUS now has granted review in two cases involving the law's scope. Comment. As Liptak points out, critics argue that the law gives prosecutors so much discretion that it basically lets them target public officials they don't like or disagree with politically, and it is used primarily to target state officials, thereby violating basic tenets of federalism. These are criticisms readers of The Daily Judge are familiar with, because we've been making since we started this blog in 2005, primarily in postings relating to the many, many prosecutions of state judges using vague, overbroad statutes like the dishonest services law and the false statement law used outrageously to send Martha Stewart and countless others to prison. Want more? I express my views on these statutes and other matters in greater detail in a mini-essay titled How do you solve a problem like Fitzgerald? There I wrote, in relevant part:

What we're seeing is "government by prosecutor," the "federalization of criminal law," and the "criminalization of politics" -- federal prosecutors with huge budgets and lots of time targeting state judicial systems all around the country, federal prosecutors prosecuting executive branch officials, federal prosecutors targeting congressmen, prosecutors running for the U.S. Senate, prosecutors running for governor (e.g., in MN), prosecutors being named judges in inordinate numbers, etc., etc. I guess, as usual, I'm in the minority, but I'm sorta sick of it all.

As Liptak notes, my HLS classmate, Harvey Silverglate has a new book out that also addresses these issues; the book is Three Felonies a Day: How the Feds Target the Innocent (Encounter Books 2009), reviewed at William Anderson, Channeling the Soviet Union: How U.S. Federal Criminal Law Has Reincarnated Beria (LewRockwell.Com). Want more? Read on...

 Annals of overcriminalization, federalization, government by prosecutor. "Chairman Bobby Scott, D-Va., and ranking member Louie Gohmert, R-Texas, conducted a truly bipartisan hearing (a rarity this year). These two leaders have begun giving voice to the increasing number of experts worried about 'overcriminalization.' Astronomical numbers of federal criminal laws lack specifics, can apply to almost anyone, and fail to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent. George Norris ended up spending almost two years in prison because he lacked the proper paperwork for some of the orchids he imported...." From a must-read op-ed essay by Brian Walsh: Bipartisan concern over the unprincipled expansion of federal criminal law (Pioneer-Press 10.04.2009).

 On judicial independence in Uganda. Here's a link to a paper on judicial independence from executive and legislative branch politicians that retiring Justice John Wilson Kanyeihamba presented at a Rule of Law Day gathering in Kampala organized by the Uganda Law Society: What is the Rule of Law (The Monitor via AllAfrica 10.12.2009).

 It's official: Rush Limbaugh is now a top judge. "The Miss America Organization (MAO) announced today that Rush Limbaugh has been named as one of the national judges for the 2010 Miss America Pageant, which will be held at Planet Hollywood Resort & Casino in Las Vegas on Saturday, January 30 and broadcast live on TLC. Limbaugh will be one of a panel of seven distinguished judges that will help decide which of the 53 contestants will capture the Miss America 2010 title and serve as the Goodwill Ambassador for the Children's Miracle Network, as well as introduce the first Go Green platform for MAO...." Press Release (MAO 10.09.2009). Comment. We here at the International Headquarters of The Daily Judge urge our many readers of all political stripes -- particularly our judges -- to welcome Judge Limbaugh to the Mostly Sedentary Brotherhood and Sisterhood of the Primarily Nontraveling Robes and to extend to him the respect and veneration to which all judges are entitled. Further reading. Will new federal courthouse be named after Rush Limbaugh?

 Annals of discrimination against chimps as judges. "An animal rights group went ape this week when Dancing with the Stars wanted to use a chimpanzee as a guest judge. The popular ABC show scratched plans to have the primate appear on Tuesday night's episode after People for the Ethical Treatment of Animals (PETA) complained to Dancing producers, reports" Details (N.Y. Daily News 10.08.2009). Further reading. BurtLaw's Law and Animals.

 Chief Justice's hubby seeks dismissal of criminal charge. "A Polk County judge is considering whether to drop a criminal charge against the husband of Iowa's supreme court chief justice, who's accused of not staying put when ordered to by a Polk County sheriff's deputy...." The allegedly criminal conduct on which the charge is based allegedly occurred when the sheriff's deputy was investigating a report of a loud party of teenagers outside the residence of Dennis Drake, the defendant, and his wife, Chief Justice Marsha Ternus "at their acreage near Grimes." Details (KCCI.Com 10.09.2009). Comment. a) Does it sorta remind you of the arrest and charge of Henry Louis Gates by Cambridge, MA police a couple months ago? The powers that be in Cambridge dropped the charge almost immediately -- wisely, in my opinion. Maybe there's more to this case but I find it difficult to understand how the mere act of walking away from an officer investigating a party at one's residence should subject one to an arrest and prosecution for interfering with an investigation. b) As readers of The Daily Judge know, there's a whole genre of cases involving prosecution of spouses, kids, and other relatives of judges. See, e.g., Article: Paul Gustafson, Chief justice's spouse acquitted in cigar theft; A vindicated Thomas Berkelman blamed the allegations on unfair treatment (Minneapolis Star-Tribune 11.07.2001).

 He'll 'blimp' across Texas/ with you in his sights,/ you in his sights.... "A veteran state district judge who walked across Texas three years ago in pursuit of a seat on the state Supreme Court plans to go airborne next year for another shot at the high court. Judge Bill Moody, of El Paso, plans to charter a blimp and make two daily stops in the state's 70 most populated counties to grab the attention of voters...." Details (Houston Chronicle 10.09.2009). Earlier. Judicial campaigning: Waltzing Across Texas? Comment. The Blimp-across-the-state campaign idea has been tried twice before -- by me. Only I did it "virtually," not actually. Unbeknownst to my opponent, in my 2000 general election statewide campaign for the state supreme court I sent a virtual campaign blimp on a statewide tour, dropping subliminal "Vote Hans" messages down on the electorate. The result? I came in second place in a field of two, garnering a whopping 500,000 votes to my opponent's 1,500,000+ votes. Not bad for a budget of less than $100 (virtual blimps don't cost much). I got the virtual blimp out of storage back in 2004 and used it in my anti-war primary campaign against 3rd District pro-war GOP Congressman Jim Ramstad. I distinguished myself by being not only the only candidate to use a virtual blimp but by a) being the only liberal Republican in the country (there are only a few of us left) who dared to present himself to the voters as just that, a liberal Republican, and b) by winning a whopping 10 or 11% of the vote (the virtual recount by our whiz MN recounters still hasn't been completed). Above right is a depiction of my virtual campaign blimp from 2004. If you'd like to see a picture of it virtually circling over the imagined ruins of ancient Edina, MN, or my other campaign memorabilia (specifically, my virtual campaign billboard surreptitiously and virtually placed atop a real building near our beloved state capitol, my virtual campaign button, and my virtual campaign bumper sticker), see, Burton Hanson for Congress Campaign Memorabilia.

 Bob Barr says MN's Judge Magnuson is 'way out of line.' "U.S. District Court Judge Paul Magnuson, of Minnesota, last July issued an order in the long-simmering 'water wars' between Georgia, Alabama and Florida.  The judge has now issued another order that reveals him to be an advocate and not the disinterested, objective jurist Georgia is entitled to and which normal jurisprudence requires...." Barr especially doesn't like Judge Magnuson's having "publicly reprimand[ed] a state for doing what common sense and proper legal ethics and practice require[, namely, try to appeal his decision]." The Barr Code, 'Water judge' way out of line (AJC 10.07.2009). Factual background: Bill Rankin, Judge again rules against Georgia in water fight (AJC 10.05.2009).

 Judge washes away Mel's 'sin.' Mel Gibson, director/producer of the divinely successful The Passion of the Christ (2004), got his DWI conviction expunged in a court in Malibu (which is the setting for Two and a Half Men) yesterday, pursuant to the stay that allowed for expungement after successfully completing probation. Details (LAT 10.07.2009). Comment. I'm a bleeding-heart liberal Republican, Norwegian-American populist-era variety, and I believe the stay-with-expungement approach ought to be used for other crimes that, while they may be deemed felonies, are in fact less dangerous to the public safety than misdemeanor DWI. See, my 2004 campaign essay, Burton Hanson on Crime and Punishment. Compare and contrast, a) "When Edward & I struggled in vain to drag our big calf into the barn, the Irish girl put her finger into the calf's mouth, & led her in directly" (Emerson's Journal, 02.18.1855); b) Judge tells defendant he's 'beyond redemption' (The Daily Judge 10.18.2008); c) "A BurtLaw Good Friday/Easter Sermon" at BurtLaw's Secular Sermons for Lawyers and Judges.

 Witness the American deputy solicitor general in his natural habitat—the Supreme Court. "As Neal Katyal roams softly across the cool marble chamber, he has no idea what awaits him. He is here to protect his tribe -- the U.S. government -- which, in 1999, passed a statute making it a crime to create, sell, or possess 'any visual or auditory depiction' of 'animal cruelty' if the act of cruelty is itself illegal under either federal law or the law of the state in which the depiction occurred...." Dahlia Lithwick, This Case Is a Dog -- The Supreme Court mauls the law banning animal-cruelty videos (Slate 10.06.2009). Comment. First let's kill the videos of illegal "animal cruelty," then the videos of illegal "bullfighting," then what, the porn videos of married couples getting paid to engage in consensual sexual acts with each other? Then what will the crowd-playing politicians target after that? I posted an opinion piece on this subject titled "'Sex tourism' now, 'abortion-tourism' later?" (scroll down) at Sometimes Left, Always Right, my political opinion journal/weblog, on 09.14.2005 in connection with a news squib about the prosecution of an ex-judge for "sex tourism." Here is my comment:

Federal statutes governing trafficking and sex tourism include 18 U.S.C. §§ 1591, 2421, 2422, and 2423. No one wants to criticize the federal government for trying to curb so-called sex tourism, but the statutes in question stretch the concept of territorial jurisdiction over criminal conduct far beyond traditional limits; moreover, the statutes are awfully broad & theoretically could be used to prosecute, say, your 18-year-old son for having consensual sex with a 17-year-old woman he meets while traveling abroad in, say, Sweden. If Roe v. Wade is ever overruled and replaced by a federal statute criminalizing abortion, there are those who undoubtedly will try to make it a federal crime for a woman to travel to, say, Canada to have an abortion. You heard it here first. Indeed, an effort has been underway in Congress for several criminalize, under certain circumstances, the transportation (or aiding and abetting the transportation) of a minor girl across state lines for purposes of obtaining an abortion. Our own Congressman here in Minnesota's Third District, Uber-Bush-Loyalist Jim Ramstad (who I was proud to run against in the 2004 G.O.P. primary), has voted for this legislation, which passed again in the House this last spring.

 Special feature: The Erin Andrews episode and its relevance to judges, at home, in chambers, and on the road -- Should judges wear their robes even while showering? "Authorities have arrested a man in the secret nude filming of ESPN reporter Erin Andrews naked at her hotel, according to E!. Michael David Barrett was arrested on a charge of interstate stalking after filming Andrews naked in her hotel room and then trying to sell the tape, authorities said...." Details (Seattle PI 10.04.2009). Commentary:

 a) In case you missed the story, this linked-to report is just one of thousands of similar reports that hit the WWW after pictures of the not-unattractive Ms. Andrews drying her hair in the nude in her hotel room were posted by someone. The pictures, which are "all over" the Internet, apparently were taken with a device BurtLaw's The Daily Judge wasn't familiar with, a widely-available so-called reverse peephole device that is attached to the outside of a hotel door's peephole, a device that in turn may be used in connection with a tiny "spy cam" or "voyeur cam" that takes still or moving digital images of the interior of the hotel or other room to which the door with the peep-hole leads.

 b) Not surprisingly, the story has prompted a number of related stories such as this one: How to safeguard your security, privacy in a hotel (ABC News 10.07.2009). While stories like these are undoubtedly useful, we thought it might be useful to our friends in the judiciary to focus on the particular relevance of the Erin Andrews episode to judges and perhaps shed some nonvoyeuristic light on i) the ways in which judges in particular might unwittingly be exposing themselves to the risk of surreptitious observation and monitoring and ii) the reasonable and proper defensive measures judges might at least consider employing to protect their privacy as well as avoid the sort of unwanted exposure to which Ms. Andrews is now being subjected. Herewith, our analysis and (as always, modest) suggestions:

 c) First, in what venues might judicial "activity" be "caught on camera"? Sorry to disappoint you, but the venues are all the venues in which judges perform their judicial and nonjudicial activites. These venues include:

i) The judicial residence (including bedroom, bathroom, shower, tub) and the outdoor property surrounding the residence, including the curtilage, where, for example, a judge might think she may safely lie in a bikini swimsuit on a chaise exposing herself to the sun's rays without thereby exposing herself to the eyes of millions of Internet surfers on JudgeTube.

ii) Anywhere in public -- in the car while on the way to work or to the golf course, on the golf course, at a strip joint, at the race track, in church, in a public restroom, at a bar, at a political fundraiser, in the parking lot by the Como Park Conservatory in St. Paul, in a park such as Minnehaha Park in Mpls., at Lake Gervais in St. Paul or Lake Calhoun in Mpls., at the friendly neighborhood 10-cents-a-dance dance parlor in Edina, etc., etc.

iii) In the courthouse, including in the courtroom and in chambers.

iv) Anywhere "on the road" or while "on tour," including various venues where judges engage in so-called "judicial outreach programs," expensive hotels stayed at while on judicial junkets or personal vacations, cheap hourly-rate no-tell  love motels where a judge might engage in a non-sanctioned "outreach" get-together program of her own with the local prosecutor or a court employee, bar association and judicial/legal seminars held in conference centers, reading books to school kids a la #43 on 09.11.2001, etc., etc.

 d) What are examples of how judges, other public officials and just plain ordinary people have been "caught on camera" at these locations? If you've been doing your duty and reading BurtLaw's The Daily Judge religiously, I think you're aware of many of the examples. They include:

i) A state district court judge is indicted by a grand jury of felony criminal mischief based on a surveillance camera video allegedly showing him "keying" his neighbor's Range Rover. Annals of big-time grand jury investigations: Did judge 'key' neighbor's car? (The Daily Judge 06.16.2009, as updated 06.19.2009).

ii) A state trial judge loses his cool and tells a criminal defendant to "shut your damn mouth" -- and, you guessed it, it's caught on tape. Judge loses his cool, shouts down defendant -- and it's caught on tape (The Daily Judge 03.06.2009).

iii) A so-called I-Team crew targets a judge suspected of excessive unexcused absences from the bench while collecting pay and catches her on tape. Hey, it happens somewhere in the U.S. nearly every "TV sweeps" ratings period. See, e.g., a) Annals of TV 'sweeps' and judges 'caught on camera.' b) Another I-Team-type report: Judge caught on tape away from bench! c) Judges caught on tape! -- revisited. d) It's 'Sweeps Month' for local TV 'news' shows -- judges are targets.

iv) A judge decides he needs a break from the stress of work and otherwise always having to be a "good guy" in the public eye, so he signs up for an innocent good old-fashioned nude sea cruise with the Bare Necessities cruise line. Might he be "found out"? See, Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? (The Daily Judge 10.31.2006).

v) Appellate judges from the all-male supreme court of one state are showering in the judicial center's visiting judges' locker room after playing a friendly game of sissy touch football on the capitol lawn with judges from their neighbor state's all-female supreme court the day before a big game of macho tackle football between rival teams from their two states. Unbeknownst to the male judges, someone has planted a miniature video camera to spy on them as they engage in typical athletic locker room activity, "snapping" each other with towels, etc., and the resultant video is posted on an Internet video-"sharing" site like JudgeTube. Impossible? Several years ago some former Philadelphia Eagles cheerleaders filed suit against 23 other NFL teams for damages, alleging the players on these teams "sneaked peeks at them through peepholes between the visiting-team locker room and the cheerleaders' locker room at Veterans Stadium," watching them dress and undress, etc. I'm not sure how that case turned out, although I wondered at the time the suit was reported whether any cheerleaders used the peepholes to peep in the other direction (one cheerleader apparently came forward and said it happened) and, if so, whether some players might have a cause of action (or whether "the law" only work in the one direction, i.e., in favor of women).

vi) Some judges of a federal circuit court of appeals discover that their internet use, and that of other court employees, has been monitored by computer-monitoring software installed with the knowledge of administrators in Washington. As readers of The Daily Judge know, this actually happened. See, among several postings, "Foes of monitoring of judges' computer use win first round," an entry dated 09.08.2001 at BurtLaw's Court Gazing II (scroll down) on our pioneering law blog, BurtLaw's Law and Everything Else.

vii) A devout judge who annually attends the Roman Catholic "Red Mass" for judges in Washington, D.C., and regularly patronizes a Christian bookstore, thinking of it as a sanctuary of sorts, reads this story about a Christian bookstore in a different city and begins to worry: Clerk Busted at Christian Bookstore After Peep Cam Found in Bathroom (KTLA News 11.02.2009).

viii) A judge uses a master key to enter a fellow judge's chambers and is caught on a hidden cam doing so. It has happened.

ix) Someone "bugs" a supreme court conference room and records the entire post-argument conferences on cases heard by the justices. It conceivably has happened, it certainly could happen.

x) A judge accompanies her male law clerk to a no-tell hourly-rate hot-sheet love motel for some "confidential communications," which are caught on a hidden spy videocam put there by....

xi) A courthouse security guard uses high-tech computer-linked security cameras in a courthouse to record a female judge as she removes her noon-hour jogging outfit to shower in her luxurious chambers bathroom. Think it couldn't happen? See, Annals of courthouse security: high-tech voyeurism? (The Daily Judge 08.31.2008) (security guard pleads guilty to felony voyeurism for using high-tech computer-linked security cameras in the federal courthouse complex in Spokane to watch women undress in a nearby hotel and condominium building).

xii) A judge who is stopped by a state trooper identifies himself as a judge and begs for leniency. You think there's no way it could be "caught on tape"? Think again.

xiii) A judge who demeans a man with a service dog is demeaned by the discovery his behavior was caught on the judicial reality version of Candid Camera. More.

xiv) A judge uses "vulgar and racial insults" when arguing with a police officer trying to process her on a DWI charge and her behavior is not only caught on tape but the tape is a) uploaded to a newspaper's website and b) used to establish cause to pursue jucidial misconduct charges. More.

xv) A judge accepts some expensive cigars from an acquaintance, it's caught on a hidden camera, and the scene becomes the symbol of a corruption probe. Hidden camera shows NY judge accepting expensive cigars; video symbolizes corruption probe (Arizona Star 04.09.2007).

xvi) Suppose you're a member of a group of judges who regularly leave court early on Friday afternoon to play golf and suppose you don't bother to deduct the time off from work as vacation time. Are you safe from the press and/or surveillance cameras on the golf course? Think again. See, Dept. of Judicial Dangers: Golf).

xvii) A judge is on a weekend outing at a beach in Florida. A female companion prompts him to comment on another woman on the beach. The judge comments on her "nice breasticals" and "the joys" of breast enhancement surgery. Unbeknownst to him, his companion has recorded his comments on her cellphone camcorder. She uploads the clip to YouTube. On his complaint, she is arrested and charged with violating the state's unusually-broad (and, in my view, unconstitutional) statute governing taping of conversations and is subsequently convicted and spends some time in jail. She writes a book. He is defeated in his bid for reelection. See, Ex-girlfriend of judge is charged over taping of judge at public beach (with updates); The judge had her arrested; now she's written a book.

xviii) A judge posts racy pictures and jokes on what he thinks is a generally-inaccessible area of his own web server, giving friends Internet access to the material but not intending the general public to gain access. The press discovers and a big to-do ensues. Click here and here for details.

xix) A female One-L poses for some saucy photos for her BFF. Later, when she's named to the state supreme court the embittered ex-BFF posts the pics on the Internet. Think it can't happen? It has happened in other contexts -- see, Parents get cheerleading coach fired over old nude photos (The Daily Judge 04.20.2009) -- and it eventually will happen in the judicial nomination context, sooner rather than later. And, you know what, Sir Burton will rise to defend the nominee -- after getting a look at the pics.

e) What are some of the ways judges can reasonably protect or otherwise reasonably defend themselves against being "caught on camera"? Here are some ideas, some general, some specific -- some based on previous postings, some based on the input of our resident expert, Dr. F. Lavoris Pusso, Ph.D.:

 1. Always do the right thing. This is BurtLaw's Rule #1 for Avoiding Getting Caught on Camera Doing the Wrong Thing. Why should you do the right thing? You should do the right thing because, well, it's the right thing to do. But there's an added utilitarian bonus: By always doing the right thing, you -- well, your conscience at least -- need never fear the consequences of getting "caught on camera" doing it. What you get caught doing might look wrong, because in this topsy-turvy world that which is right sometimes is perceived as wrong or made to look like that which is wrong (even Jesus Christ, who many believe was the perfect God-as-man, was convicted and executed according to the Rule of Law). But, I'm sorry to say, judges know that even they don't always know what's right. Let me repeat that: As hard as it is to believe, even judges who desperately want to do the right thing don't always know what is the right thing to do. This is particularly true in this Age of Moral Relativism, when Right sometimes equals Wrong and vice-versa. And, since Men (particularly those Men known as Woe-Men) are not Angels, sometimes even the best of them find themselves -- in a sort of "can't help it" way -- doing what they know is the wrong thing. Therefore, some judges who desire further protection than that provided by a good-faith effort to do the right thing have asked us (yeah, sure) to provide them with other more specific, practical, utilitarian stratagems and tools. Similarly, judges who don't believe what they regularly do -- e.g., showering while stark naked or vacuuming in the nude -- is wrong, fear nonetheless the consequences of their activity being voyueristically "caught on camera" and posted on the Global Village's equivalent of the public square's news post, the Internet. Here, then, are just some of many "other stratagems" for avoiding getting caught doing what is okay but not intended for public viewing and doing and/or appearing to be doing the wrong things:

 2. The MWP perception problem and the Super-Privacy Robe solution. Our readers are all too familiar with the case of the penis-pump-possessing Oklahoma judge who, believe it or not, was required to serve a substantial stretch of time in prison after being convicted (rightly or wrongly) of "MWP," masturbating while presiding. See, Annals of MWP (Masturbating While Presiding) (The Daily Judge 12.06.2006). Sadly, I have to be frank here. I know and you know that normal All-American male judges do not play -- at least in public -- what has long been euphemistically referred to in small towns in the Middle West as 'pocket pool.'  But many men, including male judges -- particularly those who are tall and monkey-like and therefore long-armed and don't know what to do with their hands -- long ago as kids developed the nervous habit of putting their hands in their front pants pockets. Some don't just do that but also allow their hands to play, innocently enough, with the contents of those pockets -- coins, wallets, keys, etc. Sadly, some women with too-suspicious imaginations (and perhaps even some who consciously or unconsciously resent or envy men in the way that Freud theorized they do) perceive and firmly believe that men who are engaging in this innocent pastime are instead playing "pocket pool" or engaging in other sexually-suggestive or harassing activity. What's a judge to do if i) he can't break himself of this innocent habit, a habit which perhaps developed in rebellion against his mother's constantly nagging him to get his hands out of his pockets and ii) he's afraid that despite his pure heart and hands he might wrongly be charged with or at least thought of as doing something bad? For that judge may I suggest he purchase a couple BurtLaw's Super-Privacy Judicial Robes and wear them all the time, even in chambers, even when out and about in public. Women can't see into or under these robes, they are impenetrable by see-through spy cams or x-ray cams, and they are fully sound-proof, totally muffling the jingling of any coins or keys if the wearer somehow is able to reach under the robe and put his hands in his pockets. In fact, the robes even would have protected that penis-pump-possessing Oklahoma judge if he in fact did what he was convicted of doing.

3. The hidden shower-cam and reverse-peephole cam problem and the Super-Privacy Robe solution. Judicial anthropologists tell us that, strange as it may seem to men, in all cultures where women ride the bench it is common for at least some of them to dream occasionally about anxiously finding themselves on the bench in open court not only robeless but naked. Therefore, it ought to be no surprise that it is of particular concern and understandable worry to many female judges that, as happened to TV sports journalist Erin Andrews, they will be caught on a reverse peephole cam drying their hair in the nude in a luxury hotel while attending a judicial conference or while on an important law-finding judicial junket at taxpayer expense. Many also have a low-level fear of getting caught on a so-called shower cam installed in the hotel shower. Truth is, they ought to fear just as much getting caught in the seeming privacy of their own home bedrooms or bathrooms or their personal chambers bathrooms and/or showers. Is there a sure-fire way to protect themselves against someday (sooner rather than later?) finding uploaded videos of themselves on JudgeTube showering or drying their hair in the nude? Well, yes there is. It's called, again, BurtLaw's Super-Privacy Judicial Robe. i) Wear a judicial robe in the shower or while drying your hair? As I pointed out several years ago in another context, back in the 1950s in my hometown in Minnesota on the eastern edge of the Great American Prairie, some of us Norwegian-Lutheran boys actually believed or at least heard rumored that the nuns in town weren't allowed to see themselves or each other naked and therefore didn't remove their long, flowing black habits even when showering. I have since concluded that I was deliberately misinformed. I also no longer really believe the rumor, rampant at Harvard Law School in the 1960s, that just as some law school profs never removed their three-piece suits, even while jogging, some judges never remove their robes, even while showering. But, as Dr. F. Lavoris Pusso, Ph.D., said recently at a seminar for judges, "Sometimes false myths contain essential truths. If a particular judge is in actual fact obsessed to the point of anxious paralysis by the notion that she might be 'caught on camera' showering, then rather than stop bathing, I see nothing wrong with that judge's wearing a robe in the shower. Think of it, if you want, as a 'safe-shower judicial prophylactic.'" ii) "But," you say, "I don't want to walk around in a wet robe." We, of course, thought of that: our robes are both water-repellant and insta-quick-drying. iii) "Double but," you say, "I've seen the male version of the BurtLaw's Super-Privacy Judicial Robe and it's too bulky for me and its cut is unflattering to my female form." We, of course, long ago anticipated that complaint and have been busy designing, specifically for the growing number of female judges, our BurtLaw Form-Fitting Super-Privacy Robe. And for the bolder female judges, those with a bit o' the retro 1950's sweater girl in their souls and a touch of the naughty 1960's judicial activist in their Ids, there's the special-edition BurtLaw Ultra 6-B (a/k/a, our BurtLaw Basic-Black Bullet-Proof Bullet-Bra Robe), a slightly daring judicial-conduct-board-taunting black robe/gown with the "'It' Girl" (a/k/a Marilyn Monroe-like) tight-cashmere-sweater look featuring a built in "bullet bra," the conical/cone-shaped bra-with-inserts (these inserts were known in my All-American midwestern hometown in the 1950s as "falsies" or "the great equalizers") that's enjoying a distinctly-pointed lift in sales thanks in part to the popular TV series, Mad Men, with two differences -- a) the Ultra 6-B 9 (modeled at left by a pert-perky-and-petite judicial employee with a 34B bra size) will easily double as a "basic black" evening gown, and b) the built-in bra is not only a bullet bra, it's bullet-proof! And get this Flash!! Both models -- the Basic and the Ultra 6-B -- are now available and you can wear them anyplace, including in the shower! But wait! There's more!  The President and the Congress, with no intent to interfere with Judicial Independence, are pleased to announce their latest economic stimulus package, the $2 billion BurtLaw-inspired "Uplift America Retro-Rerobe-Rebate," which will provide a 50% rebate to state court systems that trade in their old robes for the basic BurtLaw Security Robes and an even bigger 75% (!) rebate on trade-ins for the BurtLaw Ultra 6-B (i.e., our BurtLaw Basic-Black Bullet-Proof Bullet-Bra Robe). The Uplift America Retro-Rerobe-Rebate stimulus program will:

a) directly stimulate the economies of the 50 states, those laboratories of democracy;

b) indirectly stimulate the economy by encouraging millions of American women, including female lawyers -- who invariably and slavishly take their fashion cues from female judges -- to update their wardrobes and thereby help "save" American brassiere and sweater manufacturers, wholesalers and retailers;

c) give a much-needed lift to judges, many of whom, because of court budget woes and other factors, haven't had a rise in years;

d) provide improved personal security to our judges at lower cost and with less inconvenience than that associated with other security systems such as expensive, labor-intensive screening checkpoints;

e) provide a boost to those of us who are nostalgic for the good old balanced-budget-yet-infrastructure-expanding I Love Lucy, Ozzie and Harriet, and Peyton Place days of President Dwight D. ("I Like Ike") Eisenhower; and

f) allow the recycling of the trade-in robes to judges in other countries, judges who immediately will i)  covet the instantly fashionable American-made BurtLaw robes that replaced these hand-me-downs and ii) work harder and judge better and fairer in the hope that they may some day trade-up to BurtLaw robes.

 4. The swimsuit issue and the Rules of Judicial Conduct. Most judges do not let their slightly-irrational though reality-based fear of being "caught on camera" showering in the nude prevent them from doing so. But these same fearless judges, many of whom love non-nude sunbathing, do fear being "caught on camera" while at a public beach or even in their own back yard. Because the act of appearing in public (or within public view) wearing a swimsuit does constitute a public display by the judge, it is a matter within the bounds of reasonable regulation, direct or indirect, by Rules of Judicial Conduct. Fortunately, for our readers, we long ago shed sunlight on the subject. We did so in the special swimsuit edition of our first law blog, BurtLaw's Law and Everything Else, where, inter alia, we presented a helpful two-part section titled On judicial swimsuits and the Rules of Judicial Conduct. We believe this just-referenced special edition, first published in February 2003, was the first swimsuit issue in the history of weblogging or blogging, certainly the first in the history of law blogging or blawging. Indeed, it may have been the first such issue of any legal publication in the history of Anglo-American law, nay, in the history of law! Although published in 2003, it continues to be one of the most-visited pages on any of our three weblogs. Needless to say, despite my innate Norwegian-Lutheran modesty -- we Norwegians are by far the most-modest of Minnesotans -- I'm mighty proud of myself over this great, mind-boggling-blogging accomplishment, indeed, so proud that I am reproducing the special swimsuit edition in an appendix to this blog, and providing readers with a direct cost-free no-obligation in-site link to the two-part section titled On judicial swimsuits and the Rules of Judicial Conduct. Here's just a brief excerpt from the extended discussion:

Q - What sort of swimwear is appropriate?
A - It depends. Under no circumstances may a female judge wear a bikini, string bikini or thong-type swimsuit or a male judge wear a skimpy European-style swimsuit in any public setting anywhere within the judge's jurisdiction. Since a judge's wearing in public of an inappropriate swimsuit may form the basis for discipline, it is recommended that, to be safe rather than sorry, a female judge wear either a Lands End 1950's-style tunic suit or one of the new Sharia swimsuits (depicted lower right), i.e., the sort of suit an observant Muslim woman...might be safe in wearing.  In conservative Muslim societies, "many women have until now either had to sit on one side or go into the water in their clothes," much as Roman Catholic nuns were once said to be required to shower in their habits. Now, thanks to this recent trend-setting design ("a high-necked, swimming costume with sleeves and a small skirt, to be worn over long trousers"), Muslim women can swim in style and relative freedom. More (BBC). Just as a Muslim woman ought to be properly covered when swimming in public, we like to think that many female judges will turn to the appropriately-black Sharia swimsuit, which is judicially tasteful and flowing, indeed respect-inducing, much like a judge's robe. What may a male judge wear? As I said, on the negative side, no skimpy European-style swimsuits. On the positive side, why not a solid black pair of surfer shorts?
 5. How about personal judge-created amateur home videos and photographs that, while not illegal, are not intended for public viewing? Oh, I could continue with this nonsense, but I'm getting bored with it. But, before signing off on the topic for now, here are a couple of relevant links: Link 1; Link 2.

 Annals of nude vacuuming, indecent exposure, and Warren Burger. You're out on a hypothetical walk with a hypothetical friend at dusk in November in an exclusive southwestern fairy tale suburb of the great metropolis known as Zenith. The giant oak trees have bared themselves and you find yourself looking at the lovely and diverse lines and curves of the naked silhouetted trees, pointing out occasionally an absurdly-placed squirrel's nest or a sloppily-constructed robin red breast's nest or an exquisitely-woven Baltimore oriole's northern summer love nest. As your eyes scan the trees you inadvertently catch a glimpse of someone standing before a mirror in a well-lit second-floor bathroom with shades not drawn. You've been taught not to peep and so you don't. But if you had revisited the image you might have confirmed your voyeuristic Id's split-second message that it was the upper torso of a partially-clad suburban housewife towel-drying herself after a shower (!). Then again, it might in reality have been an old geezer like yourself (yuk!) cleaning up after an afternoon of raking. You'll never, ever know. Did you commit a crime? No. Did "she" commit a crime? No.

Some basic questions. When, if ever, is a crime committed when a person within a house exposes or otherwise makes himself or herself visible to passersby? Does/should it make a difference what is exposed? Does/should the manner in which the person exposed herself -- inadvertently vs. negligently vs. intentionally -- make a difference? Does/should it matter whether the exposure was to a known passersby or merely to possible passersby? Does/should it matter whether the exposer is a woman and the viewer is a man -- or vice-versa? Does/should it matter whether the viewer was looking carefully, as if responding to an invitation, as opposed to looking with voyeuristic purpose? Does/should it matter whether the viewer was subjectively offended -- or, on the other hand, pleased? Does the exposure of one's mere God-given nudeness in such a setting constitute "lewd and indecent" exposure -- or is "something more" required?

So that you may explore the matter yourself and come to some preliminary conclusions, we here at BurtLaw's The Daily Judge, always eager to help, offer two timely hypos from the current press, one a story out of Springfield, VA, from FOX 5 News in D.C., the other out of NYC from America's favorite news source, The Onion:
a) According to FOX 5 News, E.W., a 29-year-old commercial diver who shares a rented house with several co-workers, who were not home, walked into the kitchen in the nude to make coffee at 5:30 a.m. It was dark and he says he has no idea anyone was outside at that hour looking in at him. Turns out someone was: an unidentified woman and a 7-year-old boy. Fairfax County law enforcement officers, who say they've been given the green light by prosecutors, have charged the man with indecent exposure based on their belief, based on the woman's complaint, that E.W. wanted to be seen naked by the public. E.W. denies it, says he has a 5-year-old daughter and would never intentionally expose himself in an indecent way, and vows to fight the charge; he may even seek damages because he feels he's the victim. For the detailed story (and any updates) check this source: Will Thomas, Man Charged After Making Coffee Naked (MYFOXDC 10.20.2009).

b) Compare and contrast, E.W.'s conduct and resulting experience with that of "Emily," who is described in The Onion news story as "the smokin' hot neighbor lady from across the street" who "went above and beyond the call of duty Monday by selflessly changing her clothes within full view of her bedroom window," altruistically "inspir[ing] dozens of passersby and sav[ing] the neighborhood from a debilitating drought of T&A sightings." As reported exclusively in Hero Woman Changes In Front Of Open Window (The Onion 02.13.2009), Emily is not being prosecuted by local authorities but instead is being praised by appreciative neighbors, who view her act as heroic and view her as someone who has brought the neighborhood together in a new community spirit: "'She is a true example of just how generous a human being can be,' said Jim Petersen, 32, who lives two houses down from his new idol. 'I think I speak for everyone huddled here tonight when I say I'll never forget what that benevolent woman did for us.'" Emily, for her part, parries the praise: "'I don't understand why everyone's treating me like some kind of saint.'"

Comments. I have too many other things on my plate to do other than offer the following general comments and observations on these cases and on judicial interpretation and application of the law of indecent exposure:

 a) It is well to remember in considering the issues raised by these two cases that: i) a man's home is his castle; ii) it is relatively easy for people to walk down a typical residential street without examining each house with prying eyes, and those who are in the habit of peering or peeping in perhaps ought to be deemed to assume the risk that they might be offended by what they see; and iii) Lady Justice, a descendant of Eve, is a liberated nude woman and has long been seen cavorting in all her glorious full-bosomed nudeness or semi-clothed state in courthouses and in capitols all across this Eden of Liberty that is known as America, which explains why Justice does not/ought not equate mere nudeness with lewdness or obscenity. Sadly but not surprisingly, Lady Prudence, whose middle name is Order, doesn't share her sister's passion for Liberty and has never stopped jealously warring with her over the attentions of politicians, including those who wear robes. Believe it or not, those politicians themselves, including the robed ones, have been known to shower in the nude at home and have sometimes left the blinds open at night. Moreover, deep down their hearts and souls may be "taken" by Lady Justice, whose lines and curves and voice they have always loved. But something strange happens to them when they campaign for office and when they govern -- and these days campaigning and governing are one and the same thing with them. What happens is they pay vocal tribute to Lady Justice but they take their cues from and pander to Lady Prudence. And this is why, thank God, we have a Constitution and why we need the final interpreters and appliers of the Constitution at SCOTUS to be a farraginous, pied group of wise and steady men and women who have life tenure and are thus so well-insulated from and therefore so independent of the politicians that brought them to the dance that they have no hesitancy in saying, "Thank you for bringing us here, but we're not going to dance with you."

 b) "Did you say Lady Justice is a nude woman?" Yes, Lady Prudence, I did. See, Restored, naked 'Lady Justice' is once again on display in courthouse (The Daily Judge 12.08.2008); Legislator wants capitol murals covered up -- he 'don't like 'em' (The Daily Judge 01.11.2007). Cf., Judge dismisses indecency charge against nude protester, with extensive comments (The Daily Judge 09.23.2005); Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? (The Daily Judge 10.31.2006); Courthouse Girls -- big hit at film festival (The Daily Judge 06.16.2008). Not necessarily relevant but what the heck: My main judicial hero, Justice Holmes, enjoyed risque burlesque shows, pretty women, and racy French novels. When he was eighty and spotted a pretty woman, he said, "Ah, to be seventy again!" He was heard to say on more than one occasion, relating to his interest in burlesque shows with scantily-clad female dancers, "I thank God I'm a man of low taste." So I say, when you see a depiction of Lady Justice as nude, think of Her robed male counterpart with a liberated mind, the Olympian Holmes. And I also say, I thank God for judges like Holmes, cussed contrarian judges who by their nature are independent of the pols and accountable only to the Gods of the Constitution and the great secular, civic and libertarian values embodied in it.

 c) "Lady Justice may be a nude woman and maybe that's okay in a courthouse or state capitol, but I'll bet Lady Justice has never gone skinny dipping." Actually, she has. Well, we don't know that. But let's suppose she did. Let's suppose that back in the day -- let's say, in the late '70's -- Princess Justice (I imagine her to be a lovely petite gal about 5'2" tall; oh, about 115 pounds; size, oh, maybe 34b) went swimming in the buff with her boyfriend at night in one of the many lakes in the Twin Cities, say, Lake Gervais in St. Paul. If she'd been caught, could she have been prosecuted for and convicted of indecent exposure in a public place and, if convicted, required to register as a sex offender? Sadly, there are some poorly-reasoned decisions by our appellate courts here in MN that arguably suggest the answer is yes. In this regard, we sorta prefer the approach of the Chittenden County, Vermont State's Attorney, a young fellow named Leahy, back in early July 1971, when he wrote a memo to police seeking advice on how to respond to some complaints of an increase in nude swimming in area lakes. Wrote Leahy (who is now U.S. Senator from Vermont), in relevant part:

I have been reminded that in the past the plethora of paper from this office has included such legal landmarks as my position on the use of sparklers on the Fourth of July and the validity of upside-down license plates. With such powerful precedents in mind, I researched the [skinny-dipping] issue. I began by reviewing the old Norman Rockwell paintings showing such activities taking place allegedly in Vermont. (Along this line, I was unable to confirm or refute the persistent rumor that Calvin Coolidge had also engaged in such activity within the borders of this state.) I have also discussed -- after grants of immunity
-- experiences of this nature enjoyed by some of Vermont's prosecutors, judges, law-enforcement officers and sailboat operators. I have even reviewed past histories with some of my contemporaries.

It appears that most Vermonters I've talked to have engaged in such scandalous activity at some time in their life. Times, however, do change. Today such things are apparently allowable in most movies, in the National Geographic magazine but by no means in the pristine streams and rivers of Vermont.

Therefore, to guide any law-enforcement officer lacking in other criminal matters to investigate, I offer the following:

1. In public areas (e.g., North Beach in Burlington) and semi-public areas: Nude bathing is not acceptable. In such instances, the officer receiving the complaint should order the person to dress. Failure to stay clothed should result in a summons to Court.

2. On private land out of view of the public: The State has no legitimate interest and swimmers should be left alone.

3. In secluded areas sometimes publicly used (e.g., rivers, swimming holes, etc.): If no member of the public present is offended, no disorderly conduct has taken place. If members of the public (e.g., families wishing to use the swimming area) complain, then proceed as in No.1 above.

For further information on the current state of the law of skinny-dipping in Vermont, you might check the latest edition of Jim C. Cunningham's eye-opening Vermont Unveiled. The lovely image at right of one of God's creations in Vermont's version of the Garden of Eden is a low-resolution thumbnail JPEG image of the cover of the 1989 edition, now out of print. Putting aside the badly-reasoned, loosely-written MN appellate court decisions on the subject, the question still remains a murky one, under what circumstances may one safely and without legal repercussions skinny-dip in the legendary 10,000+ pristine, crystal-clear lakes of Minnesota, Land of 100,000 Scandimaniac Skinny-Dippers, without violating the Minnesota law dealing with indecent exposure? But I have digressed from the original topic....

 d) "May one skinny-dip in one's own bathtub in Minnesota without violating the Minnesota law dealing with indecent exposure?" I like to think that the leading case bearing/baring on this is still State v. Peery, 224 Minn. 346, 28 N.W.2d 851 (1947). The case is particularly interesting because the lawyer for the college student convicted of indecent exposure for undressing without pulling the shades was the late Chief Justice Warren Burger, who was then in private practice in St. Paul. If you read the briefs and the opinion, you might well come to the conclusion that SCOMN was awfully progressive on such matters back in 1947. Whether the fact that Warren Burger, a prominent Republican, was defending the guy had anything to do with the august court's progressivism is a matter best left to the legal realists or legal cynics. Taking the decision at face value, as I always do, I think it's objectively a pretty good -- even brave -- decision, one made especially notable by the court's seemingly subjecting the evidence of guilt adduced at trial to the broadest possible scope of review in holding that the evidence was insufficient as a matter of law to establish that the student intentionally exposed his nude body in a lewd way to the complaining passerby.

 Six SCOTUS justices attend Red Mass, listen to Cardinal's plea on abortion. "One day before the opening of the Supreme Court's next term, Cardinal Daniel N. DiNardo of Galveston-Houston, issued a plea for the rights of the unborn at the 56th Annual 'Red Mass,' celebrated yesterday at the Cathedral of St. Matthew the Apostle in Washington D.C. The Mass was attended by six Supreme Court justices...." Details (Catholic News Agency 10.05.2009). Those attending: five of the six Roman Catholics on the court (Roberts, Scalia, Kennedy, Alito and Sotomayor, but not Thomas) and Justice Breyer, who, though Jewish, is married to a member of the British aristocracy, who presumably is or was a member of the Church of England, and is father of Chloe Breyer, an Episcopal priest. Comment. Here's what I wrote in 2007 in my comment to a similar posting:

Let's just say that the Roman Catholic majority on the Court looked to some people not so much like crows on a telegraph wire but Roman Catholic clergy as they recently signaled the start of the Court's fall term by attending the annual Red Mass, at which they sort of were, ah, reminded of their duty as Catholics...Were those Roman Catholic men in their black robes to overturn or further limit Roe v. Wade, then the Court would lose all credibility -- in the same way, say, that it would if five Republican justices were to comprise a 5-4 majority, with four Democrat justices in the minority, giving a contested Presidential election to a Republican candidate. That, of course, wouldn't happen, but it illustrates my point.

If I were a judge, I wouldn't attend a "Red Mass" even if my nomination to SCOTUS depended on it. But that's just me. Well, not just me: see, Marci Hamilton, Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual 'Red Mass' Exercise Bad Judgment? (FindLaw 10.03.2007). Hamilton is author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

 Annals of false claims of rape - some recommended reading. Emily Bazelon and Rachael Larimore have written a must-read piece in the Jurisprudence section of Slate (10.01.2009) titled How Often Do Women Falsely Cry Rape? -- The question the Hofstra disaster left dangling. Of relevance to the related subjects of false convictions, unprofessional prosecutors, courts that don't do enough to protect the innocent, etc., see, a) 'Crying Wolf' (and the linked-to article of the same name by Christie Blatchford) at BurtLaw's Crime and Punishment. b) Nat Hentoff, Rashomon in the Bedroom (Village Voice 11.06.2001). c) On a fallen bridge and the need for redundancy -- in bridges and in the criminal process (The Daily Judge 08.02.2007). d) How do you solve a problem like Fitzgerald? (The Daily Judge 12.13.2008). e) Obituary: MN Supreme Court Justice George M. Scott (1922 - 2006) (The Daily Judge 05.26.2006). f) Abby L. Dennis, Reining in the Minister of Justice: Prosecutorial Oversight and the Superseder Power (57 Duke L. J. 131). Related reading. For our general views on the seemingly ever-increasing use of harassment and protection orders, primarily by women, see, Annals of clogged courts: herein of harassment order mania (The Daily Judge 09.10.2009).

 Annals of not-very-nice, not-very-professional Minnesota prosecutions. A St. Paul woman was raped in an alley. Police took DNA samples found during an exam of the woman to the MBCA. The MBCA later said the DNA matched that of a Mpls. man once convicted of robbery. One would think the police and the prosecutor would have gotten back to the victim and determined if she knew the man and if he was the rapist. In fact, he wasn't -- he was a man with whom she'd contemporaneously had consensual relations. Without the police having done that, prosecutors in the office of the Ramsey County Attorney, who is running for governor, filed charges against the man. The man was arrested in Illinois, where he spent nearly a month in jail awaiting extradition. Once back in MN he was told by police he was charged with raping the victim. He denied it, saying he had dated her and any sex he had had with her was consensual. The police didn't believe him. He got an attorney. The attorney showed the victim his picture. She said no, he wasn't the rapist. Prosecutor dropped charges. For the details, read the excellent story by Maricella Miranda, DNA evidence powerful, but not always the full story - Police drop charges against Minneapolis man rape victim knew (Pioneer-Press 10.04.2009).

 Regarding Roman - retired prosecutor says he lied in HBO documentary. Roman Polanski, the film director who fled California for France in the late 1970s to escape sentencing in a child sex case, has been trying to get his guilty plea withdrawn without returning to the U.S. He bases his motion in part on statements by a retired prosecutor who told HBO documentarians that he had engaged in improper ex parte communications with the sentencing judge, advising him to send Polanski to prison. Most U.S. courts won't entertain such a motion while the movant remains a fugitive and thus far California courts have refused to do so. There the matter sttod when suddenly, the other day, Polanski was arrested while visiting Switzerland and held on a fugitive warrant for extradition. Now the retired prosecutor has come forth and said that in fact he lied in the HBO documentary. Details (LAT 10.01.2009). Further reading. Graydon Carter, Roman Holiday -- How I spent my summer vacation in London being sued by Roman Polanski -- and what I learned about 'solicitors,' pub food, and the British chattering class (Vanity Fair 09.19.2005); Wikipedia summary of the Polanski lawsuit; Polanski, still a fugitive, moves from afar for relief from guilty plea to sex with minor (The Daily Judge 12.03.20080).

 History of political campaign blogging. Some credit the Howard Dean presidential campaign in 2004 with maintaining the first campaign blog. Others cite as the first campaign blog one maintained by a congressional candidate in 2002. Actually, one has to go back earlier, to 2000. I was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000. I began planning my first law blog, BurtLaw's Law And Everything Else, one of the pioneering law blogs, in 1999, but I delayed starting it until after the 2000 general election. My 2000 campaign website,  the no-longer-extant VoteHans.Com, contained a personal campaign blog (weblog or web journal), i.e., a blog actually written and maintained by the candidate, not by some staffer. I like to think it was the first campaign blog (a/k/a weblog or web journal), although it's quite possible someone else independently came up with the idea and executed it contemporaneously in 2000 also. Because most "web archivers" were not in business in 2000, there has been no web record of my campaign website and campaign blog. For archival purposes and in the public interest, I have reproduced and reposted as near as I can, given software changes, the backed-up contents of what was VoteHans.Com as it appeared in 2000. Here are the links: Campaign Home Page; Campaign Journal; Earlier Journal Entries; Even Earlier Journal Entries; Earliest Journal Entries; Endorsements and Contributions; Mandatory Retirement of Judges; Judicial Independence and Accountability; Questions and Answers; BRH Speech; Emerson for Judges; Quotations for Judges; MN Const. Art. VI; About BRH.

Our Motto - "Ridentem dicere verum quid vetat" (Horace). Loose translation: Does anything prevent telling the truth with a smile?

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