The general public, including perhaps our readers, who do not spend time in courtrooms may not fully appreciate the paradigm shift that has recently occurred regarding certain high-profile cases here in the United States.
To be clear, virtually no litigants believe that attacking the judge presiding over the case in court, whether on the courthouse steps or in the media, will in any way help them win the case. Of course, there are no lawyers to represent the litigants.
Therefore, when a litigant makes such an attack, he or she is usually doing it for an entirely different reason. The litigant and her attorney have likely concluded that they cannot win the case on the merits before this judge. Instead, they are trying to somehow gather public opinion for other purposes.
Perhaps, in some cases, to help litigants win campaigns.
Make no mistake, that's exactly what Donald Trump intended when he declared He was scheduled to give closing remarks at a civil suit in New York. or at least before that The judge conditioned these statements on the former president not criticizing him or his staff. (Indeed, when the justices relented and gave Trump the floor near the end of the team's summation, he promptly ignored the terms.)
In some cases, litigants, litigators, or both may simply be trying to “bait” the judge. That means he's trying to get the presumably furious judge to make one or more serious legal errors that could help him win a reversal on appeal. Get a new challenge. It doesn't happen often, but it does happen. It is true that judges are also human and can be pushed or coaxed into making mistakes.
Of course, the public cannot understand what is really happening. Rather, you may come to the erroneous conclusion that such acts actually occur. absolute — However, as any practicing litigator readily recognizes, such conduct is outrageous.
So who are the main culprits here and why do they commit such acts in and after court?
Donald Trump and his attorney have Had made Strange and perhaps unprofessional comments made to the media about the presiding judge, whether in the courtroom itself, in the courtroom hallways, on the courtroom steps, or, in Trump's own case, on online platforms.
In fact, at least so far, no one has been charged with criminal contempt or sent to prison for their words or actions. Presumably, other defense teams who committed such acts would have been sanctioned long ago and might have been jailed without a public apology.we have met lawyers in the past taken on suspicion As a result of their transgressions. We also recognize that lawyers should be more subject to discipline than their clients, given the undeniable fact that the practice of law is a “privilege, not a right.”
Interestingly, Trump, his lawyers, and other supporters say their actions on his behalf include: Guaranteed by the First Amendment; Empowering an attorney or defendant to say virtually anything they want about the judge, the judge's staff, or the agency's adverse counsel. gag order Be cursed. They essentially claim that the following is perfectly permissible: despise A judge or his or her staff may not do so, even if doing so may jeopardize their physical safety. It has occurred In Trump's pending case.
That can't happen. While President Trump engages in such derisive behavior, to the judge presided over his legal case; oppose the court system In general, the judges have probably been wise thus far not to imprison him for his contemptible acts, to avoid him becoming a martyr. exactly what he wantsEspecially in the context of election campaigns.
But don't get me wrong. If an ordinary defendant were to commit such an act, he or she could certainly be jailed, even for a short period of time. It is imperative that the justice system not only respect the law, but also respect the people who enforce the law.
Of course, judges must show respect to defendants and their lawyers and cannot direct them to unjustly derogatory behavior in court. If they engage in such prejudicial conduct, there may be consequences in appeal proceedings or in judicial action proceedings against individual judges, which may lead to the reversal of the verdict rendered; There will definitely be consequences.
Inappropriate behavior by the defendant or the defendant's legal team toward the judge or his or her staff, whether in or out of court, may adversely affect the defendant in the judge's eyes and, in some cases, the findings of fact or decision. You can definitely predict that. . But that's not the end. Bad actions always have negative consequences.
Yes, First Amendment protections are designed to give people a voice, even in the context of a legal proceeding. At the same time, it is almost impossible to claim that “free speech” guarantees that speakers use speech that could disrupt legal proceedings by intimidating judges, witnesses, and juries. It would be possible. While lawyers certainly know this and generally discipline themselves to avoid violating basic rules, the general public can be misled by this idea. unusual public statement It is designed to put the judicial system and judges on the defensive.
Thought leaders and editorial board members no doubt know this. I think it is their duty to loudly condemn such bad behavior whenever they see it. If not, how can we prevent such behavior from becoming the new normal?
Joel Cohen, a former prosecutor, is a senior consultant at Petrillo, Klein & Boxer LLP in New York, where he practices white-collar criminal defense law. He is the author of Blindfolds Off: Judges On How They Decide (ABA Publishing, 2014) and teaches at Fordham Law School and Cardozo School of Law.
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