Thursday, 15 October 2009

Terrible Judges

 (Part 1) 

The role of judges in our society is extremely important. Without them, our society would be in chaos. We need them to decide for all of us as to what is right and what is wrong, what is criminal and what is not and what if fair and just and what is not.

Aside from the heavy burden of having to make difficult decisions such as the interpretation of the law and the determination of the credibility of witnesses, they must live a pristine life. They are one profession of few professions who are expected to set the standards as to how we citizens should behave in society.

A judge in a courtroom is routinely expected to exhibit the tact of a diplomat, the wisdom of Solomon and the patience of a peace negotiator. Alas, many of the judges sitting on the bench have none of these attributes. They are in it for the power, the glory and the money only.

There are many judges around the world who are anything but good examples on how we should behave in society. Further, many are outright stupid and rude in the manner in which they conduct themselves in court. Worse yet, some are outright dishonest. This piece is about these kinds of terrible judges.

Judges who misbehave in society

In October 2006, a controversial Brampton, Ontario judge was charged with an alcohol-related driving offence in Caledon, Ontario. Judge, Marvin Morten, 62, was charged by Caledon Ontario Provincial Police and his driver's licence was automatically suspended for 90 days.

Morten was the subject of a complaint in which fellow judges accused him earlier this year of bringing the administration of justice into disrepute. Fellow judges alleged Morten participated in angry outbursts and bullying of judicial colleagues at Brampton courthouse.

On March 28, 2008, Cuyahoga County Ohio Juvenile Court, Judge Joseph F. Russo was sentenced in Rocky River Municipal Court on a charge of disorderly conduct. Russo, who had been a judge since 1998, said he has taken the eight months since his arrest after a late-night fight with his girlfriend to address personal problems that landed him in trouble. The judge was first charged early on July 4th 2007 with domestic violence. Neighbors of Russo's then-girlfriend, Jessica Vezina, called Westlake police about a disturbance. When police got there, Russo had headed to a nearby hotel, where he was arrested. He was sentenced to a year of probation with the conditions that he continue treatment for alcohol problems and anger management, if needed, and that he undergo random alcohol screenings if his probation officer orders them. The conviction does not directly affect his status as a judge. Trimboli also ordered him to pay a $250 fine and court costs.

Both Russo and Vezina had an earlier instance in which they were picked up in 2006 after fighting in public after drinking.

A former Ontario judge, Kerry Evans, 56, who resigned from the bench after being found guilty of sexual misconduct with court employees regained his right to practice as a lawyer in May 27, 2007. A ‘Law Society of Upper Canada’ appeal panel restored Kerry Evans’ membership in the province’s self-regulating legal profession, on the condition that he spend the next two years practicing as an employee of another lawyer. After his resignation as a judge, he worked as a paralegal for a law firm in Barrie, Ontario. Evans resigned from the bench on Nov.14, 2004, before the Ontario Judicial Council sanctioned him for misconduct with co-workers that included several instances of patting their groins and buttocks, French-kissing and the force-feeding them ju-jubes. (whatever they are)

At the Judicial Council hearing in 2004, Evans invoked the touchy-feely defence. The panel was told he known for being a tactile, giving person who liked to stand immediately beside people during conversations, a habit described as “close talking.”

But in other instances, the panel preferred the testimony of complainants over that which was offered by Evans, finding that on numerous occasions he showed a disturbing insensitivity to other person’s comfort zones.

Nearly 50 judges, magistrates and tribunal officials in the United Kingdom were disciplined from January to March 2008. Of the 49 found guilty of offences, 21 were sacked. They included three who committed crimes, one guilty of a motoring offence, one who 'misused judicial status' and 15 accused of 'not fulfilling judicial duty', a category that runs from failing to conduct cases properly to being drunk on the job.

Mr. Justice Marvin Zuker, family court judge in Toronto whom I have had the pleasure of appearing before as an advocate for several clients, made a terrible blunder while conducting a trial. He used profane language at one point in a case he was presiding over and after realizing what he had done, he arranged to have the profanity erased from the transcript.

Section 139. (1) of the Canadian Criminal Code states that every one who willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding, is guilty of: (c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (d) an offence punishable on summary conviction. The Criminal Code is clear and refers to ‘every one’ in Canada.

It is also very clear in that it states, “in any manner to obstruct justice in a judicial proceeding.” There are no exceptions made for judges to obstruct justice and in fact the Chief Justice of Canada’s Supreme Court, the Honourable Beverly
McLaughlin stated on June 3, 2004, “In a democracy, everyone from the simplest citizen to the highest politician, must conduct themselves in accordance with the law.”

It may be questionable as to whether or not simply erasing a profane word from a transcript is really contradicting the intent of the law. In any case, Justice Marvin Zuker was caught tampering with court transcripts which is a very serious criminal matter in the eyes of most Canadians, yet he only received a slap on the wrist by his fellow judges at the Ontario Judicial Council. Instead of being made accountable under the law as most Canadians would expect, he was ordered by the Ontario Judicial Council to provide a simple apology letter to the citizen his actions had directly caused harm to. He wasn’t charged with the crime with respect to section 139 of the Code.

The controversial acquittal of an elite Nomad member of the Hells Angels caught with 52 kilograms of cocaine worth $1.56 million was upheld in spite of the judge's profane comments during the prosecutor's presentation of the case. In a unanimous decision, the British Columbia Court of Appeal in October 2009 said there was no reason to impugn a ruling by Justice Peter Leask because of his injudicious comments because his profanity did not constitute an error in law.

In 2006, the Ontario Judicial Council released their annual report which included a specific section on integrity. Section one of their report which outlines the Council’s position on integrity reads as follows: “In Canada, our sense of fairness depends on more than judges’ decisions—it depends on their behaviour and attitudes as well. Judges must ensure that their conduct, both inside and outside the courtroom, enhances Canadians’ sense of fairness and trust in their judiciary.”

By letting Justice Zuker off the hook for what most Canadians would see as a criminal act, the Ontario Judicial Council had sent a strong message to the public that judges in Ontario are above the laws of Canada which govern the rest of the people.

I have always like Judge Zuker and respect him for his fairness at trials and his understanding of law at trials but he was wrong at what he did and technically, he should have been charged under the criminal code. The fact that he wasn’t charged leads people to believe that there are laws for judges that differ from the laws for the rest of us. Had he been tried, he no doubt would have received an absolute discharge (a finding of guilt but no criminal record or punishment) based on the fact that he simply didn’t want his profanity to embarrass him if it became known that he lost his temper at one point of the trial and swore at one of the participants in the trial.

A lawyer I used to work for many years ago told me that he had represented a police officer in a trial. He had been charged with kidnapping. The trial lasted for several months and at one point of the trial, the judge was so furious at the lawyer that he screamed out, “Mister Hopkins, you are a bastard!”

I never had a trial judge swear at me during my several thousand trials I conducted but some did raise their voices in anger at me but I suppose that goes with the territory of representing clients at their trials.

The United States was rocked by a kickback scandal involving two elected judges who essentially jailed kids for cash. Many of the children had appeared before the judges without a lawyer.

Luzerne County, Pennsylvania, Judge Mark Ciavarella and Judge Michael Conahan were given cash kickbacks by private detention centres who paid money to these judges for each child they sent to the centers.

The two crooked judges secretly received more than $2.6 million. I remember watching a TV series in which a judge in the fictional story was accepting kickbacks from detention centres that she was sending kids to.

Ciavarella, 58, along with Conahan, 56, corruptly and fraudulently created the potential for an increased number of juvenile offenders to be sent to juvenile detention facilities.

Both judges were disbarred and resigned from their elected positions. They also agreed to serve 87 months in prison under their plea deals.

I could go on for hours writing about judges who break the law but time prohibits that so I will go onto the next aspect of terrible judges.

Misbehavior of judges in court

Rudeness of a judge during a trial is an abuse of power. It brings the level of the trial down to its lowest point. Competent, authoritative and even-handed judges help trials run smoothly, whereas rude, brusque, overly officious, or erratic judges can make the proceedings a nightmare for both defendants and their counsel. Some judges indulge in violent temper tantrums.

A King County court judge in the State of Washington; was put on trial and her job was on the line as she was accused of being too rude in court. District Court Judge, Judith Eiler was a no-nonsense kind of judge, but at times her blunt talk reminded folks of another rude judge, Judge Judy on TV. Eiler has been accused of this before. Four years previous, she was reprimanded and forced to have behavioral training, but then she was accused again of rudeness in her court and examples of her transgressions were played in court. She was accused of being abrasive to defendants and to attorneys.

A motorist in Northhampton, England had his dangerous driving conviction dismissed recently after it was revealed the judge handed a sarcastic note to the defence barrister criticizing her handling of the case.

The appeal court judges agreed that the note was 'wholly inappropriate' and quashed Mr. Cole's conviction, £1,000 fine and two-year road ban.

In Canada, and more specifically in the province of Ontario, non-lawyers were and still are permitted to practice law as court agents (paralegals) and represent clients in tribunals, courts; such as small claims courts, criminal courts, provincial offences courts and until several years ago, even family courts. I was the first court agent in Canada to represent clients in such courts when I first represented them in criminal courts in Toronto back in 1964. Over the years, I attended courts and tribunals almost a thousand times so I was well aware of court and tribunal procedures. Further, I studied criminal law at the University of Toronto and family law at Humber College. (which is and has been for some time now, a university)

It follows that before I retired, I had appeared before many judges, justices of the peace and adjudicators around Ontario and I can say with sincerity that it was a great pleasure to appear before such learned persons who were polite and considerate to lawyers and paralegals alike.

But one cannot attend that many trials and hearings without running into some real twits who in my opinion should never have been appointed to the bench. I will give you examples of two of these judges. Both of these men believed that there was no place for court agents in their courts.

They made that very clear to any court agent who in their opinion had the temerity to walk into their courts for the purpose of representing a client, that they were not welcome even though the court agents had the legal right to represent their clients in their courts as permitted not only by federal legislation but also by a directive of the Ontario Court of Appeal.

The Criminal Code of Canada states in section 802(2) that ‘the prosecutor or defendant, as the case may be, may examine and cross-exam witnesses personally or by counsel or agent.’ This right only applies if the defendant is accused of a crime in which the maximum penalty doesn’t exceed six months in jail. There are approximately forty such crimes in Canada which includes impaired driving, common assault etc.

In Romanowicz, the Ontario Court of Appeal dealt with the issue of paralegals representing defendants in criminal courts. The court referred to a Supreme Court of Canada case with respect to the issue of agents representing accused persons in criminal courts. The court said in part; “If the Crown has proceeded summarily, the accused may choose to be represented by an agent.” The court also said; “As we interpret the relevant provisions of the Criminal Code, they permit an accused to be represented by an agent in all summary conviction (misdemeanor) proceedings. The Code does not expressly give the trial judge any power to prohibit a specific agent from appearing in a particular case.” unquote

The judge I am going to tell you about who flaunted the rights of defendants to be represented by court agents in his court room is Judge, Derek Hogg. (now retired but acts as a ‘Per Diem’ judge if needed) He was the senior judge of the Etobicoke (suburb of Toronto) criminal courts. This man truly despised paralegals who were representing anyone in his courts. However he didn’t really know if paralegals were in the many courtrooms he wasn’t in so we continued to represent our clients in Etobicoke. However, if we showed up in his court room, what a display of ignorance he would present to us.

I remember once representing a client during my client’s first appearance in Hogg’s court. The judge berated me for representing my client and then said to the duty counsel, “See if you can find anyone in this court who is a law student and ask him to represent Mr. Batchelor’s client.”

Now how stupid is that? A law student? Give me a break. They are in the court to watch how court proceedings in a criminal court are conducted. I, up to then had conducted a great many court trials in criminal courts and this twit judge was suggesting that a law student still in his early twenties was more qualified then I was to represent my client in court. I spent four years in the Criminology Department of the University of Toronto prior to that event studying criminal law, forensic science, penology, (corrections) abnormal psychology, criminology, etc and this twit actually believed that a kid just having entered law school was more qualified than I was to represent my client in his court. It was an insult to anyone’s intelligence.

Another time when I was representing a client in Hogg’s court, my client was facing a charge of abandoning her children. The circumstances of her case was as follows. She and her husband had two children. One was six years of age and the other was two months old. She and her husband each had a car of their own and one night he drove his car to work and after he had left, she discovered that she didn’t have diapers or milk for her baby. She realized that she would have to go to the store and buy them. The trouble she was facing was that her husband had forgotten to take the baby’s car seat out of his car and place it in her car. She knew that she would have to leave the two children at home while she went to the store because she didn’t want the baby in her car without being secured in the baby’s car seat. She asked her six-year-old daughter to keep an eye on her baby sister while my client drove to the store. Unfortunately, because they had just moved into the area, my client got lost. Her eldest daughter called 911 and said that her mother hadn’t returned home from the store. The police rushed to the home and discovered the mother still hadn’t returned. When she did, my client was subsequently charged with abandoning her children. In other words, leaving them alone while she went to the store.

I met with the assistant crown attorney (prosecutor)and discussed the case with him. He agreed with me that although technically she was guilty, the sentence should be an absolute discharge. This would mean that there would be a finding of guilt if I pleaded her guilty but the sentence of absolute discharge would mean that there would be no criminal record and she would not be subject to any punishment and would not be paced on probation.

When we went into the court room in which Judge Hogg was presiding and when he saw me, he did his regular seal act about court agents representing clients in his court. Nevertheless, he permitted me to proceed with the case. When I pleaded her guilty, the judge then turned to the assistant crown and asked, “Does this man know what he is doing when he pleads his client guilty? I ask this because this is a very serious charge his client is facing.” The assistant crown told the judge that I was quite right in pleading my client guilty and that I had a good reason for asking the court to award her an absolute discharge.”

The judge turned to me and said, “I will make that decision when I hear all the evidence.” I replied, “I know that once you have heard the evidence, you will award my client with an absolute discharge.” The judge grunted and after hearing the evidence, he then ordered a pre-sentence report which is standard practice in cases such as this one.

We returned a month later and the report was extremely favourable to my client. The probation officer was also present at the sentence hearing to give testimony with respect to his report.

My client spoke very little English as she was a French-speaking person but I managed to give her the substance of what the report said about her.

When her case came up, the judge asked me if my client had been given a copy of the report to read herself. I told him that she hadn’t but that I had discussed the report with her.

I thought that the judge was pissing in his pants with glee, judging from his response. I think he figured that at last, he had evidence that I was incompetent. He said to the assistant crown, “You see? This is why I don’t want paralegals in my court.”

I immediately responded by saying, “I didn’t give her the report because she can’t read English.” For about thirty seconds, there was silence in the court. Then he turned to the assistant crown and said, “I will hold this matter down for an hour so that you can find an interpreter and get the interpreter to explain in detail to the defendant as to what the report says.

When we returned to court an hour later and the judge was satisfied that my client understood what was in the report, the probation officer gave her evidence. She said that my client was truly one of the finest mothers she had ever met and that she gave up her thirty-thousand dollars a year job so that she could stay at home and look after her two children. She added that the Children’s Aid felt the same way she did about her being a fit mother and they didn’t fault her for temporarily abandoning her children considering the circumstance of why she did so.

The assistant crown told the judge that he felt as I did that my client should get an absolute discharge and after hearing that, the judge, to his credit, said, “I agree.” And then he gave her the absolute discharge.

The third and final time I appeared before Judge Hogg was when I was representing a young man who was charged with assault. There were circumstances that mitigated his assault and the assistant crown agreed with me that the best way to deal with this case was for the assistant crown to withdraw the charge if my client signed a peace bond. The victim was consulted and he too agreed that a peace bond would be sufficient.

When we were standing before Judge Hogg after my client’s name was called, the judge did his song and dance routine again. I reminded him that I had conducted a previous trial before him. This infuriated the judge. He immediately got up and stomped out of the court room to sulk in his chambers. He didn’t return to the court room for more than a half hour later. Meanwhile, I spoke to the duty counsel and he agreed to represent my client. I then left the building and went to my office., I knew that if I remained in the court room and the judge saw me, he would probably go into as seizure.

Then the judge did something that he should never have done. He told my client to demand his money back from me. Despite the fact that I had done everything that I was expected to do for him and arranged with the assistant crown to drop the charge against him (and it was) the twirp actually phoned me and demanded that I give him back the money he gave me for my fee. I told him where he should go. It is sufficed to say that the place I referred too is spoken of a number of times in the Holy Bible, if you get my drift.

The Ontario Court in the Romanowicz case made this interesting observation;

“We are told at least one Provincial Division judge adopts a rule that no agents can appear on criminal matters. That approach is arbitrary and contrary to the Criminal Code. Judges cannot ignore the letter of the law while purporting to control the process of the court so as to maintain the rule of law and the integrity of the proceedings.” unquote

The court didn’t mention Hogg’s name but I am convinced that they were thinking of Hogg when it made that statement.

The only problem I had with a family court judge was with a judge in Toronto named, James Nevens. (now retired but acting as a ‘Per Diem’ judge) I had never appeared before him in the past. I was representing a man whose son was 18 years of age. The mother of the 18-year-old was now asking for child support. Right from the start, the judge made it clear that he wasn’t too happy at having my client represented by a court agent.

He said to me initially, “Every time---every time I have allowed an agent on a Family Law case, I’ve lived to regret it because it has come back two or three appearances later or a couple of years later, and it’s all wrong.”

However, after having read my CV, he said about me for the record, “I must say that he’s providing a very, very impressive CV, and this is ----- my (previous) comments are certainly not directed towards Mr. Batchelor personally.” Then he addressed his comments directly to me and said, “You have a great background, and I am going to let you represent this man.”

As a judge, he had the authority to determine if he wanted me or any other court agent to represent a client in his court because the legislation with respect to family courts in Ontario gave him that authority. That particular aspect of the legislation only applied to court agents and not to lawyers.

Rule 4(1)(c) of the Family Law Rules of Ontario states that ‘a party may be represented by a person who is not a lawyer , but only if the court gives permission in advance. Rule 4(2)(a) states that ‘the court may authorize a person to represent a special party if the person is appropriate for the task.

When the Law Society took over the responsibility of governing paralegals in Ontario, they convinced the provincial government that paralegals should not be representing anyone in family courts so the government withdrew the right of paralegals to act for parties in family courts. My appearance in Nevin’s court occurred several years before Rule 4 became nul and void.

At the end of the hearing that day, the judge further commented on my ability as a court agent when he said, “I must say, Mr. Batchelor. I am impressed with the way this thing is handled. We have had a terrible, terrible experience with agents.”

Obviously to him, I had prepared my client’s extensive court documents for him properly and did a good job presenting my client’s position in court. I had an advantage over those agents who had appeared before him in the past because I had studied family law at college for five months and they hadn’t and I had a certificate to prove it. Further, I was insured for errors and omissions and I had extensive experience in representing clients in court so he had every reason to be pleased with me at this point.

I thought then that I would have no problem with this judge after he said that. Wow, was I wrong in that conclusion. At the second hearing, this twit looked at my client after he saw my client conferring with me on some legal point and said, “You know that he is not allowed give you any legal advice? You know that? He can’t tell you what you should do. He can’t give you advice about your legal rights.”

That truly must rank as one of the stupidest statements ever made by a judge. I immediately responded by saying to the judge, “Your Honour, with all due respect, the Law Society has admitted that court agents do in fact, give legal advice.”

He retorted angrily, “Don’t remind me of what the Law Society has said. I am well aware of it.”

Since he was well aware of the fact that the Law Society recognizes that court agents were permitted to give legal advice to their clients, I am confused as to why he said that we couldn’t.

In 2003, the Paralegal Society of Ontario held their AGM in North York and Madam Justice Thompson (a senior judge) was a guest speaker at that meeting. When she asked if anyone had any questions, I asked her if court agents are expected to give their clients legal advice before they represent their clients in court and she answered with one word, “Absolutely”

I attended the Cory Hearings and this issue of giving legal advice came up and when a spokesperson for one of the bar associations suggested that paralegals shouldn’t be giving legal advice, Mr. Justice Cory responded with, “What kind of advice should they be giving if not legal advice?”

In the Cory Report, A Framework for Regulating Paralegal Practice in Ontario, Mr. Justice Cory, formerly of the Supreme Court of Canada said on page 24 of his report with reference to regulated paralegals appearing before boards and tribunals;

“Clearly a licenced paralegal who is qualified as competent to appear before a specific tribunal will be authorized to advise clients with regard to matters which are relevant to an appearance before that board or tribunal.” unquote

Mr. Justice Cory in his Report spoke of the need for representation in family courts on page 65. He wrote;

“It appears that lawyers are not present to advise and assist these vulnerable people, either in the completion of their forms or the presentation of their cases. It follows that, in these circumstances, there should be a place for licenced paralegals to assist the public and the court.” unquote

When a court agent agrees to take on a case in court, he or she has an obligation to explain to his or her client what the law is with respect to his or her client’s legal position on the issues before the court. To expect a court agent to remain silent, is to emasculate the true meaning of the word “advocate” a word that is used in the language of some of the legislation pertaining to court agents representing clients in the courts they are permitted to represent them in. It further makes a mockery of the efforts of the Colleges in Ontario which teach substantive and procedural law to court agents.

As an illustration, on occasion, I raised constitutional issues in criminal courts and for the most part, I was successful. Of course, I had to charge my clients a fee for preparing the factums etc., (legal arguments) and naturally, they want to know what their legal positions were in the first place before they went to the expense of having one prepared for them. Lawyers generally charge as much as five to ten thousand dollars to prepare factums whereas I charged only $800. To remain mute under circumstances such as these would have been ludicrous.

Preparing factums is a very difficult thing to do and many lawyers have never prepared one. I have prepared approximately ten of them and I prepared a 32-page factum in my own case when I represented myself in the Ontario Court of Appeal. I won that case and won most of the other cases where I prepared the factums for my clients.

Meanwhile, I wrote Madam Justice Lauren Marshall, the senior judge of the Toronto courts (whom I had appeared before several times in the past and now semi retired as a ‘Per Diem’ judge if needed) and complained to her that Nevens had told my client that I couldn’t give him legal advice.

In my letter to Justice Marshal, I put it this way. “I have subsequently written my client and advised him that I will not be representing him in court on January 15th 2003 and I have suggested that he meet with duty counsel prior to entering the courtroom.”

I also said in my letter to her;

“In my letter to him, I explained that if I can’t give him legal advice, then it follows that I can’t submit a legal argument to the judge because there really isn’t a difference. I pointed out to Mr. ____ (my client) that the moment I begin my argument, I could get cut off by the judge and he would be denied a fair trial.”

She gave a copy of my letter to Nevens so that he would know my thoughts on the matter. His eyeballs must have popped out of his head when he read my letter. To say that he was furious is an understatement.

I realized that everything was now going down hill with respect to Judge Nevens so that was why I informed my client that I would be unable to assist him at the third hearing since the judge had literally made it impossible for me to advise him as to what his legal rights were or to argue his case before the judge. I told him that he could call upon the Legal Aid lawyer at the court to assist him from then on. However, since I was on record, I was obligated to attend the third hearing in order to be taken off the record.

Attending that third hearing was tantamount to walking into a lion’s den but I never shied away from a fight so I attended the hearing.

Prior to the hearing however, I had found a lawyer who said he would be willing to represent him. The lawyer had promised me that if I would personally bring my client into his office, he would represent my client at the family Court. When we got to his office, he studied the file I had prepared and then told us that my client had a good case and that he would represent him pro bono. (for free) When I prepared more of my client’s documents, I put the lawyer’s name on them as counsel of record. Then I served them on the mother of the young man and my client filed them in the court. Unfortunately, he procrastinated and filed the document in the court one day late so by law, they weren’t given to the judge prior to the next hearing.

Worse yet, after I mailed copies of the new documents to the lawyer’s office, he called me and asked me to remove his name as counsel of record and then added that he would be counsel of record when the matter came to trial and only then. It was too late for me to take his name off the record from the documents that were served and filed in the court already.

I was so upset with the lawyer’s conduct in this matter, I met with the head of his law firm sometime later (whom I had known for many years as a friend) and told him what the lawyer had done. The lawyer was subsequently told to leave the firm, which he did.

If a glare could melt a human being, I would have been nothing but a puddle on the floor of the courtroom when Judge Nevens saw me enter the courtroom on January 15th 2003. When he saw me standing next to my client with the duty counsel standing on the other side of my client, the judge turned to me and said angrily; “I thought I told you I did not want you representing this man. Did I?”

If Judge Nevins had already endorsed the record in which he stated he didn’t want me representing my client in the January 15th hearing, he should have made sure that a copy of that endorsement was sent to me or my client so that my client wouldn’t have come into the January 15th hearing without me as his representative. This the judge didn’t do.

I wanted to tell the judge that I had made arrangements for another lawyer to represent my former client at the court but the judge said, “Please get away from the counsel table and don’t say anything more to me.”

It was at this juncture of the hearing that I realized that there was nothing more I could do for my client and it was at this time that I had decided to leave the court room. I got up from the counsel table, and with my cane and briefcase in hand, I left the counsel table and had almost reached the door when the judge then said as he pointed to the counsel table; “Sit down, please sir. You’re disrupting the court.”

Unfortunately for me, that wasn’t a request. His voice was quite loud and there was no mistake in his tone of voice. Either I was to sit down or else. In other words, I was not free to leave the court room. I thought that odd since I was no longer involved in the case and he didn’t want me to say another word. In any case, I sat down at the counsel table as ordered.

When you think of it, one is forced to ask why he wanted me to return to the counsel table and sit next to my former client when he had just moments earlier said, “Get away from the counsel table and don’t say anything more to me.”

I think his sole purpose of keeping me in the court room was so that he could continue berating me and telling me how bad a paralegal I was. In effect, I was confined in his court room so that he could have his way with me.

No judge should force an advocate who is no longer on the record of representing a former client, coupled with the judge stating that he doesn’t want to hear another word from the advocate and the advocate’s role in the matter is finished, should order the advocate to sit back down at the counsel table when the advocate, realizing that he has no reason for remaining in the court room, wants to exercise his right to leave the court room. If the judge had told me to sit down because he had something more to say to me, even if it was insulting, I wouldn’t fault him for ordering me to return to the counsel table. But he didn’t say why he wanted me to remain in the court room and sit next to my former client.

During the proceedings, I had put my hand up to get the judge’s attention because I wanted to leave the court as I had to use the washroom and I was afraid to leave the court room on my own. I had to use the washroom just prior to going into the court room but suddenly my former client’s name was called so I went into the court room with him. I figured that I would only be there a minute. I knew that I had to be there personally to have my name removed from the record. I didn’t realize at that time that I was going to be there much longer than I thought. Since I was no longer part of the proceedings, I didn’t see why I couldn’t leave the court room. Obviously waving my hand to get his attention angered him. I waved rather than speak because he made it clear he didn’t want to hear another word from me.

He suddenly spoke to the court clerk, “Would you get security in here? If this man interrupts me one more time, I will find him in contempt of court and put him in custody.”

A security officer was brought in and he stood by me and smiled at me because I had previously told him a very funny joke and perhaps the smile was the trail end of his laughing at the joke.

As the hearing continued on and I kept my mouth shut and was desperately in need of a washroom, the judge turned to the security guard and said to him, “Sorry officer. I think you can leave, but if I get anything else from this gentleman here on the end,(of the counsel table) I am gonna ask you to take him into custody.”

Finally at the end of the hearing, I was permitted to leave and the first thing I did was head to the washroom and the second thing I did was to head to my office and prepare and file a complaint against the judge with the Ontario Judicial Council. They ordered the transcript of the hearing to study it and they sent me a copy which explains why I am able to quote literally what went on in that den of lions that day.

Several months after they got my complaint, I received their findings. They concluded that Judge Nevens was at fault in the manner in which he had treated me and he was ordered to report to the Deputy Chief Justice of Ontario for chastisement.

The late Honourable Mr. Justice Estey, in his paper Theorem On Judicial Administration said in part;

“Unfortunately, a few judges must be reminded that they are the servants and not the masters of the people and human nature being what it is, it is better accepted to have that reminder delivered by a fellow judge than by a bureaucrat.”

Truly the most gross judge to ever sit on the bench is Judge Sharon Keller of Texas, USA.

After she sealed the fate of a death-row inmate in 2007, she went on trial herself on August 17, 2009 for professional misconduct. Michael Richard’s lawyers had been scrambling to file a motion delaying his 2007 execution by lethal injection when they say they hit a glitch and called Judge Sharon Keller at her home to ask the judge to instruct the clerk at the court house to stay there a bit longer so that they could file the necessary papers. The judge's terse reply that "we close at 5 p. m." meant Richard's last hopes of survival were extinguished and he was executed by lethal injection that same evening.

Judge Keller's refusal prompted outrage, and finally after almost two years had passed, this horrible judge found herself in the dock as she went before a professional conduct panel to face claims her decision was arbitrary and inappropriate.

The charges stem from September 25, 2007, when the U. S. Supreme Court agreed to review the constitutionality of death by lethal injection-- the method by which Richard was to be executed at 6 p.m., that same day. His lawyers said that they immediately began drawing up motions asking for the execution to be delayed until the Supreme Court made a decision, but started having computer problems shortly before 5 p.m. In one of the cruelest ironies in judicial history was that the United States Supreme Court had effectively suspended all lethal injections nationwide the following morning.

Judge Keller had refused keep the court house open, though doing so is common practice in death penalty cases. The lawyers' attempts to obtain an emergency stay from the Supreme Court was rejected because they had not first obtained a ruling on halting the execution from a lower court. That is why they were trying to file their papers in Keller’s court house.

Richard, who had been convicted of sexually assaulting and murdering a nurse 20 years before, was administered a legal injection and pronounced dead at 8:23 p.m. He was the 26th person to be executed in Texas in 2007, but even in a state that accounted for about half of all executions in the United States in 2008, the case caused an outcry Texas and around the world. No one has the right to interfere with anyone’s right to have their request for a stay of execution heard, especially a judge.

Judge Keller's decision was reviewed by a ‘conduct panel’ presided over by Judge David Berchelman and other peers in the Texas judiciary. It has the power to dismiss the claims, sanction her or remove her from the bench. The Texas State Commission on Judicial Conduct concluded that Judge Keller had engaged in "willful or persistent conduct that cast public discredit on the judiciary". Multiple newspaper editorials also condemned her actions as do I and I am convinced that millions of others who read the story in their newspapers also condemn this horrible judge.

It may be months before the conduct panel delivers its decision but when it does, I will post it as an update in this particular article.

This horrible judge’s misconduct brings to mind the equally gross incident in which a surgeon in Japan was in the middle of a surgical operation when suddenly he placed the surgical tool in his hand down on the surgical tray and walked out of the operating theatre saying to the shocked surgical staff, “My shift is now over and I am going home.”


Justice Richard Neely of the West Virginia Supreme Court of Appeals, said; “Court users should be treated like human beings, This sounds obvious but far too often, the opposite is the case.” unquote

To treat someone as a human being, is to be courteous and to listen to what the other person has to say. This is not what everyone can expect from certain judges, especially, Judges Nevins and Hogg. There have been cases in the past where the judgments were overturned because the judges hearing the cases were abrasive and insulting to counsel. That tells you how the higher courts put such a high premium on courtesy and a willingness to listen.

Harold Levy, (the former President of the Criminal Lawyer's Association) in an article in the Toronto Star (dated July 15, 1989) made some reference to the problem facing many lawyers whose client's cases were heard in the courts of certain judges. He said, and I quote in part;

“Not surprisingly, the family lawyers of the day didn't challenge these judges over
their overt bias as they knew what side their bread was buttered and weren't anxious to get on the judge's black list. Instead, they used all the tricks of their trade to get their case into another court where their clients would get more even-handed justice.” unquote

I believe that all advocates, be they student counsel, paralegals or lawyers who are vastly experienced, should be treated with the same respect by the judges on the bench. The judges expect it from the advocates at the counsel table and the people at the counsel table expect it from them. To do otherwise is to bring disrespect to our system of justice and all its participants in our courts.

Respect for the rights of all, even those whom we justifiably deplore, should be a standing policy in a civil society. Any deviation from that policy under any circumstances; supports a suspicion that there is no policy on the rights of others at all. Liberty and freedom is a necessary ingredient of humanity but the real proof of the existence of humanity is the recognition of the rights of others. When that begins to slip away, then humanity begins to crumble until all that remains is a semblance of it in the form of dust blowing in our faces.

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