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August 3, 2012

Judges, Lawyers Discuss Difficult Courtroom Questions and the Ethical Way to Respond

Is it ethical for judges to avoid cases that are likely to evoke intense public reaction when they are up for re-election?  Should children testifying about sexual abuse be allowed to hold a dog to make them more comfortable in court?

Panelists representing courts across the country convened Thursday at the _ Annual Meeting in Chicago, to discuss access-to-justice questions in light of the ethical responsibility of judges and lawyers to uphold the rights of parties, jurors and witnesses in the courtroom.  Speakers engaged in a wide-ranging discussion that touched on issues of media criticism, language and cultural barriers, physical disability and child abuse.

Judge Ramona See of the Superior Court of Los Angeles County, California, opened the discussion organized by the ABA Judicial Division by describing the importance of access to justice and the need for judges to address difficult issues that often rise in courts.  Touching on a growing concern in the legal community about the deleterious impact of inadequate court budgets on the administration of justice, See warned that “the public’s access to our courts is being impaired” and “our work is also being impaired.”

According to Iowa District Court Judge Annette Scieszinski, the ABA has historically served as the “go to” drafter and clearinghouse of rules for the ethical conduct of lawyers and jurists.  The Model Code of Judicial Conduct and the Model Rules of Professional Conduct, which have both been adopted by an overwhelming majority of states, clarify the responsibilities of lawyers and judges.  The models rules were frequently invoked in the course of the discussion although panelists sometimes applied the rules in different ways.

Responding to a mock scenario that asked whether it is appropriate for a judge to avoid a controversial case for fear of negative reaction during an election year, Judge Christopher Whitten of the Arizona Superior Court said that the “easy answer is that the Model Code of Judicial Conduct addresses and prohibits this specifically.”  Whitten noted, however, that “you won’t ever have a judge as explicit” as to ask to be removed outright from a high-profile case when it could harm his or her re-election chances.  Instead, Whitten offered the story of a presiding judge in Maricopa County, Arizona, who re-assigned provocative cases from judges with imminent elections to judges less vulnerable to media and public criticism.  That scheme itself proved controversial and was dropped after denouncement in the media.

Ultimately, Whitten said that “the first step is to recognize that there are certain cases that we have a degree of trepidation in handling.”  That realization will allow the judge to recognize and diminish any influence that doubt has on the way he or she handles the case.  Whitten conceded his own concern saying, “I’m on the ballot in a few months.  I don’t want to be on the front page.”

Discussion then turned to pro se litigants.  Attorneys are sometimes assigned to represent litigants pro bono that would otherwise represent themselves.  In doing so, lawyers help the court to avoid the delay and confusion of the lay public trying to navigate the byzantine legal process and courtroom procedure that is a clear access-to-justice barrier.  New Orleans lawyer Chauntis Jenkins of Porteous Hainkel & Johnson said that it is “a good move” for the judge to thank the pro bono lawyer for volunteering to aid his or her client.  She added that it is better to offer that thanks in the courtroom with all parties present so that the opposing counsel knows that the thanks is offered in the spirit of his or her pro bono work and not because of the outcome of the case.

Language can prevent parties and jurors from understanding what is happening in the courtroom and can even leave a criminal defendant unaware of the crime for which he is charged.  Judge Guy Reece II of the Franklin County Court of Common Pleas in Columbus, Ohio, explained that the area has the second largest population of Somali immigrants.  Refugees fleeing Somalia came in droves to the United States in 1995 and settled in the Columbus area, creating a thriving 45,000-member community.  In a court of law, language is an access-to-justice issue that necessitates the presence of an interpreter.  If the interpreter is not conveying accurately what is said in the courtroom, it poses an entirely separate issue.  Reece emphasized that the Code of Professional Conduct stipulates that “the attorneys on both sides have the responsibility to make sure interpreters are doing their jobs.”  Whitten noted that budget constraints made it difficult to accommodate non-English speakers.  “We don’t have the money to provide the interpreters” Whitten admitted, “I don’t know what the answer to that is.”

Physical disability can also pose an access-to-justice hurdle.  A hard-of-hearing juror unable to distinguish some or all testimony in the courtroom cannot offer an informed judgment.  Yet a juror cannot be dismissed according to the Americans with Disabilities Act without an effort to accommodate his or her disability.  A deaf juror, for example, should be provided with a sign language interpreter, or a real-time screen that displays dialogue in the courtroom.  Judge Marcella Holland of the Circuit Court of Baltimore City, Md., argued that serving on a jury is a “precious right we have” citing the discordant history jury selection that parallels struggles for justice, notably during the Civil Rights Era, in the United States.  Holland defended the disabled juror presence saying that an effort to remove that juror would be misguided.

That discussion branched into a conversation about the use of service dogs in the courtroom.  Hearing dogs alert their owners to the presence of certain noises like a fire alarm or a doorbell chime.  These dogs, like seeing-eye dogs are covered under the ADA and permitted in the courtroom provided that they are housebroken and are well trained.  One unintended consequence of their presence is that some in the courtroom may have allergies or fear of the dog that makes them uncomfortable or unable to perform their duty.  As the dogs are allowed under ADA, fear of the animal is not grounds for removal, so a juror, for example, may be relocated to a farther point in the courtroom.

Dogs returned as a point of debate when children were discussed.  Child and sometimes adult victims of sexual abuse feel uncomfortable relating their stories or testifying in court.  Dogs have been shown to make these victims more able to speak about their abuse.  The presence of an animal introduces other considerations, including whether the testimony of the victim is enhanced in some way by the animal.  Defense counsel may believe that a child holding a dog presents an unfairly endearing image that lends weight to claims, despite the evidence presented.  Holland said that the “comfort dogs” are not covered under the ADA and that ethics guidance does not speak directly to the animals, but that it is left to individual judges to decide.  This discussion provoked theretofore uncharacteristically pointed participation from the audience.  Some felt that the presence of the animal was unfair and would make jurors biased against the defendant who did not have an equal opportunity to be presented in such a way.  Audience members asked whether it should also be permitted for the child to hold their mother’s hand for example.  In response, Holland noted that children have been allowed to hold the hands of child advocates who are not identified to the jury.

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