September 5, 2007

How a judge ends an argument.

By sending you to jail.
Judge John Bayly Jr. said he acted because the PD, Liyah Brown, argued over with him over whether her client was homeless—and kept on arguing even when he told her to stop...

Bayly explained himself to Julia Leighton, the general counsel of the public defender service, saying Brown was like a terrier who wouldn’t let go of a bone.

"She was oppositional and defiant,” he told Leighton. “Not in an unpleasant way, you understand, you know, but she just defiantly refused what I said to do, which was to stop talking."


rhhardin said...

The woman has a claim that the judge is creating a hostile work environment.

Revenant said...

The woman has a claim that the judge is creating a hostile work environment.

In the sense that I am creating a hostile work environment when I berate my house painter for spilling paint in my driveway.

NSC said...

The woman has a claim that the judge is creating a hostile work environment.

Not a winning one.

I once knew a federal judge who would put attorneys in what he called "judicial time out." They literally had to go into another room for a few minutes to, I guess, cool off.

The Drill SGT said...

Leighton says Brown’s imprisonment was unwarranted and contends Bayly abused his power.

Neither Brown, nor her boss Leighton fully understand that barring an impeachable offense or appealable error, the Judge really is in charge of his/her court.

not the way to make friends and influence decisions.

downtownlad said...

This is a complete violation of the first amendment. You can't send someone to jail for speaking.

The Drill SGT said...

sure you can.

It's called "Contempt of Court" e.g. mouthing off to the Judge when he/she tells you to move on or shut up.

tjl said...

"You can't send someone to jail for speaking."

Yes you can, if you're a judge and you've let the parties know that oral argument is over.

Speaking as a litigator, one of the stupidest things a lawyer can do is to keep on after a judge has firmly indicated that the court has made its ruling. It's pointless, because the judge isn't going to say, "Oh, OK, I was SO wrong;" and it's self-defeating, because it further undermines respect for what has already been deemed a losing argument.

The Drill SGT said...


I agree fully in a different context. Government contracting. I'm not a lawyer, though my wife is, however I deal with a lot of contracting officers in a quasi-legal setting. my motto:

You can win any one fight with a CO if you are right, but you won't win any more.

The point being, the position has too much latitude. you need to make your best case and then STFU, saying more just hurts your cause.

Palladian said...

"The point being, the position has too much latitude. you need to make your best case and then STFU, saying more just hurts your cause."

Wise advice for some of our more strident commenters.

Greg said...

Many lawyers--many, many lawyers--assume (1) they're entitled to the last word, and (2) being entitled to the last word means they're entitled to "win." Bad assumptions.

downtownlad said...

Judges aren't dictators. They zero constitutional right to throw people in jail for exercising their first amendment rights.

This is obscene.

If they disagree with the lawyer, then have them removed from the courtroom. But they have zero right to deny people their liberty without due process.

jeff said...

Sure they can and they do. But you feel free to march into that judge's courtroom and tell him how to run his court. Let us know how that works out for you.

The Drill SGT said...

Let us know how that works out for you.

LOL, after you get out of jail and have an internet connection again.

Judges, like ships captains, are "Masters after God"

You may not like it, but those are the rules. The only thing that overrules a judge in his court is another judge in a higher court and they give great latitude to each other on court room decorum.

Seven Machos said...

Downtown -- The judge does have the latitude to do what the judge did, though I don't think the judge should have done it.

Furthermore, a lawyer acting as a lawyer has far fewer rights than someone else.

You really don't seem to understand the world you live in very well.

Bruce Hayden said...


Whether you are technically right or wrong about the 1st Amdt. here, it is a losing argument. No judge is going to reverse this one. At best, he can be reported to whatever body oversees judges, but that is usually pretty fruitless.

What you have to remember is that you are going to have other judges determining whether or not this judge was right. And they have all had attorneys who would not stop when told to before them. And, almost invariably, they are going to side with this judge.

Besides, the attorney will serve his day or so in jail, get out, and then the suit against the judge's contempt would be moot.

Bruce Hayden said...

This somewhat reminded me of GI Jane in "A Few Good Men" refusing to give up before a tribunal. She objected, then strenuously objected, etc. The more experienced trial attorney gave her a hard time about her increasingly strenous objections.

tjl said...

"zero right to deny people their liberty without due process."

DTL, you're a little misinformed about the meaning of "due process."

In this context it means that the parties can offer evidence, make their arguments, and obtain a ruling from the court. If you disagree with the court's ruling, you can appeal.

Due process does not mean you can turn the courtroom into a shriekfest, at least not unless you are willing to pay the price.

DTL's interpretation of due process resembles recent NYT editorials which have been based on the assumption that the Constitution incorporates whatever the NYT deems to be the hot liberal cause du jour.

Revenant said...

They zero constitutional right to throw people in jail for exercising their first amendment rights.

Well by all means, don't let the entire history of American and English law dissuade you from your beliefs.

Bob said...

Trying to get the last word with a judge in his courtroom is like arguing with a policeman: why would you want to anger someone equipped with a club, noxious spray and a gun, knowing that they are fully empowered (if not justified) to use them?

The Drill SGT said...

LOL Bob,

when ever I'm stopped, I put on my best Plebe behavior. Yes Sir!, No Sir!, Won't happen again Sir!.

speaking of which, be careful of German cops, they speak softly, but only ask you to get out of the car once. They expect to be obeyed.

Bitte, stehen Sie auf?

They only ask once, then come through the window with a club. :(

downtownlad said...

She wasn't shrieking. That was clear from the article. She was trying to make her point and spoke a little bit longer than she was allowed. Big deal.

Throwing someone in jail for speaking longer than asked for is an obscene abuse of justice.

Judges are not tin-pot dictators that can do whatever they please. What law did this women violate?

Minnie Minoso said...

Two observations from a judge in a trial-level court:

1. Putting a person in jail who has walked into the courtroom fully expecting to walk out again is very very difficult. It requires either fortitude or an unshakeable belief in the rightness of your decision, or anger, or a combination of all three.

2. If a lawyer insists on speaking after it is clear that I have made a decision, I have found that the simple exclamation, "Stop talking, please!" works just about every time.

Zeb Quinn said...

I knew of a federal judge who was annoyed by a jackhammer out on the street 5 stories below that was interfering with him being able to concentrate on what was going on in court. He sent his baliff down to tell the jackhammer operator to knock it off. The jackhammer operator refused. The judge ordered him taken into custody and brought before him in shackles, and asked him if he really wanted to continue jackhammering. The operator decided to quit for the day.

Seven Machos said...

The jackhammer operator has a lawsuit. The lawyer doesn't. Both judges were mentally feeble jerks.

Revenant said...

A lawyer does not have a special First Amendment right to speak in a court. They have neither more, nor less, of a First Amendment right to do so than any other American citizen.

The only claim to special treatment that a lawyer has is through his or her role as a court-recognized attorney -- which carries with it responsibilities, among them an oath that requires them to treat judges in a respectful manner and abide by the rulings of the court. By ignoring the judge and continuing to talk, Brown violated her oath and the conditions under which she agreed to practice law.

So that just leaves us with the First Amendment. Who here seriously argues that all Americans have a First Amendment right to interrupt any trial they want to and speak for as long as they wish, on any topic they wish, without suffering any legal repercussions? Brown had neither more nor less of a First Amendment right to speak in this trial than I would have had to march down to Bill Clinton's sexual harassment hearing and personally berate him on the witness stand.

Paco Wové said...

"Wise advice for some of our more strident commenters."

Too bad that they're beyond the reach of wisdom, or even the concept of "minimum standards of social behavior."

Tully said...

Echo Drill SGT on arguing with judges and police officers.

Arguing with judges in their own courtrooms after they tell you to stop is foolish. Yes, they can cite you and jail you and you're NOT going to win an appeal on it. It's their court, they're in charge.

Arguing with cops just convinces the cop you're an idiot, or guilty, or both. They've already heard all your excuses. Yes sir. No sir. Not that I am aware of sir.

Methadras said...

There really needs to be a new type of communications class in law schools. Call it "How to speak optimally". Meaning, you must learn how to communicate in a clear and concise manner, that is neither overreaching, rude, under-whelming, but just right. Optimize your words carefully and utter them in just that way. However, I don't even know if that's humanly possible.

dholloway said...

I've read the transcript. It started out as a comedy of misunderstanding but progressed to the lawyer simply refusing the judge's orders.

It went like this: The lawyer wanted to make a point, and the judge disagreed and asked her if she had anything else to say. Two or three times after that, she started to get to her second point, but each time she began by restating the first point. The judge then interrupted to tell her to move on -- increasingly irritated each time. After the second or third iteration, the judge told the lawyer to sit down in the courtroom and he would recall the case.

(This was a misdemeanor courtroom, and he had 20 or 30 cases to call, most for small matters that could be taken care of in just a couple minutes. So the idea was that because this was going to take longer, he would come back to it after clearing other cases out of the way.)

After being told to sit down, however, the lawyer said, No, she had another courtroom to go to. And she resumed trying to make her point (apparently because she didn't have time to wait another 30-45 minutes to make the point when the judge recalled the case).

The judge told her a second and (if I recall) a third time to sit down, but the lawyer wouldn't do it. At some point in here, the judge warned her that she was at risk of being found to be in contempt. The lawyer said she didn't think the judge could hold her in contempt and that she didn't know what was going on here.

The judge told her again to sit down, but the lawyer kept talking. At the end, I'm told, the judge was practically yelling at her to sit down.

After a warning of contempt and at least two -- perhaps three or four -- very clear orders, the lawyer still refused.

The judge then had the marshal "step her back" into the holding cell behind the courtroom until he re-called the case 45 minutes later. Before doing so, he summoned the general counsel of the Public Defender Service (where the lawyer worked) and explained things. He was courteous and said he had no desire to harm the woman's career and he would not enter a contempt finding (which he certainly had a basis for, and which would cause serious trouble for the lawyer). And that was that.

I have some sympathy for the lawyer, but when a judge is yelling at you to stop talking and sit down, it should be pretty clear what you need to do. Particularly if you're being told that the judge will give you an opportunity to say your piece, but you just have to wait a little while to do it.

Trooper York said...

Another in the just the punchline series...will the defendant please rise.