It isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.
As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:
Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”
The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.
The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He refused to waive and asked for a trial date.
Tempers flared with that very short interaction, the two of them charged to the back hallway, you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”
Here is the short video — I found a version without commercials:
Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)
But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.
The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.
But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.
One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.
What’s more, when the judge uttered the now-(in)famous words, “If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.
Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.
I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.
My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.
When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).
If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.
The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.
This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not made in the hallway behind the bench.
Judicial thuggery: FL judge assaults public defender (A Public Defender)
The Heat of the Well (Simple Justice)
Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)
Judge Beats Up Public Defender (Above the Law)
The lawyerly rule is comply now, appeal later. It’s a very workable rule in many areas of law. But in crim law, not so much.
First, the defendant sits in a cell pending appeal, and contrary to popular belief, it’s not as much fun as people think.
Second, the chances of reversal on appeal on particularly slim in criminal cases, because we have special rules like harmless error, and because everybody hates criminal defendants.
While this isn’t to suggest that Weinstock behaved well, it’s necessary to view what happened through the prism of criminal law reality rather than, well, any other prism.
One account that I read (I have not watched the video) said that the “audience” applauded the judge when he returned to the bench. I guess nobody really likes lawyers after all.
Had this been in Texas they might have gone out to their cars*, gotten out their shootin’ arns and squared off in the main street. And the onlookers would be applauding that as well. In certain parts of the US, anyway.
Something has gone or is going amiss in the standards of appropriate behavior in this country. Maybe it’s due to too much sugar (i.e. high fructose corn syrup).
*Even in Texas one cannot carry, open or otherwise, into the court.
Eric-you are a man of great wisdom. I wish I met you earlier in my career!
I’d like to think that I would just make sure I got a good record of the judge failing to give a trial date. And then let the judge vent, again with the court reporting typing(*) away.
Still, being human, I know it is hard to take that sort of challenge without responding. I was not there, I do not know how put-upon that atty was, and I don’t know if he was reading the judge’s offer as a chance to discuss it off the record.
So, I will save the harshest criticism for the judge, who obviously erred in refusing a trial date.
(*)or whatever they do with that odd-looking machine.