Mark L. Dubois

I was more than a little unsettled the other day to read about the successful recall petition involving California Judge Aaron Persky. Persky lost his appointment because he gave Brock Turner, an undergraduate at Stanford, a short prison sentence for a rape of a fellow student.

The recall petition was organized by Michele Dauber, a Stanford law professor. Even though the sentence—six months of jail and three years of probation—was more than the recommendation of the probation department, Professor Dauber apparently felt it was not enough and made no secret that she wanted to “send a message” to other judges about appropriate punishment for sexual assault. I suspect the #MeToo movement helped the effort gain traction.

Closer to home, there’s a petition pending in the Massachusetts legislature to impeach Superior Court Judge Timothy Feeley who, among other sins, gave a small-time heroin dealer a sentence that would not result in him being deported, taking into account that he had an American family with small children and had been selling drugs because he needed to feed them. Feeley’s recall has legs because he earlier gave a “lenient” sentence to another man who then shot a cop trying to serve a warrant on him. The Change.Org petition in support of Feeley’s removal seems to suggest that he should either lock everyone up and/or have X-ray vision sufficient to tell who and when someone will reoffend before he imposes a sentence.

The problem with both these cases is that they’ve been driven by public outrage, fueled by the simplistic reduction of complex judicial decision-making to soundbites. I suppose we can forgive the public if they don’t understand how complicated reaching a just result can be, but I wonder when a law professor also plays the game. That verges on demagoguery. One of the reasons that we have a representative democracy is to take the edge off the hysteria the masses are prone to.

Of course, we’re not immune from the influence of the mob. Judge Jane Emons was denied reappointment a few weeks ago when the legislature ran out the clock on her nomination instead of having the decency to debate the issue. Emons’ sin was to be a family court judge. Apparently, she made a few errors and was reversed on appeal. She also was required to make decisions in the “zero-sum” environment of most family cases, a system that requires someone to lose so that someone else can win. Those cases leave half of the litigants with an axe to grind.

I recently wrote a column about Judge Thomas Moukawsher’s writing style. Later, I bumped onto a lawyer acquaintance who chewed my ear off about a “wrong” decision Moukawsher had made in one of his cases. My response was that I didn’t expect him to be perfect. That’s why we have appellate courts and judicial review councils. I kinda figured they discussed this in law school, but maybe not at Stanford.

That fact seems to have been lost on two lawyers who appeared at a press conference against Jane Emons prior to her hearing at the judiciary committee. (You can find it on YouTube.) I would have expected better from the bar, but it’s a big tent, with lots of room on the fringes for the Daubers and others to judge the judges from the cheap seats. Ditto the idea that legislators would pull up their big-boy pants and do the job they were elected to do in the face of a noisy mob.

I understand that Jane Emons may have lost her patience with some of the self-reps who found themselves before her, a fact that she apparently admitted and regretted. But if they were as nutty as Lee Whitnum, the perennial gubernatorial candidate who recently had to be carried out of a debate when she went limp and laid down on the floor in response to being asked to leave, I’d probably have at least lost my patience too.

By the way, Whitnum sued Emons and a bunch of other judges in federal court, claiming that ruling against her in her own family case was unconstitutional. No surprise, she lost at both the district court and the Second Circuit. Of course, Whitnum then joined the Minnie Gonzalez circus, lending her voice to the chorus that cowed the legislators into avoiding her, watching the clock and praying for midnight. What a system!

Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.