The public commission that oversees misconduct investigations against D.C. Superior Court associate judges received 25 complaints last year that led to the public reprimand of one judge and private conferences with two other jurists, the latest commission report says.
The 2008 annual report of the Commission on Judicial Disabilities and Tenure, released this week, does not identify the judges that were counseled through private “informal conferences.” The report also does not describe the nature of the allegations against those two judges.
In the public case, Judge John Bayly Jr. was reprimanded in a letter for his decision to lock up a Public Defender Service lawyer, Liyah Brown, during a heated exchange in court in 2007.
Bayly, a D.C. native who was appointed to the bench in 1990 by President George H.W. Bush, repeatedly instructed Brown to “be quiet” as she advocated for a detained client. The judge did not believe Brown's remarks were relevant to the issue before him, the commission reported. The judge warned Brown she would be held in contempt if she continued her argument. Bayly then ordered Brown "stepped back," and the lawyer was searched, shackled and detained. Brown was incarcerated for 45 minutes.
“The Commission has determined that Judge Brown’s actions were grossly disproportionate to Ms. Brown’s conduct,” according to the commission’s “determination and undertaking” letter that is included in the annual report. “The facts surrounding the August 29, 2007, incident with Ms. Brown do not approach the rare circumstances in which the extraordinary exercise of judicial power would be warranted.”
The seven-person commission determined Bayly violated the judicial canon that instructs judges to be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others.”
Bayly, according to the report, acknowledged his conduct was regrettable and vowed to avoid repeating the conduct in the future. The commission determined no further action against Bayly was justified “in view of Judge Bayly’s record on behalf of the people of the District of Columbia over some eighteen years.”
The 25 complaints the commission received last year marks the fewest reported allegations against judges in Superior Court since 2003, when the commission also received 25 complaints. Last year, the most number of complaints—seven—dealt with inappropriate demeanor. Only one complaint alleged improper ex parte communication. In fiscal year 2007, the commission received 33 complaints.
Litigants or relatives of litigants filed 16 complaints last year, according to the commission’s annual report. Lawyers filed four complaints and the commission itself initiated three complaints.
Former Covington & Burling partner Eric Holder Jr., now the attorney general, served on the commission for six years, and his service ended in January 2008. The Board of Governors of the D.C. Bar chose Shirley Higuchi, former president of the D.C. Bar, to succeed Holder on the commission. Higuchi works in the legal and regulatory affairs division of the American Psychological Association.
In the annual report, the commission, chaired by William Lightfoot of Koonz, McKenney, Johnson, DePaolis & Lightfoot, thanked Holder for his service on the commission. Lightfoot was not immediately available for comment this morning on the commission report.
The commission said Holder, a former Superior Court judge, had “an immediate understanding of the function and duties of the commission, and its importance to a strong and independent judiciary for the District of Columbia.” The commission said it was grateful for Holder and ended with “he will be missed.”
During his service on the commission, Holder worked with Henry "Hank" Schuelke, the commission’s lead investigator and name partner at D.C.’s Janis, Schuelke & Wechsler. Judge Emmet Sullivan of U.S. District Court for the District of Columbia tapped Schuelke in April to investigate the Justice Department trial prosecutors who led the government’s case against former Alaska Sen. Ted Stevens.
Re. the Judge Bayly incident: When a judge tells you three or four times to stop talking and sit down, and you simply raise your voice and keep talking; when the judge warns that you're about to be held in contempt, and you show him your palm and say "I don't know what's going on up there" -- in those circumstances, you might reasonably expect to be stepped back. Would have been better if the judge had just ejected her from the courtroom, and I'm glad the commission insisted on a very high bar for stepping a lawyer back. But I have no sympathy for the lawyer, and I'm not so sure that stepping her back was grossly disproportionate. Disproportionate, maybe, but not grossly so.
Posted by: Dan | June 12, 2009 at 02:46 PM