Joel Jacobsen

Prehistory was a great time to be a judge.  You could sit in the back of the cave, holding that symbol of your office, the reindeer thighbone, and adjudicate your little heart out.  Two men arguing about who deserved the honors of the mastodon kill, or who got first dibs on the 12-year-old girl snatched during the raid on the neighboring clan - you just pointed with the bone, pronounced your judgment, made the appropriate factual findings and conclusions of law ("Ugada!") and the matter was settled.  No legislative enactments to cramp your style, no tiresome arguments by attorneys, no appellate court to say "ugada" right back at you.  Justice was purely personal, a question of how you felt about the parties, and that made the Ice Age judge heaven.

Just as eels find their way from fresh waters to the Sargasso Sea, and as Homo Freudian lives the life demanded by his unconscious drives, so judges of our day find themselves mysteriously drawn back to the ugada principle.  A wish to experience that edenic freedom to adjudicate as one pleases, free of constraint - what else could explain the multi-factor balancing tests so au courant in the Supreme Court of the 70s and 80s?  Balancing tests allow a judge to point the reindeer bone at one party or the other, announce that a careful weighing of the factors leads ineluctably to a ruling in that party's favor, and presto!  Or, rather, ugada.  And who can argue with it?

The multi-part balancing test most familiar to criminal lawyers, of course, is "'the balancing of competing interests' [that is] 'the key principle of the Fourth Amendment.'"  All a judge needs to do is first decide who wins, then announce the appropriate verbal formula (or ask the winning party to draft an order that recites it), and totality of the circumstances / reasonable suspicion / ripened  into probable cause, or inchoate hunch / lack of particularized suspicion / fourth amendment violation.  Or, in other words, ugada.

For a particularly exuberant example of the ugada principle in action, we have Monterey's Judge Jose A. Velasquez.  (A tip of the hat to me-mo, who linked to a Monterey Herald story about Judge Velasquez in a comment to post 104.)   According to the press release from the California Commission on Judicial Performance,  Judge Velasquez

(1) found defendants who were not alleged to have violated probation in violation and sentenced them to jail, without due process; (2) increased sentences in response to defendants' questions or comments; (3) improperly based sentences on defendants' answers to his questions how how it felt to commit the crime; (4) did not give defendants being arraigned in certain cases the option of pleading not guilty; (5) issued bench warrants for defendants whose attorneys arrived late to court ...

Unlike most disciplinary complaints against judges, the Commission's formal charges against Judge Velasquez are a bit tedious to read, because he is alleged to have done the same things over and over again.  His abuses of power seem to have gone on for years.  (Look at count three, beginning on page 30 - it was evidently a regular thing with him.) 

Like Florida's Judge Sloop (see post 87) and the presumptuous federal magistrate judge who started conducting himself like a god  (see post 98), he is alleged to have meted out arbitrary punishment to anyone less punctual than himself.  Like New York's legendary Judge Duckman (see post 83), he is alleged to have ignored the law while making up facts as necessary to justify his rulings.

The behavior of all these judges is easier to understand if you rid your mind of all those stock campaign photos of dignified black-robed figures posed in front of shelves filled with  of identically-bound books.  Picture them instead in the back of a sooty cave, a carnivore's fur draped over their shoulders, clutching that reindeer bone and pronouncing over a disputed haunch of giant sloth.  Ah, those were the days.