Joel Jacobsen

A couple weeks ago I asked whether Detroit's Chief Judge Bernard A. Friedman was a god or a jerk.  (See post 98.)  Thanks to an anonymous reader, who posted a comment to post 98, we now know the answer: Definitely a jerk. 

Apparently stung by the initial news reports (which actually bent over backwards to be fair to the judge, suggesting there was some possibility that what he did was remotely lawful), Judge Friedman issued an 11-page order sliming all over his victim.  His point, apparently, was that even though he, a federal judge, outrageously violated the law, he was justified because the person he did it to deserved it.  As if adding insult to the injury wasn't bad enough, the judge took it a step further:

"While the court could have initiated contempt proceedings against Mr. Schramm, or even punished him summarily by fining or imprisoning him … the court elected to pursue less drastic sanctions so as not to burden Mr. Schramm with a criminal record," Friedman said.

If Friedman thinks there's any truth to what he wrote, he's out of contact with reality, like General Dreedle in Catch-22, who has to be informed that he can't have Major Danby summarily shot.   Megalomania is an occupational hazard of federal judges; the weak-minded among them come to believe they deserve to be treated with the same sycophantic deference with which medieval courtiers flattered absolute monarchs.  So we can't discount the possibility that Friedman honestly believes he has the power to order arbitrary imprisonment without trial whenever a citizen tries too hard to get out of the involuntary servitude that is federal jury duty.   But I think it's more likely the judge is just a liar.

There are various levels of dishonesty in Friedman's extraordinary 11-page order.   First of all, he did punish his victim summarily by imprisoning him.   He's just lying when he says he could've but didn't.  That should be kept in mind when you read the judge's description of what the judge's victim said.   If you're drinking in a bar with Judge Friedman, don't leave your change on the table when you go to the restroom.

Presumably the judge meant to say that he could have sent his victim to jail instead of humiliating him by making him sit uselessly in a corridor (and then humiliating him further by issuing what amounts to a press release attacking him by name).  But Friedman could have sent him to jail only by violating the law even more outrageously than he did with his first summary order.  So what he's saying in his order is: "You think my first violation of the law was outrageous?  Why, I could have violated the law much more outrageously!"  Even if this is true in a literal way, the intellectual dishonesty remains impressive.

There was zero risk that the judge's victim would acquire a criminal record, because there's not an appellate court in the country that would uphold a finding of summary criminal contempt against Judge Friedman's victim.  Again, unless Friedman is actually out of contact with reality, there's no way he could fail to be aware of that, which means he was lying when he spoke of his compassionate wish to avoid damaging his victim's reputation - until, that is, his victim proved a public relations nuisance, when he spitefully tried to damage his victim's reputation as thoroughly as possible. 

(Prior to the first news story, the victim himself "asked that the story not be printed, saying he was too afraid of further repercussions from Friedman" - prudent guy.  But the News went ahead after the judge confirmed his own wrongdoing.  So it appears the judge was mad at the newspaper and took it out on his victim, compounding his prior offense against him.) 

The federal Constitution states that federal judges hold their offices during "good behaviour".  (Judges themselves like to say they're appointed for life, but it's not true except in the sense of statistical probability.)  The U.S. Senate has, for no good reason, employed the article II standard for the impeachment of executive branch officials to unelected judges, "high crimes and misdemeanors."  Under either standard, Friedman deserves to be impeached.  His deliberate violation of his oath to uphold the Constitution is the clearest possible evidence of bad behavior, and his commission of the common law offense of false imprisonment qualifies him for the ultimate disgrace even under the (inapplicable, in my opinion) article II standard.   Common law false imprisonment was designed to meet just such cases:

To constitute the injury of false imprisonment there are two points requisite : 1. The detention of the person ; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets.

(That's Blackstone, book III at 127, describing the tort of false imprisonment.  In book IV, "Public Wrongs," describing common law crimes, he specifically refers back to the tort.  See book IV, p. 218.)

Blackstone adds that the imprisonment is false only if it's without lawful authority.  Because Friedman so obviously lacked legal power to order his victim's incarceration without even the vestiges of a trial, I think there's essentially no doubt he committed the common law misdemeanor.  And I think that's abundant basis for removing a federal judge from office. 

Indeed, if our Senate took its constitutional duties seriously, impeachment would be automatic in Judge Friedman's case: when a judge abuses his power in a way that causes personal injuries to another, he should be removed for the same reason Atticus Finch shot the rabid dog.   It might have been a useful dog once, but that day is done.