JUDGING CRIMES

Conservative Bryan-College Station, Texas is the home of the Aggies and the George H.W. Bush Presidential Library and Museum.   In August, 2004, its Judge Randy Michel began an email correspondence with Patricia Bonilla Harrison:

"You did beautifully. Really," he told the Bryan attorney. "We both knew you would out-prepare the other side. And you did. It showed through on the presentation. Presentation of the law was a killer."

The judge then went on to give Harrison pointers on how to outmaneuver her opposing counsel the next time they faced off in his courtroom. ....

Two days before an October hearing, Harrison asked for advice on what witnesses to call, adding, "what all do I need to do in preparation?" Michel responded by instructing her on what questions to have her witness prepared for.

"Mom should testify on facts that I sent previous," he wrote.

While he was thus advising a lawyer how to try a case before him, the judge filed a disciplinary complaint against one of the other attorneys in the case, accusing him of unethical behavior.  There's something Texas-sized about the gratuitous shamelessness of that. 

My second-favorite part of the story is the judge coaching Ms. Harrison to plagiarize Laurence Tribe in an employment application.  My favorite part is this bit:

When asked if the two had ever been involved romantically, Michel remained silent for several moments - his hands shaking - before stating, "I have to go home and talk with my family."

Well, at least Judge Randy didn't lie to reporter Craig Kapitan (who deserves all kinds of credit for pursuing the story).

The judge was indiscreet enough to use his official email account on his courthouse computer.  Even so, when the Bryan-College Station Eagle filed an open-records request for the e-mails, Judge Michel and all but one of his colleagues on the bench refused, even hiring a lawyer to fight the records request, all the while loudly proclaiming that they had nothing to hide, they were merely defending an important principle. 

As to what the principle was, exactly -- well, see, it's a slippery slope.  If today you ask for e-mails of a judge's improper ex parte contacts with a lawyer appearing in front of him, tomorrow you'll be asking for "e-mails between me and my wife, me and my family members.  Where does it stop?"

It stopped when the judges faced the reality that their stonewalling was legally indefensible.  But the sad reality is that if Judge Michel had had brains enough to set up a Hotmail account, his concupiscent corruption would have remained his, and his favorite lawyer's, little secret.  Which ought to make you wonder: how many judges in America have sufficient brains to take that self-protective step?  My guess is that Judge Michel is unusual only in his lack of elementary techno-savvy.

But there is one shocking element to the story: Judge Michel was still hearing cases the week before he pled guilty to a misdemeanor charge of misusing public property ("abuse of official capacity") and was automatically stripped of office.  How would you like to have been one of the litigants in that last hearing, glancing around the courtroom, wondering which of the attorneys the judge had been coaching that morning?

Massachusetts trial judge Ernest Murphy won a $2.1 million libel verdict against the Boston Herald.  Recently the Boston papers have reported on an extraordinary pair of letters Murphy wrote, on official stationery, to the Herald's publisher.  The tone is that of a gangster in a shiny suit:

I'd like to meet you at the Union Club on Monday, March 7. ...  Here's what will be the price of that meeting.  You will have one person with you at the meeting. ...  You will bring to that meeting a cashier's check, payable to me, in the sum of $3,260,000.  No check, no meeting.  You will give me that check and I shall put it in my pocket. ...  It would be a mistake, Pat, to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question.  In fact, a BIG mistake.  Please do not make that mistake. 

It sure sounds like a cheap hood's shakedown, doesn't it?  The letters even include repeated references to "honorable" men, tending to confirm the impression that the judge picked up pointers from Mario Puzo.

That (and the judge's inability to spell) might make the whole affair seem comical.  But there's a serious aspect to the letters, too.  Murphy told the publisher: "And since every single thing I told you about what was going to happen in this case thusfar, has happened, maybe, just maybe, I have some credibility with you at this point."  And: "you have ZERO chance of reversing my jury verdict on appeal.  Anyone who is counselling you to the contrary ... is WRONG.  Not 5% ... ZERO."  (Those caps and ellipses are in the original.)

I don't see any way to read the judge's words except as an assertion that the trial was fixed, and that the appeal will equally be fixed.  There's no other way for the odds of reversal to be nil.  (In fact, libel verdicts are thrown out on appeal with notorious frequency.)  Perhaps the judge was merely bluffing, hoping the Herald would believe him.  Or maybe he was counting on the Massachusetts good ol' boy network of judges to come through for one of their own.  (After all, is it in the interest of the Supreme Judicial Court to permit the Herald to get away with publishing a critique of the state judiciary?)  Or maybe the case was really fixed. 

And then there's the matter of the judge demanding a 50% premium over the verdict.  (The premium would equal Murphy's lawyer's fee, if the lawyer took the case on a 33% contingency basis.)  The judge told the Herald's publisher -- on judicial stationery -- that it was "in your distinct business interest" to pay up.  "I have not the slightest apprehension of failure of my ability to make you (and your insurer) concur in that assessment."  It's difficult to imagine how any plaintiff could convince a defendant that it was in his business interest to pay a million bucks more than he had to -- unless, that is, the judge intended to make an offer the Herald couldn't refuse. 

The Union Club, where Judge Murphy proposed the check should be forked over, advertises its private dining rooms.  It appears to be entirely suitable for use as a substitute for a dark alley.  The judge didn't intend for anyone to observe him putting a $3.2 million check in his pocket.

On cursory examination, it appears that the Massachusetts laws are written in such a way that what Judge Murphy did is not, technically, attempted extortion.  It will be interesting to see if the Massachusetts Commission on Judicial Conduct thinks that a judge hinting that trials and appeals in the Commonwealth are fixed, and making remarks that could be construed as a threat to use the powers of his office to damage a business unless $3.2 million was paid to him in secret, constitutes grounds for removing that judge from office.  Is there a limit on judicial thuggishness?