Monthly Archives: August 2016

Judge Advises Defendant “You Have a Constitutional Right to be a Dumb-Ass.” Welcome to the Funniest and Filthiest Court Transcript of all time. The Following is an Excellent Example of a Judge Doing Almost Everything Wrong When Dealing with a Disruptive Defendant.

Thank God this happened in Georgia and not Minnesota.

Although I have a great deal of empathy for judges that have to deal with disruptive defendants, the following exchange between Judge and defendant is a glaring example of what can happen when a judge fails to maintain a sense of order and integrity in his/her courtroom.  The end result is a ridiculous courtroom incident creating the perception of a judicial system with “out of control” courtrooms, run by “out of control” judges incapable of dealing with “out of control” defendants in a professional manner.   

As you read and/or listen to the following outrageous courtroom exchange, ask yourself this question:

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the following exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? First, a little background:

On June 20, 20126, alleged murderer Denver Allen and the Honorable Judge Bryant Durham decided to act out a more profane version of that scene between Principal Vernon and John Bender from one of my all time favorite movies, “The Breakfast Club” in a Georgia Courtroom.

Defendant Allen, accused of committing a deadly jailhouse assault last year, appeared in court seeking to represent himself, claiming his public defender said he would only do “a good job” if he was allowed to give Defendant Allen oral sex. Judge Durham advised him against it. Things quickly went downhill from there. 

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The prospect of spending significant time in contempt of court didn’t deter Defendant Allen from demanding that the judge suck his “donkey” dick. They say that the most dangerous man is one with nothing less to lose. Allen is already going on trial for killing a man, what’s contempt of court on top of a lengthy prison sentence?

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According to the official court transcript what followed was a lengthy exchange in which Allen bragged about his “big old donkey dick” and his fondness for “white boys with big butts” while repeatedly commanding Judge Durham to suck said donkey dick.

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In return, an alternately smiling and red-faced Judge Durham said Allen “looked like a queer” and speculated that “everybody [must enjoy] sucking your cock” but insisted his mouth was likely too small to accommodate the suspected killer’s penis.

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During one particularly surreal moment, Defendant Allen asked the court reporter if she was getting everything down after Judge Durham repeatedly dares Defendant Allen to jerk off right in the courtroom.

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At this point, the Judge decides to tell defendant Allen that he has a “constitutional right to be a dumb-ass,” and that’s when  Allen goes even further to the dark side and threatens to kill the judge, his whole family, and chop his children into bits.dumbass

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THE TRANSCRIPT: While painfully homophobic at times and incredibly vulgar throughout, a complete reading of the entire 19 page comedy routine deserves a read. Check it out here.

THE COMIC-CON ANIMATED VIDEO: The above exchange between Judge Durham and Defendant Allen went viral and became an instant internet sensation. Judge Durham was nicknamed “Judge Fuckman Ass”, and Defendant Allen became “Donkey Dick Defendant”.  What happened in court was so wildly unbelievable and yet somehow completely true, that the creator of the popular Adult Swim show “Rick & Morty” animated and voiced the entire transcript in character as Rick and Morty. The whole thing was premiered last month at the 2016 San Diego Comic-Con and received raving reviews. Click Here to watch the video clip. 

JUDICIAL TRAINING: Although I’m sure Judge Durham is mortified at his new-found internet fame, the inescapable fact is that all judges, at some point in their judicial career, will face a defendant hell-bent on making a mockery of the proceedings. The only difference is the manner in which the presiding judge chooses to respond. My hope is that this blog post will serve as a training springboard and catalyst for judicial discussions on how to best answer the question that was asked at the beginnng of this post: 

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the above exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? 

NOTE: By all accounts, other than this unfortunate incident, Judge Durham had a reputation as a well liked and respected jurist. In other words, if something like this can happened to a Judge Durham, then on any given bad day it could perhaps happen to you.

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

 

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IN A JURY TRIAL HOW CAN YOU TELL IF YOUR PRESIDING JUDGE IS INEXPERIENCED, INCOMPETENT OR SIMPLY LAZY?

Blog Update:  If you are getting this blog post via email please note that clicking on the Blog post title (above in blue) will take you to the full blog website containing all past training updates and the one stop “Judicial Resource Library”.

Question: In a jury trial how can you tell if your presiding judge is inexperienced, incompetent, simply lazy, or perhaps some combination of all three?

Answer: In order to give this answer the attention it deserves, you must first  understand the main difference between what an attorney does during trial and what a judge does?

  1. Trial attorneys TRY cases;
  2. Presiding judges MANAGE cases (and no matter how much a judge may want to meddle, never shall the two cross)

All trials (jury, court, criminal, civil, family, juvenile, etc) are incredibly serious business. They represent the culmination of months of hard work for the attorneys; the moment defendants, victims and litigants finally get their day in court and perhaps most important, the right to trial forms the cornerstone to our entire system of justice. And one person is given the awesome responsibility to manage and safeguard that constitutional right — the presiding trial judge.

Show me a trial that is plagued with problems and  numerous  delays, and I will show you a presiding judge that has failed to properly manage that trial. Although some judges routinely blame unexpected problems and delays on the attorneys, truth be told, invariably the root cause is a judicial failure to properly manage the trial. Failure to properly manage a trial is usually the result of failing to conduct a meaningful pretrial management conference immediately prior to commencement of trial. The purpose for a pretrial management conference is to discuss substantive, procedural, evidentiary and other trial management issues.

In order for a judge to properly manage a trial (especially jury trials) it is imperative that he/she conduct a pretrial management conference with both attorneys immediately prior to commencement of trial. Whether the judge handles this pretrial conference in a formal or informal manner is a matter of personal style – as long as key rulings or decisions are, at some point, put on the record outside the hearing of the jury but in the presence of the defendant/parties. 

CIVIL TRIALS: When presiding over civil trials Title 2, Part H of the “General Rules of Practice – Minnesota Civil Trial Book”  identifies the specific issues that should be addressed at the pretrial conference.

CRIMINAL TRIALS: When presiding over criminal trials (misdemeanor or felony) I suggest the use of a Criminal Pretrial Checklist. This checklist covers approximately 2o substantive, procedural and evidentiary topics that should be discussed prior to commencement of trial. I guarantee that following this checklist will significantly reduce the number of unexpected problems and delays during your trial and will greatly enhance the presiding judge’s ability to properly manage the trial.  

For a copy of the full pretrial checklist with rules, statutory and case citations, see Chapter 1 of the “CRIMINAL JURY TRIAL JUDGE’S HANDBOOK” (A Step by Step Guide From the Beginning of Trial Through the Return of Verdict). There is also a direct link to the Handbook under the “Training & Trial Manual” section of the “Judicial Resource Library” on the Blog website. Below is a summary of the Checklist topics:

PRE-TRIAL CHECKLIST (IN CHAMBERS) ………………………………………..

  1. SCHEDULING
  2. WITNESS LISTS
  3. SEQUESTRATION, EXCLUDING PERSONS, COURTROOM CLOSURE
  4. JURY INSTRUCTIONS – PRELIMINARY DISCUSSIONS
  5. CHARGES AND ARRAIGNMENT
  6. STIPULATIONS AND/OR ADMISSIONS
  7.  JEOPARDY ATTACHES ONCE JURY SWORN – DEADLOCKED JURY – MISTRIAL 8. DEFENDANT’S RIGHT NOT TO TESTIFY – PROPER RECORD
  8. DISCOVERY ISSUES
  9. AFFIRMATIVE DEFENSES
  10. WITNESS INCRIMINATION ISSUES
  11. SECURITY/CUSTODY ISSUES (IF DEFENDANT IN CUSTODY)
  12. USE OF WEAPONS/HAZARDOUS EXHIBITS DURING TRIAL
  13. OPENING STATEMENT
  14. EXHIBITS
  15. COMPETENCY OF CHILD WITNESSES – SAMPLE QUESTIONS
  16. PROSECUTORIAL MISCONDUCT
  17. MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES
  18. VOIR DIRE PROCEDURES AND GUIDELINES
  19. TRIAL GROUND RULES
  20. JUDICIAL WIKIPEDIA – JUDGES ONLINE BENCH BOOK

JUDICIAL BENEFITS OF USING A PRE-TRIAL CONFERENCE CHECKLIST:

  1. Lets attorneys know that you are prepared and that you expect them to be prepared;
  2. Establishes judicial control and your expectation that the trial will be conducted efficiently and fairly with minimal delays or disruptions;
  3. Establishes judicial credibility, allows you to set the rules for trial and your expectations of the attorneys;
  4. Identify potential problem areas so you can start preparing for them before they actually become problems;
  5. Using the Checklist can reduce the risk of appeals or remands;

A note for the inexperienced trial judge: If you are new to the bench, I cannot emphasis enough the importance of developing good trial management skills. Learning how to manage a jury trial is quite different from trying a jury trial. They involve two very different mindsets. Just because you were good at one doesn’t mean you’ll be good at the other. Eventually you will develop your own trial management handbook. But until that day, I suggest you use the CRIMINAL JURY TRIAL JUDGE’S HANDBOOK  as your starting guide.

Final Disclaimer and Comments on Arrogant Judges: The vast majority of district court judges are excellent trial judges and do not fall into any of the above categories. However, as in most professions, there is a small number of judges that do fall into at least one of those categories. Being inexperienced is ok, being incompetent, lazy or arrogant is not. The sad truth is that many attorneys (and judges) already know which judges are incompetent, lazy or arrogant but believe there isn’t much they can do about it….or is there?  I plan on discussing the topic of arrogant judges and what options are available to attorneys in future posts. 

Title of next week’s blog post is: “How Does a Good Judge Turn Into a Bad Judge and What is the Best Way for Attorneys to Handle a Bad Judge”

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com