Unconstituted on Red

Times article: In praise of judicial jollity

David Pannick, QC, bestows awards on the characters who have enlivened the legal year


THIS year, the Law Society ran an advertising campaign picturing a dynamic lawyer with the slogan, “My hero, my solicitor”. The posters may have impressed Saddam Hussein, facing trial in an Iraqi court for breaches of what he described at a very preliminary hearing as “law, what law?” An intermediary informed The Sunday Times that Saddam “respects the British legal system” and “ wants an English Queen’s Counsel” and legal team to act on his behalf. The legal awards for 2004 confirm the continuing inferiority of other legal systems.

Judge of the Year was Justice Dean Mildren, of the Northern Territory Supreme Court in Australia, who said he was “absolutely staggered” that the serial burglar appearing in his court had previously been granted bail. He demanded to know: “Who is the idiot who did that?” Judge Mildren was later informed that the judge responsible was Judge Mildren. A special mention for Justice Antonin Scalia, of the US Supreme Court, who announced: “I am not a nut”, and for a Romanian judge, Simona Lungu, who resigned after being accused of having appeared in an X-rated video, Secrets of Seduction. The “May It Please the Court” Award goes to District Judge Donald D. Thompson, whose removal from office was sought by the Attorney-General of Oklahoma for allegedly masturbating by the “repeated use of a device known as a penis pump during non-jury and jury trials in his courtroom”. Judge Thompson (who denied the charges) resigned just before a hearing on whether he should be suspended.

An Exceptional Humanitarian Award for Recorder Jeremy Carter-Manning, QC, sitting as a judge at Guildford Crown Court. He was told that the defendant had not eaten any lunch, so he adjourned the hearing, went to the kitchen, collected sandwiches and orange juice, returned to court, and waited for the defendant to eat his meal before resuming the hearing. The defendant’s just dessert was to be convicted of indecent assault and false imprisonment.

There was hot competition for Sentencing Decision of 2004. In Sante Fe, New Mexico, Judge Frances Gallegos ordered drunk drivers to wear pink hats while picking up rubbish. A woman whose erratic driving while talking on her phone caused another driver’s death was sentenced by Judge George Hancher, of Butler County, Pennsylvania, to carry, at all times, a photograph of her victim in his coffin. The winner is Judge Jeffrey Swartz, of Miami. He offered those convicted of causing a nuisance by playing car stereos too loudly the choice of paying a fine or sitting in his chambers on a Monday evening listening to one of his favourite operas.

A special award — Judicial Statement Most Offensive to Anyone Brought Up Near Highbury Stadium — goes to Judge Michael Taylor. Sitting at Teesside Crown Court, he allowed the appeal by a football fan convicted of drunkenness after falling asleep at Middlesbrough’s ground as the home team was losing to Arsenal. Judge Taylor said: “It is the right of every Englishman at a football match to fall asleep if he wants, particularly if he’s watching Arsenal.” The Court of Appeal dismissed the appeal by the men who tried to steal diamonds worth £200 million from the Millennium Dome despite the admission of the trial judge that he had momentarily fallen asleep during final speeches by counsel. He denied “snoring audibly”.

In the category of least promising lawsuit of the year —or the “No, I Will Not Act on a Conditional Fee Basis” Award — a strong contender was the claim by Ellen Fein (author of The Rules, a guide to finding and capturing your ideal man) who sued her New York dentist for cosmetic surgery which, she complained, left her with a smile so unattractive that “my marriage disintegrated” . A judge in Salt Lake City dismissed the claim by a lawyer seeking damages of $5,000 against the owner of CBS television for exposing him, during the Super Bowl half-time show, to the sight of Janet Jackson’s bare breast when he had expected to see “a family-oriented, patriotic celebration”. A group of Greek lawyers is threatening to sue Oliver Stone, the director of Alexander the Great, for suggesting that Alexander was bisexual. But the winner is a claim rejected by the Ekaterinburg District Court and the Russian Federal Court. A jilted man sought the return of gifts to his girlfriend, including “three kilograms of bananas, 300g of cookies, some big red apples and a souvenir thermometer”. She told the court that most of the gifts had been eaten (she did not specify the fate of the thermometer). The claimant announced that he would be taking his case to the European Court of Human Rights.

In the battle for The Twelve Angry Men (and Women) Award, the prize goes to the juror dismissed for shouting “Good luck Martha” just before the start of the trial of Martha Stewart in New York (convicted of lying to investigators about the sale of shares). At the Southwark Crown Court trial of Joyti De-Laurey (sent to prison for seven years for stealing millions of pounds from her bosses at Goldman Sachs after the jury rejected the astonishing defence that the money was “a reward for me being me”), the judge excused a potential juror who said that his own financial difficulties might lead to his judgment being clouded by jealousy.

Significant legal deaths this year included Professor Sir William Wade, the father of administrative law, and Marvin Mitchelson, the Californian divorce lawyer whose answering machine greeted callers with the opening bars of You’ve Lost That Lovin’ Feeling. Musical Judgment of the Year was delivered by a New York judge in proceedings against the doctor who treated George Harrison. Adapting the lyrics of a Harrison song, Judge Robert Gigante announced that “Something in the folks he treats/ Attracts bad press like no other doctor”. Legal Cartoon of the Year was by Leo Cullum in The New Yorker. One attorney tells another: “My client got twenty years, yet he paid me in full. It just shows the system works.”

Among this year’s notable cases in domestic courts, the Court of Appeal awarded the footballer Ray Parlour’s former wife a third of his future income. A retrial was ordered in the case of Sion Jenkins, convicted in 1998 of murdering his foster daughter, Billie-Jo. Dismissing a claim by Nestlé to register a trademark showing the shape of a Polo mint, Lord Justice Mummery said: “This is an appeal with a hole in the middle.” The House of Lords decided, by a 3-2 majority, that the Daily Mirror had breached the privacy of the model Naomi Campbell (Baroness Hale said that “even the judges know who (she) is”) by publishing details of her treatment for drug addiction and photographs of her leaving a group therapy meeting. The Government backed down from the plan by David Blunkett, the Home Secretary, to make immigration decisions unreviewable in the higher courts after the Lord Chief Justice, Lord Woolf, asked: “What is the use of courts if you cannot access them?” One politician accessing the courts is Mr Blunkett, who brought proceedings against his former lover for a parental responsibility order in respect of a child he claims to be his.

Interesting trials abroad included the sentence by a Berlin court of 13 months’ probation for a right-wing fanatic who trained his alsatian dog, Adolf, to raise its paw in a Hitler salute. (Roger Boyes wrote in The Times that the dog was not in court but would, no doubt, have pleaded that he was only obeying orders.) The US Supreme Court ruled that alleged terrorists held at Guantanamo Bay may challenge their detention in the American courts. The Italian Supreme Court upheld a fine of €300 on a Trieste man for using offensive language by telling a parking warden: “You are nobody.”

In the competition for the advocate of 2004, a special mention for Thomas Mesereau, defence counsel for Michael Jackson on charges of child abuse. Mesereau was appointed in April after Jackson sacked his previous lawyers, who had privately expressed concern about their client “moonwalking” on top of his car on leaving a Californian court after a preliminary hearing. Mesereau announced that the case “is about one thing only. It’s about the dignity, the integrity, the decency, the honour, the charity, the innocence and the vindication of a wonderful human being named Michael Jackson.” But the Advocate of the Year is Jeffrey Kaufman, a Florida defence attorney whose client, a Disney World worker who portrayed the character Tigger, was acquitted of fondling a 13-year-old girl while posing for a photograph with her and her mother. Mr Kaufman gave part of his closing argument dressed in a Tigger outfit.

Some judges were very cross in 2004. When a mobile phone rang in the courtroom of Judge Lawrence F. Clark, of Dauphin County, Pennsylvania, he ordered a bailiff to drop it out of the fifth-floor window. United States District Court Judge Sam Sparks, of Austin, Texas, was so irritated by the petulant behaviour of the lawyers in a case that he issued an order stating: “The court simply wants to scream to these lawyers, ‘ Get a life’ or ‘Do you have any other cases?’ or ‘When is the last time you registered for anger management classes?’” Lawyers will be hoping to provoke a more sympathetic judicial response to their submissions in 2005.

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

posted by Wanderlust @ 8:15 PM