Human Rights

How Yawning Got One Court Spectator Six Months in the Slammer and Other Disturbing Acts of Judicial Tyranny

When judges take on airs and lash out in fits of whimsical bullying, innocent people can end up paying the price with jail time -- or their lives.

Last month, in Illinois, Circuit Judge Daniel Rozak was handing down a sentence in a felony drug case when a courtroom spectator did something unforgivably disruptive. He yawned.

The move (by its very nature) may have been spontaneous, but Rozak found it highly offensive nonetheless. He slapped the yawner -- 33-year-old Clifton Williams, the cousin of the defendant -- with the highest contempt sentence possible under Illinois law: six months in jail.

In the description of the contempt order, Williams "raised his hands while at the same time making a loud yawning sound," a move ostensibly calculated to undermine the judge's authority.

"It was not a simple yawn," a spokesman for the state's attorney's office said. "It was a loud and boisterous attempt to disrupt the proceedings."

Perhaps. But Williams's family -- who rely on him to help care for his 79-year-old grandmother and could not afford a lawyer to appeal the sentence -- was understandably stunned.

"I was flabbergasted because I didn't realize a judge could do that," Williams's father, Clifton Williams Sr., told the Chicago Tribune. "It seems to me like a yawn is an involuntary action."

Williams's grandmother, who lives with her grandson, called the sentence "ridiculous."

"You've got all these people shooting up kids, and here this boy yawns in court [and gets six months]. It's crazy," she said.

Indeed, while Williams was carted off to jail, his cousin, the drug-case defendant, got two years' probation.

Despite the six-month sentence, three weeks later, Williams was freed. Maybe it was the bad press. Maybe the judge had a change of heart. Either way, according to press reports, "as Williams stood before the bench in shackles," the judge reiterated that he had not gone to jail for simply yawning but for making a sound "that was offensive to the court."

Such incidents, where local judges treat courtroom spectators like trespassers on their personal kingdoms, are hardly rare in American courthouses. For all the discussion of Judge Sonia Sotomayor's "judicial temperament" during her Supreme Court confirmation hearing, it is not uncommon to find judges who use their positions on the bench to impose arbitrary and extreme punishments on people who are not even on trial.

"Contempt of court" is hardly a new concept, of course. Judges have long enjoyed the power to impose order in their courtrooms by cracking down on those who disrupt it, including lawyers who argue before them. (This power even has a solid place in popular culture; in the movie My Cousin Vinnie, for example, the wisecracking and amateurish New York lawyer, played by Joe Pesci, routinely spent the night in jail for regularly offending a humorless Alabama judge, with his accent, clothing and smart-ass remarks.)

Despite this, the concept was once controversial, and with good reason: The notion that one's rights of free speech flies out the window upon entering a court of law is not only ironic, it's somewhat at odds with democratic ideals. But the U.S. Supreme Court has upheld the power in cases "where immediate punishment is essential to prevent demoralization of the court's authority before the public."

Fair enough. But as one blogger pointed out after the Williams story broke: "Let us not forget: judges are public servants. They receive a good salary; lifetime medical benefits; and pensions from the very people who come to their courtrooms and who are subject to their contempt orders." These same taxpayers are the ones who foot the bill to imprison people like Williams.

In recent years, pundits, politicians and judicial nominees have popularized the notion that judges are nothing more than cool arbiters of the law, reflexively objective as umpires (an idea that, taken to its logical conclusion, would mean "we would need only one, and it could be a supercomputer," as Slate legal writer Dahlia Lithwick quipped this summer).

But while their robes and gavels imbue them with a noble and commanding presence -- and the ceremonial language of the courtroom affords them near-deity status -- in reality, judges can be as capricious, petty and bullying as any other mere mortal.

Below are eight more stunning examples of judges who have overstepped their power, not necessarily through bad rulings, but through contempt orders, tantrums and the arbitrary authoritarianism of a petty tyrant.

1. 'Everyone Is Going to Jail!'

You know the drill: You're at a movie or a play or some public function and some jerk forgets to turn off his or her cell phone. Eye-rolling follows. It's annoying. But is it criminal?

Of course not. But that didn't deter family court Judge Robert Restaino, of Niagara Falls, N.Y., from ordering the mass arrest of 46 people after a cell phone rang in his courtroom.

"Now, whoever owns the instrument that is ringing, bring it to me now, or everybody could take a week in jail," Restaino said upon hearing the ring. "And please don't tell me I'm the only one that heard that."

No one confessed.

"Everyone is going to jail," the judge warned again. "Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

Restaino made good on his promise. When no one stepped forward, he ordered all 46 people into police custody. Most of them were able to get out on bond. But not all.

"The 14 defendants who were unable to post bail were transported to the county jail," according to the North County Gazette. "Those defendants remained in custody for seven hours, until the judge released them after learning that the press was inquiring into his actions."

In 2007, the state Commission on Judicial Conduct recommended by a 9-1 vote that Restaino be disbarred for his actions, which were carried out "without any semblance of a lawful basis" and "out of pique and frustration."

The New York State Court of Appeals upheld the recommendation.

2. Texting in Court = 30-Day Sentence

In another cell-phone incident, this one in Utah, a woman was jailed after she was caught texting in court.

Susan Henwood's husband, Joshua, was on trial in a debt-collection case this spring when he got sick and couldn't make the proceedings. So his wife went in his place. As she watched the trial, she kept her husband updated via text, with comments like, "it doesn't look good for you."

"They're coming for the Polaris Ranger," she typed at one point, referencing the car they shared -- "one of several items" the plaintiffs wanted seized, according to local press.

This warning, according to Judge Stephen Henroid, amounted to an insidious attempt to conspire with her husband to circumvent the law. He sentenced Henwood with 30 days in jail.

"I think he personally attacked me, to get to me, through my wife," Joshua Henwood said.

"You see drunk drivers, and what do they get? A few days. She texts, and she's in jail for 30? No, no," Susan's grandmother, Dolores Kyle, told reporters.

In the end, Henwood spent two days in jail. However, "the judge can still order Susan to finish the remaining 28 days of her sentence if he chooses to do so later."

3. The $54 Million Pantsuit

Stop me if you've heard this one: A former Legal Aid lawyer starts a new gig as an administrative judge in Washington, D.C., and buys a $1,000 suit for the occasion. He goes to get the pants dry cleaned at a local strip mall and, as sometimes happens with dry cleaners, the pants go missing.

The judge sues. For $67.3 million.

So goes the tale of Roy L. Pearson Jr., who, in a fit of rage over a lost pair of pants, used "a complicated formula" to calculate that "under the city's consumer protection law, the owners, Soo and Jin Chung, and their son, Ki Chung, each owe(d) $18,000 for each day over a nearly four-year period in which signs at their store promised 'Same Day Service' and 'Satisfaction Guaranteed,' " according to the New York Times.

In the ensuing trial, Pearson, who represented himself, "cast himself as a victim of a fraud on a historic scale, perpetrated by malicious business owners who had no intention of delivering on those promises."

The case gained notoriety, with reporters flocking to cover it. "It was the case that people couldn't stop talking about," the Washington Post wrote. Although Pearson eventually reduced his demand to $54 million, he kept up his fight, rejecting numerous offers to settle. Finally, in June 2007, the judge in the case made her ruling:

"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands or to accede to demands that the merchant has reasonable grounds to dispute," Judge Judith Bartnoff wrote in a 23-page decision. Pearson, she ruled, "is not entitled to any relief whatsoever."

In addition to ruling against him, Bartnoff ordered Pearson to cover the Chungs' legal fees. (An almost unnecessary measure in the end, given that the Chungs received nearly $100,000 from supporters, including $64,000 from a fundraiser organized by the U.S. Chamber of Commerce Institute for Legal Reform and the American Tort Reform Association.)

In addition to all the media coverage, Fortune magazine listed the case at No. 37 in its "101 Dumbest Moments in Business" of 2007. (Which leaves one wondering what the 36 dumber moments were.)

Oh, and yes, Pearson lost his job.

4. A Judge Who Had a Guy Arrested in His Hospital Room, and Other Crazy Things

This week, the Los Angeles Times ran an article on Manuel L. Real, an 85-year-old judge on the 9th Circuit Court of Appeals. It opened with the story of one Gary Dubin, a lawyer in Hawaii who remains traumatized by his run-in with Real.

The story begins:

Attorney Gary Dubin was in a Honolulu hospital, sedated and suffering from depression after the death of his son, when U.S. District Judge Manuel L. Real had him handcuffed and taken to court -- still in his hospital gown -- to answer charges of failing to file tax returns.
Real allowed him to send for clothes but refused to postpone the hearing, recalled Dubin, who had to defend himself in a medicated fog, without his case files. Judged guilty by Real after a two-day bench trial, Dubin spent 19 1/2 months in federal prison, while his home went into foreclosure and his credit was ruined by identity thieves.

In the end, the IRS informed Dubin that he hadn't violated any tax laws. But "his encounter with Real caused him professional and economic suffering from which he is still recovering," according to the Times.

True story. But it doesn't end there. Real has been under scrutiny for years due to his reputation for making constant threats to hold lawyers in contempt "for disagreeing with him." According to one attorney, this has resulted in "a generalized pattern of cowering by attorneys who appear in this district court."

Not surprisingly, Real is also "notorious for ripping defendants apart." (All signs suggest this is meant figuratively, though one would be forgiven for wondering.) Other career highlights include his jailing of "five anti-war spectators for failing to stand as he left the courtroom" in 1969 and in 1985, the sentencing of Hustler publisher Larry Flynt to "15 months' detention for a profane taunting."

5. Can You Hear Me Now?

Think it was bad when Joe Biden invited a state senator in Mississippi to "stand up, let the people see you," only to realize he was in a wheelchair? Worse is the case of Judge Ralph Eriksson, who in 2006 sent a hearing-impaired man to jail after shouting at him in court.

Prosecutors bringing marijuana charges against 55-year-old Daniel Bradshaw weren't looking to put him behind bars, but that's exactly what happened after Judge Ralph Eriksson lost his cool with the defendant.

According to local media, "during the plea hearing, Bradshaw, who was free awaiting trial, questioned the judge about the legal proceedings. A public defender informed the judge the man had hearing problems."

"What plea are you entering on this charge?" asked Eriksson.

The public defender answered: "Your honor, Mr. Bradshaw informed me that he's having trouble hearing you."

But the judge pressed on. "Have you heard what I said so far?"

Bradshaw replied yes sir. The judge then said "What plea are you entering so far?"
When Bradshaw entered a not guilty plea, Eriksson sent him to jail with a $5,000 bond, even though prosecutors did not request incarceration.

"Do you understand that? Do you understand that?," Eriksson asked.

6. The People v. Facebook? 

Last month, legal scholar Jonathan Turley wrote about Rhode Island Judge Michael Forte, who, by his description, has "a curious concept of free speech and a dangerous view of judicial authority."

According to Turley, "Forte recently issued an order banning the sister of a father in a custody battle from commenting on the case on Facebook."

"Michelle Bouthillier Langlois, 41, has been defending her brother, Michael, from domestic-abuse allegations … sharing her (often caustic) views on Facebook, including such entries as: 'Court postponed to May 27. Another month Michael not allowed to see nor speak with his children. More time for children to forget their biological dad and bond with stepfather. So much for the Judicial System! Michael has seen his children about five times and spoke to them maybe 10 since November 25th!!!!!!' "

The ex-wife in the case protested, claiming that the Internet posts were putting her family "in danger."

According to the Providence Journal, "in June, Judge Michael Forte agreed with Martin," issuing a court order to ban Langlois from writing about the case on the Internet.

Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, called it a flagrant violation of free-speech rights. "Every person has the right to comment on public court proceedings, and the court order that prevents Ms. Langlois from doing so on the Internet is precisely the sort of prior restraining on speech that the First Amendment was designed to protect against," he said. "Ms. Langlois should no more be barred from speaking out about this case than should a reporter seeking to post information about it on a newspaper Web site."

Turley agreed, calling the order "an act of judicial abuse."

"It is hard to imagine how Forte believed that he had authority to police the public statements of third parties on the Internet."

7. Preacher Cast Demons Upon Judge, Gets 3 to 10 Years

In a somewhat wackier example of judicial overreach involving the First Amendment (also courtesy of Turley), Edward Pinkney, a Baptist minister, was sentenced to 3 to 10 years for publishing an article in which he called a Michigan judge "racist," "corrupt" and "dumb," while also damning him to eternal hellfire.

Convicted in 2005 of election violations, Pinkney was given a highly unorthodox probation order by Judge Alfred Butzbaugh, who banned him from engaging "in any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or Internet."

In Turley's opinion, "it is unbelievable that any prosecutor or judge would include such a blatantly unconstitutional provision in an order."

"A first-year law student could recognize the provision as an obvious violation of the First Amendment."

In defiance of the order, in 2007 Pinkney published an article in which he declared: "Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed shall come upon you and your family and overtake thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist."

Yes. "With extreme burning."

In March 2008, a different judge found that Pinkney had violated the conditions of his probation, determining that his statements amounted to a "true threat" against Butzbaugh. He sentenced him to 3 to 10 years in prison.

According to the Michigan Messenger, "Pinkney served a year of this sentence before the American Civil Liberties Union of Michigan
successfully argued that he be released pending an appeal of his probation violation."

Last month, an appeals court panel "upheld Pinkney's conviction on the election-related charges, but struck down the revocation of his probation and the 3-to-10-year sentence imposed by Judge Wiley."

Pinkney called it "a major victory." The ACLU of Michigan praised the decision: "To our knowledge, this case marks the first time in modern history that a preacher has been thrown in prison for predicting what God might do."

8. "We Close At Five": The Case of Judge Sharon "Killer"

This week saw a highly unusual occurance in Texas. No, not an execution -- please, those are commonplace -- but rather, the trial of a judge facing charges of judicial misconduct, for actions that led to an execution.

It was almost 5pm on September 20, 2007, when Judge Sharon Keller, the presiding judge of Texas' highest criminal court, received an urgent request from a pair of defense attorneys, who were scrambling to submit a last-minute appeal on behalf of their client. Death row prisoner Michael Richard was scheduled to die by lethal injection later that night. That same day, however, at 9 in the morning, the U.S. Supreme Court had announced that it would consider a case on whether or not lethal injection violated the 8th amendment's ban on cruel and unusual punishment -- a momentous decision and one that would lead states across the country to halt all executions pending the ruling from the Court.

Richard's lawyers were having computer problems when they got in touch with Keller's office, pleading for a bit more time while they got their papers in order. When Keller received the word, though, she was unmoved.

"We close at five," she said.

Michael Richard was put to death later that night.

The incident sparked outrage and revulsion, with her fiercest critics nicknaming her Sharon "Killer." But unlike so many miscarriages of justice that are routine in Texas courts, this case had consequences for the judge. Following mounting calls for her removal from defense attorneys to newspaper editorial boards to legislators, in February, the State Commission on Judicial Conduct filed formal charges.

This week, in an unusual trial resembling a civil proceeding, Keller was made to answer those charges.

"She should hope for more mercy than she has shown," wrote Rick Casey in the Houston Chronicle as the trial wrapped up on Thursday.

Aside from the grisly case that landed her on the wrong side of the courtroom, "this is a woman who voted to deny freedom to a man imprisoned for rape even after DNA evidence showed the sperm belonged to someone else," Casey wrote. "Her argument: He might have worn a condom."

This is a woman who, with her colleagues, appointed grossly incompetent lawyers to handle appeals for indigent death row inmates and then said, 'Sorry, your client had his chance,' when skilled lawyers later came in to try to clean up the messes.
This is a woman who, a week before Christmas in 2002, voted to deny freedom to a man who under pressure had accepted a plea bargain for a crime that new evidence showed -- "unquestionably," according to the trial judge who heard the evidence -- he did not commit.


On Wednesday, Keller was asked whether, given the chance, she would do the same thing she did on September 25, 2007.
"Yes," she said. "That is correct."

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. http://twitter.com/LilianaSegura
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