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January|February 2004
The Queue Crew By Brian Montopoli
Shark Hunt By Dashka Slater
The Right to Dry By Dusty Horwitt
Peruvian Guilty By Jason Felch
Cases & Controversies
The Prudent Jurist By Stephen Gillers

The Prudent Jurist

By Stephen Gillers

The judge in a gang-related murder trial in Phoenix, Ariz., asked for 24-hour security, new locks, and bulletproof glass for her chambers after attending a briefing on the defendants' alleged violent tendencies. The defense accused her of bias and asked her to recuse herself. She did. Was she right to grant their motion?

JUDGES HAVE SEVERAL OPTIONS if they have reason to believe that a defendant or his associates pose a threat. They can sequester the jury during the trial, use anonymous juries, or do both. Judges have even screened witnesses from courtroom spectators to protect undercover agents and informants from threatened violence. Even though such arrangements may signal to the jury that a defendant is prone to violence—regardless of judges' instructions to jurors to draw no such inference—judges have broad discretion to take such measures. This is a compromise we make between safety and fairness. Some defendants are dangerous.

The judge here went much further, however. Her actions broadcast her own fears, which were based on private information. It would have been better for her to take these precautions privately so that no juror would have learned of them. Still, her actions do not mean that she cannot be, or be seen to be, impartial on the issues in the case before her. She did not have to step aside.

Given her concerns, however, perhaps she did not want to sit. At one time, some courts took the position that judges who were not disqualified had a duty to sit. Justice William Rehnquist cited this view when he refused to disqualify himself in a 1972 Supreme Court case involving the military's surveillance of citizens. Two years later, Congress amended the federal recusal law, which has since been interpreted to do away with the duty-to-sit doctrine. Today, a judge can recuse herself without conceding that she must do so or that she cannot be fair. For example, she can step aside (and need not say why) if particular aspects of a case will make it uncomfortable for her to preside. It benefits no one, and certainly not the administration of justice, if the person running the trial doesn't want to be there.

Private attorneys for indigent defendants in Boston refused to accept any new assignments until the state paid them more than $30 per hour. Do lawyers have an ethical duty not to strike?

IT IS NOT QUITE ACCURATE to say that private lawyers who decline new clients are on strike. After all, they work for themselves, not the state. Nor is what the lawyers did a violation of legal ethics rules. Lawyers cannot abandon clients they represent, even if they believe that they are getting paid too little, but as a rule, lawyers have no ethical duty to accept new clients.

If, however, these lawyers acted not individually but by agreement among themselves, then they may have run afoul of laws forbidding group boycotts, which is not, strictly speaking, a strike. In FTC v. Superior Court Trial Lawyers Assn. (1990), the U.S. Supreme Court upheld just such a boycott charge against Washington, D.C., lawyers protesting the low hourly rate for indigent defense work in the District. The court rejected the lawyers' claim that the First Amendment protected their conduct as "politically motivated." The lawyers' real objective, said the skeptical court, was "to economically advantage the participants."

Maybe so, but isn't that a bit too simple? Surely the lawyers wanted to make the valid point that inadequate pay for their work threatens the Sixth Amendment right to the effective assistance of counsel. What better group to do so? The public has little interest in spending money on indigent defense, and the clients themselves are hardly an influential constituency.

A man on Cape Cod who dressed up as a lobster for a living was charged with hiding marijuana in his costume. Should he be allowed to attend the trial in his work garb, as he has requested?

NO WAY. PEOPLE MAY GO TO BROADWAY PLAYS in shorts and tank tops, and I know from personal observation the many creative ways young people manage to appear nearly naked on city streets in summer (especially in New York, it seems), but a modicum of decorum and dignity remain important to the administration of justice. It is true that court dress standards have become a lot less formal in the last 25 years. Judges in some parts of the country now permit male lawyers to appear either without ties or with a very relaxed definition of what constitutes a tie. And all judges today accept that female lawyers can come to court in short skirts or pants—although getting to that point was a battle. In 1976, for example, it took a New Jersey appellate decision to uphold a female lawyer's right to wear slacks to court.

As long as most of their body remains covered, litigants, witnesses, jurors, and spectators are allowed even more latitude than lawyers in their choice of clothes. But limits do remain. This is, after all, court, a temple of justice. Not even on Halloween will a defendant be allowed to dress as a lobster—or any other variety of crustacean, fish, fowl, or beast.

Stephen Gillers teaches legal ethics at New York University School of Law.

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