In a well-publicized series of events, Kentucky Judge Martin McDonald has wound up his ethics hearing, and it has been jaw-droppingly fascinating to watch.
Scenes From a B-Movie
It is the sort of scene that would be written in a really bad lawyer movie. Judge sitting on the bench for years has a stroke, which may or may not impact his ability to “filter” himself.
He then goes on to behave very badly to the litigants and attorneys in his courtroom. (For all the quoted details, see the Kentucky Judicial Conduct Commission’s full opinion. To hear it for yourself, You really must watch the video. There is so much more in the three minutes of video than made it into the final opinion.)
In a death penalty case, a lawyer calls him on a phone number provided by the court (which turns out to be the judge’s cell phone) with the full knowledge and consent of opposing counsel, to discuss a scheduling matter. The judge threatens the lawyer, saying, “If you ever call me on my cell phone again, I’ll strangle you.” (Face it, if this line was said in a movie, every lawyer in the audience would groan at how unrealistic it is.)
Then in that same death penalty case, the judge held a hearing and ordered the defendant into the courtroom by stating, “Bring his carcass out here.” This is actually written in the decision of the ethics board – I could not make this up!
After a single witness testified at that hearing, the judge stated, “This has been a huge waste of time.” He went on to refer to lawyers who bring post-trial motions for ineffective assistance of counsel as “backseat drivers” who “have never been in the heat of battle” and are “criticizing lawyers that actually are real lawyers that do the work, the dirty work, the down in the trenches work.” Puh-lease, I would laugh out loud at the poor screenwriter who wrote this dialogue – but it’s true!
In an entirely different matter, a pro se litigant was told by Judge McDonald that he could not present an argument because he was not a lawyer. Isn’t that what being pro se means?
But It’s All Real – With Real Consequences
Whether it was a result of his stroke or something else, Kentucky’s Judicial Conduct Commission was not laughing. First Judge McDonald, already a Senior Judge, was placed on a temporary suspension. It later referred to a temporary suspension as being appropriate only in “egregious cases.” It said, “Suffice it to say that the actions of Judge McDonald in both of these cases were egregious.” The suspension took effect as his term ended. Proceedings on the charges were held with notice to him, but Judge McDonald refused to appear. On August 12, 2013, the Judicial Conduct Commission issued the harshest sanction available to it given Judge McDonald’s retirement, which is a public reprimand. The Judicial Conduct Commission noted that if Judge McDonald were still a member of the Kentucky judiciary, “a much more severe sanction, perhaps including removal from the Bench, would have been warranted, and would have been ordered.”
Judge Still Laughing
In keeping with the tenor of Judge McDonald’s entire ethics proceeding, in a post-reprimand interview, he referred to the Judicial Conduct Commission as “clowns who can’t figure out they have no authority over me. I’m retired. I’m done.” True as it may be that he is retired and the Judicial Conduct Commission’s actions are not of great importance to Judge McDonald, it is still quite the send-off to his legal career.
Keep Your Filter Intact
Everyone at some point or another has thought words like those that actually came out of Judge McDonald’s mouth, but hopefully we usually hold them in. At least hopefully we hold them in when it really matters, like in open court or on the record of any kind. Judge McDonald’s conduct was judged under the particular standards for members of the bench, and the Kentucky judiciary no doubt felt particularly obliged to act as harshly as possible given its stated belief that Judge McDonald brought “disrepute” upon the Kentucky bench. Nevertheless, we are all subject to rules of acting in a manner appropriate to a member of the Bar, and a certain decorum is expected of each of us. Let Judge McDonald’s story be one of amusement if it makes you laugh, pity and concern if you feel for him and what impact his physical health may have upon his very public behavior, but certainly one of caution, as it illustrates so well what can happen to a legal career when the filter between our brains and our mouths is removed.