Judges have way too much power

All the shit that doesn't fit!
If it doesn't go into the other forums, stick it in here.
A general free for all
Post Reply
ex-khobar Andy
Posts: 4479
Joined: Sat Dec 19, 2015 4:16 am
Location: Louisville KY as of July 2018

Judges have way too much power

Post by ex-khobar Andy »

Apparently the judge in the Kyle Rittenhouse trial has said that the two guys he killed cannot be called 'victims' but it's OK to call them 'looters' and 'rioters.' I'm not sure if this is yet final.

Maybe he is doing it so that there are sounds for appeal by the prosecutors if he is found not guilty. Frankly I doubt it and his (he judge's) track record is not encouraging.

Can a judge really do this and get away with it? I understand the reluctance to use prejudicial terminology: but to me the word 'victim' is accurate even if they were involved in looting and rioting which is at best unproven and in any case irrelevant since Rittenhouse himself was neither a victim of looting nor potentially of injury.

Re another thread: although I find the word c**t appalling and I never use it (except perhaps in a discussion of this sort) - this sort of behavior by a judge is far more obscene.

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

ex-khobar Andy wrote:
Wed Oct 27, 2021 6:10 pm
Apparently the judge in the Kyle Rittenhouse trial has said that the two guys he killed cannot be called 'victims' but it's OK to call them 'looters' and 'rioters.' I'm not sure if this is yet final.

Maybe he is doing it so that there are sounds for appeal by the prosecutors if he is found not guilty. Frankly I doubt it and his (he judge's) track record is not encouraging.

Can a judge really do this and get away with it? I understand the reluctance to use prejudicial terminology: but to me the word 'victim' is accurate even if they were involved in looting and rioting which is at best unproven and in any case irrelevant since Rittenhouse himself was neither a victim of looting nor potentially of injury.

Re another thread: although I find the word c**t appalling and I never use it (except perhaps in a discussion of this sort) - this sort of behavior by a judge is far more obscene.
In the United States of America there is no appeal of an acquittal open to the prosecuting authority, no matter what egregious rulings the trial judge might make. Anything that shocks the conscience must be appealed on an interlocutory basis to a higher court while the trial is still pending.

This argument over terminology to be used in trial is very commonplace, for what it’s worth. I have never had a court deny the use of the label victim, but my trial practice occurred in a pretty conservative state and even many progressive judges acknowledge that the label victim is often just what is mirrored from charging documents that echo statutory language. Some require all instances of victim to be preceded by ‘alleged’ which I find juries don’t much like. I tended to refer to victims by their names and to the accused as the defendant, a common prosecution trick to distance the jury’s feeling from them.

eta: I’ve just read an article about this and it seems the record on this issue is clear that this judge doesn’t let any prosecutor in any case use the label victim during a trial, so in that light I see nothing wrong with this ruling. Even as prosecutors we must acknowledge the defendant on trial is innocent until found guilty by a jury of peers, and deserves every benefit of the protections guaranteed by the bill of rights. Granted many prosecutors would scoff at me saying that but I’m one who believes those silly old notions and Blackstone’s ratio that better 10 guilty men go free than one innocent suffer an unjust conviction. We fall quite short of this in practice as it is, no need to tip the scales even more in favor of the state.
Last edited by BoSoxGal on Wed Oct 27, 2021 7:29 pm, edited 1 time in total.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

And again, the word cunt is much more blasé in UK usage than it is here - the power of that quote was in its profundity and I’m sorry that some folks would judge an excellent film by some profanities uttered in it. No film about combat troops in the military engaged in action would be realistic if it portrayed them all speaking in a sanitized manner fitting for great granny’s ears.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

Big RR
Posts: 12883
Joined: Thu Apr 15, 2010 9:47 pm

Re: Judges have way too much power

Post by Big RR »

What I cannot understand here is why the judge barred the use of the term "victim", but has permitted the defense to refer to those shot as rioters or looters or arsonists without any proof that they were, or, more importantly, that the accused had any knowledge whatsoever that they were. It appears to have nothing to do with any defense (barring proof that he knew they were rioters, etc. and was acting in self defense) I cannot see how it has any relevance and can only be prejudicial to the jury. It just makes no sense.

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

I edited my post above but just to reiterate - this judge never allows a prosecutor to use the label victim, so this is not a case specific ruling.

I agree that the label rioter/looter is problematic for the reasons you suggest but I would expect that the court will allow the prosecution to explore that ambiguity and the presumption of innocence enjoyed by the men the defendant shot and killed based on his own assumptions about their status.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

Big RR
Posts: 12883
Joined: Thu Apr 15, 2010 9:47 pm

Re: Judges have way too much power

Post by Big RR »

the word cunt is much more blasé in UK usage than it is here
much like use of the terms "Fanny" and shag" in the US is fairly non-offensive, but not so in the UK.

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

Just one more comment i would add in reply to a comment of Andy’s;

In my experience judges do not rule at trial with an eye toward appeal, and certainly not in hopes of being overruled. Judges take great pride (if they can) in having a low rate of appeals and rulings overturned via appeal because both speak to the soundness of the original ruling, if they provide no basis for appeal or are upheld on appeal. That said surely there are in our judiciary especially at the local/state level some real doozies on the bench which is a big reason why many folks lack or lose faith in the system - it was one of the reasons I did, shocked as I was by some of the idiocy I saw on the bench. But generally judges want to make good rulings that are recognized as such by jurists up the appellate food chain.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

Big RR
Posts: 12883
Joined: Thu Apr 15, 2010 9:47 pm

Re: Judges have way too much power

Post by Big RR »

BoSoxGal wrote:
Wed Oct 27, 2021 7:33 pm
I edited my post above but just to reiterate - this judge never allows a prosecutor to use the label victim, so this is not a case specific ruling.

I agree that the label rioter/looter is problematic for the reasons you suggest but I would expect that the court will allow the prosecution to explore that ambiguity and the presumption of innocence enjoyed by the men the defendant shot and killed based on his own assumptions about their status.
Thanks, I did not realize that; however, I think his inconsistency with regard to these terms is indefensible.

And I do agree, most judges want to make rulings that will be upheld on appeal, but I've seen some of those "doozies" as well.

ex-khobar Andy
Posts: 4479
Joined: Sat Dec 19, 2015 4:16 am
Location: Louisville KY as of July 2018

Re: Judges have way too much power

Post by ex-khobar Andy »

this judge never allows a prosecutor to use the label victim
That's kind of my point. And BTW the comment about maybe he was trying to offer the prosecution grounds for appeal in the event of a not guilty verdict was a (heavy handed?) attempt at sarcasm. But if it is prejudicial to use the term 'victim' why are not all judges and prosecutors banned from using it? This is what I mean by 'judges have too much power.' My experience of courtrooms is (unlike BSG's) pretty much what I see on TV; but every time I see a judge talk about 'my courtroom' I want to (and sometimes do) shout at the screen and say 'It's not your fucking courtroom, it belongs to the people who pay your salary."

User avatar
Crackpot
Posts: 10853
Joined: Sat Apr 10, 2010 2:59 am
Location: Michigan

Re: Judges have way too much power

Post by Crackpot »

Come to think of it in taken in the other context “Fanny Pack” sounds downright perverse.
Okay... There's all kinds of things wrong with what you just said.

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

ex-khobar Andy wrote:
Wed Oct 27, 2021 7:48 pm
this judge never allows a prosecutor to use the label victim
That's kind of my point. And BTW the comment about maybe he was trying to offer the prosecution grounds for appeal in the event of a not guilty verdict was a (heavy handed?) attempt at sarcasm. But if it is prejudicial to use the term 'victim' why are not all judges and prosecutors banned from using it? This is what I mean by 'judges have too much power.' My experience of courtrooms is (unlike BSG's) pretty much what I see on TV; but every time I see a judge talk about 'my courtroom' I want to (and sometimes do) shout at the screen and say 'It's not your fucking courtroom, it belongs to the people who pay your salary."
True but the people have in many cases elected that judge to represent the conscience of the community in that courtroom so she is presumably carrying out their wishes. And courts wouldn’t function without someone having the final word on so many nuts and bolts operating decisions.

I think it’s likely a very common practice in many criminal courts to prohibit that label in the context of trial. We use it all the time in pretrial pleadings and motions and sentencing hearings/filings obviously, but at trial before a jury prejudice is a big deal. Most courts won’t let in custody defendants appear in jail clothes for the same reason. Over the course of a trial lasting weeks or even months, the repeated use of the word victim would have a significant impact on the juror’s perception of events, don’t you think? It’s pretty basic psychology so I honestly don’t see this as some kind of terrible thing. Maybe this is the kind of thing that makes sense most once someone has an experience of the injustice in the system either personally, via a loved one’s experience or after close observation of how things works IRL in our criminal courts.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

Here’s some interesting articles on the issue if you’re up for a more complex contemplation:
https://law.lclark.edu/live/files/21940 ... 11th-edpdf (this is from a victim’s rights perspective)

And a very different perspective from across the pond: https://theconversation.com/amp/labelli ... tice-27360

Here’s a good discussion of the issue in the case at hand: https://news.yahoo.com/rittenhouse-judg ... 34421.html

This bit from the above is noteworthy:
Kenosha County Circuit Judge Bruce Schroeder, however, ordered that other words could be used — "rioters," "looters" or "arsonists" — if Rittenhouse's defense attorneys can provide the evidence that they had engaged in those acts.
And a piece that discusses the trend nationally, with reservations: https://www.google.com/amp/s/abcnews.go ... 015&page=1
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

MGMcAnick
Posts: 1235
Joined: Mon Sep 28, 2015 10:01 pm
Location: 12 NM from ICT @ 010º

Re: Judges have way too much power

Post by MGMcAnick »

BoSoxGal wrote:
Wed Oct 27, 2021 7:39 pm
That said surely there are in our judiciary especially at the local/state level some real doozies on the bench.
The local county judge where I did most of my growing up retired in his 80s. He was reelected several times. Therein lies the problem. Judges don't need to have any particular qualifications to run for election. He was replaced by a local BARBER, who had no legal schooling at all. He was on the bench for over 35 years, and was replaced by a local INSURANCE AGENT with similar qualifications.
A friend of Doc's, one of only two B-29 bombers still flying.

User avatar
BoSoxGal
Posts: 15530
Joined: Tue Apr 06, 2010 10:36 pm
Location: The Heart of Red Sox Nation

Re: Judges have way too much power

Post by BoSoxGal »

MGMcAnick wrote:
Wed Oct 27, 2021 10:40 pm
BoSoxGal wrote:
Wed Oct 27, 2021 7:39 pm
That said surely there are in our judiciary especially at the local/state level some real doozies on the bench.
The local county judge where I did most of my growing up retired in his 80s. He was reelected several times. Therein lies the problem. Judges don't need to have any particular qualifications to run for election. He was replaced by a local BARBER, who had no legal schooling at all. He was on the bench for over 35 years, and was replaced by a local INSURANCE AGENT with similar qualifications.
Yikes! Was that a justice of the peace I hope? I don’t know of any states that allow a felony level judge to be a non lawyer, but I suppose there might be some still. Most states now have judge training for all level state judges but of course there is only so much you can teach to non lawyers in a short period of time - I’ve seen and been victim of some truly idiotic rulings from Montana JPs who have no legal training requirement except a few weeks of judge school.
For me, it is far better to grasp the Universe as it really is than to persist in delusion, however satisfying and reassuring.
~ Carl Sagan

ex-khobar Andy
Posts: 4479
Joined: Sat Dec 19, 2015 4:16 am
Location: Louisville KY as of July 2018

Re: Judges have way too much power

Post by ex-khobar Andy »

Interesting, BSG. I read the links you provided and it all makes a little more sense in one regard. If 'victim' = 'person against whom a crime was committed' which is much narrower than the everyday meaning (e.g., Ms Hutchins was the victim of Alec Baldwin's errant shot, regardless of whether or not it was a crime), and Rittenhouse's defense is that there was no crime, then it makes sense to avoid the word.

But then
Kenosha County Circuit Judge Bruce Schroeder, however, ordered that other words could be used — "rioters," "looters" or "arsonists" — if Rittenhouse's defense attorneys can provide the evidence that they had engaged in those acts

I think that the defense attorneys have to provide a lot more than 'evidence' - they have to provide proof. And also of course proof that Rittenhouse knew that they were in fact looters or arsonists or were a direct deadly threat to him.

User avatar
Sue U
Posts: 7809
Joined: Thu Apr 15, 2010 4:59 pm
Location: Eastern Megalopolis, North America (Midtown)

Re: Judges have way too much power

Post by Sue U »

BoSoxGal wrote:
Wed Oct 27, 2021 7:39 pm
Judges take great pride (if they can) in having a low rate of appeals and rulings overturned via appeal because both speak to the soundness of the original ruling, if they provide no basis for appeal or are upheld on appeal. That said surely there are in our judiciary especially at the local/state level some real doozies
In my (civil) trial practice, I used to regularly appear before a county Superior Court judge who would say -- on the record! -- things like "I know this isn't what the law tells me to do, but I'm going to do what I think is right anyway." I got him reversed in the Appellate Divison like 6 or 8 times; it became a running joke around the office. He never took it personally though, and despite his obvious pro-defense bias he would often rule in my favor on motions because I was the hometown lawyer going up against the big-city firms from Philly and New York. He was very protective of the local bar and really hated having out-of-state city slickers breeze into his courtroom trying to tell him how to rule. There is more than a little truth in the old saying, "It's good to know the law, but it's better to know the judge."
GAH!

Big RR
Posts: 12883
Joined: Thu Apr 15, 2010 9:47 pm

Re: Judges have way too much power

Post by Big RR »

The worst thing I ever was personally involved with was when a judge in eviction court ordered my client (the landlord) to give the tenant another 60 days to pay all rent and arrears collection for another 60 days (clearly not permitted under the law); when I raised an objection the judge told me something like "Fine, go ahead and appeal; it will take at least that long to get it heard, even if I am reversed" (I surmised that there was some sort of personal relationship with the tenant or (a fried relative of the tenant) involved there, but wasn't sure). since he was the only eviction judge in that jurisdiction (and was well-known to bear grudges), we decided not to proceed further after the hearing even though our position was 100% right. No sense making enemies.

The thing that got me; I'd expect this from some municipal judge, but you would think a Superior Court judge would be smart enough not to put statements like that on the record. But he was a guy beyond retirement age (evictions are usually heard by the newest or the oldest judges in a county--it's not a job that is coveted), so I think he really didn't care.

User avatar
Sue U
Posts: 7809
Joined: Thu Apr 15, 2010 4:59 pm
Location: Eastern Megalopolis, North America (Midtown)

Re: Judges have way too much power

Post by Sue U »

Big RR wrote:
Thu Oct 28, 2021 1:44 pm
The worst thing I ever was personally involved with was when a judge in eviction court ordered my client (the landlord) to give the tenant another 60 days to pay all rent and arrears collection for another 60 days (clearly not permitted under the law); when I raised an objection the judge told me something like "Fine, go ahead and appeal; it will take at least that long to get it heard, even if I am reversed"
I would expect this kind of ruling more in an equity court, and I have always wondered why Landlord-Tenant court is in the Law Division rather than Chancery, since so great a portion of the claims brought and relief sought focus on things other than money damages. I don't know much about L-T, but I suspect the court is given a lot more latitude because of the equitable nature of the cases; I can't even think of any reported appellate case out of L-T court, so I'm guessing grounds for appeal must be pretty sparse (or, as in your case, impractical).
GAH!

Big RR
Posts: 12883
Joined: Thu Apr 15, 2010 9:47 pm

Re: Judges have way too much power

Post by Big RR »

I think more impractical, as the law is pretty explicit as to what the court can and cannot do. I have seen a few appellate cases, but very few.

liberty
Posts: 4041
Joined: Thu Jun 24, 2010 5:31 pm
Location: Colonial Possession

Re: Judges have way too much power

Post by liberty »

There should not even be a trial; the boy was attacked by three vigilantes bent on a lynching; all he did was defend himself. The vigilantes could have called the police but wanted to punish the boy themselves. What was the boy's crime? He wanted to volunteer to be an unpaid security guard, to do a good deed. Well, the vigilantes' desire for brutal fun got two of them killed; that seems like justice to me.
I expected to be placed in an air force combat position such as security police, forward air control, pararescue or E.O.D. I would have liked dog handler. I had heard about the dog Nemo and was highly impressed. “SFB” is sad I didn’t end up in E.O.D.

Post Reply