The Dignity of the Judicial Process

The more I think about it, the more inclined I am to side with Adam Reposa.

From the April 17, 2008 Austin American-Statesman article about The Reposa Affair (H/T Bad Court Thingy for calling my attention to the highlighted bit that I missed):

Saying that Austin defense lawyer Adam Reposa tarnished the dignity of the judicial process by making a lewd gesture in court last month, visiting state District Judge Paul Davis on Wednesday sentenced Reposa to 90 days in jail for contempt of court.

Paul Davis, a retired civil district court judge, is clearly unfamiliar with “the judicial process” in a criminal case. Consider what happened before Adam made the jack-off gesture that supposedly “tarnished” it:

Adam’s client was pulled over by the police, asked to do tricks for the cops, handcuffed, searched, transported to the police station, and asked to blow into a tube.

How much dignity is left?

Then Adam’s client was booked into jail. He was fingerprinted, photographed, ordered to strip, and searched. His body cavities were searched as well. His clothes and shoes were taken away, and he was given oversized orange pajamas and rubber flipflops to wear.

How does that rate on the “dignity” scale?

For several months he lived in a cage with 20 other men, sharing a stainless steel toilet and sleeping on a bunk, eating and showering only when someone else told him he could.

Are you feeling the dignity?

On court days Adam’s client was awakened at four in the morning, shackled and cuffed, chained together with a bunch of other guys, and transported from the jail to the courthouse to wait in a small cell for news on his case.

Dignity now?

On the day of Adam’s alleged contempt, the client was taken before Judge Breland dressed in his orange pyjamas and flipflops. For what reason? Apparently (by Adam’s account) the judge and the prosecutor were trying to get the client to plead guilty. Adam tried to counsel his client (there is no downside to a DWI jury trial when you already have six months’ jail credit). The judge told Adam to be quiet, and told the prosecutor to read the offer to the client. Adam continued to counsel his client and the prosecutor complained to the judge that Adam was whispering to his client.

Where’s the dignity in any of that?

The proceeding shouldn’t even have happened. A judge has no business trying to convince a defendant to waive a jury trial and no business telling a lawyer not to talk to his client (if the lawyer needs to talk to the client, you stop the proceeding for as long as he needs). A prosecutor has no business conveying a plea offer to a represented defendant (it’s a violation of the DRs), and a judge has no business telling him to do so. A prosecutor has no right to complain that a lawyer is whispering to his client.

Judge Breland acted without dignity in an undignified proceeding. If there was any dignity left in the room before Adam simulated masturbation, it was a mere pretense, a fraud, a sham.

We lawyers sometimes pretend, with our “your honors” and our “may it please the courts” and our suits and ties, that we are engaged in a dignified proceeding. But criminal practice is inelegant, messy, dangerous, and in all other ways undignified. The system tries at every turn to deprive our clients of their dignity. We try at every turn to return it to them.

I’m all in favor of instilling dignity into the process; that would, first, require treating the participants with dignity. I’m not holding my breath.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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21 Responses to The Dignity of the Judicial Process

  1. PJ says:

    Well said, Mark.

  2. Ron in Houston says:

    Yeah, well said. After hearing the entire story, I am on the side of Reposa.

    Free Adam Reposa!

  3. anonD says:

    There’s a big difference between defending a person and defending what he or she is accused of doing. You can be pissed off at what is happening to Reposa without condoning his behavior. I don’t think masturbatory gestures are ever appropriate in court. (I also have to wonder if Mr. Reposa would have chosen the same gesture had he been appearing before a male judge). However, this doesn’t excuse the ACDLA from not stepping up, nor does it excuse such excessive punishment. When it comes to criminal defense, you can try to understand why people do certain things (if, in fact, they did anything at all) without having to think what they did is OK. You defend your client to the ground, but you don’t have to agree with what he or she has done. I think we approach dangerous ground as attorneys when we have to start justifying what people have done in order to “feel good” about protecting them from the government. This works two ways – ACDLA should not try to justify what Reposa did in order to defend him, but other defense attorneys do not have to excuse his actions in order to come to his aid.

  4. zero says:

    Mark, Spot On!

  5. Mark Bennett says:

    Hi, Miranda. Of course we don’t have to agree with what our clients have done; if we did — if we only represented the least morally reprehensible of accuseds — we wouldn’t be doing the job that the Sixth Amendment assigns to us.

    My sense of Reposa is that he doesn’t have much of a social filter. I’ve got no reason to think that he would do differently before a male judge. You see a gender issue there that I wasn’t conscious of.

    There was Truth in Adam’s contemptuous conduct that is generally lacking in criminal court because we play at dignity. The process of putting people into cages is inherently undignified.

    “Dignity” in criminal court is like dignity in a slaughterhouse. No matter how dignified the process is, you still wind up needing a shower at the end of the day.

  6. Leviathan says:

    Rather than tarnishing the dignity of the judicial process, I’m willing to accept that Reposa simply was demonstrating a polishing technique that removes tarnish.

  7. Tarian says:

    Whatever indignities the client endured were the result of his poor choices. Mark, just because we deal with coarse folks in sordid situations does not mean we have to be coarse or sordid, too. A lack of dignity in the subject matter (or a perceived lack of dignity in the process) does not justify junior high, disrespectful behavior.

    I agree 90 days sounds like a lot, but we don’t know what other factors that visiting judge may have considered, like, say, the ATTITUDE of Reposa.

    We’re required by the canons of ethics to be respectful to the tribunal, whether we agree with them or not. Defense attorneys aren’t the only ones who get jumped on in court, either. I can’t tell you how many times I’ve had to eat a sh*t sandwich given to me by a judge and then say “Yes, Your Honor.” It’s an unfortunate part of the job, and lawyers who don’t have the maturity to handle it and deal with the black robed-egos on the bench are destined for trouble. Just like Mr. Reposa.

  8. Michael says:

    “Whatever indignities the client endured were the result of his poor choices.”

    Unfortunately, getting pulled over by the Heat isn’t always a choice.

  9. sctexas says:

    Reposa’s jackassery is legend in Austin. It’s not his client’s fault that he picked a lawyer who has some issues. To pretend, however, that attorneys can’t choose to have some dignity in the courtroom is simply disingenous, however.

  10. Ron in Houston says:

    Correct me if I’m wrong but wasn’t this gesture done toward the prosecutor and not toward the Court?

    If you want to talk about dignity, how is the court telling him to “be quiet” a dignified response to one of it’s officers?

    Pot meet kettle.

  11. Brendan Kelly says:

    Spot on Tarian, Spot on!

    And lets recall that in Court one is conducting a judicial procedure. The physical procedure of “putting people into cages” may or may not have a great deal of inherent dignity related to the process…(that seems to depend a great deal on the dignity of the person being put into the cage..see St. Thomas More for example), but even so this is a totally unrelated, separate and distinct issue; which has no bearing here.

    What goes on in a Courtroom is not “putting someone into a cage”… logically that is something that can only happen at the location of said cage. What is happening in Court is a judicial procedure wherein the future of the defendant is being determined.

    Defendants deserve to have such procedures carried out in a serious, respectful, mature, and non-sophomoric fashion. To the Judge, the attorney’s, and everyone else in the room this may be just another of a dozen or so hearings that will be held that day, and one of thousands or tens of thousands one might handle during one’s career; but to the Defendant this is a MAJOR LIFE EVENT.

    As such a decent respect to the DEFENDANT requires that ALL concerned treat the process with dignity and decorum. That is how one demonstrates to the Defendant that they consider this to be a serious matter. This burden falls on all of the people present in Court, but upon the Defendant’s Attorney most of all.

  12. Ron in Houston says:

    Is a judge yelling at a lawyer dignity? Is a judge telling a lawyer to “be quiet” dignity?

    I’m not saying that dignity in a courtroom should be a two-way street between bench and bar. However, before all of you get up on your high and mighty dignity podium, you need to consider the practical realities.

    90 days? I’m sorry folks but that’s BS. You’re talking about potentially ruining some guys life here. Should we do this in the name of this legal fiction called dignity?

    I’m sorry Mark, I just want to vomit over these smug pompous people and their defense of “dignity.”

  13. sctexas says:

    Ron–I assume (possibly incorrectly) that I am one of the smug pompous people pontificating about dignity. That wasn’t my intent. My sole point is that –all of us, including to some degree the defendant–can choose what level of dignity we are going to display.

    90 days is too much of course. But you can bet it isn’t 90 days for this incident alone, however slimy that scenario may be.

  14. Mark Bennett says:

    Tarian, Brendan, meet the presumption of innocence. “You can beat the rap, but not the ride” is descriptive, not prescriptive. We aren’t supposed to rob innocent people of their dignity.

    Brendan, the “judicial process” in a criminal case begins with an arrest and ends (if Adam is to be believed) with the acquittal of Adam’s client. You can’t pretend that accused people appear magically in court. Adam’s client hired a gonzo lawyer; he was paying for gonzo; gonzo is what he got. I’m not saying that Adam exhibited good judgment or even behaved appropriately in the circumstances. I’m not surprised that he got whacked by the judge (Tarian’s right: it’s about dealing with the ego on the bench), but to pretend that it was because he “tarnished the dignity of the process” is laughable.

    The law is a ass, and the emperor has no clothes. That the participants generally behave with some decorum, and that some of them treat the accused with some dignity, doesn’t impart any dignity to the process itself.

  15. Brendan Kelly says:

    I have to disagree with you my friend.

    Adam, or for that matter any “gonzo”, robs his client of the dignity said defendant deserves when he behaves in such a manner.

    This may be all about ego for the attorneys set on showing the world that they are the Legal World’s answer to Hawkeye Pierce, or the next Jerry Spence, or that Jami Boos was wrong to turn down their invitation to the prom back in 82; but for the guy sitting there in the orange jumpsuit and flip flops it is, as I said, a major and highly personal life changing event.

    It is HIS day in court, NOT the attorneys. It is supposed to be all about the Defendant. Just as one does not attend a wedding and then go out of ones way to upstage the Bride, one conducts oneself in a professional manner in Court out of respect for the Defendant. It is simple respect.

    At my Dad’s funeral some very nice guys from the VFW or ROTC or somewhere came out and did a 21 gun salute…what with Dad having been in WW2 and all. Out of respect they did NOT chew gum and listen on their I-Pods while doing so…even though they had no doubt been to many of these funerals before and no doubt find them rather dull. They were mature enough to understand that they were not the center of attention at that time…this is something we are supposed to pick up at about the same time we potty train.

    Similarly, at a Criminal Proceeding it is the DEFENDANT that is the center of attention. What is going on is all about where the Defendant will be spending the next few months or years of his life. It is not about the Judge. It is not about the Prosecutor. It certianly not about giving the Defendan’s Attorney a chance to show that Yale, Harvard, U.T. and Mensa were all wrong when they turned down his applications, and he’s darn well going to show them that he’s smarter than the law, the process, and everyone else…regardless of if he calls himself a “gonzo” or not.

    That is why attorneys are supposed to act like professionals and check their issues and their ego at the door. Not because of the process demands it (the process is an intelectual abstraction) but because of the DEFENDANT deserves people to carry out the process in an adult and professional manner, even if it is the 19th time that day they have carried out said process, and even if they are overdue for happy hour. By condcuting oneself in an adult and serious manner one shows to the Defendant that one takes his situation seriously. Doing so in not just respectful, but compassionate.

    The Army says “You salute the rank, not the man.” This is just the opposite. Here you conduct yourself with dignity and decourm out of respect for the man who is going through the process.

  16. Mark Bennett says:

    It’s an admirable sentiment, Brendan, and one that would never occur to most judges. If the civil judge had said, “by making the wanking gesture in court Mr. Reposa treated his client disresepectfully” I would tend to agree, but I would want to know how the client felt about it. But the judge justified his 90 days for tarnishing the dignity of “the process” — not for transgressing against the client, but for transgressing against “the court” that was doing its best to persuade that client to give up his rights and plead guilty.

    I think you’ve nailed the personality of a whole lot of trial lawyers in your third paragraph. Clearly, Adam is trying to prove something to someone.

    Can an intellectual abstraction even have dignity?

  17. Ron in Houston says:

    sctexas

    Really, I should probably apologize. Having smug pompous views of the “dignity” of the court does not make one a smug pompous person.

    I’ve just seen a lot of highly undignified behavior from the bench over the years.

    In a perfect world, everyone would be dignified. However, if we’re going to punish those who act undignified, then let’s do it equally. I vote we start with those in the black robes.

  18. Reposa was making an ass of himself-agreed.

    However, this particular Judge got treated with contempt the old fashioned way — she earned it.

    Reposa, in my opinion, should have made a record that the Court was ordering the prosecutor to speak directly to the client, not through counsel, and that the court was not allowing the client to hear from his counsel or communicate with his counsel during that procedure.

    Then he should have filed a grievance against the judge and prosecutor.

    NO MATTER HOW CORRECT WE ARE, when he let our emotions get the better of us, when we act out instead of speaking out, we generally end up hurting ourselves in the long run.

    A person I knew used to say “don’t get ulcers — give them.” Reposa should have made a record that would give the judge and prosecutor ulcers, instead of acting like a jackass and leaving those who really deserved punishment for the jerk-off nature of the hearing unscathed.

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