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People v. Zackery:
During a proceeding about a guilty plea in state trial court, a trial judge made a dismissive comment to the prosecutor about needing to follow a particular procedure to avoid reversal by appellate courts. "Oh, that’s right," the Judge remarked, "You can’t offend the kangaroos up there in kangaroo court." On appeal following a guilty plea, the intermediate appellate court went out of its way to scold the trial judge for making the comment. Here is the passage from the appellate court's opinion in People v. Zackery, which was selected for publication in relevant part:
  In making his "kangaroo court" remark, on the record in open court, Judge Saiers violated Canon 1 of the Code of Judicial Ethics, which provides as pertinent: "A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. [¶] An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective." (Cal. Code Jud. Ethics, canon 1.)
  . . .
  Reading a little between the lines, it appears that Judge Saiers’s "kangaroo court" remark was provoked by his frustration not being able to dispose of a pending case in a way he thought sensible. It would appear that, in his eyes, this court was a naive, ivory-tower, obstructionist, oblivious to the real-world problems of trial courts faced with staggering caseloads.
  This view is not accurate.
  As former trial judges, we have all experienced the stressful crush of pending cases. We are also aware of the desperate plight of the San Joaquin County Superior Court, which, until recently, had not been allocated a new judicial position in two decades, despite significant population increases and rising caseloads. (Meath, New Judges for San Joaquin County? XXI Across the Bar (Sept. 2006) p. 9.) But trial judges must understand this overarching fact about the Court of Appeal: despite our awareness of and sympathy for your plight, we have no warrant to disregard the law. Rather, we have all taken an oath to enforce it.
  And so, if a trial judge violates the law, even in the name of short-term efficiency, matters are simply made worse. Things have to be done again. More lawyers must be hired, more judges involved, more transportation of prisoners, etc. All at taxpayer expense. It is more expensive to do things twice than to do them once correctly. The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers' dollars.
(emphasis added)

  It goes without saying that the trial judge's comment was completely inappropriate. At the same time, doesn't it seem somewhat unwise for the appellate court to take offense in such a public way? My own impression, at least on a first read, is that the passage reads like a judicial tit-for-tat. As Shaun Martin points out, the latter bolded portion "appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection." Now, maybe that was deserved; I don't know anything about the trial judge, or the appellate panel, or the history between them. But if the appellate court was concerned with maintaining the integrity of the judiciary, I'm not entirely sure this opinion was the best way to do it.

  Do you disagree? I would be particularly interested to know if you think I'm missing the boat here.

  Hat tip: Howard.
Ship Erect (mail) (www):
A trial judge who publicly complains about appellate pendantry should receive an especially pedantic appellate opinion publicly admonishing him. Sounds like justice!
12.28.2006 2:55am
Anthony A (mail):
Maintaining the integrity of the judiciary is not at odds with the public humiliation of a judge whose integrity appears to be lacking.
12.28.2006 2:55am
neurodoc:
1) How often does a defendant's counsel tell an appellate court that he can find "no arguable issues in favor of defendant" and ask the court to review the record and determine if he missed something in it that might avail his client? ("For present purposes, this case began in this court when counsel appointed for defendant filed an opening brief that set forth the facts in the case that informed this court he found no arguable issues in favor of defendant, and requested this court to review the record and determine whether there were any arguable issues on appeal.") I don't read many appellate decision, but I expect it must be exceedingly rare.

2) OK, had the appellate court left out that last sentence, would its opinion been unobjectionable? If it had left out the last paragraph? Or do you think they went wrong even earlier, perhaps when they took any note of the trial judge's gratuity about the "kangaroos" further up the food chain?

IMHO, I think the trial judge was a fool and deserved the rebuke he got. You may see in that last line incitement of the electorate to get rid of the trial judge at the first opportunity (do judges of the San Joaquin Superior Court have to stand for re-election), but I see it as an appropriate, even a tempered one, to the trial judge's ill-considered shot at them.

(I didn't read beyond the first few paragraphs, so if the appellate court clearly went overboard later, I missed it.)
12.28.2006 3:12am
Daniel Quackenbush (mail):
Although what the trial judge did was despicable, he was partially correct. Appellate courts usually are "rubber stamps" for what the trial judge does when the ruling goes against a criminal defendant, especially when the defendant is acting pro se.
12.28.2006 3:33am
jgshapiro (mail):
neurodoc:

CA Superior Court judges serve for 6 year terms in all counties. So yes, Saiers will have to run to keep his job, but he has been a judge since 1981, so the odds he will be defeated as a result of this appellate panel's actions are pretty slim.
12.28.2006 4:20am
fishbane (mail):
Whatever the merits of the various judge' s arguments, it seems a bit unseemly to have a public fight on the back of a criminal defendent. This is someone's life, afterall. Policy and procedure are obviously important, but this seems like an excellent example of where that sort of debate can seriously go wrong. Sad, that.
12.28.2006 4:21am
Tennessean (mail):
Neurodoc: it happens all the time. Criminal counsel whose clients want to appeal but who do not think there are meritable appellate issues file such briefs (known as Anders briefs in some contexts).
12.28.2006 4:54am
Visitor Again:
Yes, Orin, I think you are missing something, and I think you are wrong. The appellate court acted quite appropriately.

There are very few checks on trial judges, even in California, where they must stand for reelection every so often. There are quite a few trial judges, mostly former prosecutors, who have thinly-disguised contempt for the appellate courts and their holdings protecting the rights of criminals. When those trial judges start airing their contempt publicly, they need to be put in their place as quickly as possible because their contempt breeds public disrespect for the law.

What other way is there of bringing them up short? Disciplinary proceedings against judges are cumbersome, largely ineffective and hardly likely to be brought on the basis of comments that do not prejudice the parties to a case.

Judges are public servants and if they themselves become a source of embarrassment to the judiciary, it is entirely appropriate that their superiors--those on the higher court--remind them of what's what and do so publicly. Judges are not immune from criticism, either from the public or from higher courts, and they ought to have to earn any respect they get.

Those who think judges are immune from criticism merely because they are judges, that public criticism of the judiciary is somehow unseemly, give members of the judiciary an exalted standing as if they were royalty. This has contributed to an ethos in which judges expect lawyers to thank them for doing their job, i.e., to thank them for their rulings. Bowing and scraping before their majesties ought to be put to an end. It's bad enough that we refer to them as "your honor." My God, what have any of them done to warrant that kind of grovelling address as a matter of course?
12.28.2006 7:05am
PersonFromPorlock:

"A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY."

So, how is making a well-reasoned and sincere (to give it the benefit of the doubt) comment about the failings of the appellate courts not upholding the integrity of the judiciary, unless we fall into the old trap of confusing reputation with character?

What we see here is the out-of-hand dismissal of a comment by an experienced trial judge and an attack on him for making it. There is no attempt to investigate whether the comment is justified, which shows a certain lack of respect on the part of the appellate court for the 'integrity of the judiciary' in the person of Judge Saiers.

It appears that Judge Saiers real offense is 'failure to truckle'.
12.28.2006 8:15am
anonVCfan:
I don't think you're missing anything. The appellate court's opinion basically tells Judge Saiers that he struck a nerve.

There's all sorts of overblown rhetoric in there, and the "reading between the lines" comment puts the appellate court on thin ice. By overstating its case, the appellate court looks foolish, IMHO.

The kangaroos doth protest too much, methinks.
12.28.2006 8:28am
DJR:
I'm with Visitor Again. Porlock can't be serious. "The kangaroos in kangaroo court" is not a "well reasoned and sincere comment about the failings of the appellate courts" under any stretch of the imagination. As the appellate court pointed out, "kanagaroo court" is a "mock court where principles of law and justice are disregarded or perverted." You can't say much worse, and that kind of statement by a judge undermines confidence in the judicial system.

The difference between the trial judge's comment and the appellate court's admonition is that part of the appellate court's function is to oversee the trial court.

I do think it might have been a bit extreme to ask the parties to brief the question of which court the trial judge was referring to.
12.28.2006 8:41am
ReVonna LaSchatze:
It depends if you come from a verbal jousting, or a more tight thin-lipped puritanish culture.

The latter might score easy style points for "integrity" but the former usually has a better record on upholding "independence".
12.28.2006 8:42am
Justin (mail):
I agree with Orin and disagree with most of the commentators. I do not think we appreciate the difficulties of trial judges, and how the cookie-cutter rules of judges, often fed to them by law professors through academic journals and (more often) through law clerks, do not apply to those that actually practice the law day to day.

Even worse, the "independant judiciary" cannot function in that way if Judges use their own opinions, designed to further common law and interpretation, as ways of getting back at each other and determining who will hold elected judicial office.
12.28.2006 8:43am
Former 49er:
The statements of both parties accurately reflect the descent of the judicial department in California. While it may not be at a greater rate than that of the legislature and the executive, it does not bode well for the Golden State.
12.28.2006 8:55am
John (mail):
The appellate decision is very unusual; all appellate judges know that trial-court judges don't like their second guessing, and often say so (though rarely on the record!), so there is nothing really new here. Appellate judges in my experience are used to this category of criticism, though not, I think, the insult this case posed. However, the vigor of the appellate court's response makes me think that there must be some other history here we are not aware of.
12.28.2006 9:02am
Some Guy (mail):
If you've ever been in a California appeals court, you know that calling them a "kangaroo court" is very likely to strike a little too close to home for their comfort. CA appeals judges are the most politically correct, intellectually bankrupt, and morally reprehensible excuses for judges I've ever seen.
12.28.2006 9:27am
PersonFromPorlock:

Porlock can't be serious. "The kangaroos in kangaroo court" is not a "well reasoned and sincere comment about the failings of the appellate courts"...You can't say much worse, and that kind of statement by a judge undermines confidence in the judicial system.


Well, it was certainly colorfully put, but that doesn't mean the comment doesn't reflect a real problem. As far as undermining "confidence" in the judicial system goes, the requirement is to uphold its "integrity and independence," not confidence in the system whether it's warranted or not. See my comment about confusing reputation with character.
12.28.2006 9:29am
Public_Defender (mail):
A lawyer who said what this trial judge said could be subject to discipline, and judges should not be held to lower standards than lawyers. Imagine if the trial defense lawyer had on the record referred to the trial court as a "kangaroo court." If this trial judge isn't facing a disciplinary panel, he got off easy.

Any practicing lawyer has made that kind of remark about a judge or a court, but we have enough discretion not to throw our disrespect in the court's face.

It's amazing to me how many trial judges refuse to follow the rules for short-term gain. As the appellate court noted, those short-term gains come at a long term price.

In a busy court, mistakes will happen. Appellate courts understand this and generally use a lot of procedural rules and standards to ward against reversing for little things(abuse of discretion standard, waiver, plain error, requirement to show prejudice). But intentional defiance is different.

I have faced a trial judge like the one in this case. He hates the appellate court and likes to do things his way. I have NEVER lost an appeal from his court. Like most defense lawyers, I lose way more than I win, so a 1.000 batting average with a trial judge shows that something is wrong.
12.28.2006 9:42am
Charles Thomas (mail) (www):
Well, if you're going to call the Appeals court "kangaroos," you should at least make sure that you're not screwing up the case. FIVE ERRORS?!?!?!?!

Who's the kangaroo now?
12.28.2006 9:43am
David Maquera (mail) (www):
I agree with Public Defender. The trial judge could have made his point without expressly characterizing the appellate court the way he did. Furthermore, there was no judicial reason for him to make such insulting comments.

With respect to the appellate judges' remark regarding the trial judge's waste of taxpayer's money, yes, it is extraneous. However, it was entirely foreseeable that the appellate judges would make such a remark given the trial judge's provocative statement. In fact, the trial judge got off easy in my opinion.
12.28.2006 10:04am
dearieme:
"Canon 1 of the Code of Judicial Ethics, which provides as pertinent: "A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY"."

Is an oath of omerta as part of the a mutual back-scratching judicial cartel properly described as being part of "Ethics"?
12.28.2006 10:20am
Houston Lawyer:
Apparently appellate judges don't like to be criticized. They sound like children complaining about tattletales.
12.28.2006 10:29am
Anderson (mail) (www):
A lawyer who said what this trial judge said could be subject to discipline, and judges should not be held to lower standards than lawyers.

Bingo. Public admonition was getting off lightly.

And, Houston Lawyer -- if you really *are* a lawyer -- you should know better. Tell a judge to his face, in open court, that he's running a "kangaroo court." Let us know how that comes out, okay?
12.28.2006 10:45am
Public_Defender (mail):

Apparently appellate judges don't like to be criticized. They sound like children complaining about tattletales.

So, if you walked into a Houston trial court and told the judge that he was running a "kangaroo court," that would be acceptable behavior from a lawyer in Texas? If the judge criticized you for making the remark, he would be like a "child[] complaining about tattletales"?
12.28.2006 10:49am
Anony222 (mail):
I have not read the opinion, but how did this appeal stem from that one comment so as to waste taxpayer dollars? The CoA is saying but for that comment, the appeal would not have happened. I don't see how.

PublicDefender: Your example differs from the hypothetical. If appellate judges don't like to be criticized, why would walking into a TRIAL court and calling an appellate court a "kangaroo court" necessarily be unacceptable or offend the trial judge? Maybe that same appellate court just reversed the trial judge last week because he ruled in favor of a criminal defendant (something society simply does not tolerate) and the trial judge really does believe, as do you, that the court of appeals is a kangaroo court. Heck, the Texas Court of Criminal Appeals is by far the worst kangaroo court (or 'best' if you appreciate the art of judicial kangarooism) in the entire country. A criminal defendant has a better chance of escaping death row than getting a favorable opinion from the TxCCA.
12.28.2006 11:05am
AK (mail):
I'm with anonVCfan. The trial court was out of line, sure, but the dignified thing for the appellate court to do is to handle the case on its merits, not to use the appeal as an opportunity for score-settling. I don't think we should trust the neutrality or fairness of an appellate court that feels it needs to publicly flog a trial judge. What's the chance that an appellate court that cannot control its temper has evaluated the facts of the case dispassionately?

More importantly, the appellate opinion does little, if anything, to rebut the "kangaroo court" assertion:
Trial Court: The appellate court is a Kangaroo court.
Appellate Court: The trial court is wasting taxpayer dollars.

Both are true statements, and both can be simultaneously true.

I'm reminded of the old warning about wrestling with a pig: you both get muddy, and the pig enjoys it.
12.28.2006 11:05am
moon (mail) (www):
it's not a cartel simply to recognize the importance to an effective judiciary that rules of law are followed in the trial courts, nor is it a cartel to stand on binding precedent whether one likes it or not. trial courts that don't follow the rules should be reversed, trial courts that do so deliberately deserve to be admonished, and a trial court that does so deliberately while insulting the court whose binding precedent it declines to honor or follow deserves to be admonished harshly.

that said, it would have been far more effective in my view to drop a quick, dismissive footnote noting the trial court's comment, pointing out its unethical nature, and moving on. it could have been done in two or three sentences and a citation instead of a long, defensive screed, which i find as unseemly as the comment that engendered it.
12.28.2006 11:10am
Public_Defender (mail):

why would walking into a TRIAL court and calling an appellate court a "kangaroo court" necessarily be unacceptable or offend the trial judge?


Maybe I was unclear, I meant to compare what the trial judge said to walking into a trial court and calling the trial court a kangaroo court. But I stand by my main argument--doing that would be unprofessional and would subject the lawyer to discipline.

If a court is wrong, appeal to a higher court. If a court is frequently wrong, ask for stronger language in appellate opinions from the higher courts. If a judge is wilfully wrong, file a writ and/or a disciplinary complaint. If the rules are wrongheaded, seek to change them.

And if you need to blow off steam, do so off the record and behind closed doors to friends and colleagues whom you trust to be discreet.

But calling a court a "kangaroo court" on the record is inexcusable, especially for a judge.
12.28.2006 11:25am
Public_Defender (mail):
One more clarification. I whould have included the highlighted words in the post above (11:25am):


But a lawyer or a judge calling a court a "kangaroo court" on the record is inexcusable, especially for a judge.


Of course, non-lawyer members of the public have a First Amendment right to criticize judges (even unfairly) pretty much anywway they want. Also, lawyers speaking outside of court have more freedom than lawyers speaking in court.
12.28.2006 11:29am
Alex 2005 (mail):
This strikes me as a much ado about nothing. And seems mostly to be a case of bruised ego. That the appellate court found the trial court's record "replete with errors" was probably what engendered the harsh public rebuke of the trial judge.
12.28.2006 11:37am
Mahlon:
Two wrongs do not make a right. The appellate court accused the trial judge of violating an ethical rule. If that is so, is the appellate panel then not ethically obligated to refer the matter to a judicial disciplinary board. Attorneys are obligated to report all ethical lapses of their peers or face disciplinary proccedings for failure to report.

I think this type of bickering on the record is quite destructive and should not be tolerated from either court. Frankly, the State Supreme Court ought to spank all involved.
12.28.2006 11:37am
Jeremy T:
Public Defender,

Get off it buddy. No lawyer is going to be subject to professional discipline for saying something like that, and neither should a judge. You brought up Texas. Need I remind you that that is the home state of Joe Jamail?

I recognize that the judiciary in large part believes the Rules of Professional Conduct supersede the First Amendment, but this is beyond petty. Quite frankly, based on what I know of California appellate courts, I think the trial judge was probably right. Either way, he's certainly entitled to his opinion.
12.28.2006 12:15pm
Anderson (mail) (www):
Get off it buddy. No lawyer is going to be subject to professional discipline for saying something like that, and neither should a judge.

Hm. Shields v. State, 702 So. 2d 380, 384 (Miss. 1997):

During the pretrial proceedings on January 6, 1992, where the judge heard motions from the parties, the following exchange between the defendant and the court took place:

BY MR. SHIELDS: If you so say it and not going by the law and just wanting to have a kangaroo court send me back over to the jail and it ya'll have a kangaroo party and send me a copy of the outcome. Ain't no need for me being here because ya'll don't go by the law yourself then there is no justice here just have a party and send me the outcome. In fact you act like a kangaroo so much you even look and smell like one.

BY THE COURT: Mr. Bell, instruct your client as to what constitutes direct contempt.

BY MR. SHIELDS: Contempt it all you want to big kangaroo. * * *

The court found Shields in direct contempt of court for his conduct on January 6, 1992, and July 13, 1992, and sentenced him to ten days in county jail for the first act and one hundred twenty days in jail for the conduct in July of 1992.


Affirmed. Of course, that's a client. Cf. this attorney:

On October 17, 2001, Lumumba appeared before Leake County Circuit Judge Marcus D. Gordon for a hearing on post-trial motions in a criminal case. During the course of the hearing, Lumumba made the following statement to Judge Gordon: “Look, Judge, if we've got to pay for justice around here, I will pay for justice. I've paid other judges to try to get justice, pay you, too, if that's what is necessary.” Other statements were also made to Judge Gordon. Judge Gordon cited Lumumba for contempt, fined him $500, and ordered him to serve three days in the Leake County Jail.

Miss. Bar v. Lumumba, 912 So. 2d 871, 875 (Miss. 2005). The attorney was suspended from practice for 6 months after telling a newspaper reporter that the judge had "the judicial temperament of a barbarian."

The "pay for justice" bit was part of the attorney's repertoire; he was fond of waving about a $100 bill and announcing that he would pay for justice if that's what it took. Not sure whether he still tries that.
12.28.2006 12:58pm
PatHMV (mail) (www):
I agree that this went a bit too far, though I suspect this is not the first time the trial judge has needed to be reined in. I assume there is some sort of judiciary commission in California responsible for enforcing the rules of judicial conduct and recommending disciplinary action against judges who commit misconduct. The kangaroo court comment should have been referred to that commission. If it was an isolated incident, then the judge may have been privately reprimanded, ending the matter without further public embarrassment of the judiciary.

Having represented lawyers accused of violating the analogous provision of the Rules of Professional Responsibility (thou shalt speak no ill of judges), I am highly offended by the trial judge's comments and the lack of any actual discipline of him for it. If a lawyer were to refer to a court with the term "kangaroo", that lawyer would very quickly find himself talking fast to avoid disciplinary sanction. He would, at the least, find himself the subject of a lengthy investigation, if not held in contempt (separate from the disciplinary process). The lawyer would be lucky to get away with a mere snide comment from the bench. Judges should be held to a higher standard.

P.S. to Jeremy T. Yes, lawyers ARE subject to professional discipline for saying things like that. I've done the research. Their First Amendment rights are lessened by their role as officers of the court. If they say them outside of court and in general, as opposed to regarding a specific case, then they may be treated as a private citizen (in the end, after the bar investigation), but if they say it on the record, in the context of a particular case, they will be found in violation of the Rules. And if they say it on the record in front of a particular judge, they will likely be held in contempt at the same time.
12.28.2006 1:07pm
Phil (mail):
This may be too general of a comment to help, but it strikes me that judges in genewral and trial judges in particular have culitvated a sense that any level of scrutiny is somehow questionable. In the current issue of the Oregon State Bar Bulletin a sitting trial judge offers as proof of the assault on the judiciary the fact that two incumbent trial judges actually had opponents. I am no big fan of judicial elections. Having one's employer (taxpayers) review one's performance once every six years seems a small thing. Particularly if one only loses the job if someone else applies and the employer decides to hire that person. I am alos no fan of judicial term limits, but the more I hear about such things (including the kangaroo court comment above), the more open minded I become.
12.28.2006 1:12pm
Tom Holsinger (mail):
Judge Saiers was definitely out of line and deserved at least this public admonition. This was a criminal case and the defendant deserved respect. Saier's commments likely resulted in a rash of recusals resulting in considerable disruption of the court's criminal division.

I practice in Stanislaus County, which is just south of San Joaquin County, and my county is in a different appellate district. The 3rd District Court of Appeals is a paragon of sanity and wisdom compared to the 5th. Counsel in the 5th joke that it is the 9th Circuit's farm club.
12.28.2006 1:13pm
Tom Holsinger (mail):
And, answering Professor Kerr's question, IMO it was not appropriate to post the reproval in the opinion. The first paragraph of the quoted part of the ruling, plus disqualifying Judge Saiers from the case, would have been suitable for an appellate opinion. The reproval should have been issued by the Council on Judicial Performance.
12.28.2006 1:33pm
Jim Rhoads (mail):
In my opinion, both judges were off base. The trial court was disrespectful of the entire judicial system of which he is a part. His manner of addressing the Defendant was disrespectful. In the bad days of the segregation, judges in the South addressed African Americans before them by their first names irrespective of their age. They did not so address white individuals. This manner of address was rightly seen as demeaning, and has been banished from polite discourse for nearly 50 years. Yet, here in the twenty first century a judge is addressing a defendant by his diminutive first name, "Don".

How can he expect respect of litigants before him when he does not give them respect?

Then he slights his fellow judges on the appellate courts by using a derogatory term in open court on the record. Such conduct by a lawyer or party would be (rightly in my opinion) taken as contumacious conduct by any self respecting judge if uttered in his or her presence, and would most certainly warrant some modest penalty. Such conduct is a classic example of civil contempt of court.

Free speech is no defense whatsoever.

But the Judge on the Court of Appeals who wrote the concurring opinion had it right, I believe. Rather than a public chastisement, he noted without ambiguity that the trial court crossed the line and violated judicial ethics. That is enough to preserve the dignity of the higher court without descending to the trial court's level.
12.28.2006 1:53pm
Edward A. Hoffman (mail):
neurodoc wrote:
How often does a defendant's counsel tell an appellate court that he can find "no arguable issues in favor of defendant" and ask the court to review the record and determine if he missed something in it that might avail his client? . . . I don't read many appellate decision, but I expect it must be exceedingly rare.
It's actually quite common, at least here in California. I've done it myself several times.

Many trials are conducted quite fairly and contain no errors serious enough to be called prejudicial. Also, many errors are waived (especially by guilty pleas) and can't be argued on appeal no matter how serious they might have been.

Lawyers who say there are no arguable issues are almost always right, and these cases usually result in very short opinions that essentially say "Counsel told us he could find no arguable issues. We reviewed the record and can't find any either. Affirmed." These decisions don't get published, but a large fraction of criminal appeals fit this pattern.

One reason this case is unusual is that the appellate court disagreed with the lawyer and found several issues worth arguing. That the court actually reversed on some of these points is even more unusual. Even so, the appellate court agreed that the most serious issue (the possible coercion of a guilty plea) could only be raised via a petition for habeas corpus and thus wasn't arguable on appeal.
12.28.2006 1:59pm
Hattio (mail):
This is off-topic, but did anybody notice that the attorney filed an Anders brief stating he couldn't find an error. And when the appellate court looked they realized he had been sentenced on a count he wasnt' found guilty of? Wow, it seems like more than the judge should be reprimanded.
12.28.2006 2:04pm
Tom Holsinger (mail):
I was told today at lunch that Judge Saiers has retired.
12.28.2006 4:39pm
David M. Nieporent (www):
A lawyer who said what this trial judge said could be subject to discipline, and judges should not be held to lower standards than lawyers. Imagine if the trial defense lawyer had on the record referred to the trial court as a "kangaroo court." If this trial judge isn't facing a disciplinary panel, he got off easy.
But perhaps the argument is that he should be facing a disciplinary panel. Rather than rebuking him in a (published) opinion in Mr. Zackery's case, they should have punished him directly, in a proceeding designed for punishing judges.

In fact, punishment is more deserved than mere public rebuke is. His comments not only blatantly violated the rules, but were completely gratuitous. He asked the prosecutor if the prosecutor was going to do X, the prosecutor said it would be against the law to do X, and instead of saying, "Stupid law," he said, "Kangaroo court."
12.28.2006 4:39pm
David M. Nieporent (www):
I was told today at lunch that Judge Saiers has retired.
According to this article, he had already retired; he just hears cases occasionally.
12.28.2006 4:42pm
Jeremy T:
Anderson,

There is a stark difference between a litigant attacking a judge during a trial in that judge's courtroom and an offhand remark made in a different proceeding. There is also a stark difference between what consitutes contempt and what constitutes an ethical violation. Not every ethical violation is contempt, and not every instance of contempt is an ethical violation.

I'm glad that you can search "kangaroo" on Westlaw, but the cases you cite are very different factually.
12.28.2006 5:00pm
Anderson (mail) (www):
I'm glad that you can search "kangaroo" on Westlaw, but the cases you cite are very different factually.

"Kangaroo court," actually. Wouldn't want to cite any cases applying Australian law.

Glad you can distinguish the two. I extend to you the same invitation as Houston Lawyer, however: Try calling either the trial court or its presiding appellate court a "kangaroo court" sometime, in open court, and let us know what happens. Just make sure someone's home to get your one phone call.
12.28.2006 5:58pm
ShelbyC:
Question from a nonlawyer:

Can an appelate court hold a trial judge in contempt?
12.28.2006 6:11pm
Tom Holsinger (mail):
ShelbyC,

The procedure California follows in such instances is for the appellate court to report the trial judge to the Commission on Judicial Performance. The latter imposes discipline on judges.
12.28.2006 7:09pm
glangston (mail):
Jason Kidd of the NJ Nets was fined $20,000 for commenting on how the referees resembled "three blind mice". I guess all arbiters are being protected a little more.

Now that I see Judge Saiers is "retired" but still hearing cases it makes more sense. I did send this to my cousin who just became a Superior Court Judge in case he was prone to frustration.
12.28.2006 8:48pm
Lev:

but did anybody notice that the attorney filed an Anders brief stating he couldn't find an error. And when the appellate court looked they realized he had been sentenced on a count he wasnt' found guilty of?


So who is wasting resources by asking an appeals court to find this obvious stuff in his client's case?
12.29.2006 12:09am
Lev:
Oh yeah:


It goes without saying that the trial judge's comment was completely inappropriate. At the same time, doesn't it seem somewhat unwise for the appellate court to take offense in such a public way?


Without the appellate opinion, who in the wide wide world would have any idea that a Cal State Trial Court Judge had made intemperate oral comments about the appellate division in open court. Answer: very very few.

Now, because of the appellate decision, not only does the wide wide world know of the trial judge's intemperate comments on the integrity of the judiciary, but also the wide wide world sees the lack of judgment and concern for the integrity of the judiciary that that appellate court itself displays, not to mention their self important narcissistic pomposity.
12.29.2006 12:20am
Public_Defender (mail):

So who is wasting resources by asking an appeals court to find this obvious stuff in his client's case?


The appellate court ordered briefing on the issues. As other commenters have noted, an attorney was appointed to represent the defendant on appeal. That attorney said he could find no viable appellate issues. The appellate court then ordered that the attorney brief specific items.

My guess is that the defense attorneys told their client that he would be foolish to mess with an arguably illegal plea deal that spared the client from a third strike (and the lenghthy prison term that resulted). If my understanding of the facts is correct, Mr. Zackery is VERY LUCKY that he didn't lose this plea.

The trial judge here actually tried to cut the defendant some slack by permitting a deal that avoided a third strike.

A lot of no-harm-no-foul stuff like this goes on in trial courts, but it almost always gets reversed if someone is stupid enough to appeal. The judge probably thought that the defendant would not be stupid enough to appeal and that his "kangaroo court" remark would remain forever written in gibberish on a court report's machine.

All that said, the judge was morethan intemperate on the record. He got caught. He was criticized in a written opinion. The appellate court's criticisms were on the harsh side, but appellate courts get very testy when they see trial judges intentionally evading the law, especially when the trial judge make remarks that would get a lawyer disciplined.
12.29.2006 7:40am
Anderson (mail) (www):
The saga continues (via Bashman): the trial judge says he was referring to the prosecutors' office, not the appellate court.

Reached Wednesday, Saiers said that the whole thing is a misunderstanding, "a big mistake."

"I knew I was pissing them off," Saiers said, "but I wasn't referring to them."


Oh, well, okay then.
12.29.2006 12:12pm
Sparky:
An appellate court just isn't supposed to be so sensitive. They thought they could avoid the appearance of sensitivity by dressing their umbrage in the trapping of concern about professional responsibility, but really, we all know.

The last time I saw a trial judge contemn the appellate court this way, he got reversed; the appellate opinion, however, didn't stoop to mention his little dig. Good thing, too, as the Supreme Court later reversed the appellate court and upheld the trial judge . . . .
12.29.2006 12:30pm
JusJoan (mail):
Back in the days of municipal courts in San Diego County, I remember an attorney being held in contempt when, in open court, he referred to the court/judge as a Nazi!

The part that I find interesting in the appellate decision is their "reading between the lines" and finding that, in Judge Saiers' eyes, the appellate court: "...was a naive, ivory-tower, obstructionist, oblivious to the real world problems of trial courts faced with staggering case loads. This view is not accurate." Of course it's not accurate because it is the appellate court's own interpretation of what Judge Saiers' kangaroo court remarks meant. Just as it was inappropriate for Judge Saiers' to make the kangaroo remarks, it also does not seem appropriate for the appellate court to be reading between the lines in making a decision.

In any event, I have to thank the appellate court for livening up what is usually dry reading of the D.A.R.s!
12.29.2006 2:42pm
r78:
Background:

All of the trial court judges in San Joaquin county have been throwing a fit about how overworked they are. Some (I don't know if Judge Saire's is among them) have publicly stated that one reason for their oppressive caseload is having to deal with procedural nitpicking by appellate courts. The appellate court hints at this background in its opinion.

One other thing - regardless of whether they are overworked, I strong suspect (and I am not alone in this suspicion) that the judges are engaging in a "slowdown" to try to encourage practicioners to lobby for more judges to be appointed. I had a case there earlier this year where it took 5 months to get a decision after a discovery hearing and the decision consisted of exactly 11 lines of text.

By the way, some new judge positions have been added and should be filled shortly for that county.
12.29.2006 2:59pm
Ryan Waxx:

"A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY."


In other words, Omertà shall be observed.
12.31.2006 2:20am
Kent G. Budge (mail):
I'm a non-lawyer, so maybe my comment will be a useful data point on how the general public sees it.

The trial judge mouthed off to his superior. (That's how I suspect most of us who work for a company view the relationship between the trial and appellate judges.) He got what he had coming to him.
12.31.2006 4:06pm
arbitraryaardvark (mail) (www):
Perhaps this will refresh your memory. (link is to the thurber new yorker cartoon that was in our evidence textbook.)
1.2.2007 10:56pm