83. Ducked again

Last Friday the Vermont Supreme Court upheld the contempt citation of a public defender.  It seems the PD demanded that the judge conduct a plea hearing in a certain sequence, and when the judge declined to follow instructions the PD got mad at her.  That's never a bright thing to do, but still, not such a terribly big deal.  The judge held him in contempt and had him placed in a holding cell for 45 minutes.  A bit harsh, but then we routinely make our jurors wait much longer than 45 minutes in rooms they are equally not permitted to leave.

The judge issued a lengthy opinion explaining the contempt citation, which read in part:

The undersigned has never in twenty-two years in the legal profession . . . seen an attorney behave in as disrespectful and angry a manner towards a judge as Attorney Duckman has on repeated occasions, both in the courtroom and in chambers.   Prior to August 30, 2004, the court had attempted to address  Respondent's behaviors by, for example, speaking to  Respondent in chambers, asking one of his superiors to speak  to him, and clearly explaining the court's expectations of him.  He and his superior were also advised that if such  conduct continued the court would be forced to take more serious action.  On at least one prior occasion, Respondent was warned that he was on the verge of being held in contempt.

On August 30, not only did Respondent display the same rude and disrespectful behavior that he had displayed on previous occasions - repeatedly interrupting the judge - but he went  further than he had in the past.  On this occasion, he  willfully refused to comply with a direct order of the court intended to protect his client's right to determine whether to proceed with a guilty plea pursuant to a proffered plea agreement, or whether to withdraw from that agreement.   Moreover, Respondent's refusal forced the courtroom proceedings to come to a halt.  Because of this direct refusal to comply with the court's order, as well as the disrespectful way in which it was done and its interference with the ongoing proceeding, the court concluded that it had no choice but to take immediate action.  Such action was needed to punish the behavior, to deter similar future behavior by Respondent, and to make clear to others that such behavior would not be tolerated.  Because Attorney Duckman's actions demonstrated that repeated prior attempts to remedy his behavior had been unsuccessful, the court also concluded that a severe sanction was necessary.  For all of these reasons, the court imposed the sanction of a brief incarceration until after the lunch hour.

The attorney's name might ring a few bells.  Lorin Duckman was a weirdly honest New York judge, serving in the Bronx and Brooklyn.  His honesty consisted of never disguising his prejudices.   I doubt if he was any more biased than certain judges I've appeared before.  The difference is that Duckman didn't go through the motions of appearing to be fair.

He dismissed - at arraignment - a charge of "menacing in the third degree for pointing what appeared to be a gun at children."  The defense wasn't even required to file a motion to get the charge dismissed, because  Duckman "assumed the defense position in these cases himself; little or nothing was heard from the defense attorneys."

When the prosecutor objected to the dismissal, Duckman exploded.  At the close of what the New York Court of Appeals characterized as a "diatribe", Duckman told the prosecutor: "The case is over.  I am not listening to you.  Move away.  Next case.  Don't do it again.  If you smile, you are going to find out what power I really have.  Do you understand that?  Do you understand that; yes or not?"   (All quotes are from In the Matter of Duckman, 699 N.E. 2d 872 (1998), except where links are provided to other sources.) 

Here's another exchange:

Duckman: Ms. Rice, you have a problem?  Stand up.  I didn't ask you to talk.

Ms. Rice: Do I have your problem, your Honor?

Duckman:  I didn't ask you to talk.  Then leave the courtroom and solve your problem.

Ms. Rice:  You want me to leave now?

Duckman:  Don't you shirk [sic; smirk] and give me weird looks, okay.

Ms. Rice:  I apologize, your Honor, if I gave --

Duckman:  Here we go again.

On 16 documented occasions, Duckman illegally dismissed prosecutions.  He told the State Commission on Judicial Conduct that he knew he didn't have the authority to dismiss the cases, but "'there were times where [I] did things in the interest of justice, using the guise of facial insufficiency' to dispose of a case when he 'thought it was right to do it.'"  He explained that, "in an effort to do justice" he dismissed cases "sometimes without giving the people an opportunity to be heard fully."

He dismissed a DWI prosecution, for example, because "it's not illegal to drink and drive."  He invented facts, once finding a defendant had been beaten when the defendant himself had never make that accusation.  He told the Commission without the slightest hint of shame that "I read things into cases and I'm not wrong about these things."

In open court, playing to an appreciative audience of offenders waiting (with what must have been astonished glee) for their own cases to be heard, he called prosecutors "good little soldiers" and "good little soldier boys," "mannequins" and "puppets."  He nicknamed specific prosecutors "Princess" or "Princess Nancy", "Mr. Nuisance" and "Marhsal Dillon."  When a visually-impaired prosecutor appeared in his court, Duckman said he would "teach" him "how to properly stand up in court."

Duckman made wildly inappropriate comments to female prosecutors, telling one she was "too sexy" to wear flat shoes and had "nice legs", and another that she looked better in shorter skirts.  He wasn't above racist remarks, either, dismissing a case involving a fight between two Black women by saying, "At the risk of sounding racist and sexist, [the case] is really just two women, and you know sometimes things are just cultural."  At another hearing he referred to defendants who were late to court as being "on CP time".

In his disciplinary hearings, Duckman actually defended his practice of illegally dismissing prosecutions: "I think about what cases should be in this system and which cases shouldn't be in the system, and I think judges get to make that decision".  

This exchange captures the essence of Judge Duckman:

In November 1994, in response to a series of plea offers made by Kings County Assistant District Attorney Lewis Lieberman which respondent regarded as harsh, respondent stated to Mr. Lieberman: "Don’t you understand that all you’re doing is putting poor black men in jail?" When Mr. Lieberman replied, "Judge, I have a lot of poor black victims," respondent got very angry and said, "Don’t speak to me that way [or] embarrass me in my courtroom."

Duckman was 51 when he was removed from the bench, according to the New York Law Journal (7-8-98).  Nearly eight years have passed and the 59-year-old apparently hasn't mellowed a bit.   It's more apparent than ever that his troubles in New York stemmed, not from the political agendas of his opponents, who engaged in more than a little grandstanding, but from his own deep-seated emotional problems, coupled with a lack of insight so profound it sounds like leg-pulling.   (He told the Commission that his courtroom "was always run with courtesy.")

Duckman wasn't without his defenders.  Here's a website making the case that he was scapegoated.   And here's an index to New York Times coverage, which includes at least one defense.  Even in his forced retirement in beautiful Vermont, he remains a Yankees fan, though not a happy one.