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Abrams: Unjust Criticism of the Judicial System

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jeff abrams ibaAs many of you know, one of the state court judges has recently been under attack by members of the public relating to a sentence issued for an individual convicted of rape by a jury as well as a comment made to the woman who had suffered the attacks. The Indianapolis Star published several articles regarding the case and, in relatively no time, national media sources picked up on the story and provided additional commentary regarding the matter.

The Indianapolis Bar Association has had a long-time policy on addressing unjust criticism of the judicial system. While we have not needed to review very many cases, the recent case provided an unusual twist on the review of the judicial system. I want to emphasize that the IndyBar Committee did not extensively review the merits of the case and our statement is not in any way reflective of any comment on the substance of the judge’s sentencing decision. Nobody on the Committee was in the courtroom, so the underlying facts of the case and the trial were not personally observed.

On the merits, we note only that Indiana law does not require judges to sentence persons convicted of Class B felony rape to incarceration. This was pointed out by several legal commentators. We also recognize that the public, including some of our IndyBar members, have expressed concerns about the sentence issued in the case and about certain parts of the judge’s sentencing statement. Further, we respect the rights of those who disagree with the decision to express their opinions publicly. A strong legal system should be able to tolerate public scrutiny and should benefit from citizens actively engaged in discussions about judicial decisions.

The IndyBar’s adopted policy on unjust criticism of the judiciary requires IndyBar to:

1. Respond if the judicial system is subject to unjust attack;

2. Foster and maintain confidence in the orderly processes of our courts among the citizens of the state and the nation;

3. Explain the difference between valid, constructive criticism of the decisions of our courts and baseless charges;

4. Assist the public in understanding the difficult burden of the courts to strike a proper balance between individual constitutional rights and the rights of society;

5. Assist the public in understanding the operation of courts, judicial procedures and the administration of justice; and

6. Bring to the attention of proper authorities fair and well-founded criticism of the operation of the judicial system.

It would seem that one issue presented here is the magnitude of social media and how it can lead to social awareness. The Committee reviewed all of the foregoing in light of the recent case and made the following conclusions. There have been some articles that have provided a fair balance between strong criticism and understanding the constraints that the system creates through the sentencing statutes established by our Legislature. However, some commentators have made statements that can only be characterized as insulting, attacking the integrity of the judge and, in some instances, communicating physical threats. We do not believe that any of such conduct is appropriate no matter how strongly one’s opinion is of this matter.

We believe that the public should understand three key elements for the judicial system. First, judges should and do expect to be criticized in our system for their decisions. Secondly, judges who stand for election to their offices should and do expect their decisions to be made issues in their campaigns. Lastly, judges should not be subjected to baseless challenges to their integrity or violent threats about their decisions.

The public enjoys the freedom to express their disagreements, but it should be done in a much more constructive manner. Social media has made it easy to send mean-spirited and threatening comments regarding all aspects of life, including judicial decisions. We see it in our offices, with our children and in our everyday lives. The time when people would pick up the phone to talk to somebody about a problem has almost become archaic. This is a sad statement of how our community has evolved. The better approach to effect change would be by providing well thought out and constructive comments to all appropriate parties. Our membership, consisting of attorneys, paralegals and judges, should know that the IndyBar will respond appropriately to unjust criticism of the judicial system and continue to support the efforts of all of our colleagues in promoting justice for all involved.•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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