An Abuse Of Discretion

Judges are odd people who live in an odd world, by design.

They are required, by law and by rule, to keep themselves distant from others, particularly those who appear in their courtrooms, as advocates or as parties, plaintiffs or defendants. They are surrounded by clerks and court officers of various stripes, those who are empowered to listen to the "others", but only as a surrogate who will then communicate in turn with the judicial officer, and, when appropriate, speak to the "others" semi-officially for the judge or magistrate, on or off the record.

At all costs, judges were to avoid any appearance of partiality or bias. Most "others" understood that very well; most "others" respected it ungrudgingly. Those "others" who attempted to cross the line surrounding the judge, or even to hazard a step on the chalk, were likely to pay a heavy penalty, including jail time if their disregard for the judge's privacy zone had been too egregious or self-serving.

It is called contempt of court for a reason.

I appeared, over the course of the 40 years I served as an advocate, an officer of the court in the civil justice system, before judges and magistrates, state and federal, men and women, from coast to coast, from border to border, and with all of them, the boundaries of propriety in dealing with them were clear and unmistakable. However affable or gracious they might be from the bench - and the good ones were both, while the less good yielded to self-perceptions of high station that did not distinguish them and, in some cases, approached the tyrannical - prudence dictated deference to and separation from them.

One simply knew to keep one's distance from judges.

Full stop.

The system itself promoted the notion of separation, of distance. Judges almost unfailingly wore black robes to mark their authority. They sat behind a bench, so-called, where they were elevated above the floor of those who approached the bench. When they entered a courtroom, the "others" were stentoriously commanded, all of them, to rise to show their respect, not just for the man or woman but for the office held, and so they did.

The robing of judges is universal, at least in the Western World where English common law tradition is the source of all of the official choreography, not just for the symbolism it offers to the world - this is a most important personage - but because of the message the robe sends to the wearer of it. I've never been a judge - never wanted to be - but I've served as a judge in moot court cases and the like, and I've worn the robe, the same robe worn by the real judges, to serve in that role. I found the fabric, to my surprise, remarkably chintzy and insubstantial - cheesy, even - and not even up to the standard of the rented graduation robes, high school or college, that many of us have had an occasion to experience. Perhaps the thinness of the fabric - the robe was often worn over a business suit or dress - is simply testament to the days, not long past, when air conditioning was a rarity in the courtrooms of the land, when the comfort of the judicial officer was of paramount concern, when the look of some majesty could be achieved even by the most meager of fabrics when seen from a short distance.

Still, the power of the robe was mighty, and hardly illusory. It could, and did, serve its intended purpose, transforming normally unassuming men and women into people conscious of their importance and authority and who, then, conducted themselves accordingly.

I offer you this brief tutorial about the world of judges because of all of the many before whom I appeared in my two-score years as an advocate, John McNaught seemed to me the least affected by the trappings of his office. He was duly mindful to avoid the appearance of partiality or bias, but he was also so affable as a public man, so gracious to those over whom he presided and the clerks and other court officials with whom he worked and who he supervised, that he obviously had not partaken of the kool-aid of his own power and authority. He was a good humored, normal man, entrusted with a heavy responsibility to judge others, but seemingly unimpressed with that assignment, comfortable with it, at ease in his dealings with those he encountered. If he allowed any appearance of partiality, it was to everyone, spread generously about, which of course meant he was not partial to any one of them.

Or so it seemed to me.

Three years after his nomination to the federal bench - all of the nominees in the Senate Office Building that day in February of 1979 were approved by the full Senate without controversy - John McNaught was the judge for whom fate, in the form of a lottery system in the Civil Clerk's office, led to his assignment to a major case of mine, my first trial experience with him, his first with me.

It had fallen to me to represent a Texas company - Intermedics, Inc., then the nation's second largest pacemaker manufacturer - in a politically-charged and difficult case brought by Infusaid, Inc., a joint venture created by the genius of Raymond Shamie, whose claims to fame (besides having been a highly-successful local businessman) included positions of political power in Massachusetts, positions which led, in turn, to a run against Edward Moore Kennedy for a seat in the United States Senate. At the time, it did not occur to me that Judge McNaught owed his position on the federal bench to Senator Kennedy, or that politics would play any role in the adjudication of the merits of the case. Mr. Shamie was, I knew, a Republican, and a conservative one at that.  But I just did not think that such things mattered, as indeed they were not supposed to.

Judge McNaught proved to be a pleasure to try a case before, at least for me. His reputation as someone fair-and-open-minded, congenial, courteous, tolerant, good-humored and decisive, who ran a very informal courtroom, was obviously well-deserved. From that description of the proceedings, you can safely conclude that I won my case.

As important, I won my case in spectacular fashion, and with it, a long run as Intermedics' trial counsel of choice for years to come, a promotion that brought with it significant fees on substantial cases throughout the country.

Judge McNaught, who tried the case without a jury, was especially hard on Mr. Shamie, I noted with some satisfaction at the time, whose testimony the judge ultimately rejected as unworthy of belief. That is to say, Judge McNaught made no bones about the fact that he simply did not believe the testimony which Mr. Shamie gave under oath during the trial. Less euphemistically, John McNaught called out Mr. Shamie as a liar, a perjurer. Since I shared that view and it was one highly favorable to Intermedics, I had no occasion to question the probity of the judge who had so concluded and spoken his mind on the subject. Not for a moment.

Life was good.

During the course of my trial before Judge McNaught, my son, Brian, brought home a note from his fifth-grade civics teacher asking whether I could help to arrange for a visit by the class to a courtroom. I promptly raised the matter with Judge McNaught through one of his clerks - probably Ann Palmieri - and permission was as promptly granted.

Courtrooms are, of course, open to the public; the United States Constitution requires that the administration of justice be conducted in the open where any citizen can view it. Still, seeking advance permission for an invasion of ten-year-olds to the courtroom where I was working seemed to me like a good idea.

On the appointed day, I arrived for the continuation of my trial only to find that the ten-year-olds, and the somewhat older judge, had ceremoniously taken over the courtroom with a mock trial of their own. I found my son sitting with a number of his classmates in the jury box. Other members of his class sat at counsel table. One was in the witness box; another was asking questions under Judge McNaught's grinning tutelage. As various members of the bar - some of them Boston's more prestigious lawyers - entered unsuspecting into Judge McNaught's courtroom that morning, they found themselves called upon to Stand and Deliver: name, name of firm (if applicable); hometown; and reasons for becoming a lawyer. The children, for once in control of adults in this most unlikely setting, with a federal district court judge their source of authority, were as enchanted as they were excited by their courtroom experience. My son, less thrilled than his classmates because his father was among those who had been called upon to identify themselves (and of course his classmates immediately took notice and looked at him), nonetheless talked of his experience for days. He had become a minor celebrity in his own right among his classmates, since it was his father who had arranged for this strange and wonderful experience in the adult world.

Such was my relationship with John McNaught that, in 1983, my then wife and I were his invited guests at the First Circuit Judicial Conference, a bi-annual event to which an invitation was much prized by lawyers in the Circuit. The Conference was held in a decidedly non-exotic Portland, Maine, before its planned renovation and rehabilitation as a seafront urban village - long since realized as I write now - was very far along, in a tired downtown Sheraton Hotel (now a swishy, thoroughly modernized, Eastland Park Hotel). The pedestrian setting made no difference. The Conference proved to be a wonderful opportunity to spend time with members of an important federal court in a less formal setting, and I took full advantage of it. John McNaught and his wife Beatrice, the latter fully recovered from her surgery, and my wife and I, got along famously. We shared most meals with the judge and his "Bea" during the three-day event, and sat together at the various programs which were being offered. Sitting around us were other members of the court, and of the circuit court of appeals as well. It was all quite heady for me, and it reinforced my belief that, given the choice (a choice which the lottery system of case assignments in the federal court does not afford), I would just as soon have John McNaught assigned to any case of mine in that venue. Maybe all of them.

As I said, life was good.

In the years that passed after that judicial conference and before he trial of George Panagiotou's case got underway in 1990, Bea, a book in her lap, had suddenly and silently suffered a stroke and instantly died, sitting in the living room, her husband sitting reading in an adjoining chair. It happened several months before our trial was to begin. Visiting hours were established and announced for a funeral parlor in Melrose, the home town which the judge and I shared. I decided to go, weighing in the decision whether I might somehow be seen as currying favor but deciding to take that risk, out of respect for both Bea and her widowed spouse. Having shuffled forward in a considerable line of well-wishers inching its way to John McNaught and other members of his still-stunned family, I was rewarded for my attendance by a surprisingly warm and tearful, full embrace by Judge McNaught.

Yes, there was more than respect involved for me with this judge.

A good deal more.

(To be continued . . . )

E.A. McCabe is a former - which is to say, recovering - trial lawyer who left his profession after more than 40 years of practice throughout the United States and beyond. He is now the CEO and Publisher of qornerstones.