Does your boss stifle dissent? You’re not alone! The fearless Judge Saxe, retired from the First Department, reveals that Chief Judge Flowerpot refuses to let judges stay past retirement age if they’ve written too many unsuccessful dissents.
Used to be that if an appellate judge turned 70 and wanted to keep working, she was automatically given certification to stay on the bench for a few more years unless totally gaga.
But in a shockingly candid, no-holds-barred account, Saxe discloses that when he came up for certification, Judge Tom, his immediate boss, asked for his “batting average.” This turned out to be code for “how many of your dissents persuaded the high court to reverse our judgments?”
“Say what?” or the functional equivalent thereof, queried Saxe.
“There’s a new sheriff in town,” explained Tom, referring to Chief Flowerpot (former suburban District Attorney). She wants to discourage “unnecessary dissents.”
“The topic became the talk of the lunchroom at the First Department for days,” relates Saxe. Even the under-70 folks felt “in the cross-hairs.”
Scene: First Department lunchroom.
Judge #1: (age 69 ½) Oh no, not chicken à la king again!
Judge #2: (age 69 ¾) This could be our last meal together, Bucky. I told you not to dissent about the algae in the swimming pool.
Judge #1: Yeah, well you shouldn’t have dissented about transporting umbrellas across state lines. What are you going to do with the rest of your life?
Judge #2: Arbitration, I guess. Same boneyard for retired judges that you’re going to.
Judge #3: (age 42)(gulping his jell-o salad) Golly, I guess I’d better compromise my principles and go along with the majority every time.
Judge #1: You got it, sonny.
Judge Android, evidently the latest victim of the Flowerpot Decree, pointed out that lawyers “are often disheartened by the courts’ seemingly cursory disposition of the appeal in the brief unsigned memorandum decisions.” (Ya think?) Dissents, he asserts, help “dispel the impression that the court is merely cranking out a ‘result.'”
Well, there are different kinds of dissent. Our favorite, naturally, is “the-majority-didn’t read-the-defense-brief” type:
Majority: Contrary to the defendant’s idiotic contention, the People are not obliged to call every police officer involved in a buy-and-bust operation. Notwithstanding that he was in Philadelphia at the time of the buy, the sergeant who testified to the confirmatory identification was highly trained, experienced, knowledgeable, professional, seasoned, veteran, candid, handsome, savvy, mustard-keen, right-stuff, old hand and brimming with credibility. The People are not obliged to call every. . . oh wait, we already said that. Affirmed.
Dissent: Defendant was alleged to have sold drugs to an undercover, who told another undercover, who told another undercover, who told the desk sergeant on the day shift, who told the janitor, who told the desk sergeant on the night shift that one of the guys in the lockup was the drug seller. The court denied defendant’s request to call the janitor. I don’t call that a confirmatory identification no matter how experienced the sergeant was. What was he doing in Philadelphia anyway?
Moreover, to explain the absence of drugs, the court allowed him to testify that since drug dealers are adept at hiding drugs, it may reasonably be inferred that anyone arrested without drugs is a drug dealer. When defense counsel objected, the court asked the witness, “Officer, isn’t it a fact that you wouldn’t have arrested him if he weren’t selling drugs?” This was one lousy suppression hearing and I “respectfully” dissent.
Then there’s the “I-write-separately” type:
I agree with the good and wise majority that the People need not call every police officer involved in a buy-and-bust operation. Or any witnesses at all, for that matter. I write separately to note that judges are woefully underpaid and deserve a big fat raise. Every time one of these white-shoe lawyers gets up to argue, I can see him derisively thinking, “I make more than you, your Honor.” It’s not fair.
Finally, there’s the “sore loser” dissent:
Hah! So the majority overturns the deeply considered verdict of twelve taxpaying citizens and allows this recidivist criminal to yet again strain the scarce resources of the court system by getting yet another trial. Obviously the police had probable cause to arrest the defendant. After all, a subsequent search revealed drugs in his pocket.
And as for Judge Flowerpot’s policy: does the AARP know about this?