Wednesday, July 14, 2021

Judges, Guns And The Thin Line

Findings of judicial misconduct by a circuit court judge led to a seven day suspension by a majority of the Wisconsin Supreme Court.

Judge Woldt has been a circuit court judge since his appointment to the bench in 2004. He was subsequently elected to six-year terms in 2005, 2011, and 2017. He has never before been the subject of public or private judicial discipline.

In response to the allegations

At the same time that it filed its complaint, the Commission also filed the Joint Stipulation, in which Judge Woldt not only agreed that the factual allegations in the Commission's complaint were true, but also that those facts demonstrated that his conduct in each of the six incidents described in the complaint "violated the Code of Judicial Conduct" with respect to the particular provisions of the Code set forth in the complaint.

The case drew a sharp disagreement whether the judge's conduct in displaying his handgun in open court and to visiting high schoolers violated the Code of Judicial Conduct.

After sentencing a defendant, the judge addressed the victim

And ma'am, if you come in here and tell me that you just want a fine, everything's fine, then don't pick up the phone and dial 911, don't call the cops. I mean if you think you want to handle it, then you handle it; but if you want to pick up the phone and call the police, we're going to get involved and we're going to make him get the counseling which he needs. I'm just sick and tired of victims coming in here and they call the cops when they need 'em but then later on they come and say: Oh, no, this person's an angel. I'm sick and tired of hearing it.

To a defense counsel in a criminal matter (excerpts below)

Judge Woldt interrupted defense counsel with the following exchange:
The Court: I know when I'm paralyzed by fear the first thing I want to do is stick my "dick" in some girl's mouth.
Mr. Edelstein: Well –
The Court: Everyone else the same way? (No response.)
The Court: I mean that's a stupid argument.
. . .
Mr. Edelstein: I'm not saying it wasn't a two-way street, but it's not as if we have an individual who set out in a predatory fashion to meet up with someone knowing that his friend was going to a party with these young girls here. That's not what happened.

During a sentencing "[h]e...proceeded to give a rather lengthy soliloquy about his views on courthouse security before returning to what an appropriate sentence should be"

This excerpt indicates that at one point during his lengthy statement, Judge Woldt held up a handgun. The Commission's complaint alleged, and the Panel found, that during the hearing, Judge Woldt had a Glock Model 43 handgun in a holster on his right hip concealed under his judicial robe. The gun was loaded with a round in the chamber and a full magazine.

During a courthouse visit by high school students

As with Judge Woldt's display of his Glock handgun during the Shaffer sentencing hearing described in Incident Three above, he also displayed his handgun to the students.

Another

The Court: Counsel, there's a thin line between being an advocate and being a "dick" – thin line – and you're blurring it.
Mr. Stillings: Can you be more specific? I'm not understanding –
The Court: I'm not going to play your games with you, okay? I'm not going to play your games with you. You're being very argumentative with this witness, and you're playing games.

The court

We have no hesitation in concluding that Judge Woldt's comments, when combined with the unnecessary display of his personal handgun during the sentencing proceeding, constituted a failure to observe "high standards of conduct" "so that the integrity and independence of the judiciary will be preserved." SCR 60.02. A judge who displays a personal gun as a "prop" during a court proceeding and then immediately threatens to use it to kill the defendant if he ever broke into the judge's residence is not demonstrating the integrity of the judiciary, SCR 60.02, and is not "promot[ing] public confidence in the integrity and impartiality of the judiciary." SCR 60.03(1)...

We begin with the nature of Judge Woldt's misconduct, which we view to be serious and to have a significant detrimental impact on the public's view of the judiciary. We have already discussed how Judge Woldt used undignified, discourteous, and disrespectful language unbecoming a judge and essentially threatened a young defendant with cognitive impairments in the Shaffer sentencing. In the Krebs sentencing, he again used profane language and imagery to demean what he believed defense counsel's argument to be. He displayed irritation with counsel's attempt simply to make arguments on behalf of his client and made clear that he wanted Krebs' counsel, as well as all other attorneys who appear in his court, to "get to the point" or "jump to the chase" because he does not wish to hear extended arguments. Indeed, he said that when proceedings are taking longer than he would like, attorneys should know that the best thing they can do is to "shut their pie holes." A highly distressing part of Judge Woldt's conduct during the Krebs hearing was his fairly blatant attempt to intimidate the defendant into waiving his right to speak in allocution. Equally distressing, he referred to the 13-year-old victim in the case as a "so-called victim," thereby questioning in open court whether the young girl had really suffered a second-degree sexual assault despite the fact that he had accepted the defendant's plea to that crime. Finally, in the first incident at issue here, the 2009 sentencing in the Williams case, Judge Woldt mischaracterized the in-court statement of the victim in a domestic violence case  and then castigated her for having the temerity to express her opinion of her current relationship with the defendant, essentially discouraging her from calling the police in any future domestic violence situations. These are all serious violations of a judge's ethical duties and show an open and callous disregard of Judge Woldt's obligation to serve the public in a fair, reasoned, impartial, and courteous way.

Sanction

Having considered all of the facts of this proceeding, including all of the appropriate aggravating and mitigating factors, we conclude that a short suspension is necessary in this situation to assure the members of the public that judges will treat them with dignity, fairness, and respect when they enter the courtrooms of this state, and to impress upon Judge Woldt the seriousness of his misconduct and the need for him to
change how he treats the jurors, lawyers, litigants, witnesses, victims, and staff with whom he interacts. Given Judge Woldt's lengthy history of service on the bench, the fact that he has not previously been the subject of a disciplinary complaint, and the fact that five years have passed since the last incident at issue here, we conclude that a seven-day suspension will be sufficient to ensure that there will not be a repetition of this misconduct by Judge Woldt.  We remind him and the other judges in this state that how justice is dispensed is often just as important as the substance of the legal ruling.

Justice Bradley concurred and dissented in part

In this matter, a three-justice majority ignores the Code's Preamble and distorts the text of the Code provisions it invokes to justify a legally unsupportable finding of misconduct premised on a judge's display of a handgun he lawfully carried. In doing so, three justices establish a precedent that may be wielded unscrupulously against other judges in the future.

A zinger

The majority seemingly attributes its own firearm phobias to the high school students, suggesting they were frightened, scared, or otherwise discomforted by Judge Woldt's conduct. There is no evidence of this either.

The majority expands its hyperbole when it moralizes, "it was not necessary for any valid judicial purpose to display the gun and introduce an element of force into the sentencing hearing."  The majority then misstates that Judge Woldt "threaten[ed]" to "kill" the defendant if he ever broke into the judge's home.  Judge Woldt issued no threat.

Suggested reading

A summary of a principle in the recent best seller, The Coddling of the American Mind, hits at the very heart of the problem with the majority's hyperbolic statements: "There is a principle in philosophy and rhetoric called the principle of charity, which says that one should interpret other people's statements in their best, most reasonable form, not in the worst or most offensive way possible." Greg Lukianoff & Jonathan
Haidt, The Coddling of the American Mind  (2018). The majority assumes the worst of Judge Woldt, so it reads into his statements an insidious intent that is not facially or impliedly present. When this court exercises its extraordinary power to discipline elected judges, it should apply the principle of charity, resolving doubts about the intended meaning of a judge's statement in favor of the judge. After all, the Judicial Commission bears the burdens of proof and persuasion.

...On a final note, the majority raises a red herring by insinuating that my conclusions are grounded in the statutory right to concealed carry and the constitutional right to keep and bear arms. They aren't. It is the text of the Code that governs this matter and nothing in the actual text of the Code prohibits the display of a firearm. While the comment to SCR 60.03 counsels against reading the Code in a manner that permits "onerous" depravations of judges' "fundamental freedoms," the majority errs because it declines to undertake any textual analysis of the Code and utterly fails to connect a judge's display of a handgun to the text of any of its provisions. Judge Woldt's display of a firearm offends the sensibilities of three justices of this court, so they deem it unethical. Allowing subjective feelings to color the construction of the Code subjects Wisconsin's judges to sanctions based on the personal ideals of three or four justices rather than actual breaches of written rules. Unreasonably broad and unexplained constructions of the Code's rules are "antithetical to the rule of law" because "[s]uch rules place ipse dixit powers . . . in
the hands of disciplinary boards and courts applying such rules."

Justice Roggensack joined Justice Bradley's opinion.

Chief Justice Ziegler and Justice Haggedorn did not participate. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/07/findings-of-judicial-misconduct-by-a-circuit-court-judge-has-led-to-a-seven-day-suspension-by-the-wisconsin-supreme-court.html

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