Anonymous said on May 07, 2006  

There are some really strange errors in this article, too. For instance, it cites Chadwick as being from the “New York Supreme Court” but the Supreme Court in New York is the trial court. I think he meant the Court of Appeals. (I probably wouldn’t have mentioned this one, but this judge harps on an on about similar errors.)

Strangely, the article doesn’t seem to even contemplate the problems in holding the government in contempt. But, this would be “activist” judging to someone like him. The problem is that inherent powers arguments (of the courts) are not nearly as controversial when applied to individuals, but when applied to the government (who does produce lying witnesses and does ignore court orders) people (esp. Fed Soc-ers) scream bloody hell.

 Anonymous said on May 08, 2006  

Perjury is handled in other ways too. In the federal system, a defendant who goes to trial, testifies, and is convicted, will also see an adjustment in his offense level for obstruction of justice. That always irked me.

 Anonymous said on May 08, 2006  

There are other uses of inherent power besides contempt, which, I think, should be throughly explored. For instance, a party can be denied certain procedural “rights,” if they taint their appearance before the court. Things can be struck. Depositions can be ordered where depositions are normally not held, etc. etc. None of these things appear so invasive, and they don’t implicate the right to a jury trial.

And it goes on: costs can be awarded under statutes or rules for misbehavior.

He expresses with glee that “Furthermore, the actual prosecution of the criminal
contempt proceedings generally has taken little time and energy.” He explains that their “trials” (if they do exist) appear like a misdemeanor trial. This is bad. The judge has the power to essentially regulate the crime and proceedings, and often effectively serves as a witness (even if it is just his signature that appears on some document that the court takes judicial notice of).

With all respect, this guy comes off looking like a loon – especially as he doesn’t both to address how to handle misbehavior by the government, who many are seeking relief from.

 Ken Lammers said on May 08, 2006  

I don't think the judge comes off sounding like a loon. It struck me more that he was expressing a thought without the benefit of someone taking a critical view of it so that he could review his position. If someone had raised some of the issues I did or the comments have before the article was submitted he would have had time to better consider them. I'm not certain the article would have taken a different position but it probably would have been more well rounded.

 refugee said on May 09, 2006  

I'm willing to see Judges exercise their contempt power more if they, in turn, will allow juries to use the balancing nullification power, going so far as to instruct jurors that they have it.