Confronting Judicial Harassment

The Senate Committee on the Judiciary is holding a hearing now: “Confronting Sexual Harassment and Other Workplace Misconduct in the Federal Judiciary.” The live feed is here Senator Richard Blumenthal is talking now about why federal judges who commit sexual harassment can retire, avoid formal censure, and continue to collect full pay. He also stated that he clerked for Justice Blackmun, who would find harassment in the judiciary to be atrocious.

Witnesses at the hearing are James Duff, Director of the Administrative Office of the U.S. Courts; Jaime Santos, an associate at Goodwin Procter and former federal law clerk; and Jenny Yang, former federal law clerk and former chair of the U.S. EEOC. Ms. Santos’s written testimony begins in substance as follows, previewing the basic difficulty law clerks encounter when dealing with harassment:

Judicial chambers are unlike any other type of working environment. Individuals lucky enough to be hired to work with judges are typically law students, for whom judges are more demigods than they are employers. Judges are titans of the profession who have shaped the law as we know it. A law clerk enters a clerkship with the belief that her judge will challenge her to become a better thinker, be a lifelong mentor, and set an example that she can follow for her entire career. When a law clerk experiences or witnesses harassment, it can be devastating on a personal and professional level. And it is incredibly difficult to speak up against someone who has the unmatched power of a life-tenured federal judge.

Judge Alex Kozinski’s former law clerk Heidi Bond, who writes as Courtney Milan, wrote about her experience here and is live-tweeting the hearing. Her letter about what could help prevent its recurrence was entered into the record by Senator Grassley.

(Note after the hearing: The recording remains available at the link, with hearing statements beginning at approximately minute 15:30.)

Beyond formal rules of evidence

Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake.

The rules of evidence strictly limit what jurors can consider. They are have been “understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness.” Capers shows this view to be inaccurate and incomplete:

The assumption is that the rules are all-encompassing, unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence, however, passes by evidentiary gatekeepers practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not.

It is this other evidence that “breeze[s] unchecked” past the gatekeeping function of the evidentiary rules. And, Capers argues, “[i]f the goal of evidence law is ‘that truth may be ascertained and proceedings justly determined,’ then that objective is frustrated when outputs turn on improper and unchecked inputs.”

He gives three major examples pertaining to all the players in the courtroom—parties, witnesses, attorneys, and others:

  1. Their dress
  2. Their demeanor
  3. Their race

First, dress—for example, glasses, which can be used for a “nerd defense” but may also make white-collar defendants look more guilty. As to the role of glasses, the article left me actually speechless with a jury consultant’s advice: “savvy lawyers should spray a defendant’s glasses with PAM cooking spray so that the jury cannot see the person’s eyes, at least when the lawyer fears the defendant might come across as ‘shifty-eyed.’”

Second, demeanor—Capers points out that the lawyer can use nonverbal behavior to supplement or tear down testimony. It was this aspect of the paper that seemed most connected to the topics here on this blog. A lawyer’s demeanor can serve as a kind of “performative listening” that doesn’t just elicit testimony but gives some kind of statement in its own right:

Consider the lawyer who drums her fingers on the table while a witness testifies on the stand, or rolls her eyes or raises a skeptical eyebrow. Or the lawyer who quietly nods along at a certain point in a witness’s testimony. . . . They are in effect vouching for witnesses, or in the case of opposing witnesses, implying a witness is unworthy of belief. They are offering the equivalent of opinion testimony without themselves swearing an oath or taking the stand.

The way the lawyers sit aligned with their client or put a protective arm around the client is itself a form of opinion evidence, Capers argues—unacknowledged evidence that would violate Rule 404(a) if it were considered “evidence” in the first place.

Third, race—which connects with demeanor evidence but is of course much broader. As to demeanor, which has proven crucial in death-penalty juries’ deliberations, the impact of race makes jurors worse at reading faces: “Several studies have found that how jurors interpret facial expressions depends on the race of the juror and the race of the defendant; not only do we have trouble with cross-racial identification; we have trouble with cross-racial identifications of remorse.”

The impact of race also makes jurors worse at remembering the facts fairly:

[In one study,] participants invented aggressiveness when the actor was black, [but] actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses whom jurors deem presumptively credible.

Beyond these three factors explored in the articles, there is, of course, sexism such as jurors’ bias toward male experts as more authoritative, bias toward people with families, bias against the use of an interpreter, and male bias against overweight women. “Outsider accents” are viewed as less credible, whereas neutral and especially British accents gain extra credibility.

The question Capers struggles with is what to do about all of this. Given the almost impossible bar of overturning a jury verdict, even on evidentiary issues formally recognized as evidence, the basic effect is “What happens in the jury room stays in the jury room.”

And he points out that existing instructions may exacerbate the problem. Telling jurors to decide based on what they “saw and heard in court” may “giv[e] them tacit approval to consider anything they hear or see—including the dress of witnesses, or the presence of supporting family members, or the defendant’s demeanor even if he does not testify—so long as they do not consider as evidence anything the court explicitly prohibited, such as the questions of lawyers.”

Capers goes on to suggest a stronger admonitory instruction, phrased in concrete, plain language. He also suggests providing jurors with an evidentiary checklist of the witnesses and the documents. Capers’ suggestion here fits well within insights from cognitive science. For example, Daniel Kahnemann coined the phrase “WYSIATI”: What You See Is All There Is. Under WYSIATI, people rely heavily on affirmative information in front of them. Thus, an affirmative list of what the evidence actually is could direct attention toward the evidence actually presented and away from the natural tendency to fill gaps using other cognitive shortcuts.

Capers’ most radical suggestion is to redefine the scope of evidence itself. Under his proposed definition, evidence would include “anything that may come to a juror’s attention and factor into a juror’s deliberation.” The implications of such a definition seem vague at times. For example, he says that a rape victim’s clothing might trigger a 403 issue with the risk of unfair prejudice. But there is an aspect of personal autonomy in how people dress for court; if clothing could be prejudicial enough to trigger 403 then could it somehow come within the court’s discretion to order someone to, say, put on a sweater or take off a sweater? This reminded me of the incident from a couple of years ago where a weather reporter was asked to cover up, on air. And what should a judge do with flamboyant courtroom observers in high-profile cases, for example the Tex McIver trial that just wrapped up in Atlanta:

Capers answers most such questions by relying on detailed jury instructions. Footnote 153 in the article cites scholarship that instructions are not futile and do make a difference, especially when repeated and explained clearly.

I appreciated the realism at the end of his article, acknowledging a possible counter-argument: Why does any of this matter? Why shouldn’t jurors consider all that stuff, as they always have? Drawing on Critical Race Theory and his own professional and personal experiences, Capers out that dress, demeanor, race, and all those other factors are not neutral:

Who benefits from the status quo when we pretend dress does not matter, or demeanor does not matter, or the presence of family members does not matter, or language ability or up-speak or race or gender does not matter? Who benefits? And who does not?

Silence for lawyers


That was the heart of Emma González’s speech at March for Our Lives on March 24. After a introductory remarks, she named the 17 dead and the small experiences in life they would never partake of again. Then she stood, silent, for the remainder of six minutes and 20 seconds—the time it took for the gunman to kill and then escape at Marjory Stoneman Douglas High. The Washington Post called it “the wordless act that moved a nation”:

The absence of language, the extended pause for contemplation, remains a rare thing in public discourse, and even rarer onstage. A moment of silence is the ritualized form of respect we employ on many occasions to mark tragedy, but it’s usually only a moment. González’s silence was an act that felt, in its way, radical. It was as if she dropped the mic — yet a mic was still in front of her.

The length of the silence is what made it more than rote. Long silences challenge the senses and the mind, reflected in an art critic’s visual and auditory hallucinations within a “supersilent anechoic chamber” on exhibit at the Guggenheim in New York.

Silence in these political and artistic contexts operates as rhetorical Silence. On a more pragmatic note, addressing silence with a lowercase “s,” Bret Rappaport recently published “Talk Less”: Elloquent Silence in the Rhetoric of Lawyering, 67 J. Legal Ed. 286 (2017). He quotes Che Guevara:

Silence is argument carried out by other means.

When silence is done correctly, it brings a “participatory dynamic between speaker and audience” in which the audience fills in the unspoken premise of an argument. In his article Rappaport goes on to describe background and techniques of silence. He lists three kinds of silence: simple silence as when you stop speaking so someone else can take a turn, silencing another by not allowing them to speak, and the “eloquent silence.” The article focuses on the latter. Silence can be eloquent when it violates expectations, leads the audience to understand a shared meaning, and is understood by the audience as directed at them. (Here he cites Purdue professor Barry Brummett.)

Rappaport goes on to show that silence enhances thinking by moving past quick, intuitive reactions to the world. Awkward silences can also yield better results in negotiations because the counter-party feels compelled to fill the silence, perhaps to their detriment. Silence also functions as flattery and, since by definition it means not talking, it reduces the risk of unintentional revelations.

Rappaport breaks down examples from movies and well-known trials (O.J. Simpson of course). He says early on that his argument for lawyers is remedial: silence as a “lawyer’s tool [is] one too often unappreciated or outright ignored.” For lawyers who wish to become more powerful public speakers or achieve better strategic results by saying less, I recommend Rappaport’s article.

I also recommend closing all other tabs, notifications, and alerts to watch the full-length version of Emma González’s speech at March for Our Lives.





How Should Judges Listen to Victim Impact Statements?

Many thanks to Rhani M. Lott of Emory Law School for this guest post.

“I do want to thank you, first, Judge Aquilina, for giving all of us the chance to reclaim our voices. Our voices were taken from us for so long, and I’m grateful beyond what I can express that you have given us the chance to restore them.”

Victim Impact Statement of Rachael Denhollander

In “In Defense of Victim Impact Statements,” Professor Paul G. Cassal identifies four main justifications for victim impact statements:

First, they provide information to the sentencing judge or jury about the true harm  of  the  crime—information  that  the  sentencer  can  use  to  craft  an  appropriate  penalty.  Second, they may have therapeutic aspects, helping crime victims recover from crimes committed against them.  Third, they help to educate the defendant about the full consequences of his crime, perhaps leading to greater acceptance of responsibility and rehabilitation.  And finally, they create a perception of fairness at sentencing, by ensuring that all relevant parties—the State, the defendant, and the victim—are heard.

In light of the Nassar trial, I have been thinking a lot about how a judge should handle victim impact statements.  I’m not alone.  My social media feeds are full of lawyers celebrating and excoriating Judge Aquilina.  One career public defender had this to say:  “Grandstanding on a grand stage, let’s not forget that a judge’s role is to administer justice, not advocate for one side or the other.”  Another friend, a family law attorney, wrote, “[t]he way that Judge Rosemarie Aquilina handled the survivors in this case brings me hope for our justice system.

HeadshotAt its heart, I think this is a conversation about how we think the judge should “listen” to victim impact statements.  In turn, how we want the judge to listen depends on how we prioritize the purposes of victim impact statements.

If we are chiefly concerned with victim impact statement’s utility in providing information that the sentencer “can use to craft an appropriate penalty,” then we want the judge to be listening to learn.  We will be disappointed if there does not appear to be a correlation between the statement and the sentence.  Santa Clara County Judge Aaron Persky finds himself facing a recall election at least in part because of his failure to listen and heed the pleas in a victim impact statement that attracted national attention in the Stanford rape case.

If we believe the “perception of fairness” is paramount, then we might think the judge should listen attentively but not engage with the victims.  For example, Rachel Marshall criticizes Judge Aquilina for the way she “talked to victims as though she were their confidante . . .” Rachel Marshall, The Moment the Judge in the Larry Nassar Case Crossed a Line (January 25, 2018).  Ms. Marshall is worried about “future defendants who shouldn’t get sentenced harshly but may face judges too swayed by their own emotional reaction to victims . . .”  A former colleague I spoke with has the same concern about judge’s being “swayed by their emotional reaction,” but for a different reason.  She prosecutes crimes against women and children and has seen judges swayed by emotional pleas for leniency from domestic violence victims even when that leniency is not in the best interests of justice or the victim.

If we believe that “help[ing] to educate the defendant about the full consequences of his crime” is an essential aspect of victim impact statements, then we may expect the judge to be unobtrusive.  If the defendant is the primary audience for the statement, then it will be upsetting if the statement becomes too much like a conversation between judge and victim.  We may also find it inappropriate if the judge’s commentary doesn’t leave room for “acceptance of responsibility and rehabilitation.”

Finally, if we highly value the therapeutic aspects of victim impact statements, then we might demand a judge engage in empathic and active listening.  We might appreciate someone who, like Judge Aquilina, “punctuate[s] each and every victim statement with some words of her own—a mix of praise, gratitude and support for the women who have come forward to address the court and, in many instances, Dr. Nassar himself, who has been a captive to it all from the witness box.”  Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge (January 23, 2018).

Perhaps Judge Aquilina was not grandstanding; maybe she was just trying to maximize the therapeutic aspects of the process.  That doesn’t make her actions right or wrong, but considering it might help us understand why she “listened” as she did.