I am in favor, in general, of judges getting charged when they do things like assault. Minimum, there needs to be an investigation. And, when you consider how frequently criminal prosecutors accuse Americans of assault on the basis of one person’s complaint, alone, shouldn’t judges be charged at the same rate? It’s just not appropriate for judges to sit in judgment of human behavior, and get away with assault.
I don’t have any idea what happened in that Wisconsin room in June 2011, and I’m not interested in choosing sides. My commentary is not about that specific set of facts, but about charging judges, in general.
Of course, in this situation, it appears everyone in the room during the June 2011 incident had ‘status’ in the system. It’s unclear whether the Wisconsin Judicial Commission would have charged someone like Prosser if the one accusing him of assault-like conduct was a mere lawyer, or a party who comes before the court.
Justice Prosser is defending. And of course, he has a right to do that. Judges who are accused of misconduct by an official agency are entitled to due process. But what’s fascinating is to see the ‘shoe on the other foot.’
Years ago, a doctor told me a story about an attorney patient who had represented insurance companies, work comp carriers, for years. In that capacity, he played ‘hard ball’ with people claiming injuries, by denying benefits, pushing them back to work, etc. Then he got injured and sought medical treatment and benefits. And guess what, he was treated by the insurance-company’s lawyer, the way he had treated people. He was experiencing his industry from the other side, the ‘shoe was on the other foot.’ The experience ended up changing his life. Once he’d seen that other perspective, he could not go back to what he was doing.
As we enter a time in America where official agencies are finally charging some judges, it’s interesting to see how judges are dealing with getting charged. Justice Prosser has stated various versions of him being innocent, that he will vigorously defend. Of course, he’s entitled to do that. But what I am wondering is, did Prosser ever feel such passion when a case of a lowly Wisconsinite came before his court? How did he react when Wisconsinites accused in the criminal system passionately declared their innocence? Did he do what many judges seem to do, turn a deaf ear? Did he do what many judges seem to do, to squeeze all of the moral outrage out of a case and to ignore the passionate pleas? Did he think they were being ridiculous to protest their innocence? Did he curse them in his mind, or in his chambers?
And what did Justice Prosser think of the Wisconsinites who decided to vigorously defend? Not just the criminal defendants, but also the parents (in custody and child welfare cases), or people denied unemployment benefits, or accused of welfare fraud? When those people sought to vigorously defend, did Justice Prosser stand up for them and their right to fight for justice?
Or did he think they were just taking too much court time?
That’s really the question, isn’t it?
Now that judges are being charged, it is axiomatic that wrongful prosecutions of judges will occur. Either because the investigation is flawed. Or because the process is political. Or for some other wrongful reason. As Americans, we have seen the various flavors of wrongful prosecutions.
As a lawyer, I believe some prosecutions of judges are politically-motivated. And I don’t want wrongful prosecutions of judges, any more than I want wrongful prosecutions of any American.
So to judges who think they are being wrongfully prosecuted, I say, join the club. As Americans, Minnesotans, we have put up with wrongful prosecutions for many years. And, worse yet, when we bemoan those wrongful prosecutions, what Americans experience from many judges is some version of, be quiet and let us move to the next case.
Perhaps as judges experience wrongful prosecutions, they will be more tuned in to members of the public who stand in their courtrooms and protest their innocence.
So, even with all the huh-bub and political commentary, I think it is a good thing Justice Prosser was charged. Welcome to your fate being in the hands of the justice system!
As Americans, we need to see these prosecutions will occur (that judges are not above the law). And, as judges experience prosecutions, hopefully they will bear witness about what can be changed to make all prosecutions more fair.