What is wrong with this picture ? On the surface of it, it looks
like a judge challenged a defense lawyer to a fight and they both mutually
agreed to duke it out behind the courtroom. However, this is NOT the case at
all for MANY reasons. When you watch recent news clips, you don’t see
defense lawyers telling news reporters that Judge John Murphy has “issues.”
No, of course not ! How could they expect to get good plea bargains, rulings
and judgments from the judge once they go on the news criticizing him ? Let’s
get real. So what does the public really know for those who don’t know the
judge and who don’t practice criminal law ? Here is why this is SO
important.
First of all, the venue. A courtroom has rules of decorum. There
to enforce the rules are bailiffs. One cannot yell, demean people, or
physically fight in court. To make sure it is a safe environment, the public,
including defense lawyers, must go through metal detectors. Judges
do not. If a defendant, witness, prosecutor, defense lawyer or member of
the public were to fight in court they would promptly be escorted out by armed
law enforcement. There would also be assault charges if the fight was
unprovoked or not mutual combat. A judge may throw someone in jail for contempt
for unacceptable behavior. The judge in this case made the following
comments to the public defender in open court unprovoked: “You know if I had a
rock, I would throw it at you right now.” “If you want a fight, let’s go out
back and I’ll just beat your ass.” Anyone else making those comments
would be held in contempt, admonished or possibly be charged with terroristic
threat. A judge is not above the law. All of this was in response to the public
defender stating he would not waive his client’s right to a speedy trial. How can
you maintain proper decorum in the courtroom when you can’t maintain proper
decorum over yourself ? This erodes public confidence in this judge’s
courtroom.
Second, the assault. This was not mutual combat. Mutual combat is
when two people determine under normal circumstances and on equal footing they
will resolve their differences in a fight. Mutual combat is also an
understanding that the fight will begin on fair grounds. Even in the
duels of the 18th century,
ex. the Aaron Burr versus Alexander Hamilton duel, there were
“seconds” (emissaries) designated to negotiate time, place and rules.
Normally a duel involved a flipping of a coin to determine who chose sides,
gun, position, etc. Here, as soon as Mr. Weinstock went through the door, the
judge grabbed him by the collar and started punching him. His was a total cheap
shot and underhanded. There was nothing fair about waiting by the door to
spring on him unexpectedly.
Third, the “mutual” element. It is common practice for
judges and attorneys to iron out differences back in chambers. No lawyer goes
to a judge’s chambers expecting a physical brawl despite any heated words or
exchanges (in this case, the only heated words were the judge’s). Judge
Murphy has even admitted there was “one” occasion he and a lawyer in chambers
resolved such in a normal manner. There is a hierarchy in court much like
in the military. When an officer or judge makes an order, the lawyer or
enlisted man/woman must follow command. When a judge rushes off the bench
and heads towards chambers threatening, it is rationale for the lawyer to
expect he wants to talk in chambers, in private. Andrew Weinstock even said as
much. Mr. Weinstock is a veteran public defender of thirteen years. News
reports confirm he does not have any type of bad reputation with judges.
Fourth, the laws. Had the shoe been on the other foot and
the public defender assaulted the judge he could be charged with a felony
assault on a public servant. Furthermore, with Judge Murphy’s age, he could
have been charged with a felony assault on the elderly. This rendered Mr.
Weinstock powerless to defend himself. He could not strike back, lest he risk a
felony and his law license. The judge knew this. Had the judge been hurt,
with no cameras, the judge could have easily feigned being a victim, with his
position and influence. Naturally the local district attorney’s office would
stand to benefit by prosecuting the public defender. By causing a
scene, the judge actually achieved his intended effect. Immediately after this,
the Public Defender’s office moved Mr. Weinstock to another court. This
is just wrong. It is virtually impossible for a defense lawyer to have a
judge removed from his cases, yet so easy for Judge Murphy to get rid of the
public defender not willing to waive his client’s rights. There is something
morally wrong with taking advantage of power. That is why crimes of moral
turpitude include an assault by a man on a woman and we penalize assaults on
children and the elderly where there is an imbalance of power.
Fifth, the irony. It is clear that Judge Murphy is an
elderly man. Yet it turns out that Judge Murphy served in the U.S. Army Special
Forces. Despite his age, here is a trained fighter attacking a career, middle
aged and out of shape defense lawyer. I am sure Mr. Weinstock did not
choose a career in the law to hone his jujitsu or aikido skills.
Thankfully, the armed bailiffs broke up the melee. Who knows how far
Judge Murphy would have gone with his unsuspecting victim ? After the
fight, true to the nature of an Army Ranger or Navy Seal, he just shook it off
and got right back on the bench declaring to the packed courtroom “I will catch
my breath eventually. Man, I’m an old man.” Talk about being the textbook
example of how to resolve differences. Not a good influence in the least. I
wonder how many defendants were in court that day for assault ?
Which brings me to the last and final point: respect for defense
lawyers. See the attached picture of a passage of a 1939 Principles of Criminology textbook by Edwin H. Sutherland, a
sociology professor at Indiana University. In it, every part of the judicial
system is explained. When it comes to the defense lawyer, it reads “Criminal
lawyers are generally in disrepute in the legal profession… they make use of
every possible subterfuge and trick to secure acquittal. These include bribery
of jurors, intimidation of witnesses, instruction of witnesses in perjury,….”
He later extols the public defender system because “technical motions are
seldom made”. Yet sixty five years later, Judge Murphy exemplifies how
little we have come. When I became a lawyer, I received the same
training as all the other lawyers. When I took an oath to practice law, it was
the same oath all lawyers, including prosecutors and judges took. Our
American justice system was founded on principles of fairness and equality. The
criminal justice system would be tyranny without defense lawyers. There would
be no one making sure the rights of the accused were protected. It is not right
to demean defense lawyers for the role we play. Despite the outlandish
characterization of the 1939 textbook, defense lawyers uphold the law as much
as the prosecutors and judges. The means in which we defend our clients are
lawful and integral to the judicial system. The Florida Judicial
Qualifications Commission should take immediate and authoritative action
against Judge John Murphy to restore faith and confidence in the judicial
system. No lawyer should fear going to court and being assaulted by a judge
with improper judicial temperament. It is important that we set a precedent
that this won’t be tolerated in the future. The defendants in his court or in any
court should not fear being ruled upon by a judge unfit to serve. Every day
Judge John Murphy administers punishment and holds people accountable according
to the law. He too must too submit and be held accountable
for unlawful conduct most unbecoming for a judge, otherwise confidence in
the entire judicial system collapses. It is not an excuse nor is it
acceptable for society to sanction such behavior on the basis it was directed
at a defense lawyer or public defender, but this is not surprising given the
clamor to elect “tough on crime” prosecutors to the bench. It
is time to honor not “tough on crime” judges but “smart on crime” judges who
treat everyone in the courtroom with respect. Judges are not fit to serve if
the refusal of a lawyer to waive his client's rights or any rights for that
matter results in improper rulings, much less an unprovoked physical
assault. The assault just brings this judge's bad behavior to light. One
wonders how much justice he has actually dispensed to those in his court.
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