The Volokh Conspiracy
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Names You Might Not Want to Call a Judge in Court
Django Unchained: An enjoyable movie, but not always the best source of references in the courtroom.
Sunday's Judicial Notice (David Lat) reminds us that lawyers shouldn't call the judge "honey." But there are other names you might also want to avoid—perhaps even more so—as we learn from Tuesday's opinion by Connecticut Supreme Court Chief Justice Raheem Mullins in Johnson v. Superior Court:
As a self-represented party, the plaintiff filed a petition for a writ of habeas corpus, alleging issues with his medical treatment while in the custody of the respondent, the Commissioner of Correction. After it addressed various pretrial motions, the trial court conducted the first day of the habeas trial on April 4, 2023.
On May 4, 2023, the trial court resumed the plaintiff's habeas trial. The hearing was held virtually, with the plaintiff, counsel and the witnesses all appearing onscreen. Several witnesses were present virtually and were prepared to testify. After the court asked the parties to identify themselves, the plaintiff identified himself as "Gregory Johnson, man. Everybody know[s] who I am. I don't got time for that." Thereafter, the following colloquy occurred:
"The Court: Mr. Johnson, I'm going to tell you right now. You've been here. You know you need to identify yourself.
"The [Plaintiff]: I identified myself (indiscernible).
"The Court: Just do what you need to do, Mr. Johnson.
"The [Plaintiff]: I identified myself already, man. I ain't got time for that….
"The Court: All right. Mr. Johnson, one more, and the hearing is over for the day. You understand? You're not at—
"The [Plaintiff]: I don't care.
"The Court: You're not out in the yard, Mr. Johnson—
"The [Plaintiff]: I don't care.
"The Court: —with your buddies….
"The Court: [The plaintiff], clearly, has forgotten the decorum of the courtroom. It's a regular context with [the plaintiff's] believing he is talking to one of his friends in the yard as opposed to the court.
"The [Plaintiff]: I'm talking to Stephen—
"The Court: The matter is canceled.
"The [Plaintiff]: —a house nigger.
"The Court: The matter is canceled for today. I will ask the caseflow coordinator to reschedule the next day of this matter in ninety days.
"The [Plaintiff]: Care about you. You're a house nigger.
"The Court: Maybe [the plaintiff] will remember his decorum in the court. I'm sorry.
"The [Plaintiff]: You're a house nigger.
"The Court: What was that, Mr. Johnson? You got something to say?
"The [Plaintiff]: You are Stephen from—
"[The Respondent's Attorney]: Oh my God.
"The [Plaintiff]: You are Stephen from the movie Django. I am [going to] go [to] the Department of Justice [to] investigate. You are corrupt. You can kiss my ass.
"The Court: Okay. Mr. Johnson—
"The [Plaintiff]: Fuck out of here.
"The Court: —just got yourself held in criminal contempt of court.
"The [Plaintiff]: I don't care.
"The Court: Would you like counsel?
"The [Plaintiff]: I'm doing life….
"The Court: Sir, would you like counsel?
"The [Plaintiff]: Fuck out of here.
"The Correctional Officer: Johnson.
"The [Plaintiff]: Let's go. Kiss my ass.
"The Court: [The plaintiff], would you—don't—do not … remove him from the room.
"The Correctional Officer: Copy that, Your Honor.
"The Court: Would you like counsel appointed to represent you, Mr. Johnson? You face six months [of] incarceration … and [a] $100 fine. Would you like counsel?
"The [Plaintiff]: Yeah.
"The Court: I'm sorry?
"The [Plaintiff]: Have the state pay. Yeah."
The judge found defendant guilty of contempt of court (though query just what practical effect that would have on a defendant serving a life term), and the Connecticut Supreme Court unsurprisingly agreed; among other things, it rejected plaintiff's argument that recusal was constitutionally required:
We also reject the plaintiff's claim that the trial court should have deferred the contempt proceeding because the court had become personally embroiled. "[In] Mayberry v. Pennsylvania [(1971)], [the United States Supreme Court] held … that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he [or she] has become so personally embroiled with a contemnor that it is unlikely for [the judge] to maintain that calm detachment necessary for fair adjudication….
In general, in order to determine whether a judge was required to recuse him or herself due to personal embroilment, we must appraise both the conduct of the contemnor and the reaction of the judge. [Although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response, if the judge has become visibly involved in a running controversy with the contemnor.
[T]he inquiry must be … whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused…. Consequently, judicial recusal is necessary only in the unusual case [in which] the apparent effect of the contemnor's conduct on the judge against whom the contemptuous conduct was levied is such as to indicate that the judge's impartiality or objectivity reasonably may be called into question."
We have explained "that significant evidence of personal embroilment would constitute an appropriate situation for deferred adjudication or deferred sentencing before a different judge." See, e.g., Sandstrom v. Butterworth (11th Cir. 1984) (Concluding that the trial judge was personally embroiled, such that imposition of contempt should have been deferred, when the evidence showed that, "[a]t different points during the trial, the judge referred to the petitioner as 'rude and nasty,' and as 'acting like an animal;' the judge repeatedly said he was 'sick of' the petitioner. He referred to [the] petitioner's law partner as a 'little creep,' and said that he was 'sick of' him. Shortly before finding [the] petitioner guilty of contempt and sentencing him, the trial judge said that for ten years the petitioner had had a 'nauseating effect' [on] him and every other [judge] in the courthouse."); see also, e.g., A.B.A., Standards for Criminal Justice ("[t]he judge before whom courtroom misconduct occurs may impose appropriate sanctions, including punishment for contempt, but should refer the matter to another judge if the original judge's conduct was so integrated with the contempt so as to have contributed to it or was otherwise involved, or if the original judge's objectivity can reasonably be questioned").
Our review of the record persuades us that the plaintiff has failed to present significant evidence that the trial court was so personally embroiled in a running controversy with the plaintiff that disqualification was required. A review of the transcript and the audio recording of the hearing reveals that, although the plaintiff repeatedly directed racial slurs and other profanity at the trial court, the court responded to the plaintiff with a calm demeanor, gave repeated warnings to the plaintiff, which he ignored, and offered the plaintiff the opportunity to speak to his counsel privately.
Furthermore, the trial court's initial response to the plaintiff's wilful resistance to identify himself for the record was appropriate. When the plaintiff continued to engage in disrespectful behavior, the court repeatedly instructed the plaintiff to stop talking. Despite the plaintiff's repeated refusal to heed the court's warnings and instructions, the court afforded him an opportunity to speak to counsel and to make a statement before sentencing him. Nonetheless, the plaintiff persisted in defying the court's orders and insisted on referring to the court using racial slurs and other profanity. The record demonstrates that, despite the plaintiff's extreme behavior, the court's response was calm and professional throughout the proceeding.
The plaintiff suggests that the fact that he used racial slurs and other profanities directed at the trial court demonstrates that the court was personally embroiled in the conduct. Not so.
Evidence of personal attacks against the court is not, standing alone, sufficient to demonstrate embroilment. Instead, this court has explained that, "[although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response …."
We cannot agree that a plaintiff can demonstrate embroilment merely by providing evidence that he or she had made personal attacks against a trial judge. Indeed, adopting such a position would enable the plaintiff to benefit from his own wilful and extreme misbehavior, which we do not countenance.
As the United States Supreme Court has explained, "we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case." In the present case, our review reveals that, despite the plaintiff's repeated personal attacks on the trial court, the court did not become so personally embroiled in an ongoing controversy with the plaintiff that recusal was necessary to safeguard the plaintiff's due process rights….
From the details offered in the opinion, Johnson's initial 1998 conviction appears to be the one described here.
Raynald A. Carre and Deann Varunes represent the state.
