Houston criminal defense lawyer Mark Bennett has been following  the matter of criminal defense lawyer Adam Reposa, who was held in contempt and given a 90 day sentence for making masturbatory gestures toward a judge who yelled at him to be quiet when he whispered into his client’s ear while the prosecutor was speaking.  As Mark puts it, Reposa was known as a “gonzo” lawyer.  Every locale has one.  They go too far.  They are too course and  rough.  They are frequently embarrassing to the criminal defense bar.

But what this is really all about is an affront to the dignity of the court.

From the Austin American-Statesman :

Saying that Austin defense lawyer Adam Reposa tarnished the dignity of the judicial process by making a lewd gesture in court last month, visiting state District Judge Paul Davis on Wednesday sentenced Reposa to 90 days in jail for contempt of court.

We play a curious game in courtrooms.  We use language found nowhere else, such as calling the person in charge of the room “Your Honor” and using such courtesies as “may it please the court” when we speak to that person.  There are officers in the courtroom to keep people quiet and force men to remove their hats, at gunpoint if necessary.  The judge sits on an elevated bench, putting her above everyone else. 

This is different than the obsequiousness that some show the judge, laughing at jokes that aren’t funny and the occasional bowing and scraping.  These are done to curry favor, not to show respect.

We dress “appropriately” when we appear in court.  Wearing a suit and tie is expected, even when ties couldn’t be found anywhere else in the work world.  The judge wears a black robe.  Behind the judge we frequently find the flags of the State and nation.  The room itself is usually grand, often with high ceilings and wood paneling.  Or at least it was grand at one time, though it may now be seedy from years of neglect and too many hands on the rails and bodies in the chairs.

As Mark points out, there is nothing dignified about what happens in courtrooms to people, or how they were treated before they got there or after they leave.  And sometimes, the respectful words spoken toward the judge are not returned.  There is occasional yelling, or abrupt commands, or snippy responses from the bench toward the participants.  Some judges, the ones with appropriate temperament, can be quite respectful to counsel and defendants alike.  It doesn’t change their decisions, but they are rendered in a courteous manner.

So why do we play this game, and is it right for an attorney like Adam Reposa to break out of his role and show the dignity to be a mere act put on for the sake of appearances?

The answer to the first question might well be Charlie Wilson’s answer to why Congress is incapable of doing anything useful:  Tradition, mostly.  This is the way courts are supposed to be, dignified, and rather than buck the system for no useful purpose, we all go along with the tradition of behaving appropriately and showing respect to the judge.  It creates an atmosphere of dignity.

But this pretense is all about form over substance, right?  Well, not completely.  Sure, judges know all the bad words and gestures that are used outside the courtroom doors.  Some even realize that the words “your honor” conceal dripping sarcasm or outright disdain.  Indeed, one of the inside jokes of the law is that the phrase, “with all due respect,” is actually the courtroom way of saying, “judge, you are a blithering idiot.”  It just sounds nicer the other way.

There is, however, one very real purpose to maintaining the facade of dignity.  The power of the judge is dependent upon it.  The third branch of government has neither army nor power of the purse.  Sure, there are a handful of court officers in the room, but the hundred plus criminal defendants in the audience could take them if they wanted to.  The ability to function, both substantively and procedurally, depends on the perception of the multitude of unhappy people coming through the doors to believe that they have entered a different world.  It is a world of quiet and respect.  This world has an atmosphere that is different from anywhere else.  It is one of Dignity.

If that facade is broken, the functioning of the legal system would be impossible.  Imagine people behaving in court as they do in the streets.  Without the participants behaving respectfully toward the judge, there would be chaos, even anarchy, in the courtroom.  If the participants were to shout down, or just ignore, the judge, the judge would be essentially powerless to stop them short of demanding the court officers shoot someone, just for effect. 

I’ve watched a television show called “Judge Judy.”  I didn’t know Judy Sheindlin when she sat in New York, though I had been before her husband many times.  When I hear the way she speaks to participants on her show, I often cringe.  It’s not just because she makes snap baseless credibility judgments, but because her tone is so pointlessly caustic. 

I often wonder why no one rushes the bench and gives her a licking.  She’s no spring chicken, and most litigants could take her.  Yet they put up with her vicious tongue.  And it’s not like this only happens with TV judges.  There are real judges who demonstrate such horribly low self-esteem that they are unfulfilled unless they berate people in the process of judging the merit of their cases.

While there is much to question as to the merit of our legal system, from its efficacy to its wisdom to its legitimacy, the plain truth is that we need it until we get something better.  It’s absence would reduce society to its most animalistic ways.  There would be no hope for reason and fairness; power would be all that mattered. 

So, we walk into courtrooms, in our suits and ties, and await our turn to speak with “your honor” is respectful tones.  We can make the same point as Adam Reposa without resorting to crude gestures, and frequently do, but in a way that doesn’t serve to undermine the facade of dignity.  We instruct our clients to show the same respect to the court, because our ability to serve their interests depends to some extent on their agreeing to play by the rules that allow us to do our job.

I agree that what happens inside courtrooms to criminal defendants is hardly dignified.  It can fairly be said that substantively the emperor has no clothes.  And yet, maintaining the facade of dignity matters, as long as we maintain any hope of receiving justice, even small little pieces of it.  Not because the legal system is deserving.  Not because some particular judges are deserving.  Because there is no better option around. 

It would be nice if those judges who speak rudely toward defendants and counsel would remember this as well.  Attorneys have no call to be offensive toward judges in the courtroom.  Judges should bear in mind that the dignity of the process is almost entirely for their benefit.  It would behoove them to maintain the facade too.