Short Take: Who Marshals The Marshals?

It’s said that within a courtroom, the judge is king. And indeed, the judge is as far as lawyers and litigants are concerned, and he’s got marshals to back him up. But what happens when those same marshals are the targets of a judge’s concern?

U.S. District Judge Charles Kornmann of South Dakota levied criminal contempt charges against three senior federal law enforcement officials on Monday over an ongoing feud over his insistence that he must know whether law enforcement officials guarding his courtroom have been vaccinated against COVID-19.

As The Washington Post reports, the charges stemmed from an incident last month in which Kornmann asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom.

On the one hand, it seems like a pretty fair question to ask of the people with whom one shares a courtroom at the back end of a pandemic. Then again, when getting a vaccine has become a political act to some, the inquiry is unwelcome and considered inappropriately intrusive. But this is a courtroom, and the judge is the king. Or is he?

The marshals who were present then took three of the defendants scheduled for hearings that day out of the courthouse in what Kornmann described as a “kidnapping” that disrupted the court’s work.

Kornmann spent nearly an hour tearing into the U.S. Marshals Service for the marshals’ actions in response to his question.

The problem wasn’t merely that the marshals took offense to, and refused to answer, the question, but that they went the next step by disrupting the function of the court by removing three defendants. While calling it “kidnapping” might be a bit hyperbolic, the point is that it’s up to, or at least it’s supposed to be up to, the judge to determine when defendants are brought into and out of a courtroom, not the marshals.

“This was such an outrageous thing to do,” he said during a hearing on Monday. “Nothing like this that we could find has ever been done in this country. If it is the marshals’ position that they can override court orders, they are badly mistaken.”

There is, of course, one thing “like this” that has been done in this country, but it goes all the way back to the now-canceled Chief Justice John Marshall, when President Andrew Jackson was reputed to have said in response to Worcester v. Georgia, “John Marshall has made his decision; now let him enforce it!”

The judiciary may be the “least dangerous branch,” lack either a standing army or the power of the purse to force compliance with their orders, but they do, theoretically, have the marshals to do their bidding.

“I had always thought that the principal responsibilities of the Marshals Service was the protection of the federal judiciary,” he wrote in a letter to federal officials in March. “As it stands now, they could well be the most dangerous people in the courtroom.”

For the most part, the marshals work closely with judges. Strong bonds are formed, and marshals can be very protective of their judges. Indeed, this too has its problems, as a marshal’s word to a judge is almost impossible to challenge, so when they execute their duties outside the courtroom and squeeze between some wayward defendant’s constitutional rights, the likelihood of disputing their testimony is slim to none.

But the dirty little secret is that the judge may wear the robe, but the marshals have the guns. When the judge has an issue  with the marshals, to whom will he turn to enforce his order?

15 thoughts on “Short Take: Who Marshals The Marshals?

  1. John Barleycorn

    If only Charles been sporting a

    P S. What ever happened to playing footsie in chambers?

  2. L. Phillips

    Sounds a lot like like an ongoing internal pissing match spilled over into public view. Not that I have any specific personal experience with such things.

  3. Michael Shapiro

    Lawlessness by law enforcement officers is not new and shouldn’t be that surprising. The marshals here should be appropriately disciplined to make clear that they don’t get to make their own rules and to deter them and others from a repetition.

  4. Hunting Guy

    From an outsiders perspective it sounds like the judge is on a power trip.

    Take a couple of minutes to express yourself and move on to the next piece of business.

    Take up the situation with the appropriate supervisor later.

    Filing contempt charges against John Kilgallon, chief of staff for the U.S. Marshals Service in Washington, D.C., Daniel Mosteller, the marshal for the District of South Dakota, and Stephen Houghtaling, the chief deputy for that district is overreach.

    1. Jeff Davidson

      If the next piece of business is a trial or something related to the defendants that the Marshals removed from the courthouse without the judge’s knowledge, then what? Do the Marshals control the calendar or the judge?

  5. Guitardave

    The more I think about it they should just declare Marshall Law, and then amputate the judges legs so he has no standing.

  6. Dan

    The honorable judge apparently fails to understand that the Marshals don’t actually work for him. They don’t, in fact, work for the courts at all, but for DOJ. So he doesn’t get to determine the terms and conditions of their employment (even if it were otherwise acceptable for an employer to demand information about an employee’s vaccination or other medical history)–he doesn’t get to require vaccination (or an answer to whether they’ve been vaccinated) any more than he gets to demand that they wear a tutu and carry a magic wand.

  7. Joe O.

    I had an opinion on this whole affair, but the Marshals took it from me when I was going into the courthouse.

  8. Joe O.

    If a DUSM cares about his or her duties, isn’t getting vaccinated similar to staying in shape and getting a sufficient amount of sleep? If a DUSM zonks out on the job or can’t reach around his belly to draw his firearm, should a judge not inquire as to whether he can fulfill the duties?

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