Friday, March 30, 2012

A litigator's nightmare

As the Proof & Hearsay blog reports, the Wisconsin Supreme Court today suspended two lawyers—Joe Sommers and and Paul Humphrey—for 30 days each. The suspensions arise out of their conduct in a single criminal case in which Humphrey was the prosecutor and Sommers was the defense attorney.

We civil litigators are used to cases getting kind of ugly, with accusations of discovery abuse and threats of sanctions thrown around with abandon. But my impression (based partly on a short stint as a city prosecutor) was that things were usually a little more civil (ha ha) among criminal lawyers. Apparently not.

Although each lawyer received the same punishment, their offending conduct was quite distinct.

The prosecutor, Mr. Humphrey, was alleged to have withheld evidence (some photographs) and then to have lied about it in an affidavit and in court. Mr. Humphrey denied the accusation, claiming that he did "make available" the photographs, but that Mr. Sommers did not avail himself of the opportunity to receive them.

Mr. Sommers's suspension, on the other hand, is based on outrageous in-court conduct and statements. The statements are quoted at length in the court's opinion in paragraphs 45 through 53. In essence, he leveled an accusation that the case had been "orchestrated" between the judge and the prosecutor, and, in open court, called the proceeding a "kangaroo court." He made these accusations, apparently, while yelling loudly enough that at one point nine court bailiffs ran into the courtroom assuming that some sort of altercation was occurring. Eventually, the trial judge had enough:
Can you stop, please, Joe?  Joe Sommers listen to me.  I don't think I've ever done this across the bench before.  I have read this file twice.  This is not the first time that it appears that you're an attorney that's out of control.  The record reflects that.  And it clearly does today.  Oh, it isn't going to reflect the amount of volume that you had or how totally out of control you were, that it required six, seven, eight bailiffs in here to see what was going on to protect the dignity of the Court which diminished entirely with your outrageous demeanor.  
. . .  
I understand passion.  I've seen many of the defense attorneys that are sitting here passionate -- passionate about what they do.  They don't react in the manner that you just did.  They don't -- They tend to let go.  They tend to make their case.  They tend to make their motion, and if they lose it, they know there's an appellate route.  There is a way to get someone to review this.   
I seriously question whether you've got yourself together, Joe Sommers.  I'm sorry.  But you are not in control.  I am very fearful of going forward with a jury, it's almost a certain mistrial.  It is almost impossible to get you to stop talking, and there was no stopping you minutes ago when all those bailiffs -- there was no stopping you, nothing I said or could have done.  
. . .  
And I'm trying very hard, very hard to be fair under what I consider extraordinarily difficult proceedings today.  Very difficult.   
I -- I'm just amazed at how out of control you have become.  And today kind of the last nail in the coffin, so to speak, is when you tie me into the conspiracy.  And you said oh, no, it's not quite a conspiracy, you have a good record, Judge, for all these years, but this morning there was an orchestration with these people here . . .
Of course, it wouldn't be a Wisconsin Supreme Court opinion without childish sniping between the justices. Yes, even in disciplinary cases decided in per curiam opinions. The impetus for the infighting this time is Justice Prosser's dissent in the Humphrey case, in which he argues that the suspension is an inappropriate penalty for what he terms "semantic disputes" and that a public reprimand would be more appropriate. He also objects to imposing the full costs of the proceeding against Mr. Humphrey.

But he goes further, stating that the circumstance of the case—particularly that it was tied to the case against Mr. Sommers, even though the disciplinary matters were fully discrete—were "irregular" and "seriously undermine the confidence in the in the lawyer regulation system." Among his specific complaints is that Humphrey was left "twisting in the wind" for three-and-a-half years while the Supreme Court decided the Sommers case. The underlying conduct occurred in 2004; oral argument at the Supreme Court was in 2008. The opinion came down today.

To Chief Justice Abrahamson, Prosser's dissent is full of "storm and fury and nasty insinuations about the court's actions." She admits that the case "took too long" but caustically rebuts Prosser's assertion that there was anything in the case amounting to an "irregularity" that could call into question the legitimacy of the lawyer regulation system.

On the face of it, giving both Sommers and Humphrey the same 30-day suspension seems to approach an abdication of judgment, given that Sommers's in-court comments are among the most outrageous open-court accusations I've ever heard leveled against a judge by a member of the bar. But that's debateable, I guess. What is not debateable, I think, is that the delays in this case—eight years in total, three-and-a-half years between oral argument and opinions—amount to a miscarriage of justice. Even after the Sommers case was argued in 2010, it took the Supreme Court 16 months to issue these opinions. That is just ridiculous. The Wisconsin Supreme Court has to get its act together.

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