Friday, August 11, 2017

Things I learned on my recent trip to North Dakota.

I was in Bismarck, North Dakota, for a couple of days this week. Bismarck, as Reader(s)™ may know, is the capitol of North Dakota. One thinks of North Dakota as being flat and treeless, but Bismarck has more hills than Minneapolis and a lot of trees. Here is a picture I took from a hill on the eastern edge of town.

(photo credit: me. C'mom! I literally just wrote that I took the picture). As the picture indicates, in addition to hills, there are a lot of trees in town.

Anyway, Bismarck is in the middle of North Dakota (Fargo, on the eastern edge of the state is 196 miles away. Beach, on the western edge of the state is 158 miles away). Between Fargo and Bismarck I saw several billboards that, rather than advertising a product, said "Be Nice."

(photo credit: me)

When I first saw the billboard, I assumed that the billboard's owner had put the message up because they had not been able to rent the billboard out to a business. This article from KFYR, a TV station in Bismarck, reports that there are actually 30 similar billboards spread across the state. Moreover, the signs are part of a "civility campaign" run by Newman Signs for the last 30 years. I'd grade my assumption as half-right.

I should say that everyone I dealt with in Bismarck was delightfully nice to me. So maybe the civility campaign is working. But while I was in Bismarck, I read a news story that suggested that the Newman Signs people might want to put up a few more of those signs in the Minot area.

The news story I refer to is the story of a 53-year-old man who pleaded guilty to biting off the ear of another man during an altercation. Apparently the two men were co-workers (and are now, as the article notes, "former friends") who began to fight about where to place some store merchandise at a Minot-area lumber store. While charged with biting off 80% of the victim's ear, the guilty man said that the amount he bit off was closer to 30%. Whatever the percentage, apparently everyone agrees that the amount bitten off could not be reattached after it was found. The guilty also said he was acting in self-defense because he did not instigate the fight, was also losing the fight, and bit the ear because he was afraid that he was going to have his head hit on the concrete floor of the store.

Mr. Torvik knows more about criminal law than I do but I am under the impression that if one pleads guilty to a crime, one cannot be said to have been acting in self-defense. That is because acting in self-defense is, you know, a defense to criminal charges.

What is the sentence imposed for biting of 30-80% of a person's ear? Judge Richard Hagar imposed a sentence of two days in jail (which the man had already served), three years of probation, $2,955.73 in restitution (not sure if that is to the victim for cost of the ear or restitution for something else), and $1,100 in court costs.

What do you think Mr. Torvik? Is two days in jail sufficient to deter people from biting off ears? Is a two-day sentence sufficient to rehabilitate a person? Is two days in jail sufficient punishment? Why do you think it took the prosecutors a year to bring charges in this matter? Also, where did we come down on "pleaded" vs. "pled"? I like pled but the little red line that appears under the word suggests that I am wrong.

Some side notes:
(1) the article reports that Judge Hagar thanked the guilty man "for wearing a suit" to court. Judge Hagar also said that he wished that the "lawyers who appear in his court dress that well all the time." Do lawyers in Minot not wear suits to court? If not, how shabby are the clothes they appear in that a judge feels the need to comment on it at a sentencing hearing?

(2) Judge Hagar seems to be an empathetic judge. The article says that Judge Hagar told the guilty man that the judge "understood how the incident could have happened." I guess we all know about Mike Tyson biting off part of Evander Holyfield's ear. But even though that it happened during a boxing match, I have a hard time understanding how it could happen again. I have been on the losing end of physical altercations. I do not think my thought process on those occasions was anything other than "man, I am getting the bejeesus kicked out of me."

(3) When I was looking for a link to Judge Hagar's biography at the North Dakota Supreme Court's web page for the North Central Judicial District, I could not find an entry for Judge Hagar. I think the reason there isn't a link is that Judge Hagar just returned to the bench after a three-month suspension with out pay. The suspension marks the third time that the North Dakota Supreme Court has disciplined Judge Hagar for not deciding matters assigned to him and for not being diligent in his judicial duties. You can read the most recent suspension order here. The order says that the judge could not provide any explanation for his inability to keep up with his work.

I am in no position to judge the actions or inaction of another. The fact that the judge cannot explain his behavior troubles me. When people cannot explain behavior it suggests that they are not in complete control of their mental faculties. Of course, the lack of explanation might be a tactical decision rather than a sign of the judge's mental state. In any event, I hope that whatever steps that the judge learned during his suspension to keep him on task will be effective.


  1. Whew, lots of questions in this post. We'll see if I can get to them all.

    The main question is about the two-day sentence for biting off part of a person's ear. I'm okay with it. I'm not a fan of a long prison sentences in general. In this case it seems undisputed that two guys guys got into a crazy fight and then during the fight one of them bit of part of the other guy's ear. Once a fight starts, men very much turn into animals in my opinion, so what really matter to me is not so much what the guy did during the fight, but what kind of fight was it? Was it a fight started because one guy ambushed another guy and bit his ear off (worse), or a fight that the other guy started and he was just doing his best to survive (better)? Seem like it was somewhere in between.

    On "pleaded" vs. "pled" I'm very much opposed to "pled" as the past tense for "plead." The most accepted usage (AP sytle, e.g.) is "plead, pleaded, pleading." In other worse, "How do you plead?" "Yesterday, the defendant pleaded guilty." "Damn, lots of people pleading guilty these days." "Pled" is a colloquialism.

    The comments about the suits in court reminded me of my days as a judicial extern in Hennepin County family court during law school. Very few lawyers in that court wore suits to court (almost no ties), and the clients certainly made no effort to dress up. (I recall one woman in particular, a very handsome woman, who wore a sheer white blouse over a lacy black bra.) So it would not surprise me that a county court in North Dakota would have lots of people not wearing suits and ties.

  2. I guess I favor the colloquialism. My tendency to the colloquial is one of the things, along with not petitioning, that kept me off law review.


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