Monday, June 21, 2010

Judge Orders Lawyer to Apologize to Cop for "Rough Language" in Cross-Examination

Apparently at least one municipal court judge in the Greater Minneapolis area is a sensitive man.  A municipal district court judge,Gregory Galler ordered a local attorney to apologize to the police officer after the local attorney David McCormick cross-examined asked the officer whether the officer was trying to "cover [his] ass" during a point in the cross-examination.  According to a report at the Minneapolis Star Tribune, the Judge thought this lawyer's salty language went too far;  this is from Rochelle Olson's report:

"When criminal defense lawyers cross-examine police officers on the witness stand, it's not unusual for the questioning to become aggressive and testy. But in Washington County earlier this month, District Judge Gregory Galler (pic) decided that defense attorney David McCormick went too far when his questions suggested an officer was being less than truthful.  Galler ordered McCormick to write an apology to the officer for "impugning the officer's integrity," according to court documents.

McCormick refused, missing Galler's original deadline, which passed Tuesday. On Wednesday, Galler indefinitely extended the deadline and notified McCormick through his lawyer, John Brink, whom McCormick hired in case the judge held him in contempt of court.

McCormick said he's preparing to file a motion seeking to have a new hearing on his client's drunken driving case, with a new judge. McCormick claims Galler was 'biased in favor of the police witness' and must recuse himself.  Reached in his Stillwater chambers, Galler confirmed that he "might have" ordered the apology and asked, "'ow has that become a story?' When told the demand seemed unusual, Galler said, 'Not really."'He declined to comment further.

Other judges, defense lawyers and prosecutors say the demand was highly unusual.  Joe Friedberg, a criminal defense lawyer for 45 years, said, 'If a judge ordered me to do that, I would tell him to go have intercourse with himself.' Friedberg said he has often called cops liars and says Galler is 'so far out of line, I can't believe it. He should apologize for asking for an apology.'"

[In the Follow Up Story, Judge Galler explainst that the Order to apologize related to the vulgar language, Miss Olson's report continues]

"A judge who ordered a lawyer to apologize to a police officer sent a letter Thursday to clarify, saying he'd objected to the defense attorney's use of profanity in his closing argument, not his vigorous cross-examination of the officer. Washington County District Court Judge Gregory Galler said he never planned to hold David McCormick in contempt if the lawyer declined to apologize. Galler faxed the letter Thursday afternoon to McCormick's lawyer, John Brink. A spokesman for the state courts e-mailed the letter to the Star Tribune. Galler's letter said he wanted to clarify 'misunderstandings.'

The letter came a day after [Judge]Galler granted Brink's written request to extend the deadline for the apology. The judge made the extension indefinite. McCormick has said he won't apologize for doing his job and will seek a new judge to hear his client's drunken driving case. The lawyer said that, in his closing argument in court, he referred to the police officer's actions after an arrest as an attempt to cover his own 'ass.' McCormick said the judge chastised him after the closing for 'impugning the officer's integrity' and ordered him to apologize to the officer by letter.

McCormick said Thursday that if the judge objected to his use of profanity in court, 'Then why I am apologizing to the cop?'

[Judge] Galler doesn't remember it that way. 'I told Mr. McCormick that I knew he did not mean to improperly impugn the officer,' he wrote. 'I knew that he was just doing his job in advocating for his client.' He said if he had intended to hold McCormick in contempt, he would have issued a written order. Instead, Galler said, he believed an apology to the officer was 'something that needed to be done"'as a 'simple matter of civility and decorum.' Galler said he understands passions run high in courtrooms and parties disagree, but 'using profanity in court, even mild profanity, steps past the bounds of what an officer of the court is allowed to fairly do.'

Profanity is commonplace in Hennepin County courtrooms, although usually it comes during questioning of witnesses, not from lawyers in closing arguments. The transcript of the hearing last week is not yet available. Neither the court reporter nor the prosecutor returned calls Thursday.Profanity is commonplace in Hennepin County courtrooms, although usually it comes during questioning of witnesses, not from lawyers in closing arguments. The transcript of the hearing last week is not yet available. Neither the court reporter nor the prosecutor returned calls Thursday.
This may seem silly or trivial but this story sheds light on a common problem in small law situations--often times the police seem like they are "clients" of the court. 

This is because the elected or selected judges of these small courts continually see the same law enforcement representatives as witnessed in their courtrooms.  I have seen Judges consciously, or I'd rather like to think, unconsciously--begin to view themselves as friends or even as colleagues of the law enforcement officers who appear regularly before them.  These judges may even have formed an opinion as to the officer's credibility or reputation based on observing the officer testify in previous matters.  If the judge is in an elected position alienating the police is not a politic move as far as the judge is concerned.  So you get a "captured" and less than independent judiciary.  Net result, really aggressive cross-examinations designed to challenge the sweetheart relationship between witness and judge. 

Judge Galler's order while directed at an attorney who was acting rude and inconsiderate--in the Judge's opinion, suspiciously betrays this too close relationship between this judge and law enforcement.  The defense attorneys are rightly reacting to an order betraying bias.  Which is not to say that any judge needs to tolerate contemptuous conduct in his or her courtroom but contempt is not the same as aggressive cross examination or the pointed use of the expression "cover your ass."


  1. Are you familiar with Judge Thomas Gainer Jr. in Chicago?

    He recently threw out charges against a cop who killed two people drunk driving - saying that there was no probable cause for a breathalyzer to be administered.

    And last year he gave a cop who drunkenly beat the sh/t out of a female bartender two years probation.

  2. E3--
    Judge Gainer's dismissal of the charges against the killer cop was the subject of two posts on Bad Lawyer. While he wasn't named in the posts, the shocking outcomes were analyzed as was the Judge's order characterizing the testimony of a supervising officer and tossing damning video. Shocking performance by a "captured" jurist.

  3. Ooops, sorry! I haven't worked my way through all of your posts yet...

  4. Someone say "captured?"