There is news and then there is The New York Daily News

Through How Appealing at 9:44 a.m. today, I see the New York Daily News is savaging federal Judge Frederick Block in what the paper hypes as an “exclusive.” While handling a civil jury trial, the judge was in the private hallway behind the courtroom and adjacent to chambers, and was talking to Judge Weinstein in the hallway. Judge W asked Judge B how things were going, and Judge B replied something like,”‘I’m OK, I’m doing a little stupid trial’” as someone else walked by the two men. Block realized after the fact that the passerby was one of his jurors.

The judge took the bench and told lawyers that he had committed a “faux pas.” After the juror was interviewed, and it was learned that he or she heard the remark but had not repeated it to the other jurors, the juror was excused and the remaining jurors allowed to deliberate. The case was apparently both little and stupid. About 15 minutes following the commencement of deliberations, the jury returned a verdict for the defendant. Among other claims, the plaintiff had asserted that his former employer had treated him badly because, so says the New York Daily News, “the ‘family meal’ prepared for employees contained sliced ham and pancetta, which he couldn’t eat because he’s Muslim, and the chef refused to accommodate his religious diet.” Oh, the horror!

Handling the physical movement of jurors, particularly given the poor design of many courthouses, is always nightmare for a judge and court staff. The first jury trial I had in Lincoln required a mistrial because a police detective shot his mouth off in front of all my jurors while they were walking in the private hallway to go lunch and the detective, who was a trial witness, was passing by them while talking with an AUSA. Stuff happens in the real world and you would think the New York Daily News could and would recognize a non-story from a real one.*

I don’t know Judge Block, and have no opinion whatever about his abilities as a trial judge.** On the other hand, the New York Daily News ought to learn what is and is not news.

RGK

*Apparently, the paper and the judge have a history. In the instant article, the paper recounts gleefully that it has previously referred to Block as “Judge Blockhead” because he “ridiculed federal prosecutors during a racketeering murder trial for seeking the death penalty against a drug kingpin.”

**For what it is worth, the Almanac of the Federal Judiciary,  a subscription service that costs a lot of money, interviews lawyers throughout the country to get their candid take on each federal judge about whom the lawyers have experience. Anonymity is promised to the lawyers. The several page write-up that follows is then sold to other lawyers so they can get detailed insight into each federal judge before whom they may appear and about whom they are unfamiliar. Overall, here is what the Almanac most recently wrote about the judge: “Lawyers interviewed said Block is experienced and knowledgeable.” I also know that the judge has written a candid book entitled, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.  David Lat and Scott Greenfield give the book (and Judge Block) favorable reviews.

23 responses

  1. Merits of the case aside (the plaintiff may not have been credible but I hesitate to minimize an ethnic discrimination & sexual harassment case), you have to give the writer credit for the inspired description of the judge as “notorious for shooting from the lip.”

  2. Disrobed by Judge Block is pretty candid and I had recommended it a while back when suggesting (in response to your request) more background stories and details from behind the scenes. It’s a great read if you haven’t yet read it.

    As for these particular comments, candor is fine once the case is over. As an attorney, anything near the courthouse is risky since a judge, court employee, officer or other person associated with your case may be nearby, watching, listening or even recording what you’re doing. Litigant beware.

  3. Anonymous,

    When a judge is in the secure private hallways where chambers are located, I respectfully suggest that it is not reasonable to expect the judge to speak to a colleague as if the conversation was out in public. All the best.

    RGK

  4. Judge —

    I’ll disagree with you on one point. It is news. A judge accidentally makes a statement in front of a juror that caused the juror to be removed from the case. An unusual event in a public proceeding. That’s news. That said, the newspaper seems clearly to be blowing this up by treating it as though Judge Block just sentenced someone to death for jaywalking in a national park. If the facts are as the story portrays them, the judge made a statement without knowing a juror was nearby and, when he learned that a juror was in fact nearby, the judge was entirely candid about it and took steps to be sure there would be no harm to either side. Small news? Sure. Big news? No. Scandalous news? Absolutely no.

    David

  5. Griff,

    Snark is easy to write, so I hardly think think the author wrote anything close to inspired. The name of the guy who wrote the article is John Marzulli. As his profile states, he is based in Brooklyn.

    Here’s some snark for the “marvelous Marzulli.” He writes like M.O.P., the Brooklyn-based hardcore rap group Mash Out Posse, long famous for the literacy of their lyric,”M, dot, O, dot, P dot…I will fuck you up nigga.”

    All the best.

    RGK

  6. David,

    The author claims to a specialist in reporting proceedings before the Eastern District of New York. See his profile here. If he is such an expert, he knows that mistrials or jurors being exposed to extrajudicial remarks take place all the time. I just don’t see this as news especially from some guy who is supposed to know his way around a federal trial court. But, no matter, as you point out, if it was “news,” it was hardly of the breathless “exclusive” variety.

    All the best.

    RGK

  7. Nearly every one of my trials is covered by the media. Long ago, I learned they would never get the story right. They aren’t sometimes slightly off; they are always wildly off. So, I decided never to talk to them, or even acknowledge them. Given the chance, a quiet place, and the proper anatomy, I would gladly kick them in the balls.

  8. Skink,

    And a new word is born: “Skinked.” As in, “The mean and terminally stupid ankle biter of a reporter got ‘Skinked’ and fell to the ground crying out in his best falseto voice while hoping against hope that he could get a refund of his year long, but little used, prescription for Viagra–and then he wet himself, a habit that the reporter thought he had overcome several weeks earlier.”

    All the best.

    RGK

  9. Judge:
    I gotta’ ask…how the Hell did you know about M.O.P.?!!! This may be more impressive than Judge Posner, on the Posner-Becker Blog, talking about L.U.G.s (“Lesbians Until Graduation”). Amazing.
    Robert

  10. Robert,

    It could be that my nephew, with a degree from the Rhode Island School of Design and skinny jeans, is a New York hipster who plays in a band between gigs doing photo work for fashion magazines! All the best.

    RGK

  11. The problem here is not solely the Daily News’ making a mountain out of a molehill when it involved a judge they have a history with. The problem also lies with the judge.

    First, his comment on a “silly little trial” reflected a disrespect of the litigants and their counsel. It might have been a silly trial to the judge, but it had survived summary judgment and gotten to the point of a federal jury trial (and the concomitant investment of tens of thousands of dollars by the litigants in their respective cases). Maybe Judge Block is so high and mighty that such investments by ordinary working schlubs in defending their rights don’t matter to him, or maybe he’s only interested in multimillion (or multibillion) dollar civil trials and doesn’t want to be bothered with mere plebs disturbing his eminence with their annoying little claims and the accompanying demands on his time (maybe there’s a bucket of balls waiting for him), but his job exists to resolve disputes and apply the laws Congress (representing, supposedly, those plebs, too) wrote. If he cannot do that while respecting the litigants, he’s not fit for the bench. I’ve appeared before more judges than I can count who acted like putting on the robes meant God had died and left them in charge and it never ceased to disgust me. Block didn’t have the self-discipline to drop the adjectives.

    Second, the kind of disrespect he evinced in the hallway cannot help but communicate itself to the jurors. People underestimate the communication which carries through without being explicitly said. I used to appear regularly before a state-court judge who’d worked her entire practicing career doing insurance defense. When she ascended to the bench, she was always careful to not let her prejudice show in words, but she could not conceal her disdain or even contempt for the injured litigants seeking some measure of justice. Juries picked up on that: “what you are screams so loudly I cannot hear your words”. And we called her “Judge Allstate” for a reason. She managed to have long stretches – years, even – where plaintiffs appearing before her could not win, even when they’d been rear-ended by a drunk or clocked over the head with a crowbar from behind while sitting peaceably in an establishment.

    Third, feeding observant Muslims pork is, in relative terms, about the same as feeding observant Jews pork. IIRC, Judge Block is Jewish. (If not, he’s from Brooklyn, where there is both a substantial Jewish community and an understanding – general and/or specific – of the contours of Jewish dietary laws. He’d have picked it up by osmosis.) Maybe he’s one of those liberal Jews who has no problems with pork (or cheeseburgers). But, it’s not his call on that. His call is to provide a forum for resolution of disputes, including ruling on the law, and to let the litigants prove their case or fail trying. His ridiculing the plaintiff’s case was both wrong and symptomatic of a real prejudice developing – and being nurtured – against Muslims in this country.

    Fourth, his treatment of this litigant’s case (and the litigant’s subsequent loss) cannot but impair the confidence of not only that litigant, but also everyone who ever meets that litigant and anyone who reads the newspaper. Every judicial discipline case I’ve ever read has included, somewhere, language to the effect that the judge’s misdeeds impaired public confidence in the judiciary. How many Muslims will take away from this story that there is no reason for them to have confidence in getting a fair trial?

    You can make light of it. But it’s not right, and no amount of sophistry can make it right.

  12. Judge —

    I’m surprised to read that jurors are exposed to extrajudicial remarks “all the time.” Let’s assume that’s true. Let’s also assume this writer should have known that. I’m fairly confident his readers don’t know it and that they would find it novel. I realize news isn’t strictly defined by what the public might find interesting, but public interest certainly plays a role. I think the writer’s purported experience should have come into play in deciding not so much whether this was news but whether it deserved the “Dewey Defeats Truman” emphasis it received.

    David

  13. David,

    It is true. It is not unusual for jurors to be exposed to extrajudicial statements about a case.

    Most of the time jurors report the statement to the court, the court reports them to counsel, counsel are queried about what to do, and, with the agreement of counsel as contrasted with a mistrial motion, the jurors are then cautioned appropriately. It is not that the extra-judicial contact is unimportant but it is not out the ordinary either. If you try enough cases to a jury as a judge, you learn that in most situations no harm is done. Jurors are remarkably smart and amazingly dedicated to following the judge’s instructions to avoid these situations, and if they can’t, to report them. They then listen carefully to the cautionary instruction, and, after that, they get back to work.

    We can agree to disagree about whether what happened is “news,” but, again, the facts didn’t warrant the vitriolic “exclusive” treatment. That is the stuff of tabloid journalism.

    All the best.

    RGK

  14. The article makes clear that Judge Block has a history of ill-advised and disrespectful remarks in public, too. Like the “egg foo young” comment he made to a Korean-American defendant. Maybe he just has a hard time with Asians (like the discrimination plaintiff here), or maybe his own casual bigotry makes it hard for him to understand the seriousness of discrimination.

  15. Westerner,

    Please remember too things: (1) context and (2) source. We know the source is a newspaper that practices tabloid journalism. We don’t know the context. All the best.

    RGK

  16. Folks–read Judge Block’s book Disrobed. He’s from upstate NY, but then lived and practiced on eastern LI for the rest of his career, though he recently moved to Manhattan (ie NYC, per his book). He’s plain spoken and direct, and a regular person (previously a solo and small firm practitioner) who made it onto the bench through good fortune and hard work. You’d like him. I once saw him in a back room hallway, coming out of another Judge’s chambers after a conference (he didn’t know me) and he just started shooting the breeze about a case he was on. He is who he is, which is much better than some of the other rigid pompous judges in the SDNY and EDNY.

    As for the Daily News, living in flyover country you just don’t understand competitive newspapering, where so many big papers and small local papers easily survive, and NYC tabloid politics, which feeds into the NYC zeitgeist. This is small ball news, but it sells papers for the day when the NY Post is seeking to claim market share. At one point, each tabloid paper kept lowering its price, all the way down to 25 cents, to try to outsell each other. They’re now $1, well below the $2.50 NY Times daily newstand price, but always FREE to those of us who read it online. It also targets a demographic well below the JD level, which eats this stuff up on a daily basis (and they aren’t smart enough to read the paper online, or use it as a quick subway/commuter train read). It’s simply part of the territory living in NYC when these stories arise, which quickly fade out to make way for tomorrow’s next headline.

  17. Anon.,

    Thanks very much for your insights particularly about the news biz in NYC, and Judge Block. Context is everything.

    All the best.

    RGK

  18. Judge, I appreciate your perspective on the newsworthiness of the story, and the reliability of the source, but were Judge Block a state judge, rather than a federal judge, his history of intemperate comments, particularly the ones with racial undertones, would certainly have earned him a reprimand of some sort (even if perhaps simply a letter of caution) from the state judicial ethics board. I agree with your repeated statement that “context is everything”, but I’ve a notion is that the context surrounding this judge would show he needs to watch his tongue when people of color are in front of his bench.

  19. You’re not familiar with NY’s enforcement of it judicial ethics rules. I could put up more links, but the gist is that the NY County Lawyers’ Association (about 9,000 voluntary paid members) created a Blue Ribbon commission to look into the NYS Commission on Judicial Conduct. The Executive Director then rejected many of the recommendations. This despite basic due process things, like written rules of procedure and consistency of discipline, were non-existent.
    https://www.nycla.org/siteFiles/Publications/Publications1302_0.pdf
    https://www.nycla.org/siteFiles/Publications/Publications1423_0.pdf
    http://www.newyorklawjournal.com/id=1202444566331/Judicial-Conduct-Commission-Rejects-NYCLA%27s-Report-as-%27One-Sided%27?slreturn=20140818095951
    http://old.nysba.org/Content/NavigationMenu42/2011Meetings/January282011HouseofDelegatesMeetingAgendaItems/NYCLACommentsFromProceduresforJudDisc.pdf
    Yet, this all existed in the greatest State and City in the world (no disrespect intended to Nebraska). Headlines in tabloid newspapers are the least of our issues.

    And don’t even get me started about the NYS Legislature.

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