使法治蒙羞

Judge called out for sitting in jury box ‘eating candy’ during witness testimony

A hat-trick for the judge once reprimanded for going to a Halloween party dressed as a black prisoner

A judge from Louisiana has been slapped on the wrist by his peers for engaging in “bizarre and disturbing” behaviour during a trial.

In one of Legal Cheek’s favourite stories of the year so far, Judge Timothy Ellender was this week slammed by the Supreme Court of Louisiana for sitting in the jury box with jurors “eating candy”, moving around the courtroom, and sitting in various chairs during witness testimony. He also allegedly looked outside of the courtroom windows during examination, and hugged the surgical partner of the defendant’s medical expert in front of the jury.

Given the judge’s actions, the Supreme Court of Louisiana ordered the matter be heard again in a new trial. Though a number of justices did choose to dissent, the majority said it was:

[C]onvinced that the trial judge’s actions resulted in a miscarriage of justice.

This isn’t the first time Ellender has engaged in some pretty questionable behaviour during his 23 years on the bench.

In 2004, the Loyola University graduate was suspended for one year without pay for attending a Halloween party in blackface, a prison jumpsuit and shackles. Ellender — who was admitted to the bar in 1971 — claimed that the costume was a joke, and while the justices agreed the controversial lawyer didn’t mean to insult black people, they ordered him to take a sociology course to help achieve “a greater understanding of racial sensitivity”.

A pretty major cock-up on all accounts, but in 2007 Ellender was suspended yet again, this time for growing impatient during a domestic abuse case involving a complainant seeking a restraining order against her husband. The judge, who retired in 2015, reportedly asked the parties why they didn’t file for divorce instead of “go through this crap”, comments that left him with a 30-day suspension and a $185 fine.

It seems Ellender has well and truly completed the hat-trick with his latest antics.

(June 2 2016 Legal Cheek)

這種新聞看起來像二次大戰後的荒誕劇, 戰後的破壞, 對傳統價值的重定, 人類站在十字街頭充滿迷惘。莊嚴的法庭, 在民主老大哥的國度, 可以縱容兒戲的小丑戲在聆訊期間發生, 而且是由主審法官做小丑。法官變成小丑, 法治還可以有甚麼質素? 他主審的案件只是判令重審, 而他本人並無丟了烏紗, 這泱泱大國, 法治笑話也確鬧出不少來。Legal Cheek完全沒有誇大, 下面一段是直接引自該案上訴的判辭其中一個法官的講法:

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy - all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury decision of this court, finding plaintiffs are entitled to a new trial. I write separately to emphasize the unprofessional and inappropriate nature of the trial judge’s behavior in this case.

為甚麼我時常在罵狗黨? 為何我不斷為公平、公正執着? 當社會裏掌權的人的權力不受制衡就一定有濫權的事發生, 對我們週遭不公濫權的事沉默的人, 日後當為無知付出代價, 為朋黨作倀的人, 還會為這些人開脫的人, 恬不知恥, 造就了濫權肆虐, 成為幫兇。矯扭造作, 虛偽狡猾, 充滿語言偽術的人, 一眼就看得出來, 只是很多人刻意視若無睹。如果我身旁有這種人, 我一定會羞與為伍。有時你確奈何他們不得, 只能夠徹底的鄙視這些人, 你可以俯視他們, 他們卻不能仰望你, 這就是正與邪的分別。以譚耀宗在公院插隊割瘜肉為例, 他除了躹躬致歉, 根本不能堂堂正正解釋整件事的過程, 木訥出於言拙。雖然這都看似小事, 行李風波言猶在耳, 諷刺地有揭之不盡的秘密, 所以有道之不盡的歉語。這就是我不斷講防微杜漸, 姑息養奸的因由。不過, 社會總是充斥着充滿油腔的人, 油腔舐得人甜蜜蜜, 像一條走狗在舐主人的腿, 狗尾巴拚命的擺動, 忠言卻一向都逆耳。

香港不會有像美國那位法官的小丑行徑出現, 有濫權瀆職的法官也會烏紗不保。酗酒的不計算, 在法庭內公然的unprofessional and inappropriate behaviours, 以我所知最後的一宗是20多年前的 O'Dea事件。此君當年是火箭人, 40多歲就坐上高院, 在審理「案中案」時公然拿小說出來看, 那「案中案」涉及被告的警誡口供(cautioned statement)可否呈堂的爭論。最後, 他審的案trial de novo, O'Dea表面上是辭官歸故里, 實在是炒了魷魚。

也許我陳腔濫調和長氣, 我再次奉勸那些肆意以政治攻擊法治的香港人, 別身在福中不知福。