On matters of perspective and toilets

As a district judge, and a senior district judge at that, I admit that my perspective on what is important is skewed.  That admitted, I find United States v. Strong, No. 12-1842 (1st Cir., July 19, 2013) utterly mystifying and amazing.

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in a more malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages.  Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.

RGK

PS.  Thanks to How Appealing (July 23, 2013).

19 responses

  1. Dear Rich,

    After reading your blog entry today about the toilet vandal, as well as the link to the earlier entry (both of which made me laugh and cringe), I was reminded of one of our in-chambers toilet incidents.

    Early on, my staff developed the practice of using other facilities when I’m at my desk, but feeling free to use the judicial toilet when I’m on the bench or otherwise out of my office. (Kids hanging out in chambers after school never did understand that it was a judge’s toilet.) One day when I came in to chambers from the bench, I found that someone had used the toilet and it was completely clogged with crap. Janet called the GSA crew to come up with plungers and get it to flush. After the crew finished its work, the lead handyman poked his head in my office, smiled discretely, and said, “Don’t worry, Judge, we got it working for you again.” I realized he assumed it was my exclusive toilet, and I wanted to say, “It wasn’t me! I didn’t do it!” But I just smiled and thanked him. Some things are too complicated to explain.

    Keep writing. I now look forward to your daily emails.

    Laurie

    • Dear Chief,

      Great story!

      By the way, I will keep this in my hip pocket ready to remind you of it at the exact right time. Toilet stories are like that.

      All the best.

      Rich

  2. RIch, OK, somehow this reminds me of the WORST thing I ever did as a clerk for AMK (or maybe the best — you pick). Some poor schmuck defense lawyer was at the end of his wits at the end of a 50 day criminal trial (something like that). It was clear from the record that everyone hated everyone by the end of the trial. The District Judge hated both lawyers, a feeling that was generously reciprocated. The defense lawyer and the AUSA REALLY hated each other. The District Judge barked out something about the next guy to object during closing is going to be held in contempt. The AUSA made some (alleged) misrepresentation during closing that the defense lawyer found objectionable. So defense counsel slammed down his pen (imagine the horror) and objected, and the District Judge immediately found him in criminal contempt. I had this lousy case. I looked carefully at the record, and I actually thought the defense lawyer had a pretty good objection (not bullet proof, but pretty good). Plus the District Judge hadn’t made the findings on the record necessary for criminal contempt (which is no small matter, given that the District Judge is literally judge, jury and prosecutor).

    So anyway, I wrote a little opinion, not for publication, reversing the District Judge on the narrowest grounds possible. So I showed it to AMK, who is a quite decent human being. He starts to moan about how the circuit conference is coming up, and if he reverses a District Judge on a contempt issue, he’s going to hear about it at the conference,. So I said: “OK, let me write an opinion affirming the District Judge, and you pick.” Great, he said.

    So I shoved the draft opinion in my desk drawer until after the circuit conference. Then I showed him (basically) the same opinion that I drafted the first time. He said “That’s fine.” And so he issued about a four sentence opinion reversing the District Judge on very narrow grounds.

    Honestly, we all knew it was the right thing to do. In my inflated clerk’s opinion, maybe I could convince myself that I affected the result, but that wasn’t really was going on. He knew that he had to reverse. He just wanted to do it 11 months before the conference instead of 1 month. And that’s OK, because law is a human endeavor.

    As far as spending 57 pages on the condition of a toilet, well, I guess I’m glad I didn’t get that case. Best, Pat.

    • Pat,

      What a wonderful story that perfectly captures the decency of Justice Kennedy and also the truth that judges really do think in very human terms.

      As for the 57-page toilet case, the judges on that panel are great judges. I presume their clerks are smarter than hell too. In comparison to your very practical approach for Justice Kennedy, what the 1st Circuit case illustrates to me is that we judges can easily go blind to common sense. Someone should have said, “Bull shit [or, given the facts, perhaps not that precise word], let’s write a one page majority opinion and a one page dissent, we won’t publish either one and we will then go on to something more important.” The world would still be safe for democracy, and all of us would have been spared the task of reading about “chunks” of feces.

      All the best.

      RGK

      • Now that I have actually read this fool opinion, something like this:

        NOT FOR PUBLICATION

        Per curiam: Defendant Ronald Strong was convicted after a bench trial on counts of willfully damaging federal property, creating a hazard on federal property, and creating a nuisance on federal property, after an incident on May 24, 2011 at the federal courthouse in Portland, Maine. No good end is served by recounting in detail the nature of the incident; it is adequately described in the record. Strong was sentenced to 7 days in jail on each count, with the sentences to run concurrently. Strong raises two challenges to his conviction. The first is that the government did not prove that there were statutorily prescribed postings of warnings necessary to sustain each offense. We find that the posted warnings substantially complied with the statutes. The second is that the evidence is insufficient to establish the mens rea of the offenses. We, of course, review the evidence in the light most favorable to the verdict. Seen in that light, the evidence sufficed. The judgment of the District Court is affirmed.

        Torruella, Circuit Judge, dissenting:

        I would reverse the conviction on both of the grounds urged by the appellant. In my view, the government must prove strict, not merely substantial, compliance with the posting requirements. Even if substantial compliance were the standard, I would hold that the postings did not amount to substantial compliance. I also believe that the evidence — even resolving all credibility issues in favor of the government — was insufficient to show that the appellant had the mental state necessary to be convicted. I respectfully dissent.

        • Pat,

          Your proposed opinion and dissent are masterpieces! Sometimes I think the federal judiciary is the least dangerous branch largely because it insists on being the most irrelevant.

          All the best.

          RGK

          • It’s like riding a unicycle, which I actually do ride. If I’m in a particularly good mood, I’ll even share video of me doing this. I also juggle and can balance heavy objects on one finger. So if this gig doesn’t work out, there’s always the circus. Before the last commencement at Creighton, I commandeered the University’s ceremonial mace and was balancing it on one finger in the robing room. Poor Fr. Lannon was about to yell at me, but then got worried that this would cause me to drop it. So he just stood there agape until I put it back in its holder. Then in my best Joker voice said: “Why . . . so . . . serious?” I think I thought it was funnier than he did.

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  4. I have read the decision and feel it is unjust. The clincher is the picture of the bathroom, showing it is a very small room. All the rhetoric about 75% of the floor being dirty pales into insignificance when one sees what a small room it is.

    • Dear Richard,

      If you had to clean that bathroom, your view might be different. But, frankly, I have no opinion on whether the decision was just or unjust. I do think, however, that the judges acted foolishly when they devoted so much time, money and effort to this inconsequential matter.

      All the best.

      RGK

    • Richard, I can make it look just as nice the other way around:

      NOT FOR PUBLICATION

      Per curiam: Defendant Ronald Strong was convicted after a bench trial on counts of willfully damaging federal property, creating a hazard on federal property, and creating a nuisance on federal property, after an incident on May 24, 2011 at the federal courthouse in Portland, Maine. No good end is served by recounting in detail the nature of the incident; it is adequately described in the record. Strong was sentenced to 7 days in jail on each count, with the sentences to run concurrently. Strong raises two challenges to his conviction. The first is that the government did not prove that there were statutorily prescribed postings of warnings necessary to sustain each offense. We find that the posted warnings substantially complied with the statutes. The second is that the evidence is insufficient to establish the mens rea of the offenses. The government must prove each element of the offense beyond a reasonable doubt. All parties agree that the posted warnings did not strictly comply with the statute. Therefore the conviction cannot be sustained. In light of this we need not reach the second challenge to the conviction. The District Court is reversed and the case is remanded with instructions to enter a judgment of acquittal.

      Lynch, Chief Judge, dissenting:

      I would affirm the conviction. On appeal, we must view the evidence in the light most favorable to the verdict. Below it was undisputed that Strong had actual notice and the posting of the notices substantially complied with the statute. Viewing this evidence most favorably to the verdict, the government’s proof sufficed. As to whether Strong had the requisite mental state for each of the three crimes, this is an issue of credibility that we are without power to disturb on appeal. The evidence was sufficient to sustain the convictions. I respectfully dissent.

      • Indeed.

        Edit:

        Pat, I edited this comment. On the First Circuit, I should have referred to Chief Judge Sandra Lynch rather than Judge Gerald Lynch of the Second Circuit.

        Apparently,I don’t know the difference between New York and Boston. The more I think about my mistake, the more sense it makes to me.

        RGK

  5. Judge Kopf:

    I, too, have no comment on whether the appellate result was proper. But I resent the whole case because, as a result of your posting about it here and the comments of your black-robed colleagues, I now have to confront one of the myths I’ve held to throughout my career as a lawyer: judges do apparently use bathrooms just like the rest of us.

    Thanks for your interesting and entertaining blog (including the delightful photos of you and your littlest law clerks).

    DRF

    • David,

      I apologize for adversely impacting your psycho-sexual adjustment to all things “bathroom.” That said, thanks for your kind words.

      All the best.

      RGK

  6. Apology accepted, Judge, except that now I have to perseverate on the fact that an Article-III judge has referred publicly to my “psycho-sexual adjustment.” As your colleagues on the Third Circuit and the Middle District of Pennsylvania will tell you forthrightly, I am ill adjusted in most every way.

    • David, my friend, I do all that I can to help! All the best.

      RGK

      PS I have the name of a very good therapist. Of course, not for me.

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