Marc Bookman and “The pot calling the kettle black”

Marc Bookman was the moving force behind the ethics complaint against Judge Jones. A friend of this blog and a civil litigator, who has no interest in the Jones dispute, brought to my attention that the United States Supreme Court has recently referred to disciplinary authorities alleged misconduct of Mr. Bookman in a death penalty case.

The venerable Lyle Denniston wrote about Mr. Bookman’s problem in August of this year. See Lyle Denniston, Court hands off feud about murder appeal (August 11th, 2014) (discussing allegation that defendant facing the death penalty did not authorize Bookman to file petition with the Supreme Court and the order the Court entered dismissing the petition but referring the claim against Mr. Bookman to state disciplinary authorities).

I stress that I have no idea whether Mr. Bookman did anything wrong. But, adages abound, among them: “What goes around comes around.”


11 responses

  1. But the big picture here is that Judge Jones had to defend an ethics complaint filed by this guy Bookman after she gave a speech. How much is she out of pocket? $30k?

  2. “Karma” comes to mind. Or, is this a kind of “justice”? There is that pesky concept (justice) that was recently discussed at some length below in this blog.

    Obviously, I don’t know this Bookman fellow either, but I’m betting there are many who know him probably think he is “the south end of a horse going north”. I actually told an opposing counsel to stop acting like the south end of that horse during a particularly difficult deposition in a railroad case. It took him awhile to get it – he was a big city, Gucci-footed fellow who thought this country boy was nuts. The deponent, an Omaha neurologist, just smiled. . . . . .

  3. Hard to see how Bookman is at fault here. If one of the PDs representing Ballard told him that he had authorized the appeal, it is as if Ballard had spoken himself. Assuming Ballard was quoted accurately in “saying he did not want to die,” and the only practical way to avoid it was to appeal to SCOTUS, he was not ‘on notice’ that Ballard had not authorized it.

    But it looks like Ballard will be around for at least five years, in any event. Seems he is going to challenge the constitutionality of the method of his execution: There’s more than one way to skin that cat [gratuitous use of well-worn adages intentional].

    I reviewed the complaint and Bookman affidavit, and channeled my inner Clara Peller: “Where’s the beef?” And given their performance over the years, disparagement of the Supreme Court is almost so soft as to qualify as a compliment. Maura Corrigan of Michigan’s Supreme Court (you want to see a cat-fight?) makes her look like a submissive, and if federal judges are obligated to enforce a high standard of conduct, you’d run out of rocks before you hit all deserving targets.

    If anything, the Bookman complaint exposes the infinitely elastic nature of the Code of Conduct. He can make an argument for his position, even though he probably shouldn’t.

  4. Nothing. Whereas representation insurance in disciplinary complaints tends to be woefully inadequate (the attorney often appears pro se, and at great opportunity cost), her defense would be paid for by the government, and the only time she spent is time she would otherwise spend reviewing appellate briefs (something they don’t do anyway).

  5. I recall that before he discovered the Lonely Crowd and sociology while still a law prof, David Riesman wrote a long study of the abuses of legal actions and complaints in the bitter cultural battles in Europe in the years leading up to WWII, each side saw their opponents as evil to be destroyed, Carl Schmitt’s other. Last few days of this blog reminded me of that article and of Schmitt. In a famous English riot cases in the mid 19th century the Judge borrowed from Blake to describe the defendants as that little crew of errant saints who all men acknowledge the true church militant. The description fits Bookman, I suspect it fits Judge Jones, and I am afraid Judge that you and I may have taken a pew. I will continue repenting.

  6. repenting lawyer,

    I hope that last part of your statement is incorrect, but it rings true enough that it bothers me. All I can say is that if take a pew, I damn sure will not open the hymnal (unless we are singing “Amazing Grace”).

    All the best.


  7. I concur. Complaints like these do a grave disservice to the legal system.

    Section 351 appears to be a way for aggrieved litigants to complain of heavy-handed and even illegal behavior by federal judges, which may not rise to the level of an impeachable offense (see Emory Speer). Judges have interpreted ‘congressional intent’ out of the law (as they always do when they don’t like it very much), and what we are left with is a procession of complaints like these. The system is feckless, which is why judges like it so much.

    Scalia put it best: “What are they going to do? I have life tenure.” Even filing such a complaint appears to be a waste of time. Only a culture warrior would bother to complain about these kinds of “wars on Christmas.”

  8. Judge, Newton preached only on double predestination and drove Cowper nuts and Willie Nelson owns that hymn, singing not required on the anxious bench.

  9. I know Bookman. He’s one of the most respected capital trial lawyers in the country. There are some ethically-challenged defense-bar clowns: Bookman emphatically is not one of them.

    Folks can draw their own conclusions about these two incidents, and some will decide he was wrong both times. Fine.

    But the guy has a track record. In his Court-ordered response, he wrote, “I have never faced an allegation of a disciplinary breach in more than thirty years of practice.” That’s relevant here.

    And if you asked 100 leading capital defense lawyers whether what Bookman did in the Ballard case was right–not just “not unethical,” but right–I bet at least 95 of them would say it was. That’s relevant, too.

    And you may think Bookman was “the moving force” behind the complaint, but what I know is that the complaint was signed by the former chair of the ABA Commission to Revise the Model Code of Judicial Conduct, a past president of the Association of Professional Responsibility Lawyers, and the author of West’s ethics hornbook, Modern Legal Ethics, among many others. So the idea that this complaint was the sinister act of one wingnut is a tough sell.

    If you have “no idea whether Bookman did anything wrong” in Ballard, then why use your very large megaphone to declare he had it coming? What a lazy cheap-shot.

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