Several years ago, the Clerk’s office received a scribbled piece of paper from a prisoner that was in response to an adverse ruling I had made. The Clerk’s office appropriately treated it as a motion. The motion concluded with the words: “Fuck you!”* In response to the motion, I drafted an order stating that “the ‘Fuck You’ motion is denied with a hearty ‘you too.'”
I sent the order for filing, but my “taste and decorum committee” strongly recommended that I reconsider. They asked me to put myself in the position of the prisoner and then ask myself how the prisoner would feel upon receiving my sarcastic order. I pulled the order.
On another occasion, I was in the process of sentencing a young Native American for an offense that had taken place on the reservation. (Parenthetically, if you want to see what its like to live in hell, spend time in “Indian Country.”) I had informed the lawyers that I was considering an upward departure or variance. My upward departure/variance suggestion was met with strong opposition from zealous defense counsel as well as the the fair-minded prosecutor. While considering the motion, and during a heated exchange with counsel, I harshly and sardonically described the young man and his conduct.
When given the opportunity to speak prior to sentencing, the kid seemed nearly in tears. He was not scared of more prison time, he was angry at me for describing him in ways he thought were unfair. After listening to the boy, I decided to follow the recommendations of the lawyers and I gave what amounted to a “time served” sentence. But, the young man’s injured reaction to my words hangs with me still.
Now, why do I write this post? It is true that the role of the trial judge frequently calls for the use of unvarnished language, and humor can be an excellent way of punctuating the point. However, there are human beings on the receiving end of those words. In lots of cases, those human beings confront lives that few of us on the federal bench can imagine and, when they appear before us, they are powerless.
Lesson learned (and still learning): Control your inner smart ass. Sometimes, saying nothing is quite sufficient.
*For more on this word and its legal significance, see Christopher M. Fairman, Fuck, 28 Cardozo L. Rev. 1711 (2007).