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Kooks, Crooks, Brutes, or

Rhadamanthine Opacities: Some


Thoughts on the Depiction of Judges in
Popular Fiction

MICHAEL A. PONSOR∗

L
ike many cherished products of the human imagination—
democracy and romantic love come to mind—the independent
judiciary is painfully easy to lampoon. In popular fiction, the
trial judge, the system’s central figure and embodiment, is
regularly depicted as eccentric, corrupt, or vicious. Since healthy courts,
with respected judges as guardians of liberty, mark the difference between
a free people and a tyranny, this cynicism is troubling.
It is also odd. In the United States we have, in fact, a fairly honest and
competent judiciary. For a large, diverse nation, we dispense justice about
as well as any country, and better than most. The gravest problems
suffered by our legal system are structural: inadequate funding, ill-
considered statutes, crumbling facilities, limited access to legal
representation by the poor, to name a few. Judges, on the whole, face these
challenges, most of which are outside their control, with energy and often
extraordinary dedication.
No judiciary, including ours, is perfect. All judges make mistakes, and
instances of chronic incompetence do exist, as well as occasions of bald
corruption. But these are exceptions. Overwhelmingly, judges in our
country are doing their difficult jobs fairly well. Not surprisingly, opinion
polls consistently rank the judicial branch of our tripartite republic well
above the executive and the legislative branches in respect and approval.
Contemporary fiction, moreover, is not without nuanced portraits of
the judiciary. The British author Ian McEwan presents a complex portrait
of High Court Judge Fiona May in his excellent novel The Children Act.1 A

* Senior U.S. District Judge, District of Massachusetts. Author of The Hanging Judge and The
One-Eyed Judge.
1 IAN MCEWAN, THE CHILDREN ACT (2014).

227
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surprisingly broad swath of popular fiction, however, treats the woman or


man in the robe pretty shabbily. Judges in contemporary novels often tend
to fall into various unattractive categories: the intoxicated or unethical
oddball, the crook, or the slavering brute. A few examples may give
literary flesh to these models.
In John Grisham’s brilliant first novel, A Time to Kill, the Mississippi
County Court Judge Percy Bullard appears as “a small, nervous type who
worried about preliminary hearings and every other routine hearing.”2
Among other gross ethical violations, Judge Bullard meets privately with
the prosecutor to receive advice on the amount of bail he should set for two
defendants. In the courtroom, we get this scene:
From the bench Bullard counted deputies—nine in all.
That had to be a record. Then he counted blacks—
hundreds of them all bunched together, all glaring at the
two rapists, who sat at the same table between their
lawyers. The vodka felt good. He took a sip of what
appeared to be ice water from a Styrofoam cup and
managed a slight grin. It burned slowly downward and his
cheeks flushed. What he ought to do was throw the
deputies out of the courtroom and Cobb and Willard to the
niggers. That would be fun to watch, and justice would be
served.3
This is entertaining for some readers perhaps, but from a judge’s
viewpoint, it is hardly flattering. No one who reads popular crime novels,
watches crime shows on television, or goes to movies focusing on the
courtroom will have any trouble recognizing this type.
A milder version of the eccentric jurist is Judge John Taylor in Harper
Lee’s iconic novel To Kill a Mockingbird.4 Taylor puts his feet on the bench,
calls attorneys and witnesses by their first names, appears to fall asleep,
and, while presiding, pares his fingernails and steadily eats—without ever
lighting—his cigar. He has a very loose notion of the rules of evidence and
orders the court reporter to expunge from the record any comments of his
that might get him in trouble with the court of appeals. At age seventy, we
are told, he rarely kisses his wife. Maybe it is his breath.
Often the fictional judge is spiced up with a hint, or sometimes more
than a hint, of corruption. The picture of the Mississippi Circuit Judge—the
higher-echelon trial court judge who eventually presides at the trial of the
central character in A Time to Kill—is a fair example:

2 JOHN GRISHAM, A TIME TO KILL 49 (1993).


3 Id. at 63–64.
4 HARPER LEE, TO KILL A MOCKINGBIRD (1960).
2017 Kooks, Crooks, Brutes, or Rhadamanthine Opacities 229

The Honorable Omar Noose had not always been so


honorable . . . . Five terms in the Mississippi Legislature
had corrupted him and taught him the art of political
swindling and manipulation.5
Noose has made his way to the bench after being defeated in a
legislative race and has wobbled onto the straight and narrow:
Repentant, reformed, and very humbled by his rapid
descent from power, Judge Noose applied himself to the
study of the law, and after a shaky start, grew to the job. It
paid sixty thousand a year, so he could afford to be
honest.6
Judge Noose, though perhaps reformed, is nonetheless distinctly odd:
He was quiet but charming, patient but strict, and he had a
huge monument of a nose that was very long and very
pointed and served as a throne for his black-rimmed,
octagon-shaped reading glasses, which he wore constantly
but never used. His nose, plus his tall, gawky frame, plus
his wild, untamed, dense gray hair, plus his squeaky voice,
had given rise to his secret nickname, whispered among
lawyers, of Ichabod. Ichabod Noose. The Honorable
Ichabod Noose.7
The Whistler, John Grisham’s most recent novel and a superb page-
turner, features Claudia McDover, a Florida state court judge who is
rightly described as “the most corrupt judge in American history.”8 Her
mafia-related bribery pay-offs have her almost literally dripping with
diamonds and pearls—not to mention condos, designer clothing, and
private airplanes.
The judge in Scott Turow’s blockbuster Presumed Innocent fits into this
broad pattern of fictional mendacity. Judge Larren Lyttle is “handsome,
mercurial, extraordinarily prepossessing . . . six foot four or five and broad
across.”9 As the plot unfolds, it emerges that Judge Lyttle has previously
enjoyed a clandestine affair with the murder victim in the trial he is
presiding over. What is more, the victim was a prosecutor who regularly
appeared before him while they were romantically involved and who, at
the same time, was acting as a courier for bribes. Eventually, Lyttle grants
the defendant (and narrator) Rusty Sabich’s motion for a directed verdict—
an unappealable ruling—at least in part to keep Lyttle’s personal scandal
out of the public eye. Since Sabich is innocent, substantive justice prevails,

5 GRISHAM, supra note 2, at 117.


6 Id.
7 Id. at 117–18.
8 JOHN GRISHAM, THE WHISTLER 359 (2016).

9 SCOTT TUROW, PRESUMED INNOCENT 202 (1987).


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but the process is a travesty.


Innocent, Turow’s sequel to Presumed Innocent, takes place twenty years
later.10 Sabich has himself ascended to the bench. Like Judge Lyttle, he is a
sympathetic man who is morally compromised. He is adulterous (sleeps
with his son’s eventual wife), unethical (communicates ex parte with a
defendant), and, in the end, felonious (pleads guilty to obstruction of
justice).
In addition to eccentricity or corruption, another quality that can spice
up a judge is brutality. One good example is Judge Isaac C. Parker, who
appears in Charles Portis’s wonderful novel True Grit.11 Judge Parker is
modeled on an actual judge of the same name, who sat in the Western
District of Arkansas and earned the sobriquet “the hanging judge” for
sentencing 160 people to death during his twenty-one years on the bench.
Portis describes Parker as a “tall big man with blue eyes and a brown billy
goat beard.”12 Judge Parker hates interference from Washington,
particularly the frequent reversals emanating from the Supreme Court. The
Solicitor General, however, characterizes Parker as “too hard and high-
handed and too longwinded in his jury charges” and refers to the judge’s
court as “the Parker slaughterhouse.”13
While the Arkansan Judge Parker actually was a hanging judge, few
judges in real life are floridly eccentric, corrupt, or sadistic. These types
exist, perhaps, but the number of real-life judges who fall into these
categories is far fewer than in popular fiction. Why is this?
One answer may be that the judge is an authority figure, an awe-and-
hatred-inspiring psychological archetype lurking in the shadows of nearly
everyone’s consciousness. The temptation to pull the nose of any character
in this role is almost irresistible.
Another explanation for judicial caricature can be found in the tension
between the demands of an invented narrative and the realities of the
courtroom. Real judges, at least while they are on the bench, are for the
most part boring—and boring on purpose. People come to court for justice,
not entertainment (this is one of the reasons I remain unfashionably
skeptical about television in the courtroom). A nutty, terrifying, or immoral
judge, however rare in real life, can go a long way to help structure a plot
or perk up a flaccid story line.
The drift toward cartooning judges in fiction is probably inevitable. For
hours at a time during a real-life trial, the typical judge will offer little more

10 SCOTT TUROW, INNOCENT (2010).

11 CHARLES PORTIS, TRUE GRIT (1968).

12 Id. at 42.
13 Id.
2017 Kooks, Crooks, Brutes, or Rhadamanthine Opacities 231

than an expressionless face, terse rulings, and the occasional interruption.


Rarely, the judge will bark—though not nearly as often as in fiction—or
hazard some droll remark. Amusing or dramatic moments in the real-life
courtroom are like chocolate chips in a bar of soap. An overly realistic
presentation of a legal proceeding will leave a reader chewing through
much that is indigestible for a pathetically small number of treats. In this
environment, the kooky fictional judge can take the role of the
Shakespearean rustic or clown, a key device to break the monotony of a
potentially tedious melodrama.
To sketch out a courtroom scene, the novelist must confront the
Rhadamanthine opacity of the man or woman on the bench.
Rhadamanthus—the son of Zeus and Europa—was a demi-god of
unbending integrity, and eventually one of the judges of the dead in the
underworld.14 He is never depicted as corrupt, eccentric, or tipsy. On the
other hand, Rhadamanthus is not exactly human either. Half divine, he is a
machine for abstract justice, unburdened by any ambivalence about his job,
or apparently any emotional life at all.
Viewed from the outside, many real-life judges may appear to have a
little of this impenetrability. In a novel, this quality may actually be an
important thematic element. Judge Taylor in To Kill A Mockingbird, with his
many unorthodox mannerisms, provides an excellent example of this. For
all his charmingly rendered foibles, the reader never learns, beyond the
vaguest hints, what Judge Taylor is feeling. His opacity reflects a central
dilemma of the novel—just what does this apparently decent man actually
think of the racist, judicially sanctioned murder of the innocent black
defendant, Tom Robinson? How does a supposedly conscientious judge
like John Taylor justify his own implicit connivance in this brutal, utterly
transparent miscarriage of justice? Taylor’s good-old-boy quirks obscure
this ugly reality and divert the reader’s attention from it. His inscrutability
takes the legal system, the author, and, to some extent, the reader, off the
hook and usefully parallels a similar reserve in the sweet-natured defense
lawyer, Atticus Finch, the narrator’s father.
Judge William Amador, in Professor Alafair Burke’s fine thriller The
Ex,15 has a bit of the Rhadamanthine flavor, with some adroitly conveyed
touches that make him central to the architecture of the plot. Amador
forcefully protects the defendant’s rights both at the initial bail hearing and
during discovery, two key pivot points in the unfolding story. He is also
depicted, realistically, as clueless about what is really going on beneath the
surface of the formal legal proceedings—a position that any real-life judge

14 John Davidson, Rhadamanthys and the Family of Herakles, 68 L’ANTIQUITÉ CLASSIQUE 247,

247 (1999).
15 ALAFAIR BURKE, THE EX (2016).
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knows very well. At the hearing to reconsider the bail issue, Judge Amador
is described as looking like “a high school student trying to understand
advanced physics.”16 In this way, Professor Burke puts the reader in the
ironic, and satisfying, position of knowing more than the judge, who is
titularly in charge of the process. The judge in The Ex is not developed as a
character—there is no need—but he marks some of the major transitions
and conflicts in the novel.
The problem a writer faces in drawing the character of a judge in
fiction exemplifies the difficulty he confronts when attempting to describe
the legal system generally. Competently written narratives—i.e., good
stories—need to be reasonably simple and credibly vivid. Real-life court
cases tend to be neither. A writer of so-called “court procedurals” cannot
depict the judicial process with literal accuracy without losing the reader.
A small example drawn from the overlap between my own real
professional life and my fiction writing may help make this clear.
In my novel, The Hanging Judge,17 the defendant Clarence “Moon”
Hudson is represented by a crusty old Boston Brahmin named Bill
Redpath. The Assistant U.S. Attorney prosecuting Hudson is Lydia
Gomez-Larsen, a much younger, first-generation Cuban-American. The
relationship between Redpath and Gomez-Larsen, and its evolution from
mutual hostility to grudging respect, is one of the engines that drives the
plot.
Now, in a real-life federal death penalty case—and certainly in the
actual capital trial I presided over—neither the defense nor the prosecution
would ever go to trial with just one attorney on each side. In fact, as a
matter of statute, defendants in capital cases in federal court are entitled to
at least two attorneys.18 In my real-life case, United States v. Gilbert,19 the
defendant actually had four lawyers, and the prosecution had two plus the
case agent.
Crafting a fictional narrative about a death penalty trial that included
this many attorneys would have been a technical nightmare. Simple
geometry demonstrates the difficulty. With one attorney on each side, I had
two characters to draw (call them A and B) and one relationship to sketch
out (call it AB). If I had included even two lawyers on each side, I would
have had four characters to develop (A, B, C, and D). These four characters

16 BURKE, supra note 15, at 259.


17 MICHAEL PONSOR, THE HANGING JUDGE (2013).
18 18 U.S.C. § 3005 (2012).
19 United States v. Gilbert, 120 F. Supp. 2d 147 (D. Mass. 2000).
2017 Kooks, Crooks, Brutes, or Rhadamanthine Opacities 233

would have needed genders, body types, speech patterns, and distinctive
traits to make them memorable. Even worse, I would have had six
relationships to work out (AB, AC, AD, BC, BD, and CD). Bringing these
relationships, including potential sexual relationships, to life would have
needed many pages, and all this effort would not have advanced the story
nearly enough to justify the reader’s investment. To create a readable
novel, reality has to give way, to some extent, to the pressures of narrative.
As an aside, it must be noted that, unfortunately, some storytellers
handle a courtroom drama by more or less abandoning any effort to
replicate reality. The 2014 film The Judge features a courtroom scene that
strays so far from real life that it would have been laughable if it hadn’t
been so painful.20 Even the better courtroom dramas cut corners. I knew an
Assistant U.S. Attorney who governed himself by what he called his “10-
second” rule. If he could not think of a sustainable objection to any
question put by any attorney in any fictional courtroom within ten
seconds, he made himself re-read the Federal Rules of Evidence.
Of course, sometimes the depiction of a court is not intended to be
realistic. No one cares that the jury trial in Alice’s Adventures in
Wonderland21 is unorthodox or that the presiding Queen of Hearts is, to put
it mildly, a loony. Some novels and films take this parodic approach too,
and no one but a very overstuffed shirt would complain.
Most of the time, however, those of us who write fiction about the law,
and who know and respect the legal process, try to create a compelling
story without betraying too much of the courtroom’s actual substance and
atmosphere. As I have suggested, this is tricky. Even an outstanding non-
fiction book, like Jonathan Harr’s A Civil Action22—probably the best book
ever written about an actual piece of litigation—tests the writer’s skill in
managing the intricacies of the real-life case, including multiple parties,
bifurcation of issues, and byzantine settlement negotiations. Significantly,
for purposes of this article, A Civil Action also offers a particularly stark
example of the difficulties facing an author in presenting the figure of the
real-life judge. Harr’s rendering of the presiding judge, Walter J. Skinner,
remains undeveloped simply because, for ethical reasons, Judge Skinner
(unlike everyone else in the book) could not discuss the case directly with
the author. As a result, while the lawyers and parties appear in full
technicolor, Skinner comes across as disappointingly gray. In real life, off
the bench and away from his public duties, Judge Skinner was a complex
and delightful man, as well as a competent, conscientious judge.

20 THE JUDGE (WARNER BROS. PICTURES, 2014).

21 LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND (1865).


22 JONATHAN HARR, A CIVIL ACTION (1995).
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John Berendt’s Midnight in the Garden of Good and Evil,23 a non-fictional


presentation of a criminal case, is another good example of the difficulty of
depicting actual litigation in a manner that is both respectful of the process
and compelling. For all its excellent qualities, the narrative (for me, at least)
runs into heavy sledding as the author works through the multiple appeals
and remands of the actual case.
Our justice system is intricate and, for the most part, blessedly dull. It
can become fascinating for the people at the center of it—the parties, the
witnesses, the lawyers, the jurors, and the judge—but for the outsider a
real piece of litigation soon becomes drearily over-complex. If you doubt
this, try listening at a dinner party to someone coming off jury duty
describe the case she sat on, or try keeping up with someone who insists on
recounting the lawsuit he is involved in. Five minutes and the wandering
discourse becomes unbearable. For a fiction writer operating in this
landscape, a crackpot judge can be a life saver.
On another, perhaps deeper level, the depiction of the feet-of-clay
judge has, I think, a positive, or at least a very revealing, aspect. Unlike
Rhadamanthus, a flesh-and-blood judge is not a demigod. Justice, as I
noted at the outset, is an excruciatingly human construct. We featherless
bipeds have invented it, and we have the power—out of indolence,
stupidity, or fear—to destroy it. A reasonably fair legal system does not
arise on its own, and it certainly is not inevitable. Concepts like equal
protection and due process are creations of the human imagination and
float entirely on the strength of our continuing belief in them, and on our
sustained commitment to the values they express.
In the end, our most cherished principles flow from the same
reservoirs of imagination that produce our greatest works of art. It is,
perhaps, not so bad that popular fiction reminds us, even in clumsy ways,
that our judges, upon whose honesty and conscientiousness so much of our
system of liberty depends, most certainly are very real, very vulnerable,
and very human creatures.

23 JOHN BERENDT, MIDNIGHT IN THE GARDEN OF GOOD AND EVIL (1994).