The local bar association gives you one when their president puts the black robe on you after you have spent a a ton of money to get elected to the bench. It is a gavel. For most judges, it sits on their bench as a symbol of authority and gathers dust over the years. Mine, a modest mid-sized wooden mallet, did just that. It was a good paper weight and simply a reminder of the day I was sworn in as a trial level judge in Jefferson Parish, Louisiana.
The imaginative folks who make movies and TV shows seem to believe the gavel is an essential tool for maintaining order in a courtroom. We see judges turning scarlet with anger, banging a gavel the size of croquette mallets and shouting at the top of his or her lungs, “Order in court. Order in court. If I don’t get order in court I will clear out my courtroom.” These dramatic renditions remind me of the childhood limerick that goes something like this, “Order in court. The judge has got to spit. All that can’t swim better run.”
Another pet peeve I have is how fantasy land illustrates the houses judges live in. In the movies and on TV judges live in palatial mansions. The judges I have known including myself, with rare exception, were not wealthy and lived in ordinary homes.
Well, I am here to tell you that banging on a gavel is just not the way things really play out in a courtroom. If a judge has let things get to this state of affairs, he or she has already lost control of the proceedings before them. And excluding the public from a trial is antithetical to the principles of our judicial system. FISA courts seem to be the only judicial systems we are willing to let operate in secret.
When on vacation in Costa Rica, I discovered that citizens of other countries have this illusion about judges. Even Carlos, the eight-year old Costa Rican son of the owner at the Lookout Lodge in the jungles of the Osa Peninsula asked me in Spanish, “Did you use the ‘mantilla’ (little hammer) to hit lawyers who were fighting in court?”
I told him, “Most judges I knew used their pens to keep order. When necessary, they tapped them vigorously on the bench or pointed them at rowdy attorneys.”
“Con su pluma?” (With your writing pen?), the lad inquired in disbelief. The properly used pen kept order in my courtroom and most courtrooms I frequented. Besides, the light, frail little mallet was no match for the hard head of some lawyer in full rage.
Judge J. Bernard Cocke broke a lot of ballpoint pens fighting with attorneys and witnesses. Socially, Cocke could be Prince Charming, especially in the presence of women. When off the bench, he played Falstaff and other characters in Shakespearean plays. His rotund physique especially lent itself to portray Falstaff. When dealing with quarreling attorneys, Judge Cocke assumed a less cordial persona. The undisputed authority on Louisiana Criminal law, Cocke spent forty years in the criminal courts of New Orleans as the District Attorney and a Judge. He knew every trick in the book and could smell a lie before it fell from a witness’s lips.
Once, Defense Attorney Ralph Barnett brought a motion to suppress evidence in Cocke’s court. The evidence, consisting of illegal drugs, had been obtained by a young, arrogant deputy sheriff on the Narcotics Squad. As Assistant District Attorney assigned to the case, I interviewed the young deputy in preparation for the hearing. He told me, “The suspect gave me permission to open the trunk of his car after I pulled him over for faulty taillights.”
“Are you telling me that Randy Russo, a known drug dealer, just gave you permission to search for drugs in his car without any dispute?” I asked the hapless young deputy. I further attempted to warn him, “And that is what you are going to tell Judge Cocke?”
“That’s the way it went down,” he insisted. I figured that it was about time to throw the over-eager, self assured, young narcotics cop into Judge Cocke’s lion’s den.
The hearing took place after Cocke had his customary lunch of a Mrs. Drake sandwich from the coffee stand and a few slugs of Old Commisky whiskey from a half-pint fruit jar which he kept in his chambers. This practice caused him to appear to be napping on the bench in the afternoon, but most of the time he heard and fully understood every word a witness said.
At another instance in Cocke’s courtroom, attorney Bobby Broussard and I were arguing a motion before Cocke in the afternoon when the good judge went dead asleep and started snoring. Bobby looked at me and said, “He is asleep. Wake him up.”
“Hell no,” I responded. “It’s your motion. You wake him up.” Bobby dropped a pile of heavy law books on the table in front of us, bringing the judge back from the land of Morpheus.
But on this day with Ralph, the young narcotics cop was not so lucky. While appearing to be dozing, Cocke heard every preposterous word the deputy said under oath.
Cocke came alive with rage, grabbed the nearest pen available, waggled it menacingly in the face of the young officer and snarled, “You are a damn liar, you little punk. I know Randy Russo and his whole good-for-nothing, drug dealing family. There is no way he gave you permission to search his car without a warrant.”
Cocke then turned his wrath on me, pointing the pen and saying, “And you, Mr. D.A., if you had any genitalia, (except he was much more explicit in describing my private parts) you would charge this little liar with perjury.”
I didn’t charge the prevaricator with perjury. I figured Cocke’s tirade shook the young deputy so badly he would probably not dare play fast and loose with the truth in the future.
With all due respect to the creators of TV shows and movies, I am here to tell you that not only is the pen is more mighty than the sword, it is much more effective than a ceremonial gavel.