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Beware Quoting the Beatles to a Judge:

The Daily Mail reports on an interesting judicial opinion from Montana. The judge asked Andrew McCormack, a Beatle-loving beer thief, what he thought his sentence should be.

He wrote: "Like the Beetles say, Let It Be". But his cheeky quip did not impress Gregory Todd, a 56-year-old district court judge in Montana.

In a sentencing memorandum Judge Todd first corrected McCormack's misspelling and then gave the defendant a lesson in The Beatles discography.

The judge produced a sentencing memorandum that cited 42 Beatles songs.

Henry (mail):
The sentencing memorandum was not funny or clever, and it is not appropriate or dignified for a judge in such circumstances to attempt to be funny or clever. At least he gave the defendant probation and community service; it would have been far more offensive if he'd written such a memorandum in the course of locking him up.
6.9.2007 10:37pm
Henry Schaffer (mail):
The sentencing memo seems appropriate to me. If the song titles hadn't been bold faced (i.e. if they weren't recognizeable as song titles) then this would have been a wordy avuncular scold. Perhaps not expectable from a judge, but pointing out what the defendant had done wrong and why punishment was appropriate.

Given the defendant's cheeky (inappropriate) memo, I don't see anything wrong with the judge's memo.

But IANAL. :-)
6.9.2007 10:48pm
Henry (mail):
I don't think that a judge should guide his style by a defendant's.
6.9.2007 10:51pm
BobVDV (mail):
It is said that the primary purpose of a judicial opinion is to explain to the losing party why it lost. Under this test, Beatles discography wins.
6.9.2007 11:19pm
SMatthewStolte (mail):
Nothing so far compares to the "Meet the Beat Alls" Episode of the Powerpuff Girls.

"Someday, Monkey won't play piano song, play piano song."

The monkey, of course, was Michelle (She lives at the zoo), who was pretending to be a performance criminal named Moko Jono in order to break up the Beat Alls.
6.9.2007 11:37pm
NYU 3L:
If it wasn't prompted by the situation, it would be out of line, but it seems appropriate when the Defendant tries to smart-mouth the judge. Judges should only play this type of game when prompted by the attorneys or parties, preferably to smack them into submission.
6.10.2007 12:35am
Erasmus (mail):
I don't think a judge's job should be to "smack [defendants] into submission." NYU3l, perhaps after you start to practice law you'll think differently.

I think opinions like this in criminal and immigration cases are completely inappropriate given the stakes. The "he started it" defense didn't work for me when I was ten, and I don't think it should work for this judge either.
6.10.2007 12:54am
Embarassed Montana Native (mail):
Henry said:


The sentencing memorandum was not funny or clever, and it is not appropriate or dignified for a judge in such circumstances to attempt to be funny or clever.

At least he gave the defendant probation and community service; it would have been far more offensive if he'd written such a memorandum in the course of locking him up.


Henry, I agree with you, it was not appropriate or dignified for a judge to write such a memorandum.

However, I believe this gentleman was probably on his way to being locked up, as the memorandum mentions a trip to "Deer Lodge" which is where the Montana State Prison is located.

Just fyi, kinda hard to tell from what was written exactly what the judge had in mind. :)
6.10.2007 1:07am
Justin (mail):
I think that was cute and clever. That being said, I think the person's sentence should be overturned, and the judge should be reprimanded or sanctioned, depending on whether this is the first time the judge chose cleverness over his job.

While the rest of us get a laugh, the defendant in this case is spending x time for the crime he committed, and y time on top of that because of the judge's ego and boredom. That y time is an injustice.
6.10.2007 2:14am
Apollo (mail):
He broke into a store to steal an 18 pack of Old Milwaukee? Life in Montana must really suck.
6.10.2007 2:20am
anym avey (mail):
Reprimanded? Sanctioned? To quote Superintendent Chalmers, "The rod up that man's butt must have a rod up its butt." As if this kind of thing is unheard of:

http://www.lawhaha.com/

IIRC, not all of the anecdotes in there are completely worksafe, but in between those there are some genuine howlers.
6.10.2007 2:46am
NYU 3L:

I don't think a judge's job should be to "smack [defendants] into submission." NYU3l, perhaps after you start to practice law you'll think differently.


Submission wasn't quite the word I wanted to use--more "smack some sense into them". If you're going to act like an ass in court, don't be surprised when the judge fires back. It seems nicer than a contempt citation, anyways.
6.10.2007 4:54am
Henry (mail):
The final sentence in the article that the post links to states, "In McCormack's sentencing he received probation, a community service order and a fine." I don't know how to reconcile this with Embarrassed Montana Native's information that the memorandum mentions a trip to "Deer Lodge" which is where the Montana State Prison is located.
6.10.2007 6:56am
Eric Jablow (mail):
Had the defendant lived on a hill, by any chance?

Oddly, I remember a story in Playboy about a defendant who had been arrrested for disturbing the peace and interferening with a police investigation. He had been drinking in a bar, a policeman enters to ask questions about something that had occured earlier, and the man cried "Here come the f—ing cops!"

The judge found the man not guilty, but laid into him in his opinion, ending with quoting A Policeman's Lot is Not a Happy One, from The Pirates of Penzance.
6.10.2007 8:51am
ThePartyoftheFirstPart (mail) (www):
Not dignified? The same argument is always repeated whenever a judge tries to break free from the usual turgid legalese one finds in judicial orders. Like the Pennsylvania judge who was criticized by his brethren for issuing an opinion in a 2002 divorce case entirely in rhyme. Granted, this sort of thing can go too far, as when a Kansas judge sentenced a prostitute to prison with an opinion that began with this couplet:

On January 30th, nineteen seventy-four,
This lass agreed to work as a whore.

For that, the judge earned an official reprimand from the Kansas Supreme Court.
6.10.2007 8:51am
Henry (mail):
"Turgid legalese" is a straw man. Clear and flowing plain English can be dignified. And clever opinions -- rhyming or otherwise -- might be appropriate in some types of cases, but not generally in felony prosecutions.
6.10.2007 9:37am
tdi:
I think that was cute and clever. That being said, I think the person's sentence should be overturned, and the judge should be reprimanded or sanctioned, depending on whether this is the first time the judge chose cleverness over his job.

While the rest of us get a laugh, the defendant in this case is spending x time for the crime he committed, and y time on top of that because of the judge's ego and boredom. That y time is an injustice.


Read the accompanying newspaper article. The guy's NOT going to serve any time. All he got was probation and a fine.
6.10.2007 9:59am
Horatio (mail):

On January 30th, nineteen seventy-four,
This lass agreed to work as a whore.

For that, the judge earned an official reprimand from the Kansas Supreme Court.


You people are unbelievable. The KS Supreme Court should have given this judge an award for showing the world that a) judges can have a sense of humor, and b) get the job done by using humor.

This notion about decorum is absurd. Yes, I want a three ring circus in the courtroom. I want the judge as a neutral referee (ringmaster) and the attorneys presenting evidence and arguing on behalf of their clients anyway that works to their client's advantage - dance on one leg for all I care. Dress like a clown, ride a unicycle, walk on stilts and juggle while addressing the jury.

Get a life people and stop taking yourself and your profession so frackin' seriously.
6.10.2007 10:25am
Henry (mail):
Horatio: No previous comment has addressed the way that lawyers may act in representing their clients. I agree with you that they should not put decorum ahead of what works to their client's advantage. But we've been talking about judges.
6.10.2007 10:55am
Horatio (mail):
Horatio: No previous comment has addressed the way that lawyers may act in representing their clients. I agree with you that they should not put decorum ahead of what works to their client's advantage. But we've been talking about judges.


Judges are the worst of the lot, suffering from delusions of grandeur and godhood, and inflicting their ego on those in the courtroom. I AM JUDGE! HEAR ME ROAR!

Again, I don't care if the judge sits naked in front of the world. I only ask that they do one thing, and one thing only - act as a totally neutral referee. If a judge wants to use limericks, haiku, or iambic pentameter in their rulings, so be it. Even Talmudic scholars have a sense of humor.
6.10.2007 11:04am
Henry (mail):
I agree that some judges suffer from delusions of grandeur and godhead. They might acknowledge their humanness, for starters, by removing their robes. I believe, however, that they ought to have clothes underneath them on when they do. For they have an obligation in addition to acting as a totally neutral referee, and that is to act with dignity and to treat the parties and their lawyers with respect. The judge's Beatles memorandum failed in that respect.
6.10.2007 11:42am
Horatio (mail):
I agree that some judges suffer from delusions of grandeur and godhead. They might acknowledge their humanness, for starters, by removing their robes. I believe, however, that they ought to have clothes underneath them on when they do. For they have an obligation in addition to acting as a totally neutral referee, and that is to act with dignity and to treat the parties and their lawyers with respect. The judge's Beatles memorandum failed in that respect.


Puhleeease...Live by the Beatles reference, die by the Beatles reference. Maybe he should have quoted the Stones?

Oh, and addition to getting rid of the robe, drop the bench down to the same level as everyone else in the courtroom, and get rid of the "All Rise".
6.10.2007 11:48am
Henry (mail):
I agree about dropping the bench down and getting rid of the "All Rise." Get rid of the "Your Honor" too. But your "Live by the Beatles reference, die by the Beatles reference" remark is, as been said in prior comments, suggesting that judges should take their cues from defendants.
6.10.2007 12:12pm
anonVCfan:
Clever turns of phrase and "zingers" in judicial opinions are difficult to pull off well. Alex Kozinski and a number of the Seventh Circuit judges are particularly good at it.

More often than not, it fails and looks self-indulgent. I think this one falls in the latter category.

Call it "stylistic judicial restraint" if you want, but a losing litigant should never be made to feel that a judge was more interested in his own cleverness than in treating him fairly. I have no idea what the facts in this case were, beyond what's in the sentencing memorandum. Here, though, the judge asked the defendant to propose a sentence. The defendant said, somewhat flippantly, that he should not get any prison time.

It could be that the defendant's proposal wasn't unreasonable. Burglary is a serious offense, but not all burglaries are created equal.

It could be that the judge had a choice between a lenient sentence and a harsh sentence, and only chose the latter option because the former option wouldn't give him a chance to flaunt his knowledge of the Beatles.

This reminds me of Justice Blackmun's baseball masturbation opinion, where he may well have ignored antitrust law so that he could write a self-indulgent opinion waxing eloquent on the supposed place of baseball in American culture.

Both opinions at least raise a plausible inference of judges failing to do their jobs properly.
6.10.2007 1:15pm
anonVCfan:
....and now I see in the news article that he just got probation. I guess the judge decided to "let it be" after all.

Seems much more harmless in that light.
6.10.2007 1:18pm
Horatio (mail):
I agree about dropping the bench down and getting rid of the "All Rise." Get rid of the "Your Honor" too. But your "Live by the Beatles reference, die by the Beatles reference" remark is, as been said in prior comments, suggesting that judges should take their cues from defendants.


Why not? The defendants should be awarded as much respect and reverence as the judge, if not more so. The entire weight of the State is bearing down on them with its, for all intents and purposes, unlimited resources, including a referee employed by the very State.

"Mr Defendant, that was a fine turn of the phrase. Let me respond in the same vein.", Judge Dread stated as he broke into into a variation on "The Pirates of Penzance".

You want judicial restraint in words. I want judicial restraint in deeds.
6.10.2007 2:31pm
Felix Sulla:

It could be that the judge had a choice between a lenient sentence and a harsh sentence, and only chose the latter option because the former option wouldn't give him a chance to flaunt his knowledge of the Beatles.

It could be, but that would all be pure speculation on this record, wouldn't it? Plus, I do not buy the argument that an opinion of this type implies that the judge was more interested in cleverness than being fair in the case at hand. If anything, going to the effort of putting something like that together rather than just churning out a standard sentencing memorandum indicates the judge probably gave all of this more thought than would normally be the case. And I think it is equally plausible (and, admittedly, equally speculatory) that the defendant's demeanor in court and certainly in his "Let It Be" comment indicates that the judge, on careful consideration, found it appropriate in the circumstances to be flippant with the defendant in his sentencing memorandum. After all, in state courts sentencing decisions are often at the discretion of the judge. If this judge made a habit of such opinions in all sorts of circumstances, it might be a problem. This, I again speculate, was simply a minor and in the moment whimsy that is perfectly appropriate when the defendant invites it on himself, as I think he rather clearly did.
6.10.2007 2:36pm
Henry (mail):

The defendants should be awarded as much respect and reverence as the judge, if not more so. The entire weight of the State is bearing down on them with its, for all intents and purposes, unlimited resources, including a referee employed by the very State. "Mr Defendant, that was a fine turn of the phrase. Let me respond in the same vein.", Judge Dread stated as he broke into into a variation on "The Pirates of Penzance".


I agree with the spirit of what you write, but I do not perceive the judge's Beatles memorandum as respectful to the defendant's remark, but as mocking of it. The judge would have been more respectful by allowing the defendant to express himself in any manner he wished, and then done his job as a judge should. (This defendant's comment might be compared to the defendant who, at sentencing, insists that he is innocent. As we all know, he may be innocent and one of the worst injustices of our system is that judges punish defendants in such circumstances with longer sentences for not showing remorse.) Of course, you may be right that the judge's Beatles memorandum was respectful; it is a somewhat subjective determination.
6.10.2007 3:11pm
anonVCfan:
Horatio writes:

You want judicial restraint in words. I want judicial restraint in deeds.


They're not mutually exclusive. The latter is obviously more important, but judges shouldn't go out of their way to undermine their respectability, no matter how tempting it might be and how much a defendant might deserve it.

I'm perfectly happy with witticisms and colorful language. After debunking, in rather academic terms, a defendant's argument that one who overpays through careless mistake isn't entitled to restitution, Judge Posner nicely summed up his point with the statement "the law is not finders keepers."

In another recent opinion, Judge Kozinski thought that the majority was being intellectually dishonest in overturning an IJ's adverse credibility determination. After setting forth all of the evidence that supported the IJ's finding, and after explaining why the IJ's finding was logical, Judge Kozinski concluded:

If this is not good enough to support an IJ's adverse credibility determination, then nothing short of the applicant admitting "I'm a big fat liar" will do—and maybe not even that. This is not the law, and I refuse to follow my colleagues in making it so.


In both cases, the judges used colorful language to make their points more clearly, and the discussion preceding the "zinger" showed clearly that the judges had thought carefully about the arguments they were rejecting.

In this case, the Beatles songs neither add clarity, nor do they come in the context of a discussion indicating that the judge gave careful consideration to the argument.

Perhaps the argument doesn't deserve careful consideration, but if that is the case, it can be rejected in a few words.
6.10.2007 4:00pm
anonVCfan:
Felix Sulla writes:

Plus, I do not buy the argument that an opinion of this type implies that the judge was more interested in cleverness than being fair in the case at hand. If anything, going to the effort of putting something like that together rather than just churning out a standard sentencing memorandum indicates the judge probably gave all of this more thought than would normally be the case

When an opinion reflects lots of thought about Beatles songs and nearly no thought about the substantive argument addressed, it's not speculative to suppose that the judge was more interested in cleverness than in being fair. The fact that the opinion probably sat on his desk for longer than the average sentencing memorandum did isn't any consolation to the defendant, where the resulting opinion shows that nearly all of that time was spent looking at Beatles websites.

As I note above, if the judge had confronted the argument directly and used a bit more logic in refuting it, I wouldn't object to a line or 2 of Beatles song titles in response. Instead, the judge's analysis amounts to nothing more than "I won't let it be because you committed a crime." And he found a way to expand that into 2 pages by putting lots of Beatles songs in. At the very least, Kozinski's Syufy opinion does something similar with song titles in the context of some actual analysis.
6.10.2007 4:08pm
Hattio (mail):
Apollo writes;


He broke into a store to steal an 18 pack of Old Milwaukee? Life in Montana must really suck.


When I was in high school in Alaska there was a story in the paper about a guy breaking into a liquor store to steal a couple bottles of Schnapps. He chose an unusual way to break in though....he drove his truck through one of the walls. Apparently after getting out and grabbing a couple of bottles of Schnapps, he got back in his truck, told the store clerk to call the cops, and calmly waited for them to arrive.
6.10.2007 4:54pm
Can't find a good name:
I would distinguish this decision from Judge Kozinski's opinion in United States v. Syufy Enterprises (in which he incorporated over 200 movie titles into the opinion), in that the Syufy case was an antitrust case rather than a criminal case; it was actually related to movies; and the decision went against the government rather than against a private individual. (If a private individual loses a case, he or she probably has enough problems without having a judge make fun of him or her.)

In other words, cleverness that works in a rare case like Syufy is probably not suitable for a regular criminal prosecution.
6.10.2007 5:57pm
David Maquera (mail) (www):
I agree with everything Horatio stated in his posts. As for the defendant, well, it was just his dumb luck to make a smart aleck reference to the Beatles before a Judge who probably owns the original vinyl lp for every Beatles track ever released.
6.10.2007 8:02pm
An0n:
As to the argument that the opinion is somehow inappropriate, what's inappropriate about a little gentle mockery when a defendant's response to a request for a sentencing recommendation is "Let it Be." That's a flippant response in any case, and an absurd one in the wake of a felony guilty plea. It says to the judge, "I don't take this seriously, and neither should you. I know it was technically burglary, but c'mon, it was just some beer. Let's forget the whole thing." That may be how twenty year-old criminals' minds works, but twenty year-old criminals need to learn that it's not how judges' minds work. If you're going to ask a judge to pretend that you didn't just plead guilty to a felony, you need to come up with something more persuasive than a bare Beatles reference. The defendant deserved to be told so, and in my view well-done mockery would only have served to reinforce the point.

AnonVCfan opines, "When an opinion reflects lots of thought about Beatles songs and nearly no thought about the substantive argument addressed, it's not speculative to suppose that the judge was more interested in cleverness than in being fair." Firstly, what substantive argument? "Let it be" is not an argument.

Secondly, the actual sentence handed down consisted of probation, community service and a fine. That seems eminently fair, given that burglary is punishable by up to twenty years' imprisonment in Montana, so I'd say it is "speculative to suppose that the judge was more interested in cleverness than in being fair."

That said, the difference between this opinion and Suyufy is that Suyufy is very clever; it flows so naturally that it's hard to pick out many of the movie titles in the opinion, and they certainly don't interfere with the message. Unfortunately, Judge Todd is no Kozinski. The Beatles references in the sentencing memo are awkward and forced, and they do interfere with the message. (I think the reference to Deer Lodge, which has created lots of confusion here, was just an excuse to work in "Ticket to Ride" and "Long and Winding Road.") In my book, that's the judge's only sin here.
6.11.2007 11:22am
Misanthronomicon:
The defendant might feel Trampled Under Foot after such shabby treatment. But in the end, he got much less than Ten Years Gone, let alone the Gallows Pole. He ought to say Thank You. Maybe the judge's leniency will teach him the difference between right and wrong, between What Is And What Should Never Be. Hopefully he and the judge can be Friends one day, or at least Ramble On along their separate ways. Besides, for a real example of a crazy justice system, try Going To California and seeing the Paris Hilton circus.

One problem, though: judge is Dazed And Confused as to who the greatest band in rock history truly is.
6.11.2007 12:14pm