Supreme Court overturns judge's unwritten policy

Although it is a Kentucky case this is too funny to pass up. The case involved a judge ordering prosecutors to not make objections to defense counsel's questioning of witnesses during probable cause hearings. On its face this appears to be a clear violation of due process for the State. The caveat is that there was good reason for the ban although the Kentucky Supreme Court rightfully struck it down. It makes for a very interesting read and raises another important issue.

The most telling part about this case is not any of the points of law made, although interesting, but that the judge admits to having an unwritten policy towards particular litigants. In this case, the prosecutors. Does an unwritten policy towards a particular gender seem familiar to anyone who has been involved in a child custody dispute? Please read the following story by Jason Riley which appeared in the Courier-Journal yesterday and then my analysis.

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Judge's no-objection policy struck down

The Kentucky Court of Appeals has upheld a lower court ruling ordering Jefferson District Judge Sean R. Delahanty to stop forbidding prosecutors from making objections in his courtroom.

The ruling, supporting a March 2008 decision by Circuit Judge Susan Schultz Gibson, said it is “fundamental to our judicial system that an attorney zealously represents his client without fear of repercussions from the court.”

In February 2008, Delahanty threatened to hold a prosecutor in contempt if he objected during a probable-cause hearing, saying it violated the judge's long-standing, unwritten policy.

At the time, Delahanty told then-County Attorney Irv Maze and several of his prosecutors that he was tired of certain prosecutors wasting court time by making “obnoxious” and “ridiculous” objections” during hearings.

Under his policy, Delahanty said prosecutors have a “standing objection to each and every question” that defense attorneys ask of witnesses during probable-cause hearings. Such hearings are held so a judge can decide if there is enough evidence for a case to continue.

The appeals court ruled Friday that Delahanty could have found the individual prosecutor in contempt but could not issue a “verbal and written directive that quashed every county attorney's ability to object to any question poised to a defense witness.”
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The opinion of the Kentucky Court of Appeals raises some very interesting legal concepts. The issues before the court were as follows:
(1) whether the Jefferson Circuit Court had jurisdiction to issue the writ against a district court judge;
(2) whether a summons was required to be issued to the appellant to properly commence the action;
(3) whether the county attorney had standing to file the petition for a writ of prohibition;
(4) whether the writ was properly issued because the appellant had no authority to prevent the county attorneys from cross-examining defense witnesses; and
(5) whether the appellant promulgated a rule in contradiction of Section 116 of the Kentucky Constitution or SCR 1.040(3)(a).

Judge Delahanty frustration is apparent from information found in the record. Delahanty voiced his frustration with a particular assistant county attorney whom he referred to as “obnoxious” and a “nuisance.” He further stated that other judges within the court system had expressed the same view. The source of Delahanty's displeasure with the particular attorney was his continued frivolous objections on the basis of hearsay, relevancy, discovery, and a myriad of other grounds to defense counsel’s questions during preliminary hearings. Delahanty pointed out that he had consistently overruled the objections and the waste of judicial efficiency caused by repeated interruptions.

Delahanty made his standing order on the record during the proceedings and then reduced it to writing as follows:

This document memorializes the verbal instructions this Court has given to lawyers regarding Probable Cause Hearings for the past nine years.
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The Court’s responsibility in a Probable Cause Hearing is to make a determination if a felony crime was committed and whether the defendant was likely to have committed that crime.

After the Commonwealth has completed its direct examination of its witnesses, the defense can cross-examine that witness asking most any question, for a limited time.

The Commonwealth has a standing objection to each and every question asked by the defense. The standing objection includes the issue of relevance, asked and answered, improper discovery, and I’m tired of listening to defense counsel.

At the conclusion of the Commonwealth’s case, if the defense requests to call witnesses, defense counsel will be required, as an officer of the court, to make a proffer of evidence as to the substance of the witnesses testimony.

Probable cause is an issue of law. Witnesses offered for credibility will not be permitted to testify. Credibility is an issue for the trier of fact, the jury, and Court will not substitute its judgment for the jury’s.

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If you aren't laughing at this its only because you have never experienced this type of legal shenanigans going on in the courtroom.

The first three issues were dispensed of rather easily by the appellate court as they are issues of law which were dictated by statute. The court affirmed the trial court on all three issues. The fourth issue concerns the issuance of a writ of prohibition against a district court judge. Many of you may find interest in this discussion if you feel a superior or district court judge is acting beyond his scope of authority.

This is where Judge Delahanty warned prosecutors that if they made objections during defense counsel's questioning of witnesses that they would be held in contempt. It is fundamental to our judicial system that an attorney zealously represents his client without fear of repercussions from the court. Our system is adversarial in nature and depends upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. “The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers.” Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952).

Is it appropriate ask if a prosecutor must then attempt to keep any information beneficial to the defendant from coming out during a probable cause hearing. I disagree with the Kentucky Supreme Court that Sacher is instructive in this instance although I do believe Delahanty overstepped his bounds.

In Sacher the US Supreme Court stated, "If its aid be needed, this Court will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever." This case applied to counsel for criminal defendants who was jailed following trial for criminal contempt on the basis that he was repeatedly warned during trial that his defense of the defendants was contemptuous.

In opposition to the requirements of trial lawyers to provide a zealous defense of their client, a prosecutor sits in a quasi-judicial position. He represents the people but may not carry forth a lynch-mob mentality to the judge. The American Bar Association Criminal Justice Standard 3-1.2(c) requires him “to seek justice, not merely to convict”. Ethical Canon 7-13 of the ABA Model Code of Professional Responsibility states that a prosecutor must also “not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

I do not agree with a prosecutor who makes an objection to every question posited by defense counsel but can't argue with wasting a court's time and keeping them too busy to harm more children. The prosecutor must seek to bring forth the truth even if it may dissolve his case. I must strongly object to a blanket restriction on objections for the prosecutor just as I would if it was made against defense counsel. Seeking a writ of prohibition was appropriate.

Writs are extraordinary measures which should only be applied in extraordinary circumstances. The court reasoned that our system is adversarial in nature and depends upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. “The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers.” Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952). Thus, there must be a balance between the trial judge’s duty to maintain control of the courtroom and that of the attorney to be an effective advocate for his client.

The court found that the writ issued by the Circuit Court was appropriate in that in met at least one of the two required tests: that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

The litigant seeking a writ of prohibition is known as the relator. A relator seeking a writ of mandamus or prohibition must do so “expeditiously after the jurisdiction of the respondent court became an issue[.]”  Ind. Original Action Rule 3(A); see State ex rel. Petry v. Madison County Superior Court, Div. No. 3, 573 N.E.2d 884, 885 (Ind. 1991). In Indiana the writ of prohibition is conferred in statute at IC 34-27-2.

Delahanty had been a judge for nine years at the time he issued his written order. We have the benefit of a written order and this case to examine, with clarity, the unwritten policies that a judge may have. Those of us who have been through child custody proceedings have often seen the unwritten rules in place. Primarily, judges view a father seeking to provide parenting to his child with skepticism and that his motive is to avoid paying child support. Mothers, on the other hand, are viewed as the rightful custodians of children and need to do nothing more than offer plausible denials to issues raised by fathers.

Another area which I am often confronted while providing coaching to self-represented litigants are court's policies of not allowing pro se litigants to make statements or objections. Statements by judges such as "If you want to be heard you need to get an attorney" are a blatant due process violation. The judge may well be correct that the litigant cannot speak at that time but establishing a policy that litigants must be represented by an attorney is no less a prospective constraint upon zealous advocacy for a litigants cause than a prophylactic restriction of prosecuting attorneys right to make an objection. Such policy is ripe for filing an original action for a writ of prohibition against a judge denying a pro se litigant the opportunity to speak.

Finally, the court found that Judge Delahanty had promulgated a rule in violation of the constitution and power of the supreme Court. We agree with the appellee that regardless of the label given, the appellant promulgated a rule: It is not limited to a particular case; is prospective by its terms; and is indefinite in nature. See Abernathy, 899 S.W.2d at 87. Whether a rule of court or a local rule, its promulgation is limited by either Section 116 of the Kentucky Constitution or SCR 1.040(3)(a). Id. The authority to prescribe rules of practice and procedure is exclusively in the Supreme Court. Although inferior courts are empowered to enact local rules, it is a power limited by two conditions: The local rules cannot contradict any substantive rule of law or any rule of practice and procedure promulgated by the Supreme Court and is effective only when approved by the Supreme Court. Id. Because the appellant lacked authority to promulgate the rule under review, on that basis alone, it is invalid.

Courts clearly are not what the layman feel they should be. Courts are simply a forum of procedure where litigants are to be given the opportunity to be heard. This gives me another opportunity to remind you that if you are looking for fair you will find that is the place with stinky animals, greasy food and amusement rides. If you think a judge has a policy that curtails your rights from which he has no authority then a writ of prohibition just may be your proper remedy.


Stuart Showalter


Indiana Custodial Rights Advocates

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