recall learning about the painfully short half-life of certain chemical
compounds in high school chemistry. Some of those nasty little compounds
expire in hours, minutes or even a few short seconds. Several years
after high school, I can now truly empathize with such ill-fated
compounds. I have discovered that the half-life of a principled
libertarian superior court judge on the criminal bench is about
one half hour.1
many years as a practicing criminal defense attorney, I decided
to apply to become a judge on the court of appeals. Despite good
credentials and numerous letters of recommendation from several
respected judges and other accomplished people, I was not deemed
worthy of an interview by the appellate court selection committee.
It may have had something to do with the fact that I cited a need
for intellectual diversity as my reason for wanting to become an
appellate court judge and used the term "pro-freedom"
in my application. Maybe I was doomed from the start.
application to become a superior court judge pro tem2
was lodged with visions of presiding over selected criminal jury
trials. As a judge pro tem, I expected to have the luxury
of picking and choosing my limited trial assignments. I was determined
neither to conceal nor to violate my principles. My application
included a disclosure that I am on the legal committee for the National
Organization for the Reform of Marijuana Laws ("NORML")
as well as the fact that I co-founded the Freedom
Summit.3 In addition, my application
included my associations with the Foundation for Economic Education,
the Future of Freedom Foundation and CATO.
was pleasantly surprised4 when my
application was approved and I was appointed for a one-year term
as a superior court judge pro tem. I was excited and eager
to work hard and do justice.
two months of waiting for a criminal trial assignment on a non-victimless
case, I inquired about obtaining such an assignment. I learned that
the superior court's urgent need was for pro tem judges to
cover the assortment of cases composing the pre-trial calendar.
I had refused countless opportunities to cover court calendars I
believed would contain predominately drug cases. On a day when the
court was desperate for help, the court administration was agreeable
to reassign a full-time judge and arrange a criminal court calendar
I believed would not contain many drug cases. I agreed but expected
some non-violent drug cases would be on my calendar.
to be honest and honorable, I decided to recuse myself on all drug-related
cases.5 To avoid being accused of
having secret or illegitimate motives, I drafted a
detailed six page minute entry explaining the legal reasons
underlying my anticipated recusal. I believed the parties had a
right to know why I refused to hear their case. After all, the government,
including judges, are supposed to be agents of the people; not masters.
my first (and last) day as a judge arrived, I learned there were
seven drug cases on my calendar of thirty-seven matters. I arranged
for another judge to handle the seven drug cases and offered to
take several non-drug cases in exchange. I planned to recuse myself
from the seven drug cases and reassign them to the other judge to
be heard that same day.
after I began my court calendar, a friendly law enforcement officer
arrived with several routine arrest warrants to be signed. All but
one of the proposed arrest warrants were for drug cases. The other
was for a questionable gun case. I informed the law enforcement
officer of my principled refusal to consider his warrants and sent
him away. To my surprise, the officer informed me of his support
before he left to seek out a more agreeable judge.6
my knowledge, the clerk e-mailed my recusal minute entry to her
supervisor who forwarded it to the presiding criminal judge of the
superior court. I soon found myself on the telephone with an angry
judge who voiced his disagreement with my legal reasoning by referring
to my minute entry as "bullshit." He ordered me not to
issue my minute entry on any cases until after he consulted with
the presiding judge of the superior court.7
He promised a quick call back.
in chambers, I informally explained to the prosecutor and defense
attorney why I hesitated to call their drug case. While the defense
attorney sat shocked, the prosecutor informed me of his unqualified
support.8 I eventually decided to
retake the bench and recuse myself. I stated on the record that
I intended to disclose my reasons for recusal in a detailed minute
cranky presiding criminal law judge soon called back and informed
me he was not happy with my performance.9
I was fired and told to leave immediately. Before I left, the clerk
who initially e-mailed her supervisor with my minute entry privately
told me of her unqualified support for my position. Two other defense
attorneys also came back into chambers to voice their support. I
walked out of court that day a bit disappointed but with my principles
my judicial career was going up in flames, my good friend and guerilla
libertarian activist, Ernest
Hancock was driving to the courthouse to see me wearing the
black robe. I called Ernie and told him my judicial career was over.
Although neither of us predicted my lifespan as a judge would be
long, his response was, "Already?" In what seemed like
seconds later, the press was calling me for comment.
next morning, I was news. The television, radio and print media
all did stories about the judge who was fired because he refused
to hear drug cases. I received about one hundred e-mails; not one
negative. Many of the e-mails I received praised me for having integrity.
I also learned that within hours of my firing, the presiding justice
of the Arizona Supreme Court issued an order rescinding my appointment
as a judge pro tem.10
Supreme court's order stated in relevant part, "Having expressly
declared his inability to be impartial in the application of the
law and the disposition of cases before him…." I found this
language curious as I had not declared any inability to be impartial.11
Moreover, the Supreme Court's order appeared as if I had issues
with all laws as there was no mention of drug cases specifically
nor any connection with my reasons for recusal.
a week later, an editorial writer from a major local newspaper showed
up to interview me. He was shocked to learn that there was a much
bigger principle involved than the right to smoke pot. He wrote
a great article which now appears on my
law firm website.
my initial publicity waned, another local superior court judge pro
tem drove drunk and killed a seventeen-year-old high school
student who was riding a bike.12 The
professional, unbiased, fair and balanced newspaper editorial staff
writers at the Arizona Republic published an editorial recklessly
lumping me with the other judge under the title, "Two Bad Apples."13
It wasn't my proudest moment, but I concluded some people would
draw the fine distinction.
unsatisfied merely that my unusually distinguished judicial career
was over, the presiding judge of the superior court referred my
conduct to the Commission on Judicial Conduct.14
Among other things, I was accused of acting in a manner which fails
to promote public confidence in the integrity and impartiality of
the judiciary. I was asked to formally respond to the judicial complaint
against me. After reviewing the incident and my response, the Commission
on Judicial Conduct dismissed the presiding judge's complaint against
my judicial career ended abruptly, my career as a scientist is off
to a promising start. I may have been the first to discover that
the compound P-L-J (principled libertarian judge) has a tragically
short half-life when mixed with the highly toxic compound C-B (criminal
bench). For now, I will continue my experiments combining the volatile
and explosive compound A-L-C-D-A (aggressive libertarian criminal
defense attorney) with all varieties of T-S (toxic statists).
my scientist friend Stu Krone says there are not enough principled
libertarian judges to determine the actual half-life.
judge pro tem is a judge who serves part time. In Maricopa
County, Arizona, pro tem judges serve without pay.
website link was included in my application. The Freedom Summit
website links to many other pro-freedom websites.
I was shocked.
specific reasons for recusal are detailed in my minute entry.
Generally, I gave four reasons: 1. The non-initiation of force
principle and my refusal to violate it. 2. My view that the
Arizona Constitution protects the right to control one’s own
body. 3. My view that the United States Constitution protects
the right to control one’s own body. 4. My membership on the
NORML legal committee requires recusal as it creates an appearance
suspect virtually any other judge would have sufficed.
I’m not sure what authority one superior court judge has to
tell another superior court judge not to issue a minute entry.
In any event, the clerk in my courtroom was clearly following
the instructions of the presiding criminal law judge.
prosecutor’s support did not surprise me. Despite the lack of
public discussion about ending the war on drugs, I have found
many prosecutors who agree that the war on drugs has been a
colossal failure and wish they were prosecuting "real"
"performance" amounted to granting a routine uncontested
continuance on one case and recusing myself from two drug cases.
didn’t know the Arizona Supreme Court could do anything that
fast. Apparently, recinding my appointment as a judge pro
tem was so important that it required immediate attention
apparently ahead of anything else happening at the Supreme Court
that day. By the way, I got a copy of the Supreme Court’s order
from the press because it was never sent to me. I have still
yet to receive it from the Supreme Court.
have always believed I could have been impartial had I been
inclined to hear victimless cases.
blood alcohol content was more than twice the legal limit and
he had a prior DUI.
says only fruits and nuts work at the Arizona Republic?
commission serves as the disciplinary commission for all judges
in Arizona. They retain continuing jurisdiction over former
judges for their conduct while serving as a judge.