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When a judge stands on the other side of court

Sunday February 23 2020
By SEKOU OWINO

When a judicial officer was arrested on Friday, the irony was not lost on many news followers that while it is the duty of judges to issue arrest warrants, it was a judge who was finding himself under arrest and possibly going to be appearing in court from he opposite end of the courtroom: in the dock.

As arbiters of the law, judges are expected to literally keep to the law in words and, even more, in deeds. It is, therefore, a rare but often surprising situation when a judicial officer is arrested and charged with an offence in a court of law. This is seen as bringing disrepute not only to the law but to the office of a judge and the court as an institution of law and justice.

Justice Karnan of India is an interesting place to start: In 2017, the judge was arrested, on the orders of his brother judges and sent to prison in Kolkata. His offence? Contempt of court. The judge had been convicted of making false allegations against other judges. This family feud was started when Justice Karnan sent a letter to Prime Minister Narendra Modi and asked him to take action against the judges of the Indian Supreme Court. In the belief that Justice Karnan may have been unwell, the Supreme Court judges ordered that the judge be examined by a panel of psychological experts only for Judge Karnam to make a similar order for the psychological examination of the seven judges of the Indian Supreme Court.

In Sri Lanka, a Supreme Court judge was arrested in 2015 for assaulting his domestic help, the first time in the country’s history in which a sitting Supreme Court judge was arrested and charged with a criminal offence. The judge was granted bail pending hearing of the case.

Judges are supposed to be of impeccable conduct and not accept bribes. This is what appeared to have been the challenge with Justice Arnold Ogden of the North Carolina Supreme Court: he was arrested for attempting to bribe an officer of the Federal Bureau of Investigations to help him gather text messages for two phone numbers for use by the judge in a family matter. In April 2016, a judge in Arkansas was arrested, charged and convicted for receiving a bribe to lower the damages in a case which was now on appeal before him.

Judges are expected to be sober, almost literally. But a number appear to think this is of no application to them. In the year 2009, Justice Patrick McKay of Alaska in the noted states was arrested and charged with the offence of driving under the influence of alcohol. He was found guilty and sentenced to five days’ imprisonment and three years on probation. But some judges appear to go scot-free despite convictions for driving in an intoxicated state. He retorted with the words “None of your business” when a policeman asked him how much he had drunk. William Pearson of Arkansas was arrested and charged after he caused a motor-vehicle accident. He pleaded no contest and was convicted. The citizens of his state were lenient and got the judge out of jail: they re-elected him to the office despite the imposition of a public admonition on the judge by the State Commission on Judicial Performance.

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The judge who laid down the law to the others in a different way was Elaine Rushing, who a year after being convicted for drunken driving and receiving a light sentence of 10 days in prison, did not return the favour. She imposed the harshest sentences under the law in two cases of drunk driving.

But judges can also face arrest while at work in their courtrooms. Justice Frank Chapman of England had to resign to avoid charges of misconduct for passing information to assist a lawyer in a criminal prosecution that appeared to be floundering.

In 2018, the Chief Justice and another judge of the Maldives Supreme Court were arrested after the declaration of a state of emergency. The situation had arisen from a decision by the President of the Maldives to disobey a court order for the release of some political prisoners.

Though they are officers of the court with the mandate, nay, sworn obligation to uphold the law and ensure justice is achieved, the failure to live up to the judge’s oath of office can precipitate an arrest and criminal charges. This was the fate of Judge Constance Briscoe, a recorder in England who was arrested, convicted and jailed on charges of engaging in an act tending to pervert the cause of justice. The particulars here were that she lied to police during their investigations and for falsifying a witness statement with the intention of assisting a friend who was under police investigation.

Other judges would appear to appreciate the fear that facing the law would put in the minds of ordinary citizens. One such was Justice Sylvia Ash of Brooklyn, who was arrested at an airport and charged with trying to obstruct a federal investigation to protect a friend who had embezzled money from a credit union. The judge had issued a false memo which sought to justify the payment of a lot of money to the chief executive of the financial institution that was under investigation. The judge had concealed and deleted text messages and emails and flushed her phone with the intention of obstructing the investigations.

But arresting a judge is not an exercise without risk. This is because by the nature of judicial functions, the constitutional guarantees of independence of the Judiciary means that judges are protected from harassment while at work. Thomas Carlin, a serving policeman in Northern Ireland, learnt the hard way never to try to arrest one of the country’s most senior judges. He was charged with contempt of court for trying to arrest a judge after the hearing of a case in which he was a party acting in person. Mr Carlin was then charged with unjustified interruption of court proceedings. The court found that the use of the purported powers to arrest a judge during proceedings was void of any legal authority. The policeman was sentenced to three months’ imprisonment.

These are therefore indications that judges, like every other citizen, may be arrested and arraigned in court like every other citizen and in the same way in which the judges hold the rest of the citizenry to the laws.

Sekou Owino is head of Legal, Nation Media Group PLC.

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