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Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made

Edited by Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg

By Jesse Kornbluth
Published: Nov 08, 2018
Category: Non Fiction

Are you a lawyer? Know a law nerd? Love the last 20 minutes of “Law and Order?”

This book is a law buff’s dream. Three judges have collected essays by thirteen judges who served, or are serving, on various lower courts — sadly but unsurprisingly, there are no contributions by Supreme Court justices or federal circuit court judges. The editors’ aim: “to demystify judicial decision-making and to make the process accessible to ordinary people, who would not otherwise get a ringside seat.” And the judges do exactly that: They describe, beat by beat, how they ruled on their toughest cases. [To buy the book from Amazon, click here. For the Kindle edition, click here.]

You know some of these cases. Elián González. Terri Schiavo. Scooter Libby. And you will be surprised at how not tough they were to decide — but why they were, in fact, tough.

For George Greer, who ruled that Schiavo’s husband had the legal authority to let his brain-dead wife die, the hardest decisions were personal. Dead flowers were delivered to his wife, with a note: “no food… no water.” His church kicked him out. Law enforcement was stationed at his house for months. Along the way, he learned something important: “Not too many people have had to stand up to their president, their congress, their legislature, and their church. I would never have known for sure I had the strength to do that if not for this case.” Only later did he learn he’d made the right decision — when Schiavo died and he saw the autopsy: “The portion of the brain to which the optic nerve is attached was completely missing. There was no way she could have responded to any of the visual tests she was subjected to.”

In the Elián González case, Judge Jennifer Bailey had to decide whether to return a seven-year-old Cuban boy to his father in Cuba or allow him to stay with relatives in Miami. If you know anything about Florida, you know that Cuban refugees historically despises Castro — and every state and national politician took care not to alienate those repatriated Cubans. There was immense political pressure on Judge Bailey. She takes the reader through it, beat by beat, and compares it to the legal issues, which were comparatively simple. “I did not deserve praise for resisting [the political forces],” she concludes. “I simply ignored the politics, which is what judges are supposed to do.”

The less well known the case, the greater the interest for me.

Frederick H. Weisberg, one of the book’s editors, had the task of judging Banita Jacks, 33, who killed her four daughters in Washington, D.C. and lived for months with their remains. She declined a jury trial, refused an insanity defense. Much of this piece is the judge’s questioning of this defendant, who is extremely lucid here. And yet…

Then there’s the judge on a Native American court who is caught between U.S. law with tribal law; a feather plays an important role here. “I feel like I can hear my ancestors,” she writes. “They are telling me we can’t afford to throw away our community members who make mistakes.” And there’s a girl who became desperately ill and then got worse because her mother poisoned her in the hospital. And a case in Washington where the voters went one way and the state’s constitution went another. “They don’t pay me to be right,” the judge notes. “They pay me to be fair.”

I was particularly impressed with that judge, Robert H. Alsdorf of Washington. He does something you don’t see often: he notes the compelling arguments of the losers. “I try to explicitly note for the losing party how laudable . . . its . . . legal argument is, and then give a straightforward explanation of why that factor nonetheless cannot be used by the court to justify a ruling in its favor. . . . We can acknowledge this without losing any judicial power.” And the losers know they’ve been heard.

And there are fascinating breadcrumbs along the way. Did you know that only one state has expressly prohibited sex between an attorney and his client? And that Texas had the chance to make that illegal in 2017? And that 72 percent voted against the change? I guess if you’re a lawyer who likes to cross the ethical line with a client, Texas is not the worst place to practice.

Hmmm… I feel a screenplay forming in my head.