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Strigberger: the public supports judges with heart

There is a public appetite for benevolent judges and most humans would have no problems with the ‘crying judge’ who recently presided over a sexual interference case, writes legal humorist and author Marcel Strigberger in The Lawyer’s Daily.

He says the infamous case of the provincial court judge in British Columbia — who allegedly cried during the reading of a victim impact statement — begs the question: can a judge show compassion?

Strigberger points to Providence, R.I., municipal court Judge Frank Caprio.

“His verdicts, loaded with compassion, have gone viral on social media. Judge Caprio, 80 years old by the way, for example dismissed a charge against a lady originating from Guatemala, who made a prohibited right turn on a red, as she was on her way to an English class,” he says.

The woman said she did not see the sign and the judge, impressed with her efforts to learn English, made her a deal whereby the charge was being dismissed on her undertaking to complete the course, Strigberger writes in the legal publication.

“The kind judge notes, ‘I think I should take into consideration whether somebody is sick and whether their mother died and whether they have kids who are starving. I don't wear a badge under my robe. I wear a heart under my robe,’” he says.

The judge’s videos on social media have attracted millions of viewers, and Strigberger notes they are attracted not to his toughness but to his heart.

He says that during the hearings on the confirmation of Justice Sonia Sotomayor to the U.S. Supreme Court, then-president Barack Obama commented that empathy and compassion are some of her strengths.

In addition, Strigberger says no discussion on this topic is complete without eliciting the views of Shakespeare.

“I refer of course to the bard’s thoughts on the role of mercy in The Merchant of Venice, where Portia pleads, ‘And earthly power doth then show likest God’s When mercy seasons justice,’ he writes. “So from Judge Caprio to President Obama to Shakespeare, to the millions of viewers on YouTube, there appears to be an appetite for judges with compassion.”

B.C.’s ‘crying judge’ ended up denying the defence motion to recuse and in a 13-page written decision she said, “I must determine whether if a reasonable, right-minded person armed with all the relevant information would consider it more likely than not that I would, consciously or unconsciously, unfairly decide the matter.”       

Strigberger says her comments are much reminiscent of the iconic English maxim defining negligence.

“I talk of the test for negligence being, what would the reasonable man on the Clapham omnibus do under the circumstances? Applying it to this case, being in B.C., one must ask what would the reasonable judge on the Granville Street omnibus do?” he writes.

“More than likely we will not easily know the answer as it’s not so simple to take a ride on that omnibus and readily spot a judge. I in fact once rode this bus and I did not see any of the passengers wearing judicial robes,” Strigberger quips. “It would help if judges riding public transit would wear appropriate garb in order to enable us to properly apply the reasonableness test.”

There is even a dispute whether the learned judge actually cried, he notes.

“Crown counsel said the judge merely ‘dabbed a tear in her eye with a tissue.’ Does it really matter if it was a dab or a cry? The judge certainly did not come close to crying a river. It would take a lot more than a tissue to hold back a deluge of the Fraser,” Strigberger says.

“The consensus is that judges are human, and humans, unlike the Tin Man, have hearts, and compassion does not of necessity equal bias,” he writes. “I believe most humans would have no problems with the judge’s reaction. They would not shed a tear for the defence.”

To Read More Marcel Strigberger Posts Click Here
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