From the Bench to the Blog, Part II

GUEST: Judge H. Lee Sarokin
AIR DATE: 05/22/10

I’m Richard Heffner, your host on The Open Mind.

And my guest today is once again retired Federal Appeals Court Judge Lee Sarokin…with whom I’d like to continue our discussion about his still wonderfully literate and judicious – if no longer formally judicial – opinions and decisions about almost anything and everything.

For Judge Sarokin has his own Bench in the blogosphere now…quite appropriately designated , and I highly recommend it for judgments high and low.

But let’s pick up now on some more of those judgments. I’m glad you sat where you did, Judge Sarokin because there are so many things still to be talked about.

One of them has to do with your fix, as comes out frequently in your blogs, on prosecutorial not misconduct … you don’t use the word and I won’t … but enthusiasm perhaps and a willingness to indict people in public.

SAROKIN: Yes.

HEFFNER: Talk about that a moment.

SAROKIN: Well I think what happens all too often is, uh, prosecutors … particularly in high profile cases … go on television not only recite the charges, but indicate the evidence they have and editorialize, what I say, sum up before they’re even in the courtroom about the case.

And I think it’s totally inappropriate and if ever a prosecutor should have learned, they should have learned it from the Duke case. But it happens all too often.

My view is the only reason prosecutors should go on television and give anything other than the charges, even assuming that’s appropriate … is if they want to allay the fears of the public about somebody who might be a serial killer or somebody … a rapist … who’s in the neighborhood that they’ve caught. And they want to let the public know that they don’t have to worry any more.

But I don’t understand the purpose and I think it’s inappropriate for prosecutors to outline in detail the evidence they have, or comment on how outrageous it is or some other adjectives that they use. And, and I think it happens way too often.

HEFFNER: Well, how does that attitude stack up with your … at least ambivalence toward the question of cameras in the courts. And putting all of this in front of the public.

SAROKIN: Well, cameras in the court … that reflects the actual evidence at the time it’s being produced. And the, the viewer, as the jury, can then make their own judgment as to whether it’s compelling or not.

But there’s nothing appropriate with a prosecutor … before a trial and certainly at the moment of, of indictment and charge to begin outlining the evidence. And what’s the purpose in doing that?

It certainly interferes with the rights of the defendant who may turn out to be innocent, as occasionally happens. It might influence a perspective juror. It serves no other purpose.

And, and nobody has ever been able to explain to me why it is these prosecutors get up … there is the case that I mentioned in my blog about a prosecutor who, who gave a press conference about some government employee whose computer was seized and on it they’d found pornography.

And the man ended up committing suicide. Because that was publicized. And it shouldn’t have been. Maybe at the time of trial it was evidential. But certainly not at the time the indictment was issued.

HEFFNER: Well, looking back at the several years of your blogs … when did you begin it … 2006?

SAROKIN: Yes, I think about 2006. I’ve been doing it … two, three years.

HEFFNER: I don’t think I missed any assertion on your part that perhaps the whole business of publicizing trials … making them public … in the press, on television, etc. … ought to be re-considered. Do you think it should be re-considered?

SAROKIN: Well one thing that we have to accept is if a person is charged, indicted and it’s publicized … even after an acquittal, even after a dismissal, that person will forever be subject to that cloud.

These young men at Duke. I mean there’s no way that they’re ever going to escape the fact that these charges were made against them. That doesn’t mean, from my point of view, that you can never publicize charges, or you can’t tell people that a trial is actually going on. But, but I think there should be some fair balance as to what goes out. And I think it should, frankly be limited to what, what’s being done at the trial itself, as opposed to anything pre-trial.

HEFFNER: Well, what about our British friends? How do they handle this question?

SAROKIN: I, I think that and I’m not sure, but I’m pretty sure that the British prohibit any publicity prior to the time of trial.

HEFFNER: Prior to the time of trial, or prior to the time of, of the consummation … if I may use that word …

SAROKIN: I’m not sure …

HEFFNER: … the completion.

SAROKIN: I, I think it’s the trial itself. I think they’re allowed to cover the trial, but not, not publicize the charges.

HEFFNER: Would you opt …

SAROKIN: Yeah, I’d be much …

HEFFNER: … for that?

SAROKIN: … as opposed to what we have now … I would be much more in favor of that.

HEFFNER: Yet …

SAROKIN: We can’t ignore the stigma of charges. I mean they’re just so real for people. And as I say, acquittals, dismissals, do not eliminate that stigma. It’s with those people forever.

HEFFNER: Of course, that’s why I thought you would be … not ambivalent, but opposed to the idea of cameras in the courts. Because there you bring in the, the great court of public opinion, which should be no court, in fact, under the law.

SAROKIN: True … I, I guess my view of … and since we’ve had five or six minutes to think about it a little bit more …

HEFFNER: You want me to shut up about that.

SAROKIN: No, no. I think that it might be a matter of selection. I mean I, I think that it might be a good idea to have trials televised. I’ve already indicated that I think appeals should be televised. But trials where there’s a public interest and maybe subject to a court’s approval before it be made public. A satisfaction that there’s some reason for the public to hear it.

As I said during our break I think the Scooter Libby trial should have been a public trial. I thought it should have been televised. Because it involved the operation of the Federal government, some very substantial things. And I think the public should be able to view that and make it’s own determination.

HEFFNER: But as I read you and have heard you over the years, I have the sense … I’ve had the sense that the public interest is, in a sense, not your interest. That you’ve heard too much already about he public’s involvement and it’s as if we make judgments on the basis, not of what the law says and the Constitution says, but on what the public … that public that is so often misled by the press, says.

SAROKIN: Well, their right to know, I think, is different from what their ultimate conclusion is. And I think my basic view is that the more the public knows, the better off we are. What they do with it afterwards is a matter of conjecture.

But, no I, I think insofar as televised trials, I think there are some trials that definitely should be open. Not, not the run of the mill case, but if, if there’s a public interest such as Federal public corruption trials, I, I think the public should see, actually, what’s going on and what the evidence is.

HEFFNER: But, Lee, I come back to the question again, because I, I don’t want it to be begged and that is when you talk about a trial … do you mean the whole thing …

SAROKIN: Yes.

HEFFNER: … from soup to nuts … everything that a jury or a judge presiding must see and hear?

SAROKIN: Yes. I, I’m … I think CourtTV did it for a while … actually did trials from beginning to end and I … and people who want to watch the entire trial, can.

I know there’s the risk of excerpts at night on the news, but that risk would exist whether or not there was TV in the courtroom or not.

HEFFNER: What do you mean?

SAROKIN: Well, the, the media … the print media could just as soon take an excerpt out of context and put it on …

HEFFNER: But not an excerpt from a trial.

SAROKIN: Oh, sure. I mean … why not. I mean if somebody’s in the courtroom … let’s say there are no cameras …

HEFFNER: Yeah.

SAROKIN: … and somebody’s in the courtroom … a reporter … and he writes … he takes one sentence of it and puts it … the headline in the paper. Is it any different than the news showing that …

HEFFNER: Well, that was the question …

SAROKIN: … in, in … visually.

HEFFNER: … though I …

SAROKIN: … I don’t see any difference.

HEFFNER: You really don’t see any difference …

SAROKIN: No.

HEFFNER: … between the impact of the picture …

SAROKIN: Oh, one, yeah … the picture might have greater impact. But, that to me is a small difference. I, I … if you’re worried about selectivity … while picking certain parts out … whether it’s in writing or visual. I think that problem exists whether it … there’s TV in the courtroom or not.

HEFFNER: And the solution has not occurred to you, I gather, of moving back altogether and saying “Out with the scribblers, too.” Not just with the beady red eye of the camera.

SAROKIN: Oh, no. I, I …

HEFFNER: But with the scribblers, too.

SAROKIN: … that’s public trial. I mean that’s, that’s our foundation. You have … trials are open to the public.

HEFFNER: Yes.

SAROKIN: And you can’t keep people from repeating what they hear in the courtroom.

HEFFNER: But now, wait a minute … you say “open to the public”. That means that … what, what, what was the reason for having open trials?

SAROKIN: Well, because we didn’t want judges riding roughshod over the rights of people without the public having the opportunity to view what was going on.

HEFFNER: Well, I, I always imagined we didn’t the King to put away his enemies …

SAROKIN: Well, that’s …

HEFFNER: … without having someone there to say, “Look what’s happened.”

SAROKIN: Well through the agent of a judge is what it would be in this country, we don’t have a king. But … no we were worried, we wanted the trials to be open because we wanted to make sure that they were being operated in accordance with our rules and our Constitution. And they wanted the public to be able to make sure that it was happening.

HEFFNER: Well …

SAROKIN: I don’t think we can ever or should ever end public trials.

HEFFNER: Well, when you were a trial judge and I wanted to come down to see what Lee Sarokin was doing and what was going on in his courtroom … I always could.

SAROKIN: Of course.

HEFFNER: Or if I couldn’t the thousands who were in the courtroom there before me … so that I couldn’t get in …

SAROKIN: The tens of thousands (laugh)

HEFFNER: Right.

SAROKIN: Yeah.

HEFFNER: Could, could see …

SAROKIN: Yes.

HEFFNER: But that’s an open … then, therefore that’s an open trial.

SAROKIN: Yes, exactly.

HEFFNER: Does it need to be in the press and on the air?

SAROKIN: Well, what would be the choice? You couldn’t say to the press “You can come in, but you can’t report what’s there”. Because I think reporting what’s there is also carrying out the public’s right to participate, or at least visualize what is going on during the course of the trial.

HEFFNER: We have to, we have to come to some agreement …

SAROKIN: All right.

HEFFNER: … on this it’s …

SAROKIN: All right.

HEFFNER: I don’t think we’re going to …

SAROKIN: No.

HEFFNER: Let’s go back a minute to this question of the prosecutor’s because I didn’t mean to let it go by so quickly. You’re concerned with the public, public … publicity seeking prosecutors.

SAROKIN: Yes.

HEFFNER: How do you handle that?

SAROKIN: Well, there are some rules. I, I don’t think they’re followed. There, there are rules limiting what a prosecutor can say outside of the courtroom. But the rules mainly are directed at preserving the defendant’s right to a fair trail.

HEFFNER: But you implied that the defendant’s right has been diminished …

SAROKIN: Yeah.

HEFFNER: … if the prosecutor speaks at length.

SAROKIN: Yeah. But, but even … even in those instances where all that the prosecutor does is set forth the charges, the indictment and, under the rules, he or she is perfectly permitted to do. I, I think there is basically, as I said before an unfairness in having charges publicized before trial.

I don’t know what purpose it serves and why they should be permitted to do it.

HEFFNER: Then why doesn’t the proper authority, whether it is the legal profession, the bar associations, the judiciary … tend to this matter?

SAROKIN: Well, there are individual gag orders in some cases where the judge will instruct the parties not to speak. But it’s not a general rule. The rule now permits prosecutors to announce the charges publicly. And I think that’s a rule that probably ought to be changed, as I said, unless it serves some purpose. Unless it allays the public’s fear about somebody who’s out there robbing, raping or murdering people, I don’t see any reason why, why the charges should be publicized until the time of trial.

HEFFNER: Of course brings me to a somewhat larger question. In your estimation, how well does your profession … guide, regulate, oversee itself?

SAROKIN: Fairly. (Laughter)

HEFFNER: Fairly … what? Fairly poorly? Fairly well?

SAROKIN: Fairly well. Ah, I, I must say this though … when I started practicing law if there was an ethics proceeding against a lawyer, it would be major news in the bar journal … whatever it was. And it was unheard of … if you were charged with an ethical violation, it was the end of the world.

Now there are pages and pages of lawyers who are charged with ethical violations. Now that may be due to, to the fact that we’re stricter, or there are more lawyers. I mean that, that may have something to do with it. That the pool is greater and therefore the number is greater.

But I grew up at a time in the law, particularly in the firm that I was with where your ethical conduct was more important than anything else that you did.

HEFFNER: More than …

SAROKIN: … In one …

HEFFNER: More than billable hours?

SAROKIN: Right. More than billable hours. More than the competence of your work or anything else. It was just an atmosphere … I’d worked for one of the deans of the profession in New Jersey, he’d started the local law school … he was just one of those wonderful men who, you know, integrity was the single most important thing to him.

He billed by calling up his clients and saying, “Charlie, we just finished this case, you know, I spent a lot of time … we did this … what do you think the bill ought to be?” That’s … that was billable hours. We lost a lot of money, by the way … as a result of that. But I, I never felt guilty about any bill we ever sent out.

But the point is that I, I don’t want to condemn the bar as it now operates, but when … in the early practice we were a profession that, that believed in ethics. And I don’t’ know whether it’s as important now as it was then.

HEFFNER: Judge you say you don’t know whether it is. Do you have an opinion that you will share with us?

SAROKIN: I think we’ve slipped a little bit. Just by … as I’ve said by the sheer number of ethics charges that are being made and sustained … I, I think things have changed a little bit. With a focus …and, and I don’t knock making money for a minute. But I think the focus has changed significantly, that making money is more important than functioning as a professional. And we’ve become more of a business than a profession.

HEFFNER: Well, we got to this because I was so taken with what you wrote and what you’ve said about prosecutors. Where is it … where lies the authority and where and when and how is it exercised to make certain that the basic ethical principles that characterize a long time ago the practice of law in America …

SAROKIN: Well … it can come from two sources … legislation or rules of court. And disciplinary rules. I mean those are really the three forms that would restrict, for instance, the conduct of prosecutors. And, and one other thing about prosecutions is … there’s a great deal of emphasis now … you and I discussed before about the Innocence Project and the number of people who have been exonerated. And I want to defend the prosecution in this respect. I don’t think that prosecutors go around prosecuting people they think are innocent. I think what they do in these cases … that they’re convinced of the guilt and pursue it and maybe sometimes a little too aggressively and, and that may cause the problems that exist. But, even in these public statements about the charges and the evidence … I, I think they think they’re doing a, a service to the public by announcing these things. I don’t think that they’re bad people. But I still think that there should be greater restrictions on what they do.

HEFFNER: I think you’re mellowing.

SAROKIN: I … I’m probably mellowing … I hope not. (Laughter)

HEFFNER: Don’t hope not.

SAROKIN: No.

HEFFNER: But you know, let’s go back to this … in response to my question … you say there is legislation, there are rules. Are they enforced?

SAROKIN: Yes. I, I … I, I think they’re strictly enforced. Not so much … I mean it’s more on ethical behavior than for instances, excesses by the prosecutors. I don’t think that gets people quite as excited as a lawyer embezzling money, or, or cheating a client.

HEFFNER: But you think it should.

SAROKIN: Ah, I think it’s important. I think it’s definitely an encroachment upon the rights of defendants. And I think it’s a practice that really ought to stop.

HEFFNER: You’ve mentioned the Innocence Project and we talked about it before. Do you have a sense that it has more and more meat to chew on?

SAROKIN: Ah, yes. I mean I think we’re beginning to discover that not a large number, but whatever the number is, too many people have been arrested and convicted for crimes that they did not commit. Percentage-wise, people would say, well, it’s not an awful lot. But when you think in terms of a single person … I said at a speech recently … prison is hell for those who are guilty. Imagine what it must be like for somebody who is innocent. And …so even one person who is innocent being convicted is a failure of the system. But I think with DNA and some very dedicated lawyers and, and groups, such as the Innocence Project, that more and more of these cases are being discovered. And I think it will continue to, to, to happen.

HEFFNER: What do you see as the future of the legal profession in our country?

SAROKIN: Well I read, I think… is in today’s Times that it’s going to change, or I guess it was the Financial Times from London that it was going to change from billable hours to something else. I think the function will remain pretty much the same.

Lawyers have become so involved in the business aspects … it isn’t what we traditionally dreamed about when we were in law school.

Young lawyers always ask me what was my most important case as a lawyer. And I tell the story that my son had gotten a speeding ticket and I was in court and the, the judge recognized me and he called me up and he said, “there’s a young man here charged with shoplifting. Would you represent him?” And at the time, modestly speaking, I was a very well known trial lawyer with 25 years experience. So this young prosecutor didn’t know what had hit him and I defended this man and got him acquitted.

And, and that was the highlight for me. I think it was one of the great moments in my practice of law. I didn’t get paid for it. but just the idea that I was called upon to rep … and there were other instances like that I look back upon as the happiest times and most satisfying times in my legal profession.

And I think … these lawyers by the way … who are representing people in these cases where they’re exonerated … you talk to any of them, they can spend 10 years on a case getting no fee and they’ll tell you without hesitation, that’s the greatest work they ever did. Because that’s the tradition of the bar, that’s what we all dream about doing as lawyers.

HEFFNER: You say that’s the tradition of the bar, it’s also the tradition of people who become community workers.

SAROKIN: Yes.

HEFFNER: And I’ve steered that by some major politicians because they are just that.

SAROKIN: Yes.

HEFFNER: So that I ask, what the … what-in your estimation-is the level of the public service, public interest … the dimension of those interests in our young people today?

SAROKIN: I think great. I, I know … of course, maybe it’s self-selected, but I know that with my own law clerks, more than half of them have gone into public service work. But as I say maybe that’s because that’s the kind of clerks that I’ve picked. I mean some have gone into the business world because they have loans to pay off. But a great many of them have gone into public service. And I think this generation … I think we’ve skipped a generation, I think this current generation is very interested in doing public service.

HEFFNER: Skipped a generation? What do you mean?

SAROKIN: Well, I think the last generation was very focused on, on making money. And I think this current generation, the last 10 or 20 years, I think coming out of law schools, they want to do good. I, I … I’m very optimistic. And I think it’s, it’s evident by our selection of the President., too. I think that’s sort of indicative of the times, of what the young people in this country want. Much more hopeful.

HEFFNER: And you think the law, itself, in America is moving in that direction …

SAROKIN: I hope so.

HEFFNER: … not just the young people.

SAROKIN: I hope so. It’s so complicated. The law has gotten to be … I, I notice that they’re talking about the next Supreme Court nominee and whether it should be somebody from the Appellate Court. I … there was a letter to the editor today that somebody suggested it should be a District Federal … Federal District Court Judge, which I have some agreement …

HEFFNER: Of course, you were a Federal District Court Judge for many years.

SAROKIN: Well I think, I think there’s some real world experience that a Supreme Court Justice should have. And one of the criticisms of the Court is they all … almost all of them came off of appellate courts. And real world experience, I think, is very important on the Supreme Court right now. And I like the idea of somebody coming from the District Court, or even from coming outside the court system, but …

HEFFNER: Outside the court system itself?

SAROKIN: Yeah, well they’ve talked about, you know, governors, or you know, people that … but I, I, I do think that the law is so complicated … when I look at the current Supreme Court cases, it’s hard for me to envision that somebody who hasn’t lived with this day in and day out can walk into that job, because that has become so complex and knowledge and familiarity with the law is such a necessary prerequisite. It’s hard for me to envision that somebody from another field can come in and do the job.

HEFFNER: We’ve just got a few second left. You miss it?

SAROKIN: Yeah … every once in a while when I see a case that I say, “oh, I wish I was on that case”. But otherwise, my life is good, and I’m very happy.

HEFFNER: Thank you for joining me today …

SAROKIN: Thank you for having me.

HEFFNER: … Judge Sarokin.
And thanks, too, to you in the audience. I hope you join us again next time.

Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit The Open Mind website at

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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