ARTICLES written by Andi Geloo
FAIRFAX TIMES – Part 1 of 4 part series: TIME TO GET WAYWARD JUDGES OFF THE BENCH
FAIRFAX TIMES- Part 2 of 4 part series There must be no “commending” wayward judges
FAIRFAX TIMES-Part 3 of 4 part series: Harnessing support to de-certify wayward judgeshttps://www.fairfaxtimes.com/articles/opinions/harnessing-support-to-de-certify-wayward-judges/article_c62e63a8-76a6-11ef-bb2f-c7564454a820.html
Virginia Lawyer’s Weekly: Op-Ed: Op-Ed: It’s time to get ‘wayward judges’ off courtroom benches
Virginia Lawyer’s Weekly Op-Ed: There must be no ‘commending’ wayward judges
Op-Ed: Shaming of lawyer in courtroom reveals urgent need for compassion in the profession
By Andi Geloo
Virginia Lawyer’s Weekly
(text is below if the link to VLW doesn’t work)
With deep gratitude and admiration, I acknowledge exceptional attorneys like my friend Craig Max, to whom I dedicated one of our water wells in Pakistan, George Fabres, who had a tremendous impact on me and many others on this VACDL listserv and beyond, especially the public defenders, who have demonstrated the highest levels of empathy, perseverance, and devotion to those who needed them most. Your unwavering commitment to justice and equality has significantly impacted innumerable lives, and your legacy will continue to inspire future generations of legal professionals. Thank you for sharing some of your powerful and very personal stories with me. I dedicate this op-ed to all of you.
Andi Geloo
TEXT:
Op-Ed: Shaming of lawyer in courtroom reveals urgent need for compassion in the profession
By Andi Geloo
In early December 2016, a hearing began ordinarily in a Virginia courtroom.
A well-respected criminal defense attorney with over 30 years of impeccable service to the community stepped inside the courtroom two hours early for a preliminary hearing on behalf of an indigent client. A veteran defense attorney, I passed by him quickly in the hallway outside, exchanging pleasantries. His client, a young woman, had been charged with two counts of forgery and two counts of failure to appear in court for previous hearings. The attorney, whom I will call Charles, had made numerous appearances on the case, which had been pending for two years. The complaining witness had not shown up for court in the past. Charles had worked out a plea agreement, dropping all of the charges except for one count of failing to appear, with the client receiving only a fine. By all standards, Charles was representing his client well.
The hearing then took a shocking turn. The disturbing series of events that followed reveals a crisis of insensitivity and callousness in the legal profession that we must reverse to recognize that lawyers — like healthcare professionals, first responders, police, and journalists — often absorb the serious stresses, traumas, and grief intertwined with many legal cases, and the compounded impact often leads to mental health crises best healed with accountability marked with compassion, not public humiliation.
According to an “order of contempt” filed by the presiding judge against the attorney, courtroom deputies told the judge that “there was an odor of alcohol about him.” Instead of taking the lawyer into chambers to resolve the matter confidentially — a respectful and professional course of action — the judge took the unusual, and perhaps illegal, step of asking the lawyer in open court to take a preliminary breath test, called a “PBT.”
According to the “order of contempt,” Charles declined the demand, “indicating that he had health problems.” The judge then “instructed” Charles to step forward to the bench and “when he did so, the Court immediately smelled the odor of alcohol.” The judge again asked for a breath test.
At that point, Charles “admitted to drinking at lunch” — apparently, I learned later, one drink. Dispirited, Charles told the judge, “I have a problem.” Unmoved, the judge told Charles “that a jail sentence would have to be imposed.”
A lawyer’s humility: ‘I’m sorry’ He asked her to not throw him in jail, turned to the lawyers in the gallery and said, “I’m sorry.”
The lawyer had not shown any signs of drunkenness. The judge held him in contempt and sentenced him to one day in jail for “CONTEMPT OF COURT,” according to the order. The judge had Charles arrested and led away to jail in handcuffs. Back in the gallery for my own proceedings, I saw lawyers, their eyes wide. Another attorney completed the plea agreement, just as Charles had planned it for his client.
He was released the next day. He never practiced law again.
One attorney present in the courtroom that day remembers the judge asking Charles repeatedly to “admit he was drinking,” but that kind of public humiliation and shaming isn’t going to result in any form of restorative justice.
And a quick glance at Virginia code reveals the judge may very well have overstepped authority in a rush to judgment. Virginia Contempt Code § 18.2-456 enumerates cases in which courts and judges may punish summarily for contempt. Subsection A (1) states that “the courts and judges may issue attachments for contempt, and punish them summarily, only in certain cases.” The statute requires judges to indicate what subdivision an attorney has allegedly violated, but the judge didn’t do so in the order. We can presume it is subsection A1, which punishes “misbehavior in the presence of the court, or so near and thereto as to obstruct or interrupt the administration of justice.”
By all accounts, the attorney did not “obstruct” or “interrupt” justice. In fact, he was the opposite — humble and apologetic.
Moreover, legal experts recognize the preliminary breath test that the judge demanded is not accurate. Police use it in traffic stops, often in conjunction with field sobriety tests, to determine if probable cause exists for an arrest in intoxicated or impaired driving cases, not for contempt charges. Even when the preliminary testing device is used in cases of alleged driving under the influence, it may only be used to establish probable cause. The Eighth Circuit Court of Appeals summarized the general holdings in U.S. v. Iron Cloud, 171 F.3d 587 (8th Cir., 1999), when it stated: “Furthermore, almost every state that has addressed the issue has refused to admit the results of the test for purposes other than probable cause.”
The Court in State v. Zell, 491 N.W.2d 196, 197 (Iowa Ct.App., 1992) held that the results of the preliminary screening test are inadmissible because the test is inherently unreliable and may register an inaccurate percentage of alcohol present in the breath and may also be inaccurate as to the presence or absence of any alcohol.
In another case, Santen v. Tuthill, the Virginia Supreme Court ruled that a preliminary breath test is not admissible for any purpose.
Losing one of our own
This case is emblematic of a judicial and legal culture that can too often be callous, perhaps even more so to our own colleagues, even as we develop “trauma-informed lawyering” and “trauma-informed courtrooms.” Charles acknowledged that he had a problem, and we should have gotten him the treatment, help and assistance he needed.
Instead, that afternoon, our courthouse lost one of its most selfless and caring attorneys.
When I later learned that the judge held Charles in contempt and jailed him, I was heartbroken. I’ve always believed that showing compassion for those suffering from illness is key to aiding their recovery and an indicator of how civilized our society is. Compassion is just as important a value in any profession, including ours, and no professional should resort to expressing anger or publicly humiliating someone.
I called Charles’s office and left a voicemail. Fighting back tears, I told him I knew he was a strong attorney and a good person, and I extended him my support.
When we spoke a few days later, he told me that the moments in that courtroom, immortalized in the contempt order, and his time in jail were some of the darkest moments of his life, and my voicemail (from a relative stranger) sustained him. He told me that day he was quitting the legal profession.
A need for lawyer-assistance programs
There were many ways this situation could have been handled. The judge could have called the lawyer into chambers and resolved the issue privately. Charles was an attorney with a stellar reputation for kindness and had devoted over 30 years to our courthouse without incident. He was clearly struggling and depressed. He deserved compassion and forgiveness, not public shame and punishment.
As a profession, we need to recognize that our work, navigating some of society’s most difficult, traumatic and challenging situations, can have an impact on our own well-being and mental health. Fortunately, there is some work being done to bring that awareness to our profession.
In 2016, the Journal of Addiction Medicine published seminal new research by St. Paul, Minnesota, attorney Patrick Krill and co-researchers about substance abuse and mental health in the legal profession, finding that 36.4% of 12,825 attorney respondents demonstrated “hazardous drinking or possible alcohol abuse or dependence.” The researchers, conducting their study in cooperation with the American Bar Association and the Hazelden Betty Ford Foundation, noted that they found that depression, anxiety and stress were “significant problems” for respondents.
Krill and his co-researchers recommended public awareness programs within the profession to overcome stigma and confidential initiatives called “lawyer-assistance” programs to “overcome the privacy concerns that may create barriers between struggling attorneys” — like Charles — “and the help they need.”
The next year, in 2017, the American Bar Association created the “ABA Well-Being Pledge” to improve the health of lawyers. In the years since, lawyer assistance programs have emerged in courthouses from the U.S. Eastern District of New York to the State Bar of California. In 2019, the Lawyers Depression Project emerged as a free and confidential peer support community.
Last year, LawLine, an online continuing education platform for attorneys, started offering a course, “Help for the Helper: The Effects of Trauma and Compassion Fatigue on the Lawyer Who Cares,” taught by attorney Brian S. Quinn, founder of an organization, Lawyers Concerned for Lawyers of Pennsylvania Inc. In the course description, Quinn notes: “A special type of burnout, called ‘secondary traumatic stress’ or ‘compassion fatigue,’ isn’t discussed as frequently as those of stress and burnout and thus, for many attorneys, they are topics in need of attention.”
Quinn notes that this kind of stress can happen listening to clients and witnesses narrate their “pain, suffering and burdens.”
Today, the American Bar Association devotes a page on its website to “Mental Health Resources for the Legal Profession,” collated by the American Bar Association’s Commission on Lawyers Assistance Programs. The resources include help for anxiety, depression, panic, substance abuse, and suicidal ideation.
Despite all of these efforts, as we know, these sorts of discussions are still very much taboo.
With some trepidation about the response that I would receive, I recently posted a short comment about my reflections about the courtroom incident on a listserv for Virginia criminal defense attorneys.
To my surprise, I was overwhelmed with responses expressing compassion for the lawyer and sharing stories of colleagues who have also needed help. One attorney shared the obituary of his young colleague and co-counsel, whose alcoholism accelerated after they defended a difficult capital murder case almost 30 years ago. Others shared stories of deaths by suicide in Fairfax County due to the pressures of trial and defense work, especially when depression and mental illness were factors. Most expressed horror at how the judge had been so cruel to the lawyer.
The consensus among the bar was that the matter could have been handled differently, as I believed, privately in chambers, and the judge could have continued the case. The unanimous opinion was that the judge chose the least tolerant and least compassionate method.
Moving forward
I’m perplexed by the judge’s intolerant and humiliating treatment of a well-respected attorney. The courthouse felt a tremendous loss with the departure of an esteemed colleague. However, despite this one judge’s approach, I am heartened to see the judiciary taking steps to support individuals struggling with addiction.
Notably, Chief Justice S. Bernard Goodwyn demonstrated a commitment to this issue by appointing Justice Thomas P. Mann, one of our most respected judges and my mentor and friend, as chair of the Virginia Lawyers’ Wellness Initiative. This appointment is a testament to the judiciary’s support for the well-being of legal professionals.
As chair, Justice Mann will spearhead a collaborative effort between the Supreme Court of Virginia, the Virginia State Bar, various bar associations, and Virginia’s law schools. The initiative focuses on professional health and wellness, specifically mental health and substance abuse, in the legal community.
The initiative is a step in the right direction, and I am confident that Justice Mann, renowned for his compassion and empathy, will foster a supportive environment that prioritizes the well-being and resilience of legal professionals throughout the commonwealth. This approach is about compassion and understanding rather than punishment and abuse.
Not long ago, I spoke to the attorney whose last day as a lawyer was the day the judge sent him to jail. My quest to locate him and secure his blessing to write this op-ed has been an odyssey that has spanned nearly eight years, beginning from his trying moment. He told me his family had supported him through his departure from the legal profession and he loved them very much and was doing well now. He expressed how much he missed the courthouse and the satisfaction that had come from his work and helping people.
As a lawyer who couldn’t imagine doing anything else, I understand his feelings. Our job allows us to create change and attempt to right the wrongs we see in the community. In whatever role we have, from behind the bench to in front of it, we can be effective and still be empathetic as we extend humanity to others, including those in our profession.
Andaleeb “Andi” Geloo is a first-generation immigrant Muslim, lawyer, and author of “Andi’s Law,” legislation that expanded the rights of citizens seeking protection from defamation. She earned her law degree from George Washington Law School with high honors. She can be reached at andigeloolaw@ gmail.com and https:// www.facebook.com/AndiGeloo.
Link to VLW op-ed
Op-Ed: There must be no ‘commending’ wayward judges
Andi Geloo//November 27, 2023//
As a criminal defense attorney in Fairfax County, I regularly appeared before substitute judges Michael Cantrell, Mitchell Mutnick and Richard “Butch” Horan while they were on the bench.
What I saw in their courtrooms raised questions with me, and I embarked on a journey, holding these judges accountable for their disturbing courtroom antics. My experience reveals the challenges we still have in Virginia making certain that our judges engage in best practices in the courthouse. One of the judges, Judge Horan, had actually been forced to retire in 2004 but had returned as a substitute judge, presiding in criminal court for an additional 15 years. In early 2022, the other two also had to retire due to improper, abusive, and untoward behavior but they were also allowed to serve as substitute judges.
In August 2022, I wrote an op-ed for Virginia Lawyers Weekly, “It’s time to get ‘wayward judges’ off courtroom benches.” What I learned was that even after holding these judges accountable, there are still stealth ways that they maintain their status in our legal communities, even going so far as one legislative effort earlier this year that attempted to “commend” one of these judges.
I was motivated to write my op-ed because I had witnessed Judge Horan mistreat a young woman, Amanda, in courtroom 1A of the Fairfax County General District Court. She had survived a traumatic upbringing, repeatedly raped by her foster father as a toddler. She continued to face unimaginable abuse until she finally ran away. Sadly, once free from her foster father, she married an abusive man whom she later divorced. At the time of her interaction with Judge Horan, she was struggling as a young single mother of two children. She stood before Judge Horan and explained to him gently that she couldn’t afford a lawyer because she had lost her job in the first months of the pandemic. In a disturbing display of unprofessionalism, Judge Horan refused to appoint her a lawyer — denying the young woman her constitutional right — and proceeded to mock her.
“I am so sick and tired of people like you always requesting an attorney,” he told her, continuing, “I see ‘Help Wanted’ signs everywhere.” Judge Horan gave her a two-month extension to find a job, warning that she also had to hunt for a lawyer she would have to be able to afford to pay.
In the courtroom, I watched stunned. As a practicing criminal attorney, I had unfortunately seen this kind of judicial disrespect and miscarriage of justice. Immediately, I sent an email expressing my concerns to Chief Judge Lisa Mayne, who oversees judges in the General District Court. Later, I found and contacted Amanda and represented her pro bono. Her case was dismissed.
Judges who steer off track are called “wayward judges.” There isn’t a lot of documentation about them being held accountable for their behavior but there is some. In 2008, the National Law Journal published a piece, “Little public airing of abusive judges,” noting that the 5th U.S. Circuit of Appeals hired two psychiatrists to observe a federal judge who “terrorized lawyers.” In 2021, the ABA Journal reported that the Arkansas Supreme Court suspended a judge and ordered him to hire a counselor or life coach for “rude and intimidating treatment of public defenders in the courtroom.” Then, last year, a state court judge in West Virginia “whipped out his hand gun, waved it in the air and left it on the bench with the barrel pointing directly at the corporate lawyers who had irritated him,” according to an account.
It is often only public scrutiny that brings about accountability. In 2004, Washington Post reporter Chris L. Jenkins wrote that Judge Horan had disturbing disapproval ratings among Virginia lawmakers, and Judge Horan was forced to retire soon after the Washington Post published its story. However, he retained his ability to preside as a substitute judge in the courtroom for the next 18 years.
Last year, I noted in my op-ed:
“Judge Horan was not alone in being rewarded for deplorable courtroom behavior. Fairfax County General District Court Judges Michael Cantrell and Mitchell Mutnick share the same judicious temperament as Judge Horan. Like Horan, both judges have received numerous complaints over many years. In March, the Virginia legislature also censured Fairfax County General District Court Judges Michael Cantrell and Mitchell Mutnick for being abusive toward citizens. They had both received embarrassingly low scores on their Judicial Performance Evaluations and complaints from court staff, citizens, lawyers and lawmakers. The Virginia legislature did not reappoint either Mutnick or Cantrell and, instead, forced them to resign at the end of their respective terms. Based on performance evaluations, Cantrell scored last among 50 Virginia judges, and Mutnick scored especially poor for ‘patience,’ ‘respect,’ and ‘bias and prejudice.’ These privileged ‘good ole’ boys’ enjoyed enormous, unbridled power and advantages throughout their lives and took almost a perverse pleasure in disrespecting the underprivileged and those they viewed as weak and beneath them.”
At the time, Virginia Code § 16.1-69:35(b) allowed the chief judge of the General District Court to designate a retired district judge to sit as a substitute judge and preside over matters, even if serious allegations of unsuitability were raised against that judge. This law was being used to circumvent and undermine the actions of legislators who have ousted disgraced judges. However, there was a way to fix the problem created by this law. Chief Judge Lisa Mayne had the power to prevent wayward judges from sitting as substitute judges — she simply chose not to do so.
While these judges’ courtroom antics and inability to maintain judicial temperament had been widely criticized by lawmakers, lawyers, law enforcement and citizens, Chief Judge Mayne inexplicably continued to permit Judges Horan, Cantrell and Mutnick to sit as substitute judges.
Chief Judge Mayne was not ignorant of the charges that had repeatedly been leveraged against these three judges over the years, even in their roles as substitute judges. However, she chose to ignore them and further continued to protect this privileged group of men and their long standing relationships with her. Unfortunately, the victims of these privileged relationships were innocent citizens like my pro bono client, Amanda.
Thankfully, our elected officials in the Virginia General Assembly thought differently.
This past legislative session of the 2022-2023 Virginia General Assembly, I was proud to help lead a process that enlightened our legislators about the abuse that had been taking place in Fairfax County General District Court under the current leadership, sharing my op-ed and educating lawmakers one-on-one. The session adjourned sine die in March. While I was unsuccessful in my efforts to dismantle relationships on the bench that permitted and rewarded privileged abuse of power by these three judges, I was successful in convincing our delegation that our community deserves better.
In Richmond, I argued that it’s not just privilege but subterfuge at play when judges are forced to retire due to their abominable courtroom behavior but are then given the ability to return through a back door and continue to hold such complete and arbitrary control over our community. And what happens to the victims of this subterfuge — the citizens we serve? Wayward judges are able to make life-altering decisions for people who are invariably at their most vulnerable. Those who appear before these sub-judges are victims of the same dangerous misconduct that led to judges like Judge Horan being relieved of their duties. This is not how justice is served.
If people like Judges Mutnick, Horan and Cantrell are permitted to serve even after being ousted by the very body they now wish to seek recertification from, the process to reappoint or not reappoint becomes nothing more than a vacuous and corrupt process.
Sharing my op-ed, Virginia Delegate Kaye Kory agreed and publicly noted, “Judges we have forced to retire due to unacceptable bench behavior should not be appointed as substitutes. #waywardjudges.” With this public affirmation, it was becoming clear that lawmakers were not going to tolerate the tyranny and nonsense permitted in the Fairfax County General District Court.
In January 2023, in response to my op-ed, Virginia Senator Chap Petersen and I, supported by the chair of the Judiciary Committee, Senator Creigh Deeds, and the entire Senate Judiciary Committee, presented a bill, SB 843, that prevented ousted judges from sitting on the bench at all, bridging the gap between a mere concept and the goal the legislative body sought when it removed these terrible judges from office. The community agreed unanimously that, once judges are removed, they should not be permitted to get their jobs back because of a loophole. Recognizing that substitute judges are just as powerful as sitting judges in authority, our vision sought to prevent further victimization of community members at the hands of the judges who had previously been justifiably removed.
Thanks to this vision, there is momentum for the idea, as voiced by Senator Deeds, that there should be greater scrutiny of retired judges who have failed to be reelected before those judges are allowed to do substitute work. To that end, these lawmakers now require that every judge be scrutinized for their actions before they are permitted to sit as a substitute judge.
Shockingly, it was during this same session in Richmond that I witnessed three ousted waywards (Judges Mutnick, Cantrell and Horan) appear with the audacious intent of becoming certified as substitute judges under the new law. Having clearly demonstrated a disrespect for citizens with their tyranny, they still sought reappointment. The idea was preposterous to me. Thankfully, now without protection from the chief judge, these three judges failed miserably.
With a few calls and texts from my cell phone, I harnessed critical bipartisan support from important community leaders and lawmakers for the effort. Then, on Feb. 13, Senator Petersen got a unanimous vote in the Senate Judiciary Committee in favor of uncertifying all three judges. On Feb. 17, Delegate Marcus Simon did the same in the House, sending a strong message that privileged relationships were no longer going to be protected — that Virginia will no longer be ruled by wayward judges whose fitness to sit on the bench has already been clearly shown by our legislature to be lacking. The reign of terror that had existed in Fairfax County for decades ended. Judges Michael Cantrell, Mitchell Mutnick and Richard “Butch” Horan will never sit as judges again.
Sadly, days earlier, in a stealth move on Jan. 23, 2023, a Virginia senator introduced Senate Joint Resolution No. 279 “commending” Judge Mutnick, one of the ousted judges. He had become a judge in 2004 through an alleged close family connection he had with former State Senator Joseph V. Gartlan Jr., when he was neither “highly recommended” or even “recommended” by the Fairfax Bar Association judicial screening committee and was outvoted by other judicial candidates the year he ran for judge. This commendation was done through a block vote and other than the one Virginia senator who introduced the resolution very few people read the commending resolution. In fact, the chair of the Senate Judiciary, Senator Deeds, was not even aware that Judge Mutnick was being given a commendation. Even members of the Fairfax Delegation, including Virginia Delegate Marcus Simon, said that they were not aware of this commendation.
Former member of the House of Delegates Mark Levine told me, “… apparently no one noticed this particular commendation. Unless someone brings a bad commendation to our attention, we rarely touch them …. I remember why we didn’t renew Cantrell and Mutnick’s terms as judges, and had I been in the legislature at the time and noticed Mutnick’s commendation, I would have asked to remove them from the bloc for a separate vote. I think that had that happened, he would have been rejected.”
When other lawmakers and flabbergasted community leaders asked why a commendation had been given to a judge who was removed and forced to retire due to bad behavior — a judge ranked fifth from the last — the introducing senator’s response was not that he deserved it, but that, “I don’t care. I give them to every single judge that retires in a circuit I represent. I have been doing it for years.”
Thankfully, Senator Petersen showed integrity by not following the policy of this one commending senator and chose to not commend Cantrell, also his constituent. Other senators referred to Mutnick’s commendation as a “meaningless affirmation.”
I disagree. Any affirmation of wayward judges is very meaningful and sends a message to the community that we cannot hold our own accountable when they become irresponsible and wayward in the court of law. There is still work to be done to rid our system of these well connected, privileged “wayward judges,” but we are fortunate to have lawmakers and attorneys in our community who are willing to take an important and morally courageous stand for justice.
Andaleeb “Andi” Geloo is a first-generation immigrant Muslim, lawyer and author of “Andi’s Law,” which expanded the rights of citizens seeking protection from defamation. She earned her law degree from George Washington Law School with high honors and practices law in Fairfax County. She also covers pro bono matters for underprivileged families throughout Virginia and can be reached at Andigeloolaw@gmail.com.