• October 21, 2015

SpankingCivil litigators, in particular, are familiar with the term “bench slap” but I expect lawyers on the criminal side of the system know it too. A “bench slap” is public criticism of lawyers in a judicial opinion (here’s one slap, for example from a post a while back).

Fortunately, bench slaps are fairly rare because, I think, most judges understand that litigating cases is a difficult job (even more so for a pro se litigant, of course), often with stringent demands on one’s time and resources.

Our work falls short of expectations now and again but, most often, this is not due to intentional wrong-doing, incompetence, or disrespect. It is simply a result of being pushed to the limits or beyond one’s limits of capacity. For some (like solo lawyers or small firm lawyers), it is nothing less than an inevitable occupational hazard; it is inherent. One cannot be perfectly and optimally busy all the time. Sometimes, we will be too slow and sometimes too busy to put out our best work.

On the other hand, sometimes lawyers deserve the whacks they get. There are the repeat wrong-doers and the indefensible, for example.

But even more rarely (though recently here in Minnesota), the Bench slaps its own.

The Tenth Judicial District of the state of Minnesota is lately topping the leader-board on rare bench-to-bench slaps, first with Judge Alan F. Pendleton being suspended without pay for lying about his residence, and for not living within the judicial district in which he serves, as required by state law.

And, this week, the Minnesota Court of Appeals issued another decision that took another Anoka County District Court judge to task (albeit omitting the trial judge’s name in the opinion).

It is unfortunate that the Court of Appeals omitted the district court judge’s name, in my opinion, because the conduct was worth attention.

On September 11, 2014, attorney Craig Cascarano, a criminal defense lawyer with 30 years of experience, was required by two different courts to be present at the same time: in Goodhue County and Anoka County. Mr. Cascarano, like most of us, has not figured out yet how to overcome the laws of physics so as to be present in two courts at the same time. So he lined up a substitute, Joel Fink, to substitute for Mr. Cascarano in an uncontested omnibus hearing before Anoka County District Court Judge John P. Dehen.  Alas, there was a miscommunication between Mr. Fink and Mr. Cascarano and Mr. Fink did not show up to sub for Mr. Cascarano at the hearing. The hearing was postponed for one week but the Court imposed a $100 fine on Mr. Cascarano for the “no show.”

Even after Mr. Cascarano submitted evidence to the Court about the challenging circumstances that he faced at the time and the lack of any disrespect or wrong-doing of any kind, Judge Dehen still insisted on fining Mr. Cascarano $100.

And here is when things got interesting.

Mr. Cascarano asked the Chief Judge of the Tenth Judicial Circuit, Judge John C. Hoffman, to disqualify Judge Dehen, which Judge Hoffman did. The Chief Judge also took the opportunity of pointing out at some length that Judge Dehen’s $100 fine was inappropriate.

So, how do you imagine Judge Dehen responded?

He issued another (rather lengthy) order, finding that Chief Judge Hoffman “exceeded his authority in staying the decision of the undersigned to impose court costs on Mr. Cascarano.” (See Para. 19, p. 9.)

This week, the Court of Appeals backed up Judge Hoffman and reversed the $100 fine of Cascarano.

I think it is important to remember that Mr. Cascarano has had to deal with this matter for over one year and clearly he received no compensation for his time defending himself from the trial court’s excessive response to an unfortunate contretemps. You may agree with Judge Dehen’s decision or you might disagree with it, applaud his conduct or condemn it. Regardless of your position, judicial conduct of this type seems worthy of public attention.

Nevertheless, the Court of Appeals does not name Judge Dehen in the opinion and our court records are not accessible enough to easily disseminate this information, which the public has a right and, I would argue, a need to know. Wider access to court records cannot come soon enough. [Editor’s note: Minnesota Lawyer picked up this story and noted that the Court of Appeals decision does include Judge Dehen’s name in the list of parties and counsel, page 1.]



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