God Bless Judge David Hittner (Updated)

 Posted on April 28, 2010 in Uncategorized

If you know me well, you might think that I would find no pleasure in a law-and-order federal judge smiting a college student for contempt, bringing her court in short-shorts and chains (Mary Flood, Houston Chronicle). You might think that any pleasure I took from such an event would be alloyed with guilt.

You would be wrong.

Judge David Hittner does not suffer fools gladly. In 1998 he dragged Joel Pippert, president of UTEX Industries, into court and browbeat him into paying his employee while she was serving on a jury. Yesterday he had the federal marshalls drag 19-year-old Kelsey Gloston into court in chains (cuffs, waist chain, shackles) because, after being chosen for a jury panel, she failed to appear. (Interesting fact: Dan Cogdell represented defendants both in the 1998 case and in this week's case.)

Not only did Ms. Gloston fail to appear, but she also was rude to-and hung up on-the clerk who called asking for an explanation.

Ordinarily the the duty of calling missing jurors would fall to Ellen Alexander, Judge Hittner's case manager. Ellen is by far the nicest human being in the courthouse. If Ms. Gloston was rude to Ellen, she deserves pen time just for that, in my book.

By the way, Ellen is again raising money to fight ovarian cancer. Please go to her firstgiving.com page and give whatever you can. I don't ask for much, but this is a good cause for good people. But I digress.

The right to trial by jury exists not for the good of the government, but for the good of the people. The more diverse the group that turns up for jury duty, the better for the people. In the Southern District of Texas, where jurors are called from voter registration lists, the panels skew white and old. Not many 19-year-olds turn up to do their civic duty. By using the power of The Man to chastise Ms. Gloston, Judge Hittner increases the likelihood that young adults who disrespect the government will show up to do their duty. A few of them will make it onto juries, where acquitting the accused will stick it to The Man in a way that failing to show up never could do. Even if Ellen was not the object of Ms. Gloston's rudeness, her smiting cheers me.

So what will happen tomorrow when Ms. Gloston appears before Judge Hittner? It probably depends on her attitude. The Show Cause Order requires Ms. Gloston to show why she should not be "held in the Harris County Jail" for contempt.

I would classify this as an indirect (outside the presence of the court) criminal (punitive, rather than contempt. Ms. Gloston has rights in the contempt proceeding (including a reasonable amount of time to prepare, but not including a jury). The judge can sentence Ms. Gloston to up to six months' incarceration (though I think the "in the Harris County Jail" part might be overstepping his considerable authority) or a fine of up to $1,000.

If Ms. Gloston goes into court contritely, my bet is that Judge Hittner lets her off with a scolding and an essay. But her dad, who was a plaintiff in a federal suit in 1995 that went badly for him, "plans to sue" (sue whom? could you not have waited two days to make that announcement? do you think you're going to intimidate the judge?); if Ms. Gloston goes into court tomorrow with a self-entitled "plans to sue" attitude, things could go badly for her as well.

[Update:

Hittner, who has sometimes been tougher on others who skipped jury duty, accepted the young woman's apology after asking her a few questions. The judge said he would not hold a contempt hearing and released her with a copy of the U.S. Constitution asking she talk to her lawyer Dee McWilliams about Article III that establishes the courts and the Seventh Amendment that guarantees jury trials.

(Mary Flood, Houston Chronicle.)

So all's well that ends well.]