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Appellate Court Hopping Mad Over Reference to a Kangaroo Court

In this recent column, Marsupial Alert:  Don't Refer to Appellate Judges as a "Kangaroo Court", Howard Bashman describes the drama that ensued when a California appellate court mistakenly thought that the trial judge had referred to it as a "kangaroo court." The incident started back in December 2006, when a trial judge remarked, on the record, during a criminal sentencing proceeding, "You can't offend the kangaroos up there in kangaroo court." In reviewing the trial judge's order, the Court of Appeals took offense at the comment, feeling that the trial court had unfairly lashed out at the appellate judges because precedent precluded the judge from resolving the case as he saw fit.   

However, as it turned out, the trial judge didn't intend his kangaroo court remarks for the appellate court at all. In investigating the story, a reporter learned that the trial judge had called the prosecuting attorney's "strike committee" (the committee that decides whether to count prior convictions as strikes under California's repeat-offender law) a kangaroo court, not the trial judge. Fortunately, the prosecutor was not as sensitive as the appellate judges; apparently, he laughed off the reference.

Bashman draws from useful lessons for the case:

When a trial court judge wishes to insult or even merely poke fun at a party while on the record, the judge should use language that cannot be misunderstood by an appellate court as holding the appellate court up to ridicule. In this instance, instead of calling the prosecutor's "strike committee" a "kangaroo court," the trial judge could have instead called the committee something along the lines of "prosecutorial grand pooh-bahs." That alternate suggestion also has the benefit of possibly causing those who hear or read it to reminisce about Gilbert and Sullivan's "The Mikado" or "The Flintstones" television series.

Posted by Carolyn Elefant on February 13, 2007 at 05:45 PM | Permalink | Comments (0)


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