Respect for Law Program: Retired judge addresses Optimists on 'Future Interests'

By John Minnis Legal News Retired Wayne County Circuit Chief Judge William Giovan was the hometown guest speaker at the Lakeshore Optimist Club of Grosse Pointe's 29th annual Respect for Law Program and breakfast May 4 for at the Lochmoor Club. Giovan spoke on "The Law of Future Interests." "I'm daunted by the many law enforcement officers I see here today," Giovan told the score of Grosse Pointe, Detroit and Harper Woods officers, along with municipal, county and state officials, present at the annual breakfast. "Respect for Law can come from many sources." For Giovan, the roots of his admiration of the law were a freshman course in law school on the Law of Future Interests. "You probably haven't heard of it if you are not an attorney," he said, "but it has a lot to do with everyday life. There are five kinds of future interests recognized at common law... "... No, I can't do that to you," Giovan smiled, as eyes started glazing over. "Actually, I thought I would talk about the lighter side of the law." The former judge, now a founding partner with Charfoos, Giovan, & Birach, then went on to relate humorous court anecdotes. "People do strange things in the courtroom," he said. "Over the years I've found that they often say strange things as well, and I've kept track of some of them, some from my own courtroom and some from other places. Once an attorney was questioning a witness in my court about events that had occurred in a public park, and this exchange took place: "'Where did you go next? "'Over by the hill where all the young people conjugate.' "I had in my mind's eye the vision of the young crowd, seated on the hill and chanting together, 'Amo, amas, amat, amamus, amaris, amant.' "In another trial, we couldn't avoid the subject of conjugation because it was a paternity case. The complaining witness was on the stand and her attorney asked her: "'Did you ever have sex with the defendant?' "'Not before I met him.' "In still another case, a policeman was on the witness stand. The attorney asked him: "'Have you ever hit anyone?' "'I may have hit someone when I have had to seduce them.' "The strange effects of the courtroom are not limited to those who answer the questions. An attorney was questioning a physician about a urine pregnancy test and, leaving nothing to chance, he asked: "'And to make the test meaningful, you must test the urine of the patient. Isn't that so?' "'Yes.' "That question reminded me of one that I read about in another court where the attorney was questioning a pathologist: "'Doctor, how many autopsies have you performed on dead people?' "'All my autopsies have been performed on dead people.' "Not all physicians respond in such a plain and direct manner. In another case, it is reported that the attorney asked: "'Doctor, what treatment did you give this man?' "'I cleansed the wound, sutured it and put him to bed with a nurse.' "There should be more practitioners who have such a level of consideration for their patients. "We have seen acquittals of defendants who seemed to have been obviously guilty. But not all accused have been artful in concealing their culpability, and, least of all, the man who responded this way to a question from the judge: "'The charge here is theft of frozen chickens. Are you the defendant, sir?' "'No, sir, I'm the guy who stole the chickens.' "Many defendants, of course, are not nearly as willing to admit responsibility, not even after conviction. Consider, for example, the man who wrote this letter to a judge in Toronto: "'Dear Mr. Justice: It sure ain't fair to punish me for seducting that 16-year-old. No one told me the law now says that a girl has to be 18 years old to do it. They shoulda put the change in the paper so I wouldn't of still been working on the old skedule.' "That letter sounds remarkably like one that another shot off to a judge in New York City: "'Dear Judge Davidson: You shouldn't have imposed a fine on me because I didn't know that I was violating the law. You said that ignorance of the law is no excuse but, frankly, I didn't know that either.' "I certainly don't want to give you the impression that it is only men who are inclined to deny culpability. A woman wrote this to her attorney: "'Dear Mr. Waldman: Please help me get an annulment. I never was really married. I remained entirely innocent the whole three years we were together. In fact, I did not even know what an erection was until I saw my attorneys.' "To the attorneys who are present, however, I must warn you. The rules of professional conduct are getting more and more strict in these matters. "Another woman's experience was somewhat different. She wrote this letter to her lawyer: "'Dear Miss Fendler: I want a divorce. I suspect my husband of carrying on with other women. In fact, I don't even think that he is the father of our last child.' "Still another potential client wrote this letter to an attorney in Brooklyn: "'Dear Mr. Josefsberg: Thanks for your offer to represent me, but I don't need a lawyer. I'm going to tell the truth.' "If you think that he had a low opinion of lawyers, consider this exchange that occurred in a court where one of the attorneys was examining a prospective juror: "Counsel: 'Did you retain an attorney to represent you in those matters?' "The juror: 'Yes, I did.' "Counsel: 'Were you satisfied with the services of the attorney you had?' "'No, I was not.' "Counsel: 'Would that carry over to me or any of the other attorneys?' "'Yes, it would.' "Counsel: 'Could you tell me briefly how it would carry over? "'My opinion of attorneys, that they are one step lower the child molesters.' "That may have been a bit harsh," Giovan admitted. "Thus far I have said little about one of the courtroom participants, the judge," he continued. "I'm sure you will agree with me that the dearth of reports of aberrant behavior on their part is owing, in all likelihood, to the prudence, sagacity, scholarship, patience and general virtue of those who occupy that office. But surely even the most dispassionate of them must sometimes feel the prod of anger in extreme circumstances. Perhaps one of those instances occurred in this exchange between a judge and a lawyer who repeatedly attempted to introduce evidence that the judge considered inadmissible: "Counsel: 'Shot Down again.' "The court: 'Any other foundation on which you would like to urge the admissibility of this?' "Counsel: 'It's going to take your overruling me.' "The court: 'That's fine. I am pleased to do it.' "Counsel: 'I don't want you to be pleased to do it. I would like for you to say it's a very close question!' "The court: 'This is an extremely close question. But having delicately balanced the points of law in favor and the points of law opposed, I am obligated, in following the mandates of the Evidence Code and the higher courts, despite any personal feelings I may have to the contrary, to follow the law. And I wouldn't admit this goddamn thing if you paid me.' "Another judge had a different approach, believing in the adage, apparently, that a soft answer turns away wrath: "The court: 'All right. Any other questions?' "The defendant: 'How can you sentence an innocent man to prison?' "The court: 'It is part of my job.' "I will close," Giovan said, "with a brief letter that I am assured was sent to Judge Learned Hand, one of this country's most distinguished jurists, when he was a trial judge in New York: "'Dear Judge Hand: A friend of mine was talking about a hung jury. If this is what they do to juries in your court, please remove my name from your jury list.' "We may make light of the law," Giovan said, "but we have the finest rule of law in the world." Giovan concluded his anecdotes with an account of the time in 1973 when he witnessed a preliminary examination conducted in Russia, the former Soviet Union. The judge went on and on, talking for a long time, and Giovan asked his interpreter and guide what was going on. He was told the judge was reading all the evidence, all the charges and all the statements against the defendant. "Are the defendants ever acquitted?" Giovan asked his guide, who responded, 'No.'" "We don't have a perfect system by any means, but at least we give the accused a chance," said Giovan, concluding his Respect for Law speech. "On this occasion, we all ought to be grateful." Published: Thu, May 26, 2011