It depends on whose soul is being saved, obviously.
"Lawyer defends judge"
The Telegram (St. John's)
Thursday, October 14, 1999
Page: 1 / FRONT Section: News
Byline: Bonnie Belec The Telegram
A provincial court judge who was reprimanded by Newfoundland's Judicial Council shouldn't have had to go before the council in the first place, says veteran St. John's lawyer, Danny Williams.
Provincial Court Judge John Rorke appeared before the council in June to answer to a complaint concerning remarks he made during the sentencing of an armed robber last fall.
Newfoundland Supreme Court Justice Robert Wells filed his report recently and stated the council "is unanimously of the opinion that on the day in question Judge Rorke failed to meet the required standard of judicial expression."
Williams and Steve Marshall represented 18-year-old Jeffrey Aylward, who was sentenced to a 12-month conditional sentence for using a bat to rob a pizza from a delivery man. Williams said he was surprised to learn a complaint had been made to the council and that Rorke appeared at an inquiry concerning remarks he made during the sentencing.
"I sat there and I saw nothing way out of line that he did. As an experienced lawyer, I see absolutely no reason why he should have gone before the judicial council," said Williams, who has practiced law for almost 30 years.
He said while the public's view of the court is a concern, the emphasis should be on the person before the (judge), and the rehabilitation of the accused.
"And if he's able to save a soul by having to use words that might be a little bit beneath the dignity of the bench, if he accomplishes that rehabilitation, then I wish there were a lot more judges that would do it," Williams said.
The complaint was lodged with the council by a member of the public as a result of an article published in The Telegram Sept. 11, 1998.
The gist of the complaint was that the judge's remarks would cause public concern as to the fairness and impartiality of the judge and -- by implication -- the fairness and impartiality of the courts, read Wells' decision.
The complaint was spurred by a comment Rorke made to Aylward during his sentencing hearing: "I'm looking at a man who comes from the same strata of society that I do, whose friends come from the same strata of society as I do, and you're not supposed to be sitting there and I'm not supposed to be faced with the dilemma of dealing with a person who comes from an advantaged background."
Rorke continued: "Most of the people who get dragged through this particular courtroom haven't got a pot to piss in. They never had a chance, they never will have a chance, they're damaged goods, and they're acting in the way they are largely because they don't have any choice. The problem we got here, you see, is that this happens all the time. I had a guy here a couple of days ago, it was the second time he did it. I gave him seven years. Sentencing in this is normally three years."
Aylward had been attending a party on Paddy Dobbin Drive when the offence occurred. He and two other young men ordered a pizza but none of them had any money, so they stole it from the delivery man when he arrived, using wooden bats.
At the time of sentencing, Rorke said they did it because they were drunk.
"You say you had a dozen beer ... I've had a dozen beer in me, a good many times. When you got a dozen beer in you, you don't know what you're doing, and it's more good luck than good management if you don't get into a jam, but the fact of the matter is you took it upon yourself to rob a man with a club," Rorke said.
"And when a bunch of young fellas on a drunk in an executive house in a good part of town take it upon themselves to flog one of those people, it's a despicable act," said the judge.
"Now we got a situation here, where a bunch of rich boys did this. You may not think you're rich but I guarantee you compared to most of the guys that come through that door there, you are rich. Not just in money but in family and friends," Rorke said.
"So, the next guy I got to look at and say three years is going to throw back at me, 'Oh yeah, you let the rich boys go because they are your buddies, they are your friends. There's no justice here.' That's the jam you put me in. That's the jam you put the Crown in," he said.
In his 10-page decision, Wells wrote that the words used in the sentencing were "unfortunate and inappropriate and should not have been said."
Inappropriateness occurred at two levels, Wells wrote. "Firstly, a judge should not use unacceptable language in the course of judicial duties. Expressions such as 'haven't got a pot to piss in' are simply unacceptable when coming from a presiding judge, as are personal references such as 'I've had a dozen beer in me, a good many times.'"
Wells stated such language lowers the court in the eyes of the public generally, and by implication damages public perception of the administration of justice.
"We are also of the opinion that references to social classes and strata of society are inappropriate to the sentencing process ... the emphasis must be on law, justice and fairness in each case," read the decision.
During the inquiry, Rorke apologized and acknowledged the public had a right to be concerned about some of his remarks and the way in which he expressed them.
Wells noted Rorke's work in provincial court involves trying to "do justice in the face of hopelessness, belligerence, alcoholism, drug addiction, psychopathy and mental disorder."
Rorke told the council, "under these pressures, I lost my patience and became candid about the frustrations of modern judging. Much of what I said was irrelevant, and easily capable of being misunderstood.
"In approaching the situation as I did, I focused entirely on the dynamic in the courtroom, and overlooked for a moment that my words, intended for the ears of the accused and the lawyers present, were being placed on the public record," he told the inquiry.
"In today's pluralistic society, a judge is expected to strive always to speak only in terms incapable of confusing or offending anyone. On this occasion, I fell below that demanding standard. I have profoundly regretted this inappropriate loss of control since the moment it occurred," he said.
As far as Williams is concerned, Rorke presented an emotional judgement in a particular case to a young man who made a stupid mistake. Williams said if the council decided Rorke chose his words poorly, then in the eyes of council Rorke made a mistake, but in his eyes Rorke handled the case commendably.
"If he's able to get through to a young man and prevent him from being a recidivist, then I think he's accomplished something marvelous. And at the end of the day he had a major impact on that young man," Williams said.
Considering Rorke's 11 years of unblemished service, council concluded a reprimand is the appropriate course of action and no further sanction is necessary. The council also ordered that Rorke be compensated for his legal costs arising from the inquiry, to be taxed on a solicitor-and-client basis.
