Over at Legal Blog Watch, Robert J. Ambrogi reports on the case of Massachusetts Superior Court Judge Nancy Staffier-Holtz, who had kicked a prospective juror off a jury panel for smelling bad. The defendant, eventually convicted of second-degree murder, appealed claiming that the judge’s action prejudiced his right to a fair trial. (The dismissed juror was of the same race as the defendant.) This argument didn't fly with the state Appeals Court, which last week affirmed the conviction.
Contrast Judge Staffier-Holtz’s approach to smelly people with that of former U.S. District Court Judge H. Lee Sarokin. Back in 1991, Sarokin ruled against the Morristown, N.J. public library which had kicked out a homeless man for, among other things, smelling so bad he distracted other patrons. As Thomas Sowell wrote in National Review in 1995,
Declaring the library to be a “public forum,’’ defined as “an available public space where citizens communicate their ideas through the spoken word,’’ Judge Sarokin declared it covered by the First Amendment. Moreover, a hygiene test has “a disparate impact on the poor.’’ In short, the library rules “unreasonably frustrate, infringe, or obstruct the expressional and associational rights of individuals.” In a classic expression of the vision of the anointed, Judge Sarokin lectured the community on its attitude toward the homeless: “If we wish to shield our eyes and noses from the homeless, we should revoke their conditions, not their library cards.’’Sarokin’s line about shielding our eyes and noses was too much for even the New York Times, which editorialized:
Yielding thus to the temptations of eloquence, he wandered from fairness and from society’s right to use library resources without harassment.Judge Sarokin’s verdict was overturned by the Third Circuit court of appeals, but only after Morristown, under pressure from its insurance company, had surrended and paid the smelly plaintiff a settlement of $230,000.
Sarokin eventually retired from the bench and began blogging a couple of years ago. In a early post, he defended his decision that homeless people have a right to stink up libraries. But legal blogger Ted Frank at Overlawyered.com wasn’t buying it; he called Sarokin’s self-justification “a dodge.”
UPDATE January 17, 2009
Commenter +Q Perfume, who is a lawyer, says that “sometimes the entire system stinks.” This reminds me of Mark Twain’s account of an incredibly smelly San Francisco courtroom in 1865. Hat tip to What the Nose Knows reader Marc Schoenfeld for sending me the link.