THE TRIALS OF A COMMON PLEAS JUDGE

THE HONORABLE MARK I. BERNSTEIN

PHILADELPHIA, PENNSYLVANIA 2017

 CHAPTER FIFTEEN

BASHING

IT WAS MY good fortune to see the origins of many of

the political activities that continue to this day. I had
incorrectly thought that judge bashing was a relatively
recent phenomenon. Although rare today, not long ago
it had become commonplace for the District Attorneys
office to blast judges in the press over every decision that
the office didnt like. I had thought the approach, which
was intended to control the judiciary by getting
individual judges to shy away from unpopular decisions
lest they be treated as pariahs in the press, was of recent
origin. However, an event that occurred while I
sojourned in the early twentieth century made me realize
that the approach has been a long ignoble tradition.
Although the art of judge bashing is apparently of
ancient origin, brash young district attorneys of our day
have refined it. One young D.A. in the present who
understood neither ethics nor her role as a protector of
THE TRIALS OF A COMMON PLEAS JUDGE 2

justice (rather than as a person intent on getting a

conviction) was heard, after an unfavorable ruling, to
comment in a stage whisper that could be heard
throughout the courtroom, The Inquirer will love this
one. The judge appropriately responded by saying, I
take your comment to be a Motion for Reconsideration,
which is denied.
Another such guardian of justice asked to use the
judges phone during a recesswhich he used to call a
reporter to complain bitterly about the judge.
Sadly, the newspapers are complicit in this
behavior. Without any investigation, they routinely
publish reckless charges against the judiciary because
conflict drives sales. All the better for sales is when the
conflict is one-sided because no reasonable judge would
ever respond to the self-promoting outrage of a wet-
behind-the-ears, egoistic, inexperienced young district
attorney. So rather than doing the hard work of actually
reading a transcript or consulting with people who
understand court procedure, newspapers will
unfortunately publish only the misrepresented slant of
the prosecutor. They satisfy their journalistic ethics by
dutifully noting that the judge refused to comment.
Those few times when judges do respond they
invariably do so with either a comment inappropriate to
judicial impartiality or words that the reporter
misunderstandsbecause a judge cannot possibly
educate a reporter on deadline about the essence of the
judicial function, which is to make discriminations,
including determinations of credibility. Unfortunately,
without a detailed review of the evidence and without
THE TRIALS OF A COMMON PLEAS JUDGE 3

having personally seen the courtroom context, it is

impossible for anyone to say why a decision is properly
made or why a dispassionate observer disbelieves
someones testimony, including that of a police officer.
Any judicial response of course becomes greater meat for
the print fodder because it poses the judges opinion
against the prosecutors opinion, although the
prosecutors job is to present mustered evidence and the
judge has the very different job of evaluating that
evidence and making a decision. The one opinion has the
force of ideology, youthful ambition, and exuberance
while the other has the solemnity of law, experience, and
responsibilitywith the obligation not to engage in
petty controversy. These complicated issues are never
conveyed through a press that finds ideology and
irresponsible exclamations ever more interesting than
logic and responsible discourse.
I had the fortune of observing a trial that was held
before Judge Samuel Pennypacker of a man who came to
a railroad crossing at 20th and Fairmount Streets when a
train was passing. He was on a bicycle. The poor man,
instead of waiting, rode around in a circle until the train
had passed and then immediately crossed. Unbeknownst
to him a second train was coming the other way. The
second train struck and killed him. A lawsuit was brought
against the railroad for striking the bicyclist.
The law was very clear that anyone approaching a
railroad crossing must stop, look, and listen before
proceeding. This statute, well-established for horses and
wagons, clearly also included the mechanical
machinescarsthen coming into greater use. Judge
THE TRIALS OF A COMMON PLEAS JUDGE 4

Pennypacker appropriately ruled that a bicyclist had no

greater rights than a horse, a carriage, or an automobile
and dismissed the case.
Although he was eventually sustained by the
appellate courts, their decisions came years after he was
blasted by newspapers as far away as Boston. They said
that his ruling was proof that there was great need for
new blood on the bench and that the judges were a
sorry lot of old, short-sighted, dandy legged fellows
who could not ride a bicycle if they tried and who had
no conception of the principles that ought to be applied
to its use.
Wisely, Judge Pennypacker chose not to rise to the
bait.

WATCH FOR CHAPTER SIXTEEN

JULY 1, 2017