The judge was then charged with a misdemeanor only (for assault with grave physical injury!), ordered to pay a fine, serve probation only and taken off the bench. Still, no jail time - and just a slap on the wrist. Barred from serving as a judge any more? He is 72, it's not a big loss for him.
Here is Judge Nalley - bow tie and all, does not look like a dangerous violent criminal that he is, does he?
You might imagine that there can be nothing more disturbing about a courtroom proceeding than a judge ordering to taser a handcuffed litigant for making constitutional arguments to the judge.
But no - there is.
It is when the judge not only orders to taser a litigant for making arguments to the judge (including arguments pertaining to misconduct and appearance of impropriety of the judge, requiring recusal of the judge), but when the judge actually tosses his black robe and JOINS in the tasering efforts.
And that is what a Michigan judge John McBain, reportedly, just did.
Here is the official biography of this "honorable" judge.
Judge McBain was a career prosecutor before coming to the bench, he worked as a prosecutor, first in Florida, then in Michigan, since he was admitted to the bar, since 1988 and until 2002 when he was first elected as a judge.
Both prosecutors and judges in this country are given by courts a gift of absolute immunity for malicious and corrupt acts - and that sense of impunity breeds in prosecutors and judges the idea that they can do ANYTHING, literally, ANYTHING in court, with impunity.
So, Judge McBain was faced with a litigant who was charged with contempt of court - violating an order of protection.
Since such charges are criminal in nature and may involve jail time, the litigant was entitled to an attorney, an appointed attorney if he could not afford one.
There is no indication in reports regarding what the press calls a "scuffle" in the courtroom that any attorney for defendant Jacob Larson was present.
The video of court proceedings shows that the defendant appeared in front of the judge without an attorney - the only other man in the picture is the court attendant who is handcuffing the defendant. After the court attendant roughly handles the defendant, the judge himself apparently joins, and together the two men knock the defendant down on the floor, and that is accompanied by the judge's yelling "taser him right now".
The judge was "upset" (that is the polite word) because the defendant:
1) talked about the judge's own daughter, and
2) raised the issue that the judge is "buddy-buddy" with the subject of the order of protection that the defendant allegedly violated.
Since the defendant's alleged violation of the order of protection occurred out of court, his contempt of court proceedings were entitled to an evidentiary hearing and an attorney representing him there.
Judge McBain did not assign an attorney, discussed the charges with the unrepresented defendant directly, and engaged in a verbal scuffle because defendant hurt his feelings personally - while the ONLY thing that Judge McBain could ethically do under the circumstances was to RECUSE from the action.
Instead, the judge not only ordered tasering of a litigant because the judge did not like the litigant discussing the judge's daughter and raised the issue that the judge may be too familiar with the opponent in litigation, but joined in physically overpowering the defendant.
Every concept of "neutral arbiter" of judicial proceedings, of course, was ripped off these proceedings, together with the black robe.
Judge McBain's robe should remain where Judge McBain left it - ripped off him, for good.
And, Judge McBain should also be disbarred for his behavior.
This is not a petty "ethical violation".
This is a violent outburst of a judge of 14 years and an attorney of 28 years of experience who knew better.
The judge instead:
- had to assign counsel for the defendant - but didn't;
- had to hold an evidentiary hearing before sending the defendant to jail - but didn't;
- had an obligation NOT to discuss with the defendant the merits of the case until the defendant appear in court with counsel - which the judge did not do, provoking the defendant into discussing issues that were personal to the judge;
- had to recuse because his own daughter and his personal relationship with the opponent in litigation were issues in litigation - but didn't;
- and instead ordered handcuffing, tasering of a pro se defendant and bodily participated in the scuffle;
- and ordered jailing the defendant while he was disqualified from doing so by his personal involvement.
And, Judge McBain is a product, as a prosecutor and as a judge, of a mentality that was in-bred into him over 28 years of his experience as a judge and a prosecutor, since he was admitted to the bar, for his entire legal career that anything - ANYTHING - he does in the courtroom will be covered by immunity, so he can just go ahead and do whatever he wants.
Note that the defendant raises the issue that the judge cannot simply send him to jail - even if that was expressed not in the most courteous language:
Defendant: You cannot do this sh*t!
McBain: Appeal it.
I described this "move up or move on" tactic regularly utilized by New York judges, on this blog:
- a tactic that is wasting taxpayer money by forcing appeals that should not have happened had the judge simply followed the law as he or she is supposed to,
- a tactic that is discriminatory against pro se litigants and non-moneyed litigants, because an appeal is a costly endeavor, and
- a tactic that destroys in litigants their belief in the rule of law and integrity of the judiciary.
Will Judge McBain be required to reimburse taxpayers of the State of Michigan for that waste?
I doubt it - unless there is public pressure to make Judge McBain do it.