Courts and the legal system should be a haven of civility and safety. That is the aspiration and general historical precedent. Tragically, it is not the current circumstance and the trend seems headed in the wrong direction.
That very issue became a topic of discussion during a Denver Bar Association “fireside chat” — via Zoom — with Colorado Chief Justice Monica Márquez and Justice William Hood. Speaking to lawyers, they spent several minutes speaking about the issue and their growing concerns.
But the responsibility rests with everyone, not just officers of the court.
I know a case I litigated contributed to the heightened concern. In fact, the panel moderator specifically raised the Anderson v. Griswold case (litigated before the U.S. Supreme Court as Trump v. Anderson). The attention and emotions attributable to that case enraged passions that led many folks following the case to lash out.
I am not going to go into specific threats to any parties, attorneys or judicial officers involved in the case. I neither want to compromise security protocols nor give those without discretion ideas. What I can say is that what occurred, even through Election Day, is unacceptable.
Thankfully, most of the individuals involved in that case understood the potential for incivility and threats of violence. For example, the Denver Sheriff’s Office provided very visible escorts for Judge Sarah Wallace, who presided over the trial, in and out of the courthouse every day. Similarly, I have security measures in place — both from that case and my subsequent position as general counsel for The Lincoln Project — that protect me and my family.
It is ridiculous that such measures should be necessary.
Even worse, it seems to be more commonplace in the ordinary course of daily courthouse business. As Márquez and Hood explained, judges across the state have reported increased concern about security in their courts. It has led to retirements and difficulty filling vacancies.That leaves an already stressed judicial institution under even greater pressure.
That is a strain we simply cannot overlook.
Courts have already seen their once-lofty public esteem drop precipitously over the past few years. While the executive and legislative branches have been viewed through suspect eyes for decades, the courts have traditionally stayed above the fray and in favor. But in recent years the fall has been steep and fast. Trust in courts has dropped by 25% according to one survey. According to Gallup, Americans’ general malaise toward institutions has reduced those with a great deal or quite a lot of confidence in the Supreme Court down to an anemic 27%.
For the branch of government ultimately interpreting the law, determining liability and sentencing citizens to punishment, those are troubling numbers. It becomes almost impossible to complete their charge if most Americans believe they cannot be fair and unbiased.
And that seems to be what we are seeing in courtrooms across the country today. Too many parties are all too jaded and believe they have nothing to lose by breaching the decorum of the courts. Insolence and incivility break out, and threats are invoked in open court.
For example, earlier this year a defendant in Las Vegas leaped over the bench to assault the judge in his case. Video of the incident went viral. In September, the defendant pleaded guilty but mentally ill to the charges resulting from his attack. That is an extreme example of what is taking place on a daily basis. Displays of disrespect and anger have become commonplace.
There are not a lot of good answers.
More security presence is a stopgap, but also a potential escalation. Courts should not be police states. The presence of each additional armed guard feeds into many of the most skeptical opinions about the impartiality of the process. Certainly it creates a far more intimidating environment for people already experiencing a stressful circumstance.
Additionally, work should be put in by attorneys for parties. It is easy to get swept into the emotional state of clients. When people end up in litigation or in a criminal trial, they are uniquely susceptible to spiraling emotions. It is easy for attorneys to inadvertently feed into that pattern by crossing the line from advocacy and support to enabler and validator. That is a tightrope walk easy to fall from.
Good attorneys have those conversations with clients from the beginning. Controlling emotional reactions is an important practice, particularly in front of juries. But it does require a concerted and continuing effort.
Judges could also begin to issue more admonishments, to parties and audience members. It is a judicial version of the “broken windows” theory; addressing minor transgressions prevents more serious problems. Judge Matthew Barrett, who oversaw the high-profile Tina Peters trial, did an excellent job demonstrating the effectiveness of this approach. Barrett regularly addressed members of the public for a variety of decorum violations, from wearing hats in court to excited murmurings during critical testimony. That helped Barrett control the court in a calm manner, rather than letting it spiral out of control quickly.
The precipice the judicial system finds itself peering over is high and fraught with danger. But with a little attention and work, hopefully there is still time to step back from the ledge.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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