by Justice William W. Bedsworth
Last time I looked, my old friend Dennis LaBarbera held the Orange County District Attorney’s Office record for oldest case cited. It was a case called People v. Indian Peter. I can’t remember just how old it was, but the caption alone tells you it was about three years older than dirt.1
I remember counseling Denny that criminal cases have a very short shelf life, and that a case older than the Washington Monument must certainly have turned to vinegar by now. I told him citing it would be tantamount to admitting the weakness of his position. He had the perfect rejoinder: “Yeah, well my position is weak,” he said. “Desperate situations call for desperate measures.”2
Now I’m sure some of you have cited older cases. Hell, there must be some reason we read all those Queen’s Bench cases in law school. And I had a pro per once who constructed a wonderfully elaborate argument based on the Articles of Confederation. But I daresay you haven’t gone as far as John and Paul Burnham.
John and Paul are robbers.3 More specifically, they are Scottish robbers. Before their trial, they announced they wanted their case decided “according to a 900-year-old Scottish law.”4
What John and Paul—and can there be a baby boomer alive who hears John and Paul without free-associating to George and Ringo?—what John and Paul wanted was . . . drumroll, please . . . trial by combat.
That’s right. Like Game of Thrones. Or the WWE. And if the WWE is any indication, our minds aren’t a whole lot different than they were 900 years ago, so maybe John and Paul were on to something.
Helluva nice try.
Scottish court turned them down. I don’t have the Official Scottish Reporter handy, but I’m betting the opinion was short.
But what a great effort! I mean, I don’t know John and Paul but I daresay the Burnham Brothers tag-team—or for that matter, the average robber, be he5 strongarm or armed—has a much better chance in “combat with the Queen’s champion” than in trial by any other means. I’m sure the defense bar was brutally disappointed when it was outlawed in this country in 1819.
But I proposed something similar when I was a prosecutor. After one of my juries had hung on what I considered a slam-dunk winner, I lamented that I would have done better with twelve wombats in the jury box.
We were pretty excited about the idea for a while. I really felt that “trial by wombat” was an idea whose time had come.6 I figured if we let a groundhog decide how much winter we would get every year, why not let twelve “burrowing herbivorous marsupials” decide guilt or innocence?
Wombats have honest faces, and they could probably be taught to nod in agreement with leading questions. They would therefore qualify according to present practice. If, as Mark Twain said, “The greatest problem with our system of justice is finding twelve people who don’t know anything and can’t read,” wombats would be perfect.
And here’s the clincher: According to Wired magazine, “Wombats have very slow metabolisms. It often takes them as much as 14 days to digest a meal.” My God, we’d save a fortune on juror meals. They could deliberate for days and we’d never have to take them to lunch!
Our defense bar liked the idea. Orange County juries in the seventies were no bargain for defendants. Their lawyers figured they’d fare no worse before wombats, and it might be constitutionally preferable as giving them a better shot at a jury of their peers.
But the logistics were just too complex. For one thing, burrowing marsupials are not known for their attention spans. Someone would have had the ASPCA on us long before we completed voir dire—much less trial.
For another, the little rascals are indigenous to Australia. Can you imagine the reaction of immigration officials when we told them we needed to bring several thousand Australians into the country? Heck, for that matter, their reaction when we used the phrase “herbivorous marsupials” probably would have been enough to put the kibosh on the whole plan.7
So we pretty much abandoned the idea.8 Too bad, really. I don’t know what else wombats are good for. Unless they write columns.
But apparently the trial by combat thing comes around about as regularly as the crazy uncle you wish would lose your address. Guy in Kansas suggested it just this year.
He was involved in a custody dispute. Now these often devolve into something perilously close to trial by combat anyway. But this wasn’t just a matter of one side suggesting to the other side that they step outside to settle things. This was an actual suggestion to the court.
Pro per dad said he got tired of being treated rudely by opposing counsel so he suggested trial by combat. The court didn’t respond well to the idea, and the dad later said he wasn’t serious about it. Just trying to get the court’s attention.
But in The Year of the Pandemic, most courts are open to suggestions about anything that will clear calendars. So here’s my suggestion: Wombat Combat Small Claims.
We know there’s a statistically significant number of small claims disputants who are willing to have their cases decided by something other than the traditional means. We know this because daytime television is populated largely by people complaining to an erstwhile or ersatz judge that their ex-boyfriend stole their cosmetics, or their neighbor intentionally stepped on their snake, or the autograph they paid $500 for turned out not to be a genuine Spongebob Squarepants.
I love these shows. Every time I get to feeling inadequate, every time I feel my knowledge is too limited or my wisdom inadequate to resolve an issue fairly, I watch a TV judge. Thirty minutes later, after watching what passes for judicial sagacity on television, I feel like a cross between Benjamin Cardozo and Gandhi. I’m once again ready to tackle that tough case. Put me in, Coach!
My understanding is that the people whose cases are on TV get two things. First, they get on TV. People will do anything to get on television. And they don’t care how foolish they look. When we have fans at sporting events again, watch the people who think they have a chance to be on TV. Fully half of them will make a silly face or wave their arms or do stuff they would ordinarily be embarrassed to do even if they were falling-down drunk and alone in their living room. Being on TV is quicker and stronger than ten shots of tequila.
The other thing they get is resolution of their dispute with a guarantee of success: Your cosmetics were worth $600, your snake suffered $950 worth of emotional distress, you want your $500 back or a lunch with Spongebob? Done. The show will pay.
I figure the wombats will be a much bigger draw than Judge Judy or Judge Brown or any of the twenty other TV judges presently performing. And no, that is not hyperbole. When I Googled “TV judges” I was given twenty-two options (complete with photos).
None of them impressed me. Our wombats are gonna kick some televised tail. All Americans will be glued to their sets waiting to see whose herb is being vored.9 We’ll probably be able to fill four to five time slots a day. Prime time is a sure thing. It’ll make Who Wants to Be a Millionaire? look like C-SPAN3.
Meanwhile, judges now handling small claims will be able instead to handle custody disputes and SLAPP motions.
Hmmmm. I think I just figured out who will be opposed to this plan.
(1) My editor made me look it up. It was 1862. Which makes it younger than dirt but older than concrete.
(2) Denny also coined my favorite maxim of jurisprudence. “He who seeks equity must do equity; equity takes no shit.”
(3) That’s not what I meant when I said you hadn’t gone that far.
(4) Makes People v. Indian Peter look like an Instagram post.
(5) Almost never a woman’s crime.
(6) It was the seventies. The bar was set pretty low for ideas whose time had come.
(7) I imagine the word “kibosh” is today’s MCLE for many of you. I haven’t heard the phrase used in a couple of decades, and I’m more than a little concerned that it popped into my head.
(8) Everybody else in the universe abandoned it completely, but I’m still working on it. I figure that averages out to “pretty much abandoned.”
(9) The reference to “whose ox is being gored” will rapidly be removed from the lexicon and replaced with our phrase.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at email@example.com.