The Bar, Fake Cases, and a Karate Chop

The Naming of the Bar 

When we speak of “the Bar” it is understood as the entire body of practising barristers. But where did the term come from? It turns out it derives from the physical barriers in old courtrooms. 

 Just like today, English courts were historically made up of three zones. The raised area in which the judge sat was separated by barrier, or bar, from the remainder of the room, and became known as the “bench”. In addition, while the public could enter the courtroom and remain at the back, entry to the space in between the public gallery and the bench was restricted to advocates and was marked by another physical barrier, or bar (William L. Burdick, Bench and Bar of Other Lands (1939), pp. 75–76).  

 Though there are some other theories, such as the bar referring only to “the wooden railing marking off the area around the judge's seat, where prisoners stood for arraignment and where a barrister stood to plead”, or only the barrier separating the advocates from the public, there is little doubt it is these physical barriers that the name comes from. 

 The Crossing of the Bar 

The physical bars in courtrooms came to be seen as intrinsically linked with legal practice. What about situations where an individual crossed the bar into an area of the courtroom which they shouldn’t have? An interesting, but ultimately tragic, book excerpt was printed in the 1989 American Bar Association Journal about a former American Circuit Court judge, Allen Rosin. He was known for his courtroom antics, being “[b]oisterous and self-important, he alternately scolded, joked, laughed and cajoled. He could be courteous or rude, depending on his mood, and he never seemed to question his own behavior” (James Tuohy and Rob Warden, ‘The Fall From Grace of a Greylord Judge’ (1989) 75 ABA Journal 60, 61). 

 More specifically: 

 “He sometimes stood up behind the bench, spread his arms, and announced, ‘I am God!’ 

 One day in 1982, a man began hitting his wife's lawyer. Rosin, robes flying, vaulted over the bench, alighted in the well of the court, and gave the man a karate punch, flooring him...

Allegations of fixes were made publicly against Rosin from time to time. He appeared unperturbed, claiming they were the slanderous ravings of disgruntled losers. 

 ‘They would criticize God,’ he said.” (Tuohy and Williams, at 62). 

 As that might suggest, there was smoke concerning the possibility of Judge Rosen having “fixed” cases. Was there fire? 

 The Corruption of the Bar 

Operation Greylord, named after the “curly wigs of the British judiciary” (Civia Tamarkin, ‘The Judge Who Wore a Wire’ (70(2) ABA Journal 76, 76) arose out of what can only be described as truly fascinating circumstances: 

 “Like many lawyers practicing in Chicago, I had heard stories about corruption in the courts, ‘miracle worker’ lawyers, and judges who allegedly were on the take. After becoming U.S. Attorney, I learned that the FBI had heard many of these stories as well and had tried to investigate them, but without success. The judges, lawyers, and defendants who were involved in this corruption had no reason to tell anyone about it, and the investigations always came to a dead end. So I was intrigued when... I received a proposal from an FBI agent for a project that would have agent-lawyers working undercover as lawyers in the court system, gathering first-hand evidence of what the FBI and others believed to be corruption in the court system. This proposal eventually led to Operation Greylord. 

 Even with undercover lawyers, we were faced with a difficult decision as to how to go about investigating the allegations—whether to have the undercover lawyers represent defendants in real cases, or to prepare fake cases in which the victims, witnesses, and defendants also were undercover… The problem was difficult because using phony cases meant that we were deliberately misleading the judges and some of the lawyers involved, and it also involved FBI agents acting in the roles of lawbreakers, getting arrested and jailed, with the attendant risk of mistreatment at the hands of police or other prisoners… We decided to use fake cases, in order to stay within professional ethical guidelines, and to avoid the risk of our participating in having guilty persons in real cases found not guilty of criminal charges as a result of our having fixed cases. To reduce the threat of physical harm, we also conferred with the Cook County State's Attorney, the Superintendent of the Chicago Police Department, and the Chief Judge of the Criminal Court of Cook County. As it turned out, no one was injured. When the investigation became public, there was considerable debate about the propriety of using staged cases, but both the trial and appellate courts approved the undercover methods we used.” (Thomas P. Sullivan, ‘The Trial of My Life: Behind the Scenes at Operation Greylord’ (1999) 23 ULRE 30, 30). 

 Over a period of four years, the FBI created fake cases in areas such as driving under the influence, shoplifting, robbery, and the unlawful use of weapons, through which they uncovered “evidence of extensive bribery and case fixing involving judges, court clerks, police, defense lawyers, and prosecutors” (Sullivan, p. 30). The investigation led eventually to 87 convictions including 13 judges, 50 lawyers, four clerks, and 13 police officers and deputy sheriffs (Sullivan, p. 31). 

 The Operation contained many memorable activities, such as a federal judge ordering the bugging of a state judge’s chambers (the first time the FBI was permitted to surveil a judge in such a manner), and a judge wearing a wire by donning a microphone “over his shoulder beneath his judicial robes and a big, bulky tape recorder concealed in his cowboy boots” (Tamarkin, at 76–78). 

 As to a sample of what had actually been going on: 

 “Many of the Greylord judges had an elaborate process, by which lawyers would bribe judges for the opportunity to solicit unrepresented defendants within the court, court clerks would steer these defendants to the paying lawyers, and the judges would share a cut of the fees that they would assign the lawyers for their work.” (Stratos Pahis, ‘Corruption in our Courts: What it Looks Like and Where it is Hidden’ (2009) 118 YLJ 1900, 1928) 

 Conclusion 

It is not easy to say just what it may be like if this kind of legal corruption were to hit the headlines today. Instead, we might simply hope that it will remain relegated to history—or even, perhaps, folklore: 

 “At the height of a political corruption trial, the prosecuting attorney attacked a witness. ‘Isn't it true,’ he bellowed, ‘that you accepted five thousand dollars to compromise this case?’ 

 The witness stared out the window, as though he hadn't heard the question. ‘Isn't it true that you accepted five thousand dollars to compromise this case?’ the lawyer repeated. Still, the witness still did not respond. 

 Finally, the judge leaned over and said, ‘Sir please answer the question.’ ‘Oh,’ the startled witness said, ‘I thought he was talking to you.’” 

 (A. Rebecca Williams, ‘An Inside Job: Using In-Court Sting Operations to Uncover Corruption in an Inadequate Self-Regulating System’ (2015) 38 GJLE 969, 969).