Sunday Morning Hot Tea - No. 36
Dispatches from the Land of Big Tex and Judges Gone Wild
Welcome to Sunday Morning Hot Tea where I write about a little something up top then answer a legal question for you down below. This week, the happiest place in Texas. Also, objecting to a judge.
In this edition:
Topic of the Week – Fair Weather
Legal Question – Recuse Me, Please
That’s Fair
The third Saturday in October, I woke up to a text from my sister, Shannon. She let me know that she and her husband, Aaron, were headed to the State Fair of Texas with my four-and-a-half-year-old niece. I screamed to Paris, who was in the shower, that as soon as he was out, we were headed to the Fair. It was closing weekend, and the weather was perfect – a cool 75 degrees, no clouds in the sky. It’s what we called “Fair weather” growing up. Not meaning “fair” as in temperate; we meant capital-F “Fair” as in, the type of weather perfect for going to the Fair.
We went to the Fair every single year when I was a kid. We had a route we’d always walk, always parking in the same lot, exchanging our coupons for foods at the same stands. It marked the beginning of the fall season for us, and for me, meant that my birthday was around the corner.
It also meant we got two days off school and a free ticket to the fair. Every year I’ve been in town, I’ve gone back to the Fair. In 2019, the first year Paris and I were dating, I went with my family but not with him. As a non-native Texan, Paris doesn’t quite have the same attachment to the Fair as me. It makes sense, really. When you try to explain the Fair to someone not from here, you sound absurd.
“There is a giant cowboy named Big Tex who used to be a Santa, then he burned down, but now he’s back. He wears jeans with a twenty-foot inseam. There are buildings filled with cars, and you can just, like, sit in them. Then in another building, people will try to holler at you until you buy stuff. Like live action infomercials. Also, there’s a place with glass cases full of people’s art projects. Yeah, like homemade quilts and dolls and puppets. The rides are great. The best part? They’re the exact same ride machines that were there when I went as a child. I am 35 years old, why do you ask?”
In 2020, the Fair offered a COVID-safe drive-through experience, but I had no interest. I didn’t want to see the shuttered buildings and closed food tents. So, earlier this year, when a Facebook targeted ad offered me seasons passes, I snatched them up. I went on opening day with my cousin, Ami, a Fair aficionado.
With the gates reopened, I decided to shake up my usual McKinney Family Fair To Do List. Instead, I let Ami lead the way and let myself spend coupons on things I never had before. I tried a caramel apple covered in nuts. I had to keep my tradition of Texas-shaped nachos from the Hass family booth. To change it up, instead of a small boat of chips and plain cheese, I went with Nachos Grande, an order that came on a plate and was covered in salsa, sour cream, guacamole, and finished with a little Texas flag set onto a toothpick.
On my second visit this year, I went with my dear friends Gypsy and James. Gypsy was born and raised in Mesquite like me, so she also has a deep love for all things Big Tex. We happened to go the weekend before I had a combination colonoscopy/endoscopy. On the hunt for whether celiac disease was causing my severe stomach illness that had only gotten worse since July, my doctor told me to have some gluten on Sunday.
“Just don’t go crazy,” he said.
Sorry, doc. I had Deep Fried Chicken Fettuccine Alfredo, which tasted exactly as it was described. A ball of fettuccine noodles and chicken, slathered with Alfredo sauce and fried into a ball. It was disgusting and amazing all at the same time. I also followed Gypsy and James to their favorite funnel cake stand where I ordered a red velvet funnel cake.
This was my idea of “not going overboard.” The gluten worked. I got my diagnoses (non-celiac gluten intolerance and some other stuff). I was only sick for about 48 hours since the pre-treatment for the colonoscopy flushed out everything I’ve ever eaten. The funnel cake was worth it, even though I got covered in so much powdered sugar I looked I sneezed while doing cocaine.
(Honestly, I’ve never done cocaine. I don’t know if it’s the same consistency as powdered sugar. I’m basing this totally on what I’ve seen in movies.)
Another day, I went with my high school pals. Sean was in town from Austin, and we met Jeff, Emily, and their baby, Canyon, for a day of fair fun. We ventured toward the beer garden area where I sampled the Fair’s version of frozen daiquiri for the first time. Not bad. Just as you would expect, like a Slurpee with some wine in it.
We also headed down the Midway where they took Canyon on the carousel. He squealed and cried, and honestly, I’m not sure what else he did. That thing spun so fast, it seemed like it could whiff off its axis at any moment. I didn’t see the ride operator’s panel, but I am sure the speed was cranked up to eleven. Just watching it was enough to make me dizzy.
The Fair only runs from the end of August through mid-October. When Shannon texted me that weekend, I was eager to go one last time before it shut down for the year. Paris and I met her, Aaron, and Sydney at around 11am on a bright and sunny Saturday morning. There were folks milling about the main area around Big Tex, and Paris and I navigated the crowds to find my family.
People watching at the Fair is one of the best parts. Walking through the hoards, we passed a man in a black t-shirt, printed with neon green letters asking the age-old question: “Do I Look like I give a fuck?” Paris and I read the shirt at the same time.
“We can’t know from the back of his head,” Paris said. We walked faster to pass him and saw the shirt was printed with the same question on the breast pocket.
“He does not look like he does,” I said.
We found them though the mess of folks, and started off for some food and rides. After getting her face painted, Sydney was most excited about the funhouses. At the State Fair, the funhouses are portable metal structures, between one and two stories tall, with various lights, mirrors, obstacles, and optical illusions throughout. They’re also machines of death and destruction.
When I was about ten years old, my dad and I went through one of these funhouses. The entrance contained a set of mechanical stairs that slid back and forth. Walking up these steps, my left foot was swallowed whole. The cerulean canvas shoe I had been wearing was torn to pieces, leaving my foot bare and smashed between unceasing pieces of moving wood.
I screamed to the point that Fair medics showed up and carted me off to the first aid tent in a golf cart. They ended up duct taping my shoe back on my foot, and my family continued our Fair visit. We couldn’t waste a good Fair day just because a foot was crushed, could we?
The first one she chose was not my nemesis funhouse. It was a whimsical structure and cost seven coupons to enter. That should have tipped us off as to its complexity and intensity. Though she passed the height requirement to get in, she was the littlest person in there by several feet. No matter, she walked the same steps as the teenage boys in front of us without hesitation.
We slid down the final slide together, and she marched in a straight line to her parents, asking to go through another one right away. The next two we tried only cost five coupons, followed shortly by one that only cost four. It seemed we had leapt off the seven-coupon cliff and would be chasing that high until the Fair next year.
As we rounded a corner that final day of the Fair this year, I came upon it. The funhouse that ate my foot. Shannon and I exchanged glances and told the story to Aaron and Paris. I looked at the admission: five coupons. I felt ashamed that I had been bested by a five-coupon funhouse all those years ago. Sydney was determined to conquer them all, so we turned our coupons over to the grizzled man at the entrance and headed toward the stairs. I silently swore an oath to shove my foot back into the stairs if I needed to in order to protect her.
My dramatic plans were unnecessary. She hopped up and over them with no issue. Same with the spinning barrel. She just ran right through. We made it across a bridge and over some unstable platforms that spun beneath us. Halfway through the very funhouse that had chewed on my limb all those years ago, she looked up at me and said, “They’ve got to make these harder for me.”
Sure, kid. Great idea. The last time I set foot in here, I was actually devoured by the machinery, but yes, let’s crank up the thrills, limbs be damned. I’m proud of her every single day, but I was overwhelmed in that moment. So little and already so brave. Turns out the best way to beat something like that is just not to flinch.
We ventured back through the Midway where Aaron and I decided to ride The Magnum. Listen, I know out of context saying I decided to “ride The Magnum” with my brother-in-law sounds very backwoods, but let me tell you – it is very backwoods. It’s just not sexual
The Magnum is a long-time State Fair staple. In operation for at least 30 years, this metal machine whips riders around in small circles, strapped into carts that extend from a four-armed piece that itself also whips around in circles. Then the carts aren’t even secured in place. They rock back and forth on a center axis.
It’s hard to explain, but I imagine it’s like a homemade version of what they used to prepare astronauts for G-force in space.
We both walked onto the ride with full knowledge of what could happen to us. We weren’t fraudulently induced. Not only is the ride operating in the open in broad daylight, we’ve both seen it there for decades. It’s the same hunk of metal that has occupied space on the Midway since the Reagan administration, beckoning riders to hop on board with the enticing imagine of an airbrushed Tom Selleck.
We handed over our fourteen coupons each – if you’re playing at home, 1 coupon = $1 – and walked onto the metal platform toward our waiting coffin. We took our seats and clicked the shoulder bars into place.
“You know you don’t realize how rusted everything is until you’re strapped down,” I said.
We both noted the bolts, the very ones that kept our cart attached to the rest of the ride, and how rusted and crumbling they were.
“Nice knowing you,” I said.
“Why did we do this?” Aaron asked. We both looked at my sister, ever the good decision maker, staring back at us from solid ground. She waved.
The machine revved up. They played some song like “Highway to Hell” as we began to spin. Then we spun some more. Then we flipped. We would get stuck halfway through a flip, suspended in the air, parallel with the ground, before we whipped back the other way.
I think I handled it pretty well, screaming, “This is how we die” multiple times in a row.
For the record, we didn’t die. It was only about a 2-minute ride. Not even a full song, but it felt like plenty. We got our fourteen-coupons’ worth. And we both managed to walk away without losing consciousness or the food we had just ingested.
“Did y’all have fun?” Shannon asked.
“Too much,” I said.
It was getting late in the day, and the Fair started getting crowded. They headed for their car while I told Paris I wanted to ride one last ride.
It was a ride we would beg to go on as kids, and sometimes we did. But as we grew up, we adopted a new Fair route. See, the Fair has something like eleven different entrances. Depending on how you get there and where you park, your route through the place will change. A long time ago, we began favoring a parking lot near an eastern entrance, which meant we hit certain booths and food stands in a certain order, following a well-trodden path.
Now, with the Fair reopened, knowing how much there was I missed out on when it was closed for the pandemic, I wanted to branch out. As a creature of habit, this is hard. I can’t always bring myself to deviate from my rituals. I like what I like.
I am, on the other hand, marrying Paris Brown – the king of Let’s Just See Where This Path Takes Us and emperor of Let’s Try This New Thing. It’s both exhausting and thrilling.
So, in the spirit of going where the path leads, I asked to ride the haunted house ride, the same one that had been around since my childhood. The last time I had ridden it was probably 20 years ago. Paris, ever eager for an adventure, jumped in the fiber glass cart with me. We squeezed beside each other and filled the entire space.
“Tight fit,” he said.
“Fun fact – these are the same carts they have used for the past thirty years,” I said.
“What?”
The cart began to move.
First, we slammed through a set of swinging doors, wood dented and paint chipped from years of use. The walls at various points were covered in aluminum foil, glow-in-the-dark paint, and mirrors. We rode through artificial fog past a skeleton with its pants down. Paris asked if it had also been there when I was a kid.
“That’s a new addition,” I said. No funds for new carts, but sure, add a pervert skeleton.
After bends, curves, and a short drop that took us outside past the waiting line, we rolled out the exit doors. We disembarked and another couple scrambled on as our cart slammed into the one in front of it.
Headed back toward our car, we passed the official Midway Barker of the State Fair. He’s a talking optical illusion – human torso and head (a real guy) from the chest up suspended on a long brass pole. It gives the illusion that he’s missing everything from his ribs down, which he takes as an opportunity to gather a crowd and sing parody versions of popular songs, replacing the lyrics with references to his pole or lack of body. It
I glanced at the Barker and kept walking. Paris stopped, awestruck, and listened to a few of the jokes. He caught up to me and took me by the hand.
“How did you walk by that so nonchalantly?” he asked.
“Walk by what?” I asked. “The Barker? That’s just the Fair, babe.”
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QUESTION FROM READERS - GTFO, YOU HONOR
This week’s question is from Frank via the form.
Frank asks:
I was watching The Trial of the Chicago 7 and was wondering. Could you file to have a judge removed from your case?
Hi Frank! This is a great question; thanks for asking. I have not watched this movie, but I am somewhat familiar with the case.
BACKGROUND
To summarize for those of you who haven’t seen the movie or heard of the case – the trial of the Chicago 7 or the Conspiracy 8 (or the Chicago 8… they had a lot of monikers) took place in Chicago from September 1969 to February 1970, following the protests and subsequent riots of the Democratic National Convention. The defendants were charged with conspiracy and crossing state lines to incite a riot.
The judge in the case was named Julius Hoffman. The trial was lengthy, with something like 180 witnesses testifying. One of the eight defendants had the case against him declared a mistrial, so that’s why they’re sometimes referred to as “the Chicago 7.” The judge didn’t declare a mistrial in the case of that defendant right away. First, he had that defendant bound and shackled in the courtroom as well as dragged away and beaten in another room.
After the trial, at which the defendants were acquitted of conspiracy but convicted of inciting a riot, the judge sentenced the defendants and their attorneys to jail time on charges of contempt. Judge Hoffman gave defense attorney Kunstler four years in prison for addressing him as "Mr. Hoffman" instead as "Your Honor." Defendant Abbie Hoffman (no relation to the judge) received 8 months for laughing in court. Defendant Hayden was sentenced to one year for protesting the treatment of co-defendant Seale (the one who had been shackled). Defendant Weiner received two months for refusing to stand when Judge Hoffman entered the courtroom.
At the time of the trial, Judge Hoffman was 74 years old and had been on the bench for sixteen years, having been appointed by President Eisenhower. He was later part of an expose on the judicial bench where he was accused of "acting erratically and abusively from the bench." Despite this, he continued to preside over ongoing cases until his death in 1983.
The depiction in the Netflix movie is, by most accounts, not all that different from what happened in real life. Eventually, the contempt convictions were vacated as were the convictions for conspiracy and other charges. The United States Court of Appeals for the Seventh Circuit found that the judge had demonstrated a "deprecatory and often antagonistic attitude toward the defense." That’s a real flowery way of saying he threw their asses in jail because he had beef with them.
Now, on to your question. I’ll speak in terms of federal judges since the Chicago 7 trial was in federal court. Rules vary by state for state and local judges.
Could you file to have a judge removed from your case?
Under federal law (28 U.S.C. § 455), any federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Sounds super great, right? Wrong. That’s not something that happens every day. People overestimate their own abilities all the time, judges included. Where someone else may believe the judge is biased, the judge could disagree.
When that happens, what do you do? File a motion for recusal. However, be aware that it is difficult to get a judge to recuse on motion unless that judge agrees. This is because the bar for disqualifying a judge is high. Just because a judge has past experiences or political preferences, or even if the judge has interacted with the attorneys or parties before, he or she is still qualified to sit on the bench.
In some states, judges are elected, and their political leanings may be well known. In the cases of federal judges, they are appointed, usually having been sponsored by a senator from their home state. You’ll sometimes hear, “Judge So-and-So, a Clinton appointee” or “Judge Thus-and-Such, a Bush appointee.” The speaker is usually implying some type of political affiliation or likely ruling based on the administration under which each judge was appointed. This political leaning does not disqualify a judge from presiding over a case absent certain behaviors on his or her part.
Those instances where judges “shall” recuse themselves are listed in §455 and include things like having a spouse or family member involved in the case at issue, having served as a lawyer for one of the parties, or having a financial interest in the case. That last one is interesting given the Wall Street Journal report that 131 federal judges “failed to recuse themselves from 685 lawsuits from 2010 to 2018 involving firms in which they or their family held shares.” Yikes.
So what if a judge won’t recuse himself and your motion to recuse is denied? The Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings govern the complaint process. It begins with filing a complaint against the offending judge. The circuit chief judge over the judge at issue then reviews the complaint. If it is determined the complaint has merit, the circuit chief judge would appoint a special committee to review the complaint. The committee then files a report with the judicial counsel, who then issues an order.
Federal judges can also be impeached, a formal process by which a judge could possibly be removed from the bench. According to the Federal Bar Association, 66 federal judges have been investigated for impeachment since 1776, with 15 of those being impeached, and 8 actually being removed from the bench. Some examples of conduct that led to impeached judges being removed include:
Soliciting and accepting bribes;
Perjury;
Sexual assault;
Conviction of income tax evasion;
Practicing law while sitting as a judge;
Improper business relations with litigants; and
Intoxication on the bench.
As you can see, none of those are really “acting like a dick to the defendant.” Is that conduct bad? Yes. Clearly, Judge Hoffman was not behaving so badly as to be removed from the bench by federal standards, but he exhibited extreme bias against the defense attorneys and defendants that disqualified him from ruling on their contempt charges. That is why his contempt convictions were overturned on appeal.
The Seventh Circuit’s decision vacating the contempt charges essentially said the defense attorneys’ interaction with the judge was so pernicious that Judge Hoffman would have necessarily been biased. The appellate court found “[J]udge [Hoffman] was the recipient of numerous and unprecedented attacks and insults by both trial counsel. These attacks would have affected any judge personally.” Owing to that, it was impossible for Hoffman to be unbiased and should have recused himself. The defense attorneys and defendants should have stood trial for contempt before another judge.
What does this tell us? Judges have great power. Appellate judges have event greater power because they can overturn the actions of out-of-control judges. When a federal judge misbehaves, the processes of complaint and impeachment are available. When a state judge does it (at least in Texas and other jurisdictions where judges are elected), make sure you get to the polls, organize, and when a judge is not upholding the law, get someone to run against him and replace him at the next opportunity.
I hope that answers your question, Frank! Happy Franksgiving!
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea, and sometimes judges are as bad in real life as they are on TV.
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