Gavels are the ceremonial icons of the judiciary. They are symbols of a judge's power to impose order and establish control. Judges collect them like souvenirs, receiving them as awards or honoraria. They are tributes to their office. Somewhere along the way even I managed to acquire one. It sits on the shelf over my desk between a plastic sparkle-dome from the Mall of America and a salt and pepper set from that Mecca of American kitsch, South of the Border. I'm sure any number of other lawyers have similar souvenir gavels.
My gavel gets about as much use as the ones judges have. Contrary to the public perception ("Law and Order", "Night Court", "Matlock" et al), real judges in real courtrooms never use gavels to control the proceedings. Oh, sure, when some judges take the bench in our federal courts the clerk raps a gavel on a wooden base. (In fact one of our judges had the clerks slam the gavel so sharply that first-time visitors instinctively ducked for cover fearing a drive-by shooting at worst or a reenactment of the Burr- Hamilton duel at best.) But those gavel slams are for show, just to open court. They're not really meant to quell disorder and control proceedings.
Real judges usually rely on methods other than gavels to do that. Some establish order and control through mere presence, either their own or a surrogate's. In federal court it's the efficient, coat-and-tie Deputy Marshals whose demeanor and periodic changing of the guard sends the clear message: behave. Occasionally even these heirs to Wyatt Earp play a more active role, like recently when a just-convicted defendant expressed dissatisfaction with the verdict of his peers by trying to toss am armchair into the jury box. And about twenty years ago, during a Black Liberation Army bank robbery trial, shotgun toting deputies lurked condor-like from the balconies of the second-floor courtroom in New Haven. No gavel needed there.
In State Court it's our uniformed, second-career special deputy sheriffs--a crucial cog in the court machinery -- whose presence helps establish order. But the GA is not Federal Court. The invitees to these venues are greater in number and represent a broader spectrum of our society. The special deputies are always on their toes. Their script goes well beyond, "Take your hands out of your pockets", "Take the gum out" and "Take your hat off". They are always anticipating and reacting to the unexpected.
The special deputies have to confront and defuse a cornucopia of uncomfortable and unpleasant situations: the intense frictions between families of victims and defendants on sentencing day; disgruntled defendants unable to recognize when a kindly prosecutor gives them a break; gum-chewing, spectators who view arraignments as an audience participation event; and, of course, the distressed soldiers of the domestic relations wars for whom intemperate, ad hominem invectives are the norm.
Sheriffs get used to the unusual, even jaded by it. I recently saw an obviously disturbed and disoriented man walk into traffic court -- judge on the bench and court in session -- pick up a chair, throw it against the wall, turn, and walk out while splinters fell to the floor. Hardly a ripple. Court continued on. The sheriffs scurried out and returned with the hapless miscreant. He apologized. "Your Honor I just came to Court on the wrong day. That's what got me so mad". We had all been there before. No gavel. A reprimand. Life went on.
No, gavels don't give authority. Neither do they establish order. People do. Occasionally judges do it themselves, different ones in different ways. Many use words, demeanor, tone and body language; others politeness; still others informality; and some just project an air of respect that compels reciprocity.
The late Bob Reilly was a judge who understood authority. Once in GA 6 a defendant became physically violent. Judge Reilly jumped off the bench, suffocated him in a bear-hug, turned him over to the sheriffs, and resumed his seat without breaking stride. But Bob Reilly was also smart enough to know that force wasn't the only way to control a crowded courtroom or deal with an unruly defendant. Some years ago in Meriden a familiar visitor to those environs, then serving a long, long sentence, appeared before the Court. He was doing time at Somers but a pending minor misdemeanor occasioned his visit to the Meriden GA, kindly chauffeured to that arena by roving ambassadors of the Department of Corrections. The gentleman was not pleased. He wanted, nay demanded, a dismissal. The prosecutor was not so inclined. She offered a nolle.
"Your Honor, I demand a dismissal. They can't keep doing this to me. They can't keep f---ing me over this way."
"Well, I'm sorry sir. I'm going to deny your motion. A nolle may enter"
"What!! A nolle!! Well, F--- You, you M----- F-----. I refuse a nolle. I want a f---ing dismissal."
Judge Reilly was too smart to bite. "Sheriff, take him away."
"Take me away, B---S---!, You A------! I'll get you, you - - - - " and his voice trailed off as the steel doors closed behind him.
Now a lot of judges in this situation would have over-reacted. They would have called the man back and showed him who was boss. After all, he had offended the dignity of the court. He had dissed the judge, ridiculed him before the citizenry. But Bob Reilly knew what he was doing. Calling him back was just an invitation to an exercise in bear- baiting with Reilly having the last word. It would involve more name calling, contempt citations, and more trips to Court for proceedings on the contempt. Not today. No, Bob Reilly understood that one way to maintain authority was by not using it. He simply turned to the capacity crowd.
"Well, folks, I've been called a lot worse than that. Now tonight he'll be back in Somers serving a fifty-nine year sentence and I'll be home in my summer cottage enjoying a couple of drinks with dinner. You see, all he wants to do is stir up trouble. He's got nothing better to do. He's hoping to break up his prison routine by taking a trip every so often to Meriden. He's thinking, who knows, maybe the van will turn over and he can escape. Well, I'm just not going to give him the opportunity for that. Next case."
What I've learned as I've watched good judges is there are times when the best way to maintain authority is not to use it. Like a ceremonial gavel, sometimes its best left on the shelf.