I want to start off, uh, by introducing, uh,
Judge Patti Saris, who's the Chief Judge of
the U.S. District Court here in Massachusetts,
and one of our new Supreme Court Justices
we believe, but, um, I've asked them to give
a special welcome to our guest panelists who
are not from Massachusetts.
(laughing)
So, um, ladies and gentlemen, welcome to this
reading of "Measure for Measure," Shakespeare's
play about law, morality, and justice.
As you will see, we have a large cast of,
of judges from both the state and federal
judiciary, but, um, right now, my job is to
welcome, uh, to Massachusetts, um, we start
with, uh, Jeff Sutton from the Sixth Circuit
Court of Appeals, and then Justice, uh, Charles
Canady from the Florida Supreme Court.
And I know that I'd be remiss on behalf of
the whole cast if I didn't thank a couple
of people here who did a lot for us.
This guy, Dan Kelly, who's a, our moderator,
producer, organizer, who really, this wouldn't
happen without him.
I would like to thank, um, Steve Maler and
Adam Sanders, wherever they are, who basically
coached us into being okay-
(laughing)
-here tonight.
And I'd also like to thank, um, the, uh, Federalist
Society for sponsoring it.
Great.
Good evening, everyone.
I too want to thank our special guest hosts,
uh, Justice Canady and Judge Jeff Sutton.
Um, I have the good fortune to meet and learn
from Judge Sutton over the summer, uh, at
NYU at a seminar for new appellate judges.
Thank you so much for your wisdom.
Mm-hmm (affirmative).
And it's, it's my pleasure to welcome you
both back to the Commonwealth.
Um, well, like a lot of the other judges,
uh, I have two roles to play tonight, uh,
as a guest and a host.
As a guest, uh, thank you for bringing me
back to Massachusetts.
I went to college at Williams College, lived
in Watertown for a couple years, so it's wonderful
to be here.
Thank you for that.
Um, in my capacity as host, I was asked to
give a very, very short welcome.
Welcome.
(laughing)
Excellent.
Well, I am delighted to be here also.
This has been, uh, something I've been looking
forward to since the invitation came in.
I want to thank, uh, all the, uh, people who
were involved in sponsoring the event.
Everyone who has, uh, been, uh, involved in
preparing for this evening.
And I want to say a special word about the
Federalist Society, uh, and the great work
they do nationally.
Um, there are so many things going on in the
Federalist Society, and I think this is a
wonderful example of the kind of diverse work
that the Federalist Society does.
So, uh, my hats off to the Federalist Society,
and I thank them for ... And I know that the
National Federalist Society helps in these
events, and, uh, we are grateful to them for
their, their support.
Thank you very much.
And I want to thank this guy-
(laughs)
-uh, my friend and mentor, uh, Steve Maler.
Steve and I ... Uh, Steve, of course, is the
artistic director of Commonwealth Shakespeare,
uh, the Federalist Society's partner in this
event.
This is our 15th year.
Can you believe that?
Um, and we're still going strong.
We're still attracting an audience, and, uh,
we are so pleased with this collaboration,
and I, I think Steve will talk on this a little
bit, but this is what makes the Federalist
Society great in terms of the unique and ecumenical
programs that we put on, um, and it what,
it's what makes Commonwealth Shakespeare great
as well, uh, through various explorations
of the law, through all different types of
lenses.
So, um, I'm, I'm very happy, uh, to be standing
here with Steve again.
Um, uh, I, I think it's fitting, um, for this
play that we're in on the set of Gypsy, which
is-
(laughing)
-a burlesque theater-
(laughs)
Since the play takes place in the licentiousness,
um, uh, sensual Vienna, where all the laws
are being broken.
But, uh, we wanna thank the Lyric Theater
for hosting us here.
Um, you know, I'm, I'm glad, uh, Justice Canady
mentioned the Federalist Society, because
if you look at the back of the program, you'll
see that, um, we host these events.
You don't need to look at it at the moment.
(laughing)
You know, it's an institution that stands
for limited government, for separation of
powers, and for the rule of law, which is
the very issue that we'll be talking about,
I think, in the panel discussion that follows,
um, this event.
Um, the, we just, uh, did a program on sanctuary
cities, where we had representatives of the
ACLU and from conservative organizations,
and, uh, in the next month, we'll be doing
a, uh, um, a panel on speech.
Um, what is, what is free speech, and is,
is free speech being curbed or changed.
But tonight is a night where Shakespeare is,
is sort of the great leavener for purposes
of debate.
Tonight is also a special night because we
won't be talking about topical political issues,
I hope.
(laughing)
We, we all want to declare this a Trump-free
zone.
(laughing)
We want to talk about judging and judges,
and what it means to be a judge.
And, and we'll have lots more on that.
Um, uh, we're not gonna do any introductions
to the great, uh, people who are gonna grace
the stage tonight.
I mean, those ... Their, their very impressive
biographies, um, are in the program, and I
urge you to read them.
They have a wide and great deal of experience.
Not in, in addition to being judges, but some
are former prosecutors.
Some, some have traveled the world advising
governments on judicial systems and what it
means to be the rule of law.
So, I, I, I'm very impressed by this group,
um, but I also want to say that these are
not professional actors.
(laughing)
Right?
Um, so although they excel in their profession
as judges, you need to give them free leniency-
(laughing)
-as you judge their acting, okay?
But, uh, you're gonna be great, guys.
(laughing)
Um, so here's what's gonna happen.
We're gonna have an abridged reading.
It should last about an hour.
Um, a stage reading means just that.
They'll be reading from music stands, and,
and, uh, just, uh, portions of the script.
Um, and then, following that, we will not
have an intermission, we will go right into
the panel discussion.
We'll get rid of these music stands.
We'll have, uh, Justice Canady and, and Judge
Sutton, uh, join me as the moderator.
We'll have a discussion.
And we freely, um, want and welcome, uh, questions
from you as we're having that discussion.
So, let me turn it over to you, Steve.
Right.
Excellent.
Thank you, Dan.
Uh, I love this event because the artistic
bar is okay.
Right?
[inaudible].
(laughing)
It's going to be okay, so I can relax through
this evening and not worry about the, uh,
the proj- projects as much.
But I do love this project, because one of
the things that we love at CSC is using Shakespeare
and theater as, as a springboard for discussion,
a springboard for civic discussion and civic
engagement.
And over the 15 years, I think I know many
marriages that haven't lasted this long, Dan-
That's true.
-to have done this.
We've really run the gamut of the canon and
looked at so many different pro- uh, uh, uh,
uh, really exciting and provocative issues
in this setting.
And what's been great is it's also been a,
a forum for, uh, um, civic discussion of civics,
um, which we really like, and we encourage
you to, to join on, in, into that discussion
as well.
Um, so CSC, you probably know us for Shakespeare
on the Common.
That's what we do, that's what we're most
known for, but we are now the theater in residence
out of Babson College.
We're producing a whole smooth material out
there, including on November 13th, a really
powerful play called Fear and Misery in the
Third Reich.
It's by Bertolt Brecht, which will be done
sort of in this style, uh, with, uh, Brooke
Adams and Tony Shalhoub, two really wonderful
actors who are friends with the company.
I encourage you to come out and see that.
And then in the spring, we have a whole slate
of productions as well.
So, go to our website and learn more about
that.
Uh, last thing I would tell you is thank you
so much for being here.
We really appreciate you coming out.
Uh, it's a good, it really will be a very
entertaining evening, I promise you.
I've seen it.
They're really good, so-
(laughing)
There, there are lots of caveats here, but
they're really good.
(laughing)
Um, and I, I love these because you hear the
play and hear the words play in a kind of
a u- in a new way.
Uh, so it's a really fun evening.
Let's make sure we turn our cell phones off,
so we don't disrupt the performance.
Uh, and Dan, anything else?
Turn it back to you?
Yes, after I turn my cell phone off.
After you turn your cellphone off, yeah.
(laughing)
Thank you all so much for coming out tonight.
So, if you've ever been to one of these before,
um, I typically do this very elaborate, um,
introduction, and I'll have 50 slides, we'll
have music.
You know, how, um ... But, um, you know, like
Julius Caesar, you have to basically give
a 20-minute primer on the Roman Empire to
be able to sort of follow what's going on.
But I do think it's helpful to at least get,
for this one, to at least get an understanding
of a plot which is really wacky.
Um-
(laughing)
-and, and, and to know what's going on.
So, if I could have my assistant, please.
(laughing)
I'm gonna do this sort of the old-fashioned
way, um, with either Karl Rove's or Tim Russert's
whiteboard.
Um, but let me hold onto this one more second.
All right.
I, I wanna talk about the title first, because
the title is really interesting.
You know, "Measure for Measure".
Um, I think i- if you look i- into the, the
words of the play, you get sort of a ... And,
and I didn't read this anyway, this is sort
of my own, um, musings on this, but you get
a reading that Shakespeare's both channeling
the Old Testament and the New Testament, right?
Measure for measure.
An eye for an eye, you know, from the Old
Testament, which is kind of a justice, a rough
justice, but also vengeance in some ways.
Um, you'll see reference in the play that
one character should die because that character,
uh, unlawfully threatened another character
die.
Then, then there's the measure for measure
from the New Testament, and this I wrote down,
that's why I kept the book, uh, for a second.
From Matthew, Chapter 7, um, Verses 1 and
2.
"Judges not yet be, judges not yet be judged,
for what judgment ye judge and what measure
ye make, it shall be measured unto you aga-
again."
Right?
Um, of course, um, judges have to judge, right?
Um, uh, uh, uh, uh, Christ may urge us in
the New Testament not to judge our fellow
men and women, but judges have to judge.
So the question is, how do they judge?
And, and I think what Shakespeare is telling
us in this play is that they, their judgment
needs to be measured, right?
It needs to be tempered.
It needs to be measured in order to elicit
justice, all right?
So, let me take a crack, if I could give you
this-
Oh, yes.
-um, Kristin, for a second.
Let me take a crack at the, at, at the characters
in the play.
So, up at the top, first of all, we're in
Vienna.
Um, and we could be in, um, uh, uh, Tallahassee,
right?
Um, Vienna sort of there's no, um, uh, role
in the play at all.
Um, Vienna at the time was a Catholic country.
I guess that's important because we have a
character of a friar.
We have a character of a nun.
We have a character of a novice.
Um, it was part of the Hapsburg Empire, and
there wa- It was a dukedom within Austria,
which was an arch-duke, arch-dukedom within
the Holy Roman Emperor, Empire, and that's
all we need to say about the history, because
it plays no role in the play at all.
So, the political, um, uh, uh, hierarchy in,
in Vienna, of, uh, "Measure for Measure" is
really important to understand.
So, it's run by a duke.
The duke is played by Justice Cordy.
Um, and he has two deputies, Escalus, Escalus,
and Angelo.
Angelo is played by Judge Zobel and ... I'm
sorry, Escalus is played by Judge Zobel, and
Angelo is played by Judge Hillman.
Escalus is the more seasoned, um, uh, experienced,
uh, deputy.
Angelo is new, and, um, um, learning.
An apprentice, essentially, to the duke.
Now, there are also other authoritarian figures
within the society that you meet.
There is the provost, who's a form of magistrate,
who reports to the duke and Escalus and Angelo.
The provost is played by, uh, Justice Cowin,
Judith Cowin.
And then there's also a justice, a word that
appears in this play probably hundreds of
times, um, who, uh, also appears, uh, in,
in terms of a judicial authority.
Now, uh, and finally, we have a prosecu- a
prosecutor.
Justice, by the way, is played by my former
partner and great friend, Eric Neyman, who's
now on the Appeals Court.
And then we also have a prosecutor with the
ironic name of Elbow, um, probably Shakespeare's,
um, uh, best example of prosecutorial misconduct-
(laughing)
-in the entire canon.
Uh, Elbow, of course is played by Judge Saris,
uh, who I would never accuse of any kind of
misconduct.
(laughing)
Um, so the duke is sort of all branches, uh,
combined.
He's the executive branch, the legislative
branch, and, uh, the judicial branch.
He makes the laws.
He enforces the laws.
And at the beginning of the play, we learn,
we learn that the duke is very dissatisfied
with the way in which, um, Viennese society
has evolved, and he blames himself.
He basically says that, uh, "We have all of
these laws, but I've ignored the enforcement
of these laws, and the town has gone to hell,"
right?
And, and specifically, he complains about
licentiousness, you know, wanton conduct,
all kinds of sexual misconduct is part of
his complaint, uh, about Vienna turning into
Sodom and Gomorrah.
That's why I love being in the, the burlesque
theater of Gypsy for this particular show.
(laughing)
So, what does he do?
Well, he comes up with this plan where he
says, "I'm not ... Since I'm the one who's
been ignoring the law for so long, I'm not
the one who should write it because the people
will not take me seriously or will not respect
it.
I'm gonna give you, Angelo, you the job.
I'm gonna leave.
I'm gonna go on vacation-
(laughing)
-and I'm gonna give you, Angelo, the job of
reinvigorating the laws," because it's clear
from the duke's perspective that the enforcement
of law, that the rule of law is a good thing,
and that society is suffering from it.
And instead of putting Escalus, the wise counselor,
in charge, he gives the job to Angelo, who
doesn't want, but yet accepts it anyway, right?
And what does the duke do?
He, he doesn't go on vacation, he doesn't
decide to visit Stratford and see a play by
Shakespeare.
He disguises himself as a friar, a monk, and
comes and observes his experiment and intervenes
from time to time when the experiment goes
awry.
All right.
So, um, it's very important, and it'll go
by very quickly.
But listen to the first few lines of this
play, because it's the duke's commission to
Escalus and Angelo about how to judge, about
how to rule.
Listen to the words.
Listen to what... the commission that he gives
them, and see what happens as to whether they
live up to that, uh, commission.
Now, as soon as the duke leaves, uh, the next
scene you will see that radical changes have
taken place.
Um, the brothels have been all, and there
are many of them, lots of them, they've all
been shut down.
Then we hear from one of my favorite character
names, Mistress Overdone-
(laughing)
-who is one of the madams, played again by
Judge, uh, Cowin.
(laughing)
Forgive me.
Where, where are you Judith?
Yes.
(laughing)
And, uh, Mistress Overdone, uh, has, um, what's
called a bawd, which if you look that up in
your Oxford English Dictionary, it means a
procurer, a pimp basically, and, (laughs),
and, uh, that's, um, uh, played, uh, by, uh,
um, oh, for goodness sakes-
Woodlock.
My friend, Judge Woodlock-
(laughing)
-who I've known for 20 years.
I'm afraid you'd say it.
See, this is what happens to actors, they
have these mental, when they get older, they
forget.
So Judge Woodlock is playing, uh, Pompey,
the bawd.
And we also learn of a customer who's sort
of caught in the cross-currents.
His name is Froth, uh, being in the wrong
place at the wrong time, played by Judge,
uh, Bill Meade of the Appeals Court.
So, this is sort of an amusing group of people.
But the main plot line, so, so we discover
immediately that the brothels, including Mistress
Overdone's brothel, um, has been shut down.
But we find, we discover another important
fact, that a rich man, a man who is known
to be virtuous, from a good family, his name
is Claudio, has been arrested and condemned
to die.
Why?
Because he has im- impregnated his fiancée.
He's gotten her pregnant.
Her name is Juliet.
We never see her in the play, but Claudio,
um, who's played by Judge Nat Gorton...
Sorry for you folks over there and you over
there.
(laughing)
(laughs) Uh, Claudio, who's engaged to a woman,
uh, decides that they can't wait for marriage,
and they decide to have sex, and that has
produced a child, and she's pregnant.
And in, under the old laws of Vienna, that's
not only an offense, the offense of fornication,
it's a capital offense.
In other words, you die as a result of committing
that offense.
So, Angelo has arrested Claudio and condemned
him to death.
So, Claudio's, uh, friend, Lucio, Lucio we
call him, who's played by Judge Saylor, who's
a frequent, um, um, a, a frequenter of Mistress
Overdone's brothel, by the way.
(laughing)
Uh, Lucio, Claudio tells his friend Lucio
to go get his sister, his sister, to go and
plead to Angelo for mercy so that he could
be free, so that he would not accept this
terrible sentence for, um, uh, uh, being too
hasty with his fiancée before marriage.
And his sister is Isabella, perhaps the central
character in this play, uh, played by Judge,
uh, Kimberly Budd.
Um, interestingly enough, ten years ago, um,
Judge Budd's dad, her father Wayne Budd, played
the duke.
(laughing)
So, um, uh, we are really happy to see generations
of judges-
(laughing)
-involved with Shakespeare and Law.
So, what ... So is, so who is Isabella?
Well, Isabella is, um, a novice in a nunnery.
Someone who wants to abandon the outside world,
who's rejecting the outside world, who wants
to pursue a life of prayer and reflection.
And yet, she's asked by Lucio to intervene
with Angelo, a lot of O's here, for her brother
Claudio, who's committed a sin, a horrendous
sin in her opinion, a sin which justice in
her view demands death.
And yet, she takes it upon herself to go to
Angelo and plead for mercy, despite the fact
that she thinks her brother really des- the
justice that her brother deserves would, would
be the penalty under the law.
So, um, Angelo, who's just been doing his
job, one could say, we can argue about that,
he is transformed by Isabella.
Um, transformed not in a good way.
(laughing)
So when she hears his plea, he, who's never
had, um, a bad thought in his life, so he
tells us-
(laughing)
-um, all of a sudden has very bad thoughts,
right?
(laughing)
And designs against Isabella.
And he tells Isabella, "All right, I'll free
your brother if you sleep with me."
Right?
And of course, Isabella puts Isabella in a
terrible situation, one which she rejects.
Um, and it'll be interesting to know whether
Claudio thinks that it might be a good idea
(laughs) if his sister did this to save his
life.
You'll see that play out in the play.
But the duke disguised as the friar comes
to the rescue, with a plan.
It's a wacky plan, but it's a plan.
So his plan is for Isabella to tell Angelo,
yes, I will sleep with you, you free my brother,
um, but it's, but it has to be in the dark,
it has to be brief-
(laughing)
-and we don't have to talk when we're doing
it, right?
(laughing)
So, so they arrange this meeting at an inn.
Instead of sending in Isabella, the duke,
who's disguised as the friar, nobody knows
he's the duke, sends in Mariana.
Not Ginger, Mariana.
Mariana played by Judge Saris.
We have multitask in this, in this cast.
She's a prosecutor and the, uh, uh, uh, the
woman who sleeps with Angelo in place of Isabella.
But Mariana just happens to be engaged to
Angelo-
Oh.
-and was spurned by Angelo, and so the duke/friar
believes it's co- okay, uh, under the law
for her to do that, which questions whether
the prosecution of, of Claudio makes any sense,
because he's engaged as well.
(laughing)
So, the, the, the plan goes well.
Um, but, um, the event occurs, but that darn
Angelo, he says, "Let's kill Claudio anyway,"
all right?
(laughing)
Um, uh, so the duke...
I'll, I'll cut this to the chase.
So the duke comes in, reveals himself to the,
as the duke, and reconciles all the parties.
And since this is a comedy not a tragedy,
we don't have a death at the end.
What do we have at the end?
Marriage.
A marriage.
In fact, we have two marriages, between Angelo
and Mariana, and I'll leave the other marriage
for, um, you to see at the end of the play.
(laughing) Yeah.
The one other thing I wanna say about this
play is there's an actual trial in this play.
Uh, there, there ... I think Merchant of Venice
may be the only other play.
Um, we've done many in Shakespeare and the
Law, uh, where there is... we discuss the
legal issues, but there's only a couple plays
where there's actual trial, and this trial
is hysterical, right?
Because the prosecutor, Elbow, brings Pompey,
the procurer, and Froth, the customer, to
Escalus and Angelo for justice, accusing them
of doing nefarious things with Elbow's wife,
who just happened to be in Mistress Overdone's
house, for-
(laughing)
-for reasons we don't quite know.
(laughing)
And, um, Pompey and Froth are tried by Escalus
and Angelo for their crimes.
And there you will see, um, a prosecutor presenting
his case, a judge weighing the evidence, and
a decision being made, all to great comic
effect.
So, I'm going to get rid of this, and, um,
stop talking, and welcome the cast of Measure
for Measure.
(applause)
So, the play begins in the hall of the duke,
in which he advises his plans to his most
trusted advisors, Escalus and Angelo.
Escalus.
Oh, I haven't got the [inaudible].
(laughing)
My Lord.
The nature of our people, our cities, institutions,
and the terms for common justice y'are as
pregnant in as art and practice, hath enriched
any that we remember.
Call hither, I say, bid come before us Angelo.
What figure of us think you he will bear?
For you must know, we have with special soul
elected him in our absence to supply, lent
him our terror, dress'd him with our love,
and given his deputation all the organs of
our own power.
Always obedient to your grace's will, I come
to know your pleasure.
Angelo, in our remove, be thou fullest ourself.
Mortality and mercy in Vienna live in thy
tongue and heart: old Escalus, though first
in question, is thy secondary.
Take thy commission.
Now, good my lord, let there be some more
test made of my metal, before so noble and
so great a figure be stamp'd upon it.
No more evasions.
We have with a leaven'd and prepared choice
proceeded to you; therefore take your honors.
Our haste from hence is of so quick condition
that it prefers itself and leaves unquestion'd
matters of needful value.
Your scope is as mine own.
So to enforce or qualify the laws as to your
soul seems good.
Give me your hand: I will privily away.
I love the people, but do not like to stage
me to their eyes: Though it do well, I do
not relish well their loud applause and aves
vehement; Nor do I think the man of safe discretion
that does affect it.
Fare you well.
The heavens give safe purpose... give safety
to your purpose!
Lead forth and bring back in happiness.
Thank you.
Fare you well.
Shakespeare now switches to the, from the
palace to the street where the effects of
the duke's departure are already being felt.
How now!
Which of your hips has the most profound sciatica?
Well, well.
There's one yonder arrested and carried to
prison was worth five thousand of you all.
Who's that, I pray thee?
Marry, sir, that's Claudio, Seignior Claudio.
Claudio to prison?
'Tis not so.
Nay, but I know 'tis so: I saw him arrested,
saw him carried away; and which is more, within,
within these three days his head is to be
chopped off.
Art thou sure of this?
I am too sure of it: and it is for getting
Madam Julietta with child.
Believe me, this may be: He promised to meet
me two hours since, and he was ever precise
in promise-keeping.
Away!
Let's go learn the truth of it.
Thus, what with the war, what with the sweat,
what with the gallows and what with poverty,
I am custom-shrunk.
How now!
What's the news with you?
Yonder man is carried to prison.
Well, what has he done?
A woman.
But what's his offense?
(laughing)
Groping for trouts in a peculiar river.
What, is there a maid with child by him?
No, but there's a woman with maid by him.
You have not heard of the proclamation, have
you?
What proclamation, man?
All houses in the suburbs of Vienna must be
plucked down.
And what shall become of those in the city?
They shall stand for seed: they had gone down
too, but that a wise burgher put in for them.
But shall our houses of resort in the suburbs
be pulled down?
To the ground, mistress.
Why, here's a change indeed in the commonwealth!
What shall become of me?
Come; fear not: good counselors lack no clients:
though you change your place, you need not
change your trade;
(laughing)
I'll be your tapster still.
Courage!
There will be pity taken on you: you that
have worn your eyes almost out in the service,
you will be considered.
What's to do here, Thomas tapster?
Let's withdraw.
Here comes Signior Claudio, led by the provost
to prison.
Fellow, why dost thou show me thus the world?
Bear me to prison, where I am committed.
I do it not in evil disposition, but from
Lord Angelo by special charge.
Thus can the demigod Authority make us pay
down for our offense by weight.
The words of heaven; on whom it will, it will;
On whom it will not, so; yet still 'tis just.
Why, how now, Claudio!
One word, good friend.
Lucio, a word with you.
A hundred, if they'll do you any good.
Thus stands it with me: upon a true contract
I got possession of Juliet's bed: you know
the lady; she is fast my wife, save that we
do the denunciation lack of outward order:
this we came not to, only for propagation
of a dower remaining in the coffer of her
friends, from whom we thought it meet to hide
our love till time had made them for us.
But it chances the stealth of our most mutual
entertainment with character too gross is
writ on Juliet.
With child, perhaps?
Unhappily, so.
I prithee, Lucio, do me this kind service:
This day my sister should the cloister enter
and there receive her approbation: Acquaint
her with the danger of my state: implore her,
in my voice, that she make friends to the
strict deputy; bid herself assay him.
I'll to her.
Thank you, good friend Lucio.
After he departs, the duke steals away to
a nearby monastery and adapts the hoodie of
a monk.
(laughing)
There, he explains to a friar his intentions.
We have strict statutes and most biting laws.
The needful bits and curbs to headstrong weeds,
which for this 19 years we have let slip;
Which even like an o'ergrown lion in a cave,
that goes not out to prey.
Now, as found fathers, having bound up the
threatening twigs of birch, only to stick
it in their children's sight for terror, not
to use, in time the rod becomes more mocked
than feared; so our decrees, dead to infliction,
to themselves are dead; And liberty plucks
justice by the nose; sith 'twas my fault to
give the people scope, 'twould be my tyranny
to strike and gall them for what I bid them
do: for we bid this be done, when evil deeds
have their permissive pass and not the punishment.
Therefore, I have on Angelo imposed the office;
Who may, in the ambush of my name, strike
home, and yet my nature never in the fight
to do in slander.
The duke returns to Vienna in disguise to
observe how Angelo exercises his new role
as governor and judge.
And have you nuns no farther privileges?
Are not these large enough?
Yes, truly; I speak not as desiring more;
But rather wishing a more strict restraint
upon the sisterhood, sisterhood the votarists
of Saint Clare.
Ho!
Peace be in this place!
Who's that which calls?
It is a man's voice.
Gentle Isabella, turn you the key, and know
his business of him; you may, I may not; you
are yet unsworn.
Peace and prosperity!
Who is't that calls?
Hail, virgin, if you be-
(laughing)
-as those cheek-roses proclaim you are no
less!
Can you so stead me as to bring me to the
sight of Isabella, a novice of this place
and the fair sister to her unhappy brother
Claudio?
Why 'her unhappy brother'?
Let me ask, the rather for I now must make,
make you know that I am that Isabella and
his sister.
Gentle and fair, your brother kindly greets
you: Not to be weary with you, he's in prison.
Woe me!
For what?
For that which, if I myself might be his judge,
he should receive his punishment in thanks.
(laughing)
He hath got his friend with a child.
Sir, make me not your story.
It is true.
I would not- though 'tis my familiar sin with
maids to seem the lapwing and to jest, tongue
far from heart-play with all virgins so.
Someone with child by him?
My cousin Juliet?
She it is.
O, let him marry her.
This is the point.
The duke is very strangely gone from hence;
upon his place, and with full line of his
authority, governs Lord Angelo; a man whose
blood is very snow-broth; He, to give fear
to use and liberty, which have for long run
by the hideous law, as mice by lions, hath
pick'd out an act, under whose heavy sense
your brother's life falls into forfeit: he
arrests him on it; and follows close the rigor
of the statute, to make him an example.
All hope is gone, unless you have the grace
by your fair prayer to soften Angelo: and
that's my pith of business 'twixt you and
your poor brother.
Alas!
What poor ability's in me to do him good?
Assay the power that you have.
My power?
Alas, I doubt that I–
Our doubts are traitors and make us lose the
good we oft might win by fearing to attempt.
Go to Lord Angelo, and let him learn to know,
when maidens sue, men give like gods; but
when they weep and kneel, all their petitions
are as freely theirs as they themselves would
owe them.
I'll see what I can do.
Commend me to my brother: soon at night, I'll
send him certain word of my success.
We must not make a scarecrow of the law, setting
it up to fear the birds of prey, and let it
keep one shape, till custom make it their
perch and not their terror.
Ay, but yet let us be keen, and rather cut
a little, than fall, and bruise to death.
Alas, this gentleman whom I would save, had
a most noble father.
Let but your honor know, whom I believe to
be most strait in virtue, that, in the working
of your own affections, had time cohered with
place or place with wishing, or that the resolute
acting of your blood could have attained the
effect of your own purpose, whether you had
not sometime in your life erred in this point
which now you censure him, and pulled the
law upon you.
'Tis one thing to be tempted, Escalus, another
thing to fall.
I not deny, the jury, passing on the prisoner's
life, may in the sworn twelve have a thief
or two guiltier than him they try.
What's open made to justice, that justice
seizes: what know the laws that thieves do
pass on thieves?
'Tis very pregnant, the jewel that we find,
we stoop and take it because we see it; but
what we do not see we tread upon, and never
think of it.
You may not so extenuate this offense for
I have had such faults; but rather tell me,
when I, that censure him, do so offend, let
mine own judgment pattern out my death, and
nothing come in partial.
Sir, he must die.
Be it as your wisdom will.
Come, bring them away: if these be good people
in a common-weal that do nothing but use their
abuses in common houses, I know no law: bring
them away.
How now, sir!
What's your name and what's the matter?
If it please your honor, I am the poor duke's
constable, and my name is Elbow.
(laughing)
I do lean upon justice, sir, and do bring
in here before your good honor two notorious
benefactors.
Benefactors?
Well, what benefactors are they?
Are they not malefactors?
If it please your honor, I know not well what
they are: but precise villains they are, that
I am sure of; and void of all profanation
in the world that good Christians ought to
have.
This comes off well; here's a wise officer.
Who are you...
What are you, sir?
He, sir!
A tapster, sir; a parcel-bawd; one that serves
a bad woman-
(laughing)
-whose house, sir, was, as they say, plucked
down in the suburbs; and now she professes
a hot-house, which, I think, is a very ill
house, too.
How know you that?
My wife, sir, whom I detest-
(laughing)
-before heaven and your honor.
Marry, sir, by my wife; who, if she had been
a woman cardinally given, might have been
accused in fornication, adultery, and all
uncleanliness there.
By the woman's means?
Ay, sir, by Mistress Overdone's means: but
as she spit in his face, so she defied him.
Sir, if it please your honor, this is not
so.
Pro- prove it before these varlets here, thou
honorable man; prove it.
Do you hear how he misplaces?
Sir, she came in great with child; and longing,
saving your honor's rev- reverence, for stewed
prunes; Sir, we had but two in the house,
which at that very distant stood, as it were,
in a fruit dish, a dish of some three-pence;
your honors have seen such dishes; no- they're
not china dishes, but very good dishes.
(laughing)
Go to, go to: no matter for the dish, sir.
No, indeed, sir, not of a pin; you are in
th- therein in the right: but to the point.
As I say, this Mistress Elbow, being, as I
say, with child, and being great-bellied,
and longing, as I said, for prunes; and having
but two in the dish, as I said, Master Froth
here-
(laughing)
-this very man, having eaten the rest, as
I said, and, as I am saying, paying for them
very honestly; for, as you know, Master Froth,
I could not give you three-pence again.
All this is true.
(laughing)
Why, very well, then.
Come, you are a tedious fool: to the purpose.
What was done to Elbow's wife, that he hath
cause to complain of?
Sir, your honor cannot-
Come me to what was done to her.
Sir, your honor cannot come to that yet.
No, sir, nor mean it not.
Sir, but you shall come to it, by your honor's
leave.
And, I beseech you, look into Master Froth's
face here-
(laughing)
-a man of fourscore, fourscore pound a year;
whose father died at Hallowmas: wasn't it
at Hallowmas?
All-hallownd eve.
All-hallownd eve.
This will last out a night in Russia-
(laughing)
-when nights are longest there.
(laughing)
I'll take my leave.
And leave you to the hearing of the cause;
Hoping you'll find good cause to whip them
all.
(laughing)
I think no less.
Good morrow to your lordship.
Now, sir, come on: what was done to Elbow's
wife, once more?
Once, sir?
There was nothing done to her once.
(laughing)
I beseech you, sir, ask him what this man
did to my wife.
I beseech your honor, ask me.
Well, sir, what did this gentleman to her?
I beseech you, sir, look in this gentleman's
face-
(laughing)
Good Master Froth, look upon his honor; 'Tis
for a good purpose.
Doth your honor mark his face?
Ay, sir, very well.
Nay; I beseech you, mark it well.
Well, I do so.
Doth your honor see any harm in his face?
(laughing)
Why, no.
I'll be supposed upon a book, his face is
the worst thing about him.
(laughing)
Good, then; if his face is the worst thing
about him, how could Master Froth do the constable's
wife any harm?
I would know that of your honor.
He's in the right.
Constable, what say you to it?
First, an' it like you, the house is a respected
house; next, this is a respected fellow; and
his mistress is a respected woman.
By this hand, sir, his wife is more respected
person than any of us at all.
Varlet, thou liest; thou liest, wicked varlet!
The time has yet to come that she was ever
respected with man, woman or child.
Sir, she was respected with him before he
married her.
Which is the wiser here?
Justice or iniquity?
Is this true?
O thou caitiff!
O thou varlet!
O thou wicked Hannibal!
(laughing)
I respected with her before I was married
to her!
If ever I was respected with her, or she with
me, let not your worship think me the poor
duke's officer.
Prove this, thou wicked Hannibal, or I'll
have mine action of battery on thee.
If he took you a box o' the ear, you might
have your action of slander, too.
Marry, I thank your good worship for it.
What is it your worship's pleasure I shall
do with this wicked caitiff?
Truly, officer, because he hath some offenses
in him that thou wouldst discover if thou
couldst, let him continue in his courses till
you knowest what they are.
Marry, I thank your worship for it.
Thou seest, thou wicked varlet, now, what's
come upon thee: thou art to continue now,
thou varlet; thou art to continue.
(laughing)
So.
What trade are you of, sir?
Tapster; a poor widow's tapster.
Your mistress' name?
Mistress Overdone.
Hath she had any more than one husband?
Nine, sir; Overdone by the last.
(laughing)
Nine!
Come hither to me, Master Froth.
Master Froth, I would not have you acquainted
with tapsters: they will draw you, Master
Froth, and you will hang them.
Get you gone, and let me hear no more of you.
I thank your worship.
For mine own part, I never come into any room
in a tap-room, I'm drawn in.
Well, no more of it, Master Froth.
Farewell.
Come you hither to me ma- uh, Master tapster.
What's your name, Master tapster?
Pompey.
What else?
Bum, sir.
Troth, and your bum is the greatest thing
about you, so that, in the beastliest sense
you are Pompey the Great.
(laughing)
Pompey, you are partly a bawd, Pompey, howsoever
you color it in being a tapster, are you not?
Come, tell me true: it shall be the better
for you.
Truly, sir, I am a poor fellow that would
live.
How would you live, Pompey?
By being a bawd?
What do you think of the trade, Pompey?
Is it a lawful trade?
If the law would allow it, sir.
(laughing)
But the law will not allow it, Pompey; nor
shall it be not allowed in Vienna.
Does your worship mean to geld and splay all
the youth of the city?
No, Pompey.
Truly, sir, in my poor opinion, they will
to it then.
If your worship will take order, uh, order
for the drabs and the knaves, you need not
to fear the bawds.
Thank you, good Pompey.
I advise you, let me not find you before me
again upon any complaint whatsoever; No, not
for dwelling where you do.
If I do, Pompey, I shall beat you to your
tent, and prove a shrewd Caesar to you.
In plain dealing, Pompey, I shall have you
whipped.
So, for this time, Pompey, fare you well.
I thank your lordship for your good counsel:
but I shall follow the flesh and the fortune
as it shall determine.
(laughing)
It grieves me for the death of Claudio; But
there's no remedy.
Lord Angelo is severe.
It is but needful: mercy is not itself, that
oft looks so; pardon is still the nurse of
second woe: But yet,–poor Claudio!
There is no remedy.
Here is the sister of the man condemned desires
access to you.
Hath he a sister?
Ay, my good lord; a very virtuous maid, and
to be shortly of a sisterhood, if not already.
Well, let her be admitted.
God save your honor!
Stay a little while.
You're welcome: what's your will?
I am a woeful suitor to your honor, please
but your honor hear me.
Well, what's your suit?
There is a vice that I most ... that most
I do abhor, and most desire should meet the
blow of justice; For which I would not plead,
but that I must; For which I must not plead,
but that I am at war 'twixt will and will
not.
Well, the matter?
I have a brother is condemned to die: I do
beseech you, let it be his fault, and not
my brother.
Heaven give thee moving graces!
Condemn the fault and not the actor of it?
Why, every fault condemned ere it be done:
Mine were the very cipher of a function, to
fine the faults whose fine stands in record,
and let go by the actor.
O just but severe law!
I had a brother, then.
Heaven keep your honor!
Give't not o'er so: to him again, entreat
him; Kneel down before him, hang upon his
gown: You are too cold.
To him, I say!
Must he needs die?
Maiden, no remedy.
Yes, I do think that you might pardon him,
and neither heaven nor man grieve at the mercy.
He's sentenced; It is too late.
You are too cold.
(laughing)
Too late?
Why, no; I, that do speak a word.
May call it back again.
Well, believe this, no ceremony that to great
ones 'longs, Not the king's crown, nor the
deputed sword, the marshal's truncheon, nor
the judge's robe, become them with one half
so good a grace as mercy does.
If he had been as you and you as he, you would
have slipped like him; but he, like you, would
not have been so stern.
Your brother is a forfeit of the law, and
you but waste your words.
It is the law, not I condemn your brother:
were he my kinsman, brother, or my son, it
should be thus with him: he must die tomorrow.
Tomorrow!
O, that's sudden!
Spare him, spare him!
He's not prepared for death.
Even for our kitchens we kill the fowl of
season: shall we serve heaven with less respect
than we do minister to our, our gross selves?
Good, good my lord, bethink you; who is it
that's died for this offense?
There's many that's committed it.
Ay, well said.
The law hath not been dead, though it hath
slept: those many had not dared to do that
evil.
If the first that did the edict infringe had
answered for his deed: now 'tis awake.
Take note of what is done; and, like a prophet,
look in a glass, that shows what future evils,
either new, or by remissness new-conceived,
and so in progress to be hatched and born,
are now to have no successive degrees, but,
ere they live, to end.
Yet show some pity.
I show it most of all when I show justice;
for then I pity those I do not know, which
a dismissed offense would after gall; and
do him right that, answering one foul wrong,
lives not to act another.
Be satisfied; your brother dies tomorrow;
be content.
(laughing)
So you must be the first that gives this sentence,
and he, that suffers.
O, it is excellent to have a giant's strength;
but it's tyrannous to use it like a giant.
That's well said.
(laughing)
Pray heaven she win him!
What...
Why do you say this to me?
Because authority, though it err like others,
hath yet a kind of medicine in itself, that
skins the vice o' the top.
Go to your bosom; knock there, and ask your
heart what it doth know that's like my brother's
fault: if it confess a natural guiltiness
such as his, let, let it not sound a thought
upon your tongue against my brother's life.
She speaks, and 'tis such sense, that my sense
breeds with it.
Fare you well.
Gentle lord, turn back.
I will, I will bethink me: come again tomorrow.
Hark how I'll bribe you: good lord, turn back.
How!
Bribe me?
Ay, with such gifts that heaven shall share
with you.
You had marr’d all else.
Not with fond shekels of the tested gold,
or stones whose rates are either rich or poor
as fancy values them; but with true prayers
that shall up at heaven and enter there ere
sunrise, prayer from preserved souls, from
fasting maids whose minds are dedicate to
nothing temporal.
Well, come to me tomorrow.
Go to; 'tis well; away!
Heaven keep your honor safe!
Amen.
For that, I'm going...
I'm, for that way, going to temptation, where
prayers cross.
At what hour tomorrow shall I attend your
lordship?
At any time 'fore noon.
'Save your honor!
What's this?
What's this?
Is this her fault or mine?
The tempter or the tempted, who sins most?
Ha!
Can it be that modesty more betrays our sense
than woman's lightness?
Having waste ground enough, shall we desire
to raze the sanctuary and pitch our evils
there?
O, fie, fie, fie!
What dost thou, or what art thou, Angelo?
Dost thou desire her foully for those things
that make her good?
O, let her brother live!
Thieves for their robbery have authority when
judges steal themselves.
Most dangerous is that temptation that does
goad us... that doth goad us on to sin in
loving virtue: never could the strumpet, with
all her double vigor, art and nature, once
stir my temper; but this virtuous maid subdues
me quite.
Even till now, when men were fond, I smiled
and wondered how.
The scene moves to the next day.
When I pray and think, I think and pray to
several subjects.
Heaven hath my empty words; whilst my invention,
hearing not my tongue, anchors on Isabel.
How now, fair maid?
I am come to know your pleasure.
That you might know it, would much better
please me than to demand what 'tis.
Your brother cannot live.
Even so.
Heaven keep your honor!
Answer to this: I, now the voice of the recorded
law, pronounce a sentence on your brother's
life.
Might there not be a charity in sin to save
this brother's life?
Please you to do it, I'll take it as a peril
to my soul, it is no sin at all, but a charity.
Pleased you to do it at peril of your soul,
were equal poise of sin and charity.
That I do beg his life, if it be sin, heaven
let me bear it!
You granting of my suit, if that be sin, I'll
take it, I'll make it my morn prayer to have
it added to the faults of mine, and nothing
of your answer.
Nay, but hear me.
Your sense pursues not mine: either you are
ignorant, or seem so craftily, and that's
not good.
I'll speak more gross: Your brother is to
die.
You, his sister, finding yourself desired
of such a person, whose credit with the judge,
or own great place, could fetch your brother
from the manacles of the all-building law;
and that there were no earthly means to save
him, but that either you must lay down the
treasures of your body to this supposed, or
else to let him suffer.
What would you do?
As much for my poor brother as myself: that
is, were I under the terms of death, the impression
of keen whips I'ld wear as rubies, and strip
myself to death, as to a bed that longing
have been sick for, ere I'd yield my body
up to shame.
Then your brother must die.
(laughing)
And 'twere the cheaper way: better it were
a brother died at once, than that a sister,
by redeeming him, should die forever.
Were not you then as cruel as the sentence
that you have slandered so?
Ignominy in ransom and free pardon are of
two houses: lawful mercy is nothing kin to
foul redemption.
Plainly conceive, I love you.
My brother did love Juliet, and you tell me
that he should die for it.
He shall not, Isabel, if you give me love.
I know your virtue hath a license in it which
seems a little fouler than it is, to pluck
on others.
Believe me, on mine honor, my words express
my purpose.
Ha!
Little honor to be much believed, and most
pernicious purpose!
Seeming, seeming!
I will proclaim thee, Angelo; look for it:
sign me a present pardon for my brother, or
with an outstretched throat I'll tell the
world aloud what man thou art.
Who will believe thee, Isabel?
My unsoiled name, the austereness of my life,
my vouch against you, and my place in the
state will so your accusation o- accusations
overweigh, that you shall stifle in your own
report and smell of calumny.
Answer me tomorrow, or, by the affection that
now guides me most, I'll prove a tyrant to
him.
As for you, say what you can, my false outweighs
your true.
To whom should I complain?
Did I tell this, who would believe me?
O perilous mouths, that bear in them one and
the self-same tongue, either of condemnation
or approof; bidding the law make court'sy
to their will: hooking both right and wrong
to the appetite, to follow as it draws!
I'll to my brother: though he hath fallen
by prompture of the blood, yet hath he in
him such a mind of honor.
I'll tell him yet of Angelo's request, and
fit his mind to death, for his soul's rest.
We go to the prison with the duke, in disguise
as the friar, visits the prisoner Claudio.
So then you hope of pardon from Angelo?
The miserable have no other medicine but only
hope: I've hope to live, and I'm prepared
to die.
What, ho!
Peace here; grace and good company!
Who's there?
Come in: the wish deserves a welcome.
Dear sir, ere long I'll visit you again.
Most holy sir, I thank you.
My business is a word or two with Claudio
And very welcome.
Look, signior, here's your sister.
Provost, a word with you.
As many as you please.
Bring me to hear them speak, where I may be
concealed.
Now, sister, what's the comfort?
Why, as all comforts are; most good, and most
good indeed.
Lord Angelo, having affairs to heaven, Intends
you for his swift ambassador, where you shall
be an everlasting leiger: Therefore your best
appointment make with speed; Tomorrow you
set on.
Is there no remedy?
None, but such remedy as, to save a head,
to cleave a heart in twain.
But is there any?
This outward-sainted deputy is yet a devil.
His filth within being cast, he would appear
a pond as deep as hell.
The precise Angelo!
O, 'tis the cunning livery of hell, the damnedest
body to invest and cover in precise guards!
Dost thou think, Claudio?
If I would yield him my virginity, thou mightst
be freed.
O heavens!
It cannot be.
Yes, he would give't thee, from this rank
offense, so to offend him still.
This night's the time that I should do what
I abhor to name, or else thou diest tomorrow.
Thou shalt not do it.
O, were it but my life, I'd throw it down
for your deliverance as frankly as a pin.
Thanks, dear Isabel.
Be ready, Claudio, for your death tomorrow.
(laughing)
Yes.
Has he affections in him, that thus can make
him bite the law by the nose, when he would
force it?
Sure, it is no sin, or of the deadly seven,
it is the least.
Which is the least?
If it were damnable, he being so wise, why
would he for the momentary trick be perdurably
fined?
O Isabel!
What says my brother?
Death is a fearful thing.
And shamed life a hateful.
Ay, but to die, and go we know not where;
To lie in cold obstruction and to rot; This
sensible warm motion to become a kneaded clod;
and the delighted spirit to bathe in fiery
floods, or to reside in thrilling region of
thick-ribbed ice.
The weariest and most loathed worldly life
that age, ache, penury, and imprisonment can
lay on nature is a paradise to what we fear
of death.
Alas, alas!
Sweet sister, let me live: What sin you do
to save a brother's life, nature dispenses
with the deed so far that it becomes a virtue.
O you beast!
O you faithless coward!
O dishonest wretch!
Wilt thou be made a man out of my vice?
Is it not a kind of incest, to take life from
thine own sister's shame?
I'll pray a thousand prayers for thy death,
no word to save thee.
Nay, hear me, Isabel.
O, fie, fie, fie!
Thy sin's not accidental, but a trade.
Mercy to thee would prove itself a bawd: 'tis
best you die quickly.
O, hear me, Isabella!
(laughing)
Vouchsafe a word, young sister, but one word.
The duke concocts a plan.
Isabella is to tell Angelo that in exchange
for a pardon for her brother, she will sleep
with him.
The conditions are that the meeting will be
at night, and in the dark, and briefly because
of her modesty.
In her place, the duke will arrange to place
Mariana, Angelo's spurned fiancée.
Welcome, how agreed?
She'll take the enterprise upon her, father,
If you advise it.
It is not my consent, but my entreaty, too.
Little have you to say when you depart from
him, but, soft and low, 'Remember now my brother.'
Fear me not.
Nor, gentle daughter, fear you not at all.
He is your husband on a pre-contract: to bring
you thus together, 'tis no sin, sith that
the justice of your title to him doth flourish
the deceit.
Come, let us go: our corn's to reap, and yet
our tithe's to sow.
The plan goes perfectly.
Angelo sleeps with Mariana thinking she is
Isabella.
But the duke, disguised as a friar, learns
from the provost that Angelo still intends
to proceed with the execution of Claudio.
The duke then conspires with the provost and
Pompey, who has been newly hired as an executioner-
(laughing)
-to deliver to Angelo the head of a criminal,
Barnardine, who resembles Claudio and is also
condemned to die and to say it is Claudio.
I'm not making this up.
(laughing)
However, even that plan goes awry.
Sirrah, bring Barnardine hither.
Master Barnardine!
Master Barnardine!
You must rise and be hanged.
What, ho, Barnardine!
A pox o' your throat!
Who makes that noise there?
What are you?
Your friends, sir; the hangman.
(laughing)
You must be so good to rise and be put to
death.
Away, you rogue, away!
I'm sleepy.
(laughing)
Tell him he must awake, and that quickly,
too.
Pray, Master Barnardine, awake till you are
executed, and sleep afterwards.
(laughing)
Go in to him, and fetch him out.
He is coming, sir, he is coming.
Is the ax upon the block, sirrah?
Very ready, sir.
How now, Abhorson?
What's the news with you?
Truly, sir, I would desire you to clap into
your prayers; for, look you, the warrant's
come.
Oh, you rogue, I've been drinking all night;
I am not fitted for it.
(laughing)
O, the better, the better sir; for he that
drinks all night, and is hanged betimes in
the morning, may sleep the sounder all the
rest of the day.
(laughing)
Look you, sir; here comes your ghostly father:
do we jest now, you think?
(laughing)
Sir, induced by my charity, and hearing how
hastily you are to depart, I come to advise
you, comfort you and pray with you.
Friar, not I. I have been drinking hard all
night, and I'll need more time to prepare
me, or they will beat my brains out with billets:
I will not consent to die this day, that's
certain.
O, sir, you must: I therefore, beseech you
look forward on the journey you shall go.
I swear I will not die today for any man's
persuasion.
(laughing)
Unfit to live or die: o gravel heart!
After him, fellows, after him; bring him to
the block.
Now, sir, how do you find the prisoner?
A creature unprepared, unmeet for death; and
to transport him in the mind he is were damnable.
Here in the prison, father, there died this
morning of a cruel fever one Ragozine, a most
notorious pirate, a man of Claudio's years;
his beard and head just of his color.
What if we do omit this reprobate till he
were well inclined; and satisfy the deputy
with the visage of Ra- Ragozine, more like
to Claudio?
O, 'tis an accident that heaven provides!
(laughing)
Dispatch it presently; the hour draws on prefixed
by Angelo: see this be done, and sent according
to command; whiles I persuade this rude wretch
willingly to die.
This shall be done, good father, presently.
But Barnardine must die this afternoon: And
how shall we continue Claudio, to save me
from the danger that might come if he were
known alive?
Let this be done.
Put them in secret holds, both Barnardine
and Claudio: Ere twice the sun hath made his
journal greeting to the under generation,
you shall find your safety manifested.
I am your free dependent.
Quick, dispatch, and send, send the head to
Angelo.
Now will I write letters to Angelo.
The provost, he shall bear them, whose contents
shall witness to him I am near at home, and
that, by great injunctions, I am bound to
enter publicly: him I'll desire to meet me
at the consecrated fount, a league below the
city; and from thence, by cold gradation and
well-balanced form, we shall proceed with
Angelo.
Peace, ho, be here!
The tongue of Isabel.
She's come to know if yet her brother's pardon
be come hither: But I will keep her ignorant
of her good, to make her heavenly comforts
of despair, when it is least expected.
Ho, by your leave!
Good morning to you, fair and gracious daughter.
The better, given to me by so holy a man.
Hath yet the deputy sent my brother's pardon?
He hath released him, Isabel, from the world:
His head is off and sent to Angelo.
Nay, but it is not so.
It is no other: show your wisdom, daughter,
in your close patience.
O, I will to him and pluck out his eyes!
You shall not be admitted to his sight.
Unhappy Claudio!
Wretched Isabel!
Injurious world!
Most damned Angelo!
This nor hurts him nor profits you a jot;
forbear it therefore; give your cause to heaven.
Mark what I say, which you shall find by every
syllable a faithful verity: the duke comes
home tomorrow; nay, dry your eyes; One of
our convent, and his confessor, gives me this
instance: already he hath carried notice to
Escalus and Angelo, who do prepare to meet
him at the gates, there to give up their power.
If you can, pace your wisdom in that good
path that I would wish it go, and you shall
have your bosom on this wretch, grace of the
duke, revenges to your heart, and general
honor.
I am directed by you.
Angelo is delivered the head of Claudio, which
is really the head of the dead pirate Ragozine
and learns that the duke has returned.
All are summoned to the city gate for the
return of the duke.
Am I disguising?
You are.
(laughing)
My very worthy cousin, fairly met!
Our old and faithful friend, we are glad to
see you.
Happy return be to your royal grace!
Happy return be to your royal grace!
Many and hearty thankings to you both.
We have made inquiry of you, and we hear such
goodness of your justice, that our soul cannot
but yield you forth to public thanks, forerunning
more requital.
Justice, O royal duke!
Vail your regard upon a wronged, I would fain
have said, a maid!
O worthy prince, dishonor not your eye by
throwing it on any other object till you have
heard me in my true complaint and given me
justice, justice, justice, justice!
Relate your wrong, wrongs; in what?
By whom?
Be brief.
Here is Lord Angelo shall give you justice:
Reveal yourself to him.
My lord, her wits, I fear me, are not firm:
She hath been a suitor to me for her brother
cut off by course of justice.
By course of justice!
And she will speak most bitterly and strange.
Most strange, but yet most truly, will I speak:
That Angelo's forsworn; is it not strange?
That Angelo's a murderer; is it not strange?
That Angelo is an adulterous thief, a hypocrite,
a virgin-violator; Is it not strange and strange?
Nay, it is ten times strange.
(laughing)
Isabella recounts her story but the duke says
he does not believe her and orders her away
to prison.
As Isabella is taken away, Mariana with a
veil shielding her face approaches the duke.
Let her show your face, and after speak.
Pardon, my lord; I will not show my face until
my husband bid me.
What, are you married?
My lord; I do confess I never was married;
and I confess besides I am no maid: I have
known my husband, yet my husband knows not
that ever he knew me.
Now I come to't my lord she that accuses him
of fornication, in self-same manner doth accuse
my husband, and charges him my lord, with
such a time when I'll depose I had him in
mine arms with all the effect of love.
Charges she more than me?
Not that I know.
No?
You say your husband?
Why, just that, my lord, and that is Angelo,
who thinks he knows that he never knew my
body, but knows he thinks that he knows Isabel's.
(laughing)
This is a strange abuse.
Let's see thy face.
My husband bids me; I 
will unmask.
(laughing)
This is that face, thou cruel Angelo, which
once was thou sworest was worth the looking
on; This is the hand which, with avowed contract,
was fast belocked in thine; this is the body
that took away the match from Isabel, and
did supply thee at thy garden-house in her
imagined person.
Know you this woman?
My lord, I must confess I know this woman.
(laughing)
Noble prince, I am affianced this man's wife
as strongly as words could make up vows: and,
my good lord, but Tuesday night last gone
in garden-house he knew me as a wife.
I did but smile till now: Now, good my lord,
give me the scope of justice my patience here
is touched.
I do perceive these poor informal women are
no more but instruments of some more mightier
member that sets them on: let me have way,
my lord, to find this practice out.
Ay, with my heart and punish them to your
height of pleasure, for I will leave you.
But sir... but stir not till you have well
determined upon these slanderers.
My lord, we'll do it thoroughly.
Call that same Isabel here once again; I would
speak with her.
Come, sir: did you set these women on to slander
Lord Angelo?
They have confessed you did.
Really?
(laughing)
'Tis false.
How!
Know you where you are?
Respect to your great place!
And let the devil be sometime honored for
his burning throne!
Where is the duke?
He should hear me speak.
The duke's in us, and we will hear you speak:
look you speak justly.
Boldly, at least.
O, poor souls, come you to seek the lamb here
of the fox?
Good night to your redress!
Is the duke gone?
Then is your cause gone, too.
The duke's unjust, thus to retort your manifest
appeal, and put your trial in the villain's
mouth which here you come to accuse.
Why, thou unreverend and unhallowed friar,
Is't not enough thou hast suborned these women
to accuse this worthy man, but, in foul mouth
and in the witness of his proper ear, to call
him villain?
And then to glance from him to the duke himself,
to tax him with injustice?
Slander to the state!
Away with him to prison!
I protest.
I love the duke as I love myself.
(laughing)
Hark, how... hark how the villain would close
now, after his treasonable abuses!
Such a fellow is not to be talked withal.
Away with him to prison!
Where is the provost?
Away with him to prison!
Lay bolts enough upon him: let him speak no
more.
Away with those giglots too, and with the
other confederate companion!
Stay, sir; stay awhile.
What, resists he?
Ah!
Oh!
(laughing)
First, provost, let me bail these gentle three.
Sir, by your leave.
Hast thou or word, or wit, or impudence, that
yet can do thee office?
If thou hast, rely upon it till my tale be
heard, and hold no longer out.
O my dread lord, I should be guiltier than
my guiltiness, to think I can be undiscernible,
when I perceive your grace, like power divine,
hath looked upon my passes.
Then, good prince, no longer session hold
upon my shame, but let my trial be mine own
confession: Immediate sentence then and sequent
death is all the grace I beg.
Come hither, Mariana.
Say, wast thou ever contracted to this woman?
I was, my lord.
Go take her hence, and marry her immediately!
(laughing)
Are led off by the provost to be married by
a nearby friar.
My lord, I am more amazed at his dishonor
than at the strangeness of it.
Come hither, Isabel.
Your friar is now your prince: as I was then
advertising and holy to your business, not
changing heart with habit, I am still attorneyed
at your service.
O, give me pardon that I, your vassal, have
employed and pained your unknown sovereignty!
You are pardoned, Isabel; and now, dear maid,
be you as free to us.
Your brother's death, I know, sits at your
heart; and you may marvel why I obscured myself,
laboring to save his life, and would not rather
make rash remonstrance of my hidden power
than let him be so lost.
O my oh most kind maid, it was the swift celerity
of his death, which I did think with slower
foot came on, that brained my purpose.
But, peace be with him!
That life is better, past fearing death than
that which lives to fear: make it your comfort,
so happy is your brother.
I do, my lord.
For this new-married man approaching here,
whose salt imagination hath yet wronged your
well-defended honor, you must pardon for Mariana's
sake: but as, but as he adjudged your brother,
being criminal, in double violation of sacred
chastity and of promise-breach thereon dependent,
for your brother's life, the very mercy of
the law cries out most audible, even from
his proper tongue, 'An Angelo for Claudia-
Claudio, death for death!'
Haste still pays haste, and leisure answers
leisure; Like doth quit like, and measure
still for measure.
We do condemn thee to the very block where
Angelo stooped to death, and with like haste.
Away with him!
O my most gracious lord, I hope you will not
mock me with a husband.
It is your husband mocked you with a husband.
Consenting to the safeguard of your honor,
I thought your marriage fit; else imputation,
for that he knew you, might reproach your
life and choke your good to come; for his
possessions, although by confiscation they
are ours, we do instate and with you...
widow you withal, to buy you a better husband.
O my dear lord, I crave no other, nor no better
man.
Gentle my liege–
You do but lose your labor.
Away with him to death!
O my good lord!
Sweet Isabel, take my part; lend me your knees,
and all my life to come I'll lend you all
my life to do you service.
Against all sense you do importune her: She
should kneel down in mercy of this fact, your
brother's ghost his paved bed would break,
and take her hence in horror.
Isabel, sweet Isabel, do yet but kneel by
me; hold up your hands, say nothing; I'll
speak all.
They say best men are molded out of faults-
(laughing)
-and, for the most part, become much better
for, for being a little bad: so may my husband.
O Isabel, will you not lend a knee?
He dies for Claudio's death.
Most bounteous sir, look, if it please you,
on this man condemned, as if my brother lived.
I partly think a due sincerity governed his
deeds, till he looked on me.
Since it is so, let him not die.
My brother had but justice, in that he did
the thing for which he died; for Angelo, his
act did not o'ertake his bad intent, and must
be buried but as an intent that perished by
the way.
Thoughts are no subjects; intents but merely
thoughts.
I am sorry, one so learned and so wise as
you, Lord Angelo, have still appeared, should
slip so grossly, both in the heat of blood
and lack of tempered judgment afterward.
I am sorry that such sorrow I procure, and
so deep sticks it in my penitent heart that
I crave death more willingly than mercy.
'Tis my deserving, and I do entreat it.
Having seen Isabella's willingness to show
mercy to Angelo, he reveals that her brother
Claudio is indeed alive and safe.
(laughing)
If he be like your brother, for his sake is
he pardoned; and, for your lovely sake, give
me your hand and say you will be mine.
(laughing)
He is my brother too: but fitter time for
that.
By this Lord Angelo perceives he's safe; methinks
I see a quickening in his eye.
Well, Angelo, your evil quits you well; look
that you love your wife, her worth worth yours.
I find an apt remission in myself.
Dear Isabel, I have a motion much imports
your good; whereto if you're, you'll a willing
ear incline, what's mine is yours and what
is yours is mine.
(laughing)
As I said at the beginning, um, the bios of
the folks who are on this panel are truly,
uh, impressive.
We have, um, judges who served at the trial
level, at the appellate level, both in the
state and the federal system.
We have many former prosecutors.
We actually have a counsel, uh, a gentleman
who served as counsel to all the prosecutors
in the commonwealth.
Um, some have overseen or reviewed the administrative
rules and procedures that govern courts.
Uh, Judge Saris, uh, presided over the U.S.
Sentencing Commission for six years.
Uh, Justice Gorton, uh, traveled and visited
a lot of the former Soviet Union Eastern Bloc
countries and other countries and gave them
advice on the rule of law and the administration
of justice.
Two central issues, I think, that are important
for our discussion.
But, um, these two gentlemen, I wanna state,
uh, give a special tribute to for joining
us.
Um, Judge Canady, um, it seems like you've
done everything in all branches of government.
He was a state representative, a member of
the U.S. Congress.
Um, he was a general counsel, uh, to governor,
uh, Jeb Bush in Florida and now, uh, was a
Supreme, uh, the Chief Justice the Supreme,
of the Supreme Court in Florida and, you've
given up that title, but I assume you're still
on the court.
Great.
(laughs) And Judge Sutton, um, uh, Judge Sutton
have the, the, the incredible, um, luck and
I'm sure skill to be both a clerk to Justice
Powell and Justice Scalia.
He has served with distinction, uh, on the
Sixth Circuit for over 40 years.
He was the state solicitor in Ohio.
He was the chair of the Federal Judicial Conference
Committee on Rules of Practice and Procedure.
He's known as a great teacher and author and
has, uh, written on state constitutional law,
and the law of judicial precedent.
So, I'm ... You're truly, um, in the presence
of some great people to talk about these issues.
So I wanted to start out being a Federalist.
Um, and bring the fact that Hamilton is my
favorite show on Broadway-
(laughing)
-with a statement from Alexander Hamilton,
with, uh, Justice Canady actually referenced,
uh, some time ago in a different manner.
And he said in August of 1794 in a publication,
um, called The American Daily Advis- Advertiser:
"If we were to be asked what is the most sacred
duty and the greatest source of security in
a republic, the answer would be an inviolable
respect for the Constitution and laws.
The first growing out of the last.
The large and well-organized republic can
scarcely lose its liberty from any other cause
than that anarchy to which a contempt of the
laws is the high road.
A sacred respect for the Constitutional law
is the vital principle, the sustaining energy
of a free government.
But how can a government of laws exists when
the laws are disrespected and disobeyed?
Government supposes control.
It is the power by which individuals in society
are kept from doing injury to each other and
are brought to cooperate to a common end.
The in- instruments by which it must act are
either the authority of the law or force.
If the first be destroyed, the last must be
substituted.
And where this becomes the ordinary instrument
of government there is an end to liberty."
So in Hamilton's view, if the laws are not
enforced, freedom, in fact, is enslaved.
Um, I just want to say a couple other things
that, that I looked at the oaths that, um,
the justices of the appeals court and the
Supreme Judicial Courts say in Massachusetts.
And their oath requires them to bear true
faith and allegiance to the Commonwealth of
Massachusetts, and support the Constitution.
And faithfully and impartially discharge and
perform all the duties according to the best
of their abilities and understanding agreeably
to the rules and regulations of the Constitution
and the laws.
To follow the law.
The oath of the federal judges is a little
bit more interesting and very, very old.
Dating, I think, even back to Hamilton's day.
It says, "I do solemnly swear that I will
administer justice without respect to persons,
and do equal right to the poor and to the
rich.
And that I will faithfully and impartially
discharge and perform all the duties incumbent
upon me under the Constitution and the laws
of the United States.
So help me God."
So we come to this question of the rule of
law and administering justice.
What is justice?
Justice is a word that appears, as I said
in the beginning, a hundred times in this
play.
Just a couple of examples.
The duke complains about liberty plucking
justice by the nose, echoing back to Hamilton's
statement, right?
Elbow brings the bawds to Angelo stating that
he leans upon justice to make sentence on
them.
Um, Angelo in the face of pleas for mercy,
argues that he shows mercy most of all when
he shows justice, believing that by setting
an example of Claudio, it will deter others
to act as well.
And of course, Isabella demands justice, justice,
justice, justice.
Not that she thinks her brother is not guilty
of a crime and perhaps shouldn't die, but
because the bargain that she made with Angelo,
the promise that he made was breached.
So, I say to you two gentlemen, who will speak
for a bit and then we'll open this up to the
entire panel.
How does a judge instill respect for the law?
And what does "justice" mean in today's society?
It's a big question.
(laughing)
Gentlemen.
Sure.
Uh, first of all, congrats.
I saw a rehearsal of this, and, uh, they did
a lot better.
(laughing)
I was very impressed.
Now, just how lucky you are to have state
and federal judges that are familiar with
Shakespeare.
Um, so I'm gonna start with two slightly glib
points, um, then a more serious one.
Ah, the first one relates to the point that
I'm not optimistic about rule of law, respect
for law if we're gonna focus on hypocrisy
and sex, uh, that, um, was a problem in 1603,
uh, and I’m afraid it’s going to be a
problem of... way down the road.
Um, we all have our stories.
My favorite, which actually I think is better
than anything Shakespeare did, ah, happened
300 years after the play about was written.
1903, uh, a fellow named Reed Smoot was elected
senator from Utah.
He was the first senator, who was a Mormon,
elected to the United States Senate.
And back in 1903 most Americans didn't think
much of Mormons.
Thought of polygamy, thought it was all wrong,
and so forth.
Never mind that the, uh, Mormon Church had
banned polygamy in the 1890s.
Never mind that Reed Smoot was not a polygamist.
Um, uh, in pretty hypocritical act, it took
a couple of years for the Senate finally to
seat him and approve him.
Um, what broke the logjam was a speech by
a senator from Pennsylvania, Boies Penrose,
never heard of him, but through the story.
And, uh, he got up on the Senate floor and
said some nice things about, um, Reed Smoot,
and finally said, "You know, I'd rather have
a polygamist who doesn't "polyg"-
(laughing)
-than a monogamist who doesn't monog.
(laughing)
I, I, I 
was not there, but allegedly he, he looked
very carefully at several of his colleagues-
(laughing)
-and made the last point.
So, when it comes to the sex, hypocrisy, government,
I'm, I'm not optimistic.
(laughing)
Um, my second, slightly glib point is, uh,
how lucky the duke was to be able to go in
disguise.
As I was listening to the play, I was thinking,
"Oh, I have so many cases where I really could
have figured things out had I gone into disguise-
(laughing)
-maybe have been a paralegal at the law firm,
socialized with the parties," and, uh, so
it's something to really think about.
(laughing)
Uh, if you hear about this crazy Ohio judge
that, uh, starts running around in disguise,
you know where the idea was hatched.
(laughing)
So here's the more serious point, and, and
I guess, slightly depressing point, but I
think, what I think is a slightly happy ending.
Uh, you know, the only, uh, virtuous person
in the play is to my left, Isabella.
And it's a little depressing that the only
virtuous person in the play, the only true
angel wants to leave society, uh, wants to
live in God's world not our world.
Um, that everybody else has flaws, some more
serious than others.
And that of course, in the end, happens to
be very consistent with how, uh, we founded
the country.
Uh, so John Adams, said, "A government of
law, laws, not of men."
He [inaudible] or for that matter a woman.
Um, but the key innovation is, of course,
dividing power every which way: vertically,
horizontally.
And, so that, you know, one of the problems
in the play is that you have all power centralized
in the duke or his deputies.
And if you think about some of the underlying
problems and tensions, what doesn't seem to
be just about certain features of the play,
American government has many solutions to.
Um, we have prosecutorial discretion.
Uh, prosecu- most prosecutors, all prosecutors
today would not have charged this crime.
But even more, um, slightly more realistic
possibility is I think most times prosecutors
exercise discretion in a meaningful way.
Um, we have legislatures that can repeal laws
whose time has come and gone.
Um, we don't have a lot of fornication laws
left in the books, it turns out.
Um, either prosecutors are very busy or, uh,
they're gonna be ignored.
Um, but, but for the most part the legislatures
did- legislators did the right thing.
We have the executive branch that has the
clemency power.
Uh, to issue a pardon during a case.
And judges, uh, that's us, uh, I think there
would have been quite a few possibilities.
In construing statutes, uh, we apply a rule
of lenity.
So, if we're not sure whether something applies,
we're allowed to construe it in a way that,
um, preserves liberty rather than lose it.
Um, we, uh, of course, have the power of judicial
review.
Um, there's actually a case from 1977.
You might be interested to read it.
Um, U.S. Supreme Court, by the way, has never
outlawed fornication laws.
Um, just, you know, you might find surprising.
Um, with the privacy decisions of the U.S.
Supreme Court, it seems pretty obvious that,
uh, there on shaky ground, or would be if
they're still around.
Uh, but there's a New Jersey Supreme Court
decision from 1977 with a pretty wonderful
fact pattern, wh- um, where the New Jersey
Supreme Court invalidates, um, its fornication
law.
So, um, you know the good news to me about
all of this, um, is the reality that our separation
of powers... there's a lot more ways in which
this kind of problem could have been avoided.
The last thing I would say, is I, I was...
I'm, I'm not optimistic about sex and hypocrisy,
but when it comes to respect for law, so if
we move it outside the topic of this particular
play, you know, back in the 1980s, uh, there
was a theory developed called "Broken Windows."
The idea was that in urban environments, um,
you breed disrespect for law by not enforcing
even the most basic laws.
So while, you know, the play kind of makes
you laugh at, oh how silly, um, the law can
be [inaudible], the law is silly to begin
with.
Um, I think it's a very serious point to have
laws on the books that are not enforced.
Um, and uh, we should get rid of them.
I don't mind judges writing opinions if there's
not a constitutional challenge, saying the
legisla- legislature should think about getting
rid of the law.
But if it's on the books, not a great situation
when they're not being enforced.
So, um, despite many of the themes of this
play, ah, my view is it's a real problem if
we're not enforcing these laws.
Now, prosecutorial discretion allows you to
decide when to enforce them when you've really
done something wrong and worthy of punishment,
and the deterrents that comes from it.
But, um, the broken windows theory is a pretty
good example of the problems that arise.
And it worked, it worked to enforce.
New York City is the best example.
They started enforcing those laws and [inaudible]
crime.
And they were, you know, as it sounds, silly
laws.
Um, fixing a broken window.
So, um, there's something to be said when
it comes to respect for law and enforcing
it even to some of the smallest crimes.
Thank you.
Justice Canady.
Well, thank you.
Again, I want to thank you for giving me the
opportunity to be here tonight.
I have thought long and hard about the question
of "what is justice?"
But I'm not going to be able to give you the
answer to that question tonight.
Um, I'm going to, uh, uh, instead, uh, just
focus on what I think we can learn, uh, from
Angelo, um, about the role of the judge.
Now, it's important when we look at Angelo,
um, to understand the marching orders he received.
Um, the marching orders he received, um, indicated
that it was within his scope to qualify law.
So, he was not told by the duke that, "You
are to be here only to strictly enforce the
law.
To have no mercy."
Uh, quite the contrary.
Now, it's clear that the, that the duke thought
that there was too much laxity and there needed
to be a more firm enforcement of the law.
But it was not to be a totally inflexible,
uh, approach that was to be taken, uh, by
Angelo.
And so, I think Angelo didn't listen.
He didn't listen.
So the question is, the question that occurs
to me is: "Why?
Why does Angelo do the things he does?"
Now, there... he is corrupt, we know.
We see a gross sort of corruption in the proposition,
uh, and the attempt to take advantage of,
uh, the condemned man's sister.
That's easy.
We can, we can, uh, uh, understand that that
is wrong, uh, and that such behavior in a
judge or any public official is a thing to
be condemned.
But beyond that, what, what makes him take
the approach that he takes that leads him
to condemn Angelo?
Now, if you think, uh, about the task he's
been given, and it's hard, the task is to
help restore respect for the law.
So how are we going to restore respect for
the law, um, in, uh, as it relates to these,
uh, these offenses involving personal sexual
conduct?
Now we... obviously, it's hard for, for people
today, given where our society is on issues
like that, to, to understand this, uh, fr-
from the perspective that might have been
present in Shakespeare's day.
But if you think that that needed to be done,
how is the worse way to go about it?
By singling out someone who at most has engaged
in a technical violation.
Um, a person who, uh, where, where there is
a, a, a, a, all but the... a marriage in all
but the most formal sense.
Um, a marriage that ha- where there was a,
a, an impediment, but a marriage that was
to take place for sure.
So, uh, he singles out this person.
So, for, for condemnation for this rigorous
application of the law, when he doesn't have
to do that.
And in doing that, he, instead of increasing
respect for the law, will inevitably undermine
respect for the law.
So, I think that when we look at Angelo, um,
we need to think about people taking seriously
the roles they have.
You know, he's got a multitude of roles.
He's got the... because he's wearing all these
different hats, because all this power is
embedded in it.
It's, uh, executive, legislative, uh, and
judicial.
Um, but we, and, and Judge, uh, Sutton has,
I think, eloquently explained the, the, how,
uh, blessed we are to have the separation
of powers in this country and what a, what
a, how that is a way that many of these problems
of the harshness of the law can be addressed.
Um, and, and the, the rule of law can be effectively
given life, uh, and respect for the law can
be inculcated.
But what we, we see here is that, uh, Angelo,
um, really loses sight of the proper scope
that he has.
Particularly when it comes to the prosecutorial
function and the judging function.
The executive function and the judicial function.
Um, uh, he loses sight of the scope that he
has, um, to qualify the law, um, and in doing
so, um, he uh, undermines the rule of law.
So why does he do that?
Why does he do that?
And in a lot...
I don't think it's in the abridged version,
but I, uh, I apologize if I, I missed it.
Claudio says that "'Tis surely for name that
Angelo does what he does."
And 
I think that's right.
I think what he is doing is he is trying to
build himself a name for rigor, uh, and for
being implacable.
Um, and he is misled by his desire to have
"the name".
And I think that points judges, all judges,
to the need to always remember that in whatever
case is before us, there's nothing in the
case that is about us.
This... the reason judges wear robes is to
emphasize, to de-emphasize our personalities.
What comes before us is not about us.
It is not about making a name for ourselves.
It is not in any way about us.
And what I have seen... one of the things
I do is, uh, I have responsibility for the
discipline of judges.
Um, and it is a theme in most disciplinary
cases that we have, is that the judges got
in trouble because they thought that there
was something, uh, that was, uh... they inserted
themselves into the case in a way that was
inappropriate to the role.
They really forgot the proper role of the
judge, uh, and they, you know, and then they
go off the rails doing things, uh, that are,
that are inappropriate.
And that's... and I think that's what happened
here, uh, with, uh, with Angelo.
Um, and, and that is a form of corruption.
It's not as gross as the other corruption
we see in him, but it is no less a form of
corruption.
So I, I think that's one of the things we
can, uh, draw from, from the play and from,
from the, um, the misdeeds of Angelo.
So let-
(laughing)
-So, let, let me throw it open to the group.
This is the first time we've had an all-judge,
uh, panel, except for me, of course.
The charge that, uh, the duke gave to Angelo
was to use his heart and tongue to give mortality
and mercy.
And, um, to enforce or qualify the laws as
Justice Canady pointed out, as to your soul
seems good.
And the last thing he told him was pay attention
to the experienced, seasoned guy in the room,
Escalus.
So, would anyone like to comment?
Do those words have meaning to you in your
courtroom?
Uh, how do you go about exercising justice?
Great.
[inaudible]
(laughing)
No one?
(laughing)
[inaudible]
No, it's ... It's just a high level of generality.
All of the discussion, again to...
I can't hear you, Doug.
It's a high level of generality of which this
is the structural questions that Judge Sutton
outlined are embedded.
Can't hear.
It's a high level of generality.
The structural questions that Justice, uh,
Judge Sutton identified are at the core of
guiding all of this or at the hands of other
instruments that direct us in various sorts
of ways.
We're also, uh, not faced with, uh, larger
problems of... or shouldn't be faced with
the larger problems of making a name for ourselves.
But it's individual, it's granular, and it's
very difficult to ally that larger generality
with the application in individual cases.
We can structure it as, uh, Judge Saris has
labored in the vineyard to structure through
sentencing guidelines.
My own view about sentencing guidelines, which
I expressed earlier to my colleagues is they're
a little bit like a lamppost for the drunk:
not so much something to illuminate but something
to hold on to.
(laughing)
It means that you, uh, suppress a full understanding
of what it is that you are about in the process
that you're executing.
It's not quite the way my mother describes
sex, inevitable, but it is very difficult
to describe the-
(laughing)
Inevitable?
Yeah.
Well, she said inevitable.
How did you get sex into this discussion?
(laughing)
You mother and sex?
I mean I can't believe it at all.
(laughing)
It's in the play.
The point, the point I guess is that this
is a question that doesn't lend itself very
easily to, uh, an answer like that, uh, uh,
an answer with the specificity of that.
It's a matter of habituating yourself to a
process that means that you consider all of
the various factors, uh, and try to come to
some meaningful conclusion with the benefit
of perhaps of scarecrows, uh, like the sentencing
guidelines.
Let me be rude and provoke everybody.
Uh, the play shows that Shakespeare would
have been a member of the Federalist Society.
(laughing)
That's because the Federalist Society believes
in the limited role for the courts.
The villain is Angelo.
Do you want Angelo having authority to do
equity in cases?
To overrule the legislature here and there?
The play illustrates how imperfect and corruptible
the su- supposedly non-corrupt are.
And so it's a great illustration of the last
thing you want are government officials, and
I would say particularly judges, with this
discretion to do what they think is right
'cause you'll get Angelos.
You may get an Isabella now and then, you
may get a duke now and then, but you're also
gonna get Angelos.
And that's a problem.
(laughing)
But if you, you say that you want judges to
have discretion to do what they think is right,
Angelo thought what he was doing was right.
So why is he not a good judge?
Can I also add, Rya?
And, and I, I, I disagree with what he did,
but, but taking yo- your, uh, notion.
Well, all, all we know about Angelo is, uh,
what he did later.
So we have a pretty good illustration of his
moral compass.
And that's a moral compass I'm uncomfortable
giving a lot of power to.
My whole point is, is little power as possible
to each branch of government.
(laughing)
Well, I agree with you and if, if in-
I told you this would work.
(laughing)
If the, if the judges are given authority
to overrule the law, isn't that a violation
of the separation of powers?
Because if the law is what the legislature
says, and the judges don't have the authority
to overrule a law unless the law is unconstitutional.
Furthermore, what you read, Dan, um, that,
uh, the, the Duke, ah, told Angelo to, um,
modify the law.
That is not the oath that we take.
We don't, we don't take an oath to modify
the law.
We take an oath to uphold the law.
But, but the question goes to whether qualifying
the law is the same thing as administering
justice.
I mean Judge Sutton went through a litany
of various checks and balances that exist,
not only within the branches but within the
judiciary itself.
I mean, the right of appeal, the right of...
If you're an appeals court you have, you have
to convince your panel members to agree with
you.
You have various doctrines which, um, uh,
require an examination of, of public policy,
or, or, uh, the most narrow reading of a statute
or stare decisis.
And are, aren't all of these things a part
of your, um, uh, playbook in terms of qualifying
the law, uh, so that it is not... so that
justice is served?
But if you tell judges to do justice, you
might have some judges who are good judges
and some judges who are bad judges.
And you'll have bad justice as well as good
if you don't have enforcement of the law as
it's written.
I think the duke was not such a hero actually.
When, when you think about the duke-
(laughing)
-and others, uh, if, if you're worried about
the judges, the duke-
(laughing)
-the duke was unequal justice across the board.
I mean, he essentially tells Mariana to do
exactly what it was illegal for Claudio to
do and then hits on Isabella to tail in who's
entering a nunnery.
(laughing)
You know that she didn't accept his proposal
at the end.
(laughing)
So, I mean I think what, you know, one thing
you want with sentencing is, um, you want
some, uh, I think a number of people have
mentioned it lack of disparity, um, in what
to expect, a- and some rule of law, um, albeit
a lamppost, at least, have some sense that
everyone's talking the same language.
And the other thing that I thought about what
offends you the most, it's not really the
law here, because maybe that was designed
to protect, uh, women before they got married
not to get pregnant because then what happens
if their dowry doesn't come through.
Um, and then they're out with a baby, and
they're not married.
The issue was the proportionality of the punishment
in that particular situation.
So, wh- what you really want is, uh, a law
that perhaps back in those days protecting,
in a different civilization where being an,
uh, unmarried mom, um, would, wouldn't be
the greatest thing in the world.
You're protecting her, but in this circumstance,
this isn't one where the death penalty made
any sense at all.
So, it's really talking about some sort of
proportionate, um, penalty and some sort of,
um, evenness in, in how people are treated.
And I think judges are as...
I'd rather put it in the judge, with the exception
of you Angelo, uh-
(laughing)
-than the duke who just hands it out willy-nilly
sort of based on how he's feeling that moment.
Well, let me ask sort of a basic question.
Um, when your kids, some of you have kids,
ask what you did, um, what did you tell them?
(laughing)
I tell them I create reversible error.
What did you say?
I create reversible error.
(laughing)
I'd been a judge about a week and I was talking
over a problem with my wife, who's a lawyer.
And she kind of scowled and said, "You seem
to be kind of judgmental about this thing?”
(laughing)
Well, it's a serious question.
How do you explain to your children what you
do?
When I had a son who was five years old, uh,
I used to record what they would say because
they said funny things once in a while.
(laughing)
And, and one, one time, I had my son, and
we were, uh, talking about what I did, uh,
and I said what I ... He said, "You're a lawyer."
And I said, "Okay.
How does a lawyer make his money?"
He thought about it for a while, and he said,
"He sneaks it."
(laughing)
I don't know where he got that from.
(laughing)
If, if I can respond to something that was
said earlier.
I mean, every society, it seems to me, has,
has the level of enforcement of its laws that
refle- reflects its values.
By which I mean, let's take the parking laws.
Uh-huh.
Judge Gorton and I were coming over here.
And of course, Back Bay was filled with double
parked and illegally parked cars, and, you
know, last three blocks take half the time.
And yes in Columbus and Tallahassee the parking
laws are enforced differently.
And if you've been to places like Italy or
Greece, they're not enforced at all.
You can't, you know, park on the sidewalk
if there's a car already on the sidewalk.
(laughing)
That, you know, kind of reflects the values
and, and, and that's fine, you know, in Boston
is a little bit, it's different from Rome
and it's different from Columbus.
But at the macro level, this matters.
In other words, th- that's where we really
need to be worrying about this.
It's, it's at the Constitution level, at the
highest levels of society, we can't have these
different, uh, views.
Whereas at the smaller, uh, I don't think
it's quite as important.
And there are laws that we enforce with the
rigor of Iranian imams.
Uh, I mean, uh, there are cases on my docket
involving what I would consider to be relatively
trivial or technical violations of the Americans
with Disabilities Act.
But that's the law and we enforce it.
I once had to pay about $800 to have the electric
meter on my house moved six inches because
that was the law.
And there wasn't any court I could turn to
for relief.
That's just, you know, maybe that's good.
Maybe it kept my house from being burned down.
I don't know.
Um, and, you know, at some level we do enforce
things rigorously and, you know, or maybe
[inaudible] maybe not.
You can put the electric meter wherever you
want it.
But, at the Constitutional level this matter
is quite a bit and I think that's what we
ought to be focusing on when we're talking
about the highest level.
Not our fornication laws, not our electric
code, but how we share power, uh, in, in,
in society at the highest levels and how we
make rules and enforce them.
Sir, you have a question?
May we ask questions?
Sure.
It seems to me that immigration divides this
country as much as any issue.
Uh, and I just wondered if anyone wants to
address the issues in this case and take it
way all up to immigration, um, and enforcing
the law, or, or justice?
Yeah.
They're judges.
Yeah.
I'm not sure whether any person on this stage
is in a position to give an opinion on immigration
and enforcement of immigration laws.
Um, because of their unique circumstances
being judges.
So, it's kind of hard to address specific
policy issues in that context.
Uh, does anyone disagree with me on that?
I mean I think the question is, "Well, should
they be enforced or not?
Yeah.
Are we serious about this or not in this society?
Yeah, that, that-
One of the things that my experiences overseas
are focused in on are corruption.
A lot of countries have corruption laws and
they're not enforced.
So culturally they're just disregarded and
it has huge impacts on the confidence people
have in their government, in their judicial
systems, and everything else.
And, and, uh, going way back to the early
1980s, uh, I recall one of my first corruption
prosecutions as a prosecutor.
Um, we were prosecuting corrupt acts in the
city of Boston.
Turns out a very good friend of mine was a
federal judge, now passed away, told me when
he was a public defender in the early 1960s,
he had to go to city hall and get paid.
They didn't have a real organized public defender's
office.
He had to kickback 10% or he didn't get paid.
Um, but, uh, so one of our first cases, one
of our first cases, but we were into sort
of prosecuting developers for lying about
the fact that they were actually paying off
city officials up to that point.
Um, one of the architects who, uh, was charged
with perjury, pulled me aside at the guilty
plea and said, "You know, I wouldn't have
lied if I really thought you were serious
about this."
(laughing)
I mean, come on.
You know, if I told the truth, I'd never be
able to do business in this town again.
So, I didn't know you were all gonna take
this so seriously and follow through on it.
So I'm so sorry I did that act.
(laughing)
And that's and exam- a local example, but
overseas, you'll see that in so many countries.
So, the law is important and you have to have,
uh, an enforcement strategy.
It has to be meaningful.
The pu- people have to respect it.
And it, it creates a cultural change.
Question?
Sure.
Uh, it was brought up that we have three branches
of government.
And I taught law for... in schools though
I never practiced it.
And I always tried to tell my students that
the three branches, one makes the laws, one
enforces the laws, and I always portrayed
the judges as the human factor.
You listen to the people and you're the human
factor, I thought, that heard the story and
came up with the punishment that fits the
story.
And I always gave the example of stealing
milk.
If, if, if a young... strike "young".
If a person steals milk and the story was
for a bad purpose, you could give a punishment.
But if the story was the mother stole the
milk 'cause the baby needed it, you could
give a different punishment.
So I always viewed judges as the human factor.
You listen to the story.
That's why you have parameters that you can
work and say you can give the maximum or you
can give the minimum sentence.
And I'd like to hear your viewpoint on my
viewpoint.
(laughing)
Thank you.
[crosstalk] I think it's absolutely right
that, uh, in criminal cases, uh, preeminently,
uh, it's important to be able to take into
account mitigating and aggravating circumstances.
Beca- because not every, um, uh, theft is
equal to every other theft.
And, and, uh, the example you give I think,
uh, illustrates that.
Um, and, um, I think that a system that takes
seriously justice, um, it, it has to be individualized.
And that's why I think it's, uh, important
that, um, um, we always consider, when we're,
when we're structuring um, criminal law, it's
important to take into account there's this
need for individual consideration of the circumstances
of the person and of the crime.
Uh, because without that you get, uh, um,
uh, results that just don't really stand up,
um, that don't make sense.
You may have a certain rough equality, but
you're imposing equality when there's an underlying
inequality.
And that doesn't, that doesn't make sense.
And so, I think the point you're making is,
is very valid.
The related point that I'll make, um, I come
at these... a lot of these issues from the
perspective of an appellate judge.
Um, when we look at issues about the harshness
of the law, um, and, um, tailoring, uh, penalties
in a particular case, that's not really so
much my job as an appellate judge.
That's what the trial court judges are doing.
They're in a better position to do that.
Uh, and so as an appellate judge, um, my job,
typically, is to ju- I've got the text of
the statute, the text of the Constitution.
Um, I've got the way it's been developed below,
and then I'm, I'm operating within the framework
of those texts.
Um, and I don't...
In interpreting those I don't have the same
sort of discretion, um, that, uh, trial court
judges have when they're, when they're, when
they're operating in, in areas of the law
where discretionary calls have to be made,
um, because of the complexity of the facts
and the circumstances.
And it is ... Without vesting a judge with
some discretion, you're going to end up with,
with results that are not equitable.
Yeah, I mean what I...
I think in the play we, we have a couple of
examples of what you're talking about, right?
We have the technical violation of the fornication
statute, which the duke himself says it's
not a violation for Mariana and Angelo because
they're betrothed.
So that is an issue where there could have
been prosecutorial discretion and there also
could have been a judgment made by a judge
as to whether in fact there was a violation
of the law or not.
And then we have the other example where Pompey
and Froth are put on trial for doing something
to Elbow's wife.
We never figure out what that is-
(laughing)
-other than she ate some prunes.
(laughing)
Um, but there, there was a lack of evidence.
And a good judge, Escalus, sort of weighed
the facts, um, and found that the prosecutor
in that case, Elbow, was not acting appropriately.
I mean, a question that's interesting to me
is that we have these cases that have ultimately
gone to the Supreme Court where they have
judged the constitutionality of, of statutes
similar to this.
For instance, the, the sodomy statute.
And, and, could those cases...
Is it necessary to pull that Constitutional
card?
I mean, can these cases, um, be resolved by
the, the, the examples of, of prudence, uh,
uh a- and other checks and balances that exist
within the judicial system?
Do we reach too far when we go to the Constitution
in order to solve it?
Well, an example comes to my mind actually.
I don't know if it's exactly right but it's
analogous to the situation in the play.
We still have statutory rape in this state.
And I've presided over trials, and I'm sure,
um, the other, um, trial judges here, um,
in the audience, would have had the same experience.
A boy and a girl are sleeping with each other,
having sex with each other and the girl is
underage, and they're going together.
And then all of a sudden they break up when
something happens.
And the mother of the girl, mother and father
of the girl find out and they're very upset.
And they go to the district attorney and the
young man, who's older, a little bit older
is charged with statutory rape.
We've all had these trials.
We have to enforce the law.
It seems very unfair.
Um, you know, it could be just a year age
difference and yet you... and you have to
in some way sentence the, the man if the,
if it is a guilty finding, a guilty verdict.
I mean that's...
I think that's somewhat close to this case.
I mean, it's not a penalty of death, but,
uh, it's, ah, it's...
I mean-
Yeah.
-in our society today that isn't really a
crime anymore.
And yet I, at least, have seen cases and presided
over cases like that.
Well, in the cases like that, the, uh, the
defendant may have to register as a sexual
offender.
Um, I don't...
In some states, I think [crosstalk]
Yeah, yeah.
In this state.
In this state.
So, they'll have that mark-
In this state.
-uh, forever.
More than a month.
I know in this state but, but are you saying
that the defendant should be found not guilty,
and we should disregard the law?
(laughing)
Right, I [inaudible]
So many of these questions, I mean, particularly
appellate judges.
I mean the real question is who decides.
I mean this is... it's a call for the jury,
the trial judge, the legislature, and, I don't
wanna offend those laws 'cause... those statutes.
I've had a couple of those cases and it's
very ... It's incredibly harsh.
But it's, it's not cost-free for judges to
fix those problems.
And the reason it's not cost-free is that
the legislature or local city governments
learn that the courts are gonna bail them
out, um, when old, foolish, silly laws are
enforced.
Um, they're, they're not gonna review these
laws, they're not gonna to assume responsibility
for keeping them up to date or repealing them
when they should be repealed.
And they're not gonna steel themselves for
the next misbegotten urge that comes across
society.
I mean, I, I really think the last thing we
want is... we have judicial review and we
must assuredly should enforce the guarantees
in the Constitution vigorously.
You know, that's a good example of something
that most judges, federal and state, would
be uncomfortable with that.
They will be... if you did a poll, they would,
they just would be uncomfortable.
And, um, and probably, if they were voting,
would vote to repeal them or change them,
or increase the gap, that probably is often
the best thing, the gap between the age of
the two people.
But, um, every time the, the court or a judge
goes down that road, the, a message is, "Hey,
this is a very difficult political issue.
Um, you don't have to deal with it 'cause
we've got 'human' judges who are gonna take
care of it."
And, um, that's, that's a, that's dangerous.
So, there's... it's an example of two truths
on opposite sides.
And they're very much at war with each other.
Do you think it's incumbent upon judges who
are put in that position follow the law but
to advise, um, the legislature and the public,
um, as to, whether the law is just?
Um, and give... suggest to them that they
may wanna reconsider the law?
Well, the e- the ethics rules are tricky.
You know, we're supposed...
We're not supposed to comment on political
issues.
But I personally think it's well within our
rights if we've got a case and we're uncomfortable
with how a law is working to point out what
seems unfair or wrong about it.
I, I think it's a very healthy thing to do.
It's not a letter to the editor, it's in a
case of controversy in front of us.
Um, it's not unusual for judges to uphold
something and acknowledge along the way that
they're uncomfortable doing that.
And I think that's very healthy.
I almost feel we should do that so people
will know and, um, perhaps make a change as
a result.
It's called a concurring opinion-
Yeah.
(laughing)
-where there are judges who concur, but point
out the terrible flaws in the law that the
legislature should pay attention to or the
injustices.
Uh, yes sir?
I know you've been waiting for a long time.
Well, I'd just like to return for a moment
to the context of the play and the role of
the duke.
The role of the duke seems to me to be a little
unusual in the sense that he is legitimately
trying to restore the rule of law to a society
he's presided over a period of time.
Sets up a hard man to enforce them, catches
the hard man in a contradiction.
Then takes false evidence sent to the man
with a head and then the body of a discarded
woman.
And in the end, unveils the indiscretion,
and he winds up with the girl.
(laughing)
Is he not being just too sanctimonious and
does it not undermine to some extent the restoration
of what he's trying to accomplish and that
it's rule of law in the society.
Finally, a kind word about Angelo.
(laughing)
That is why this play-
My answer to that is: that's what...
Life is complicated.
(laughing)
That's why this play is called a problem play,
right?
Um, um.
I, I mean, one has to take...
I, I guess, one has to either believe or not
believe, um, uh, the duke's statement at the
beginning of the play that the society has
fallen into, you know, a, a lack of respect
for the law.
Um, a- and then, and then follow it from there.
Because, um, you're right.
I mean the duke, the duke when you really
critically examine the actions that he takes,
um, many of them, uh, are despicable, and
not, not, um, something you'd wanna see in
a good leader.
I mean, why not pick Escalus who does brilliantly
in the trial of Pompey and Froth, and, and
put someone inexperienced who himself doesn't
want the job, in his place?
I mean, what are the motivations?
Um, it's, it's an interesting question in
the play.
Dan you, you started early on with, with Hamilton,
which I thought immediately you were gonna
quote something from the Federalist Papers.
Hamilton's dubious proposition that the judiciary
is the least dangerous branch.
Now, in here, in this case, you see, uh, sorry,
Angelo, uh, functioning as judge, we know
has injected too much of himself into the
case, as it were.
And he would be subject to discipline if in
Florida.
Now, here in Massachusetts, maybe not so much.
Yeah.
(laughing)
That's right.
(laughs)
You know, what I'd love to hear is from the
former prosecutors and Bill Meade, who served
as a counsel prosecutor.
Um, ho- how do you make judgments about, um,
prosecuting this type of cases, and, and what
governs, uh, prosecutorial misconduct?
Well, prosecutors in Massachusetts are, are
elected on a countywide basis and they're
responsible to their electorate for the decisions
they make and the exercise of that discretion.
In a, in a, having advised the governor on,
on judicial selections and being fortunate
to being one myself, I... you're often asked
the question in the pro- in the judicial selection
process, "Why, why are so many judges former
prosecutors?"
And one of the underlying principles, that,
that plays out in so many situations is that
the prosecutor, like Bob and Eric, and, and
others, has had experience in making decisions
about people's liberty vis-à-vis the crime
for which they've been charged or whether
there should be a prosecution at all.
So, it's easier for those people with, with
that background and experience to slide comfortably
into the role, uh, in different branch of
government in meting out justice and making
ultimate decisions on people's liberty.
You know, as a former pro- prosecutor, I find
that somewhat Pollyannaish.
(laughs)
(laughing)
(laughs) It, it got me confirmed.
Yes.
(laughing)
And that's my point.
(laughing)
I mean, part of it is that argument that they've
had experience in this area.
But the other argument is that they know that
people can make the choices.
Um, it is, however, the dirty little secret
about the criminal justice system, the real
power stands in the charging decision.
Uh, it stands there for purposes of sentencing,
how much discretion to, uh, refer to Judge
Sutton's construct is used in this area, and
the judges have relatively small amount of
discretion, uh, in making the larger decisions
that we're talking about.
Any prosecutor with half a brain would have
let this law fall into desuetude.
The idea that you would choose this law as
the mechanism by which to in- invigorate the
scarecrow is, uh, beyond belief.
Nevertheless, uh, it is the case that it's
not just rogue prosecutors that get themselves
involved in enforcement of cases that should
not be enforced.
And that's where the real power rests in the
criminal justice system.
The fundamental power rests in the criminal
justice system.
Ours is the granular respons- Ours as judges
is the granular responsibility.
But that's where the fights are now.
It's certainly in the federal system.
Over, uh, what, what are you gonna let me,
uh, argue with a U.S. attorney to charge because
that makes all the difference in the case.
It defines what discretion, if any, the judge
has.
And to talk about the judge being, uh, the
warm face of the law, uh, perhaps the warm
mask of the law is a little bit closer to
what is actually going on.
And just to put not too fine a point, the
prosecutor on the federal side, and the state
side a little bit, too, decides when to charge
a crime that will carry these mandatory minimum
penalties.
So, the pro- so, for example, whether or not
it doubles or, or, or whether or not there's
um, five-year minimum or a ten-year minimum.
They decide when to charge that and when not
to.
And the, and the judge has almost no say over
that.
Well, I... strike that.
Has no say over that, and it, it really ties
our hands in terms of sentencing.
So, I mean we could talk about the tension
between the rule of law and individual characteristics,
you know, the trying to make sure we're consistent
but also looking at the human being.
But once those mandatory minimums are charged,
the, the, the... it really is the, the prosecutor
making the decision, not, not the judge.
Or are you more fundamentally making the charge?
Deciding that, uh, I'll go after, uh, a fornicator.
What kind of fornicator shall I go after?
Um, and that's what's makes the-
Are there mandatory minimums for fornication?
(laughing)
There was in this case.
(laughing)
But, but I guess the point is that we're talking
about judges when the judge is at the last
end of the, uh, at the end of this whole process.
Uh, and the process is shaped to a very substantial
degree by the prosecutorial discretion.
Well, what tools are available to judges to
check the prosecutorial misconduct?
Well, misconduct or-
It's not misconduct.
No.
It's not misconduct.
Well, pu- putting aside the mandatory minimums,
which are a separate issue, I mean there's
a tension here in all sentencing decisions
in, in really criminal cases between individuality
and conformity.
It's a zero-sum game.
Everything you do to make the sentence more
individual, makes it less uniform; everything
you make more uniform, makes it less individual.
And, there's no way to resolve that tension.
The sentencing guidelines when they're mandatory
were heavy on the side of uniformity.
Now we've moved toward more individuality
and we have greater disparities, certain racial
disparities and other things creeping into
the system which you resolve.
And, I... there's no answer to these questions.
I mean just to put it in simple terms, you,
you have a white-collar criminal, you know,
who, you know, you need to slam that person.
They grew up in a good home and they had a
good education, and yet they went and committed
this terrible crime for no reason.
But of course, we're also told that we need
to look at, well, what are the person's, uh,
prospects for rehabilitation and likelihood
of recidivism, support of family and everything,
and that all favors the white-collar criminal.
Uh, everything that, that, um, points in one
direction, there's a, there's a fact that
points in the other.
And it's, frankly, it's a, it's a bit of a
muddle for all judges, at least for ones that
are sensitive thinking.
But there's no easy answer.
You want to be individualized but also somewhat
uniform.
Having the guidelines, I think, is an important
step toward uniformity.
We need wiggle room, we need play in the joints
because every case is different.
And when you're trying to satisfy things that
are going in, in opposite directions, it's
not possible to satisfy those different values
in every single case.
It- it's literally impossible and you just
do the best you can.
I, I was struck, um, again, by the scene of
the trial of Pompey and Froth where, um, they
go on and on about these ridiculous details,
and Angelo very similar-
It's very realistic to the courtroom [crosstalk].
(laughing)
Angelo very quickly has no patience and gives
up while Escalus patiently listens to all
of it.
I mean, does that go on in your courtroom
and, and how do you deal with it?
Yeah.
Oh, yes.
[crosstalk] I guess.
Every day, every minute.
Oh, God.
(laughing)
So, so, if, if lawyers are guilty of doing
that, you, you have a way of brushing them
back.
But I assume that part of being a good judge
is to listen with humility and respect to,
um, the individuals who are, who are bringing
their case before you or who are being, uh,
tried by prosecutors in front of you.
Right?
I've, I've always wondered this as a court
of appeals judge, you know, the one thing
about prosecutors in the federal system, it's
repeat players and you see the same people
over and over.
And I, I guess I always thought that you could
affect things by, you know, conveying surprise,
you know, "Why this?
Why are you doing this?
I'm really surprised you charged this to get
the mandatory minimum.
Why did you add...?"
Is that a way in which the judges sometimes
can change the position of the U.S. Attorney's
Office?
Or the state level do the same thing with
state prosecutor's or-
It depends on the shame level.
The shame-
Uh, you know, if it's a really shameful kind
of thing and that's kind of embarrassing.
On the other hand, um, they'll say, "Because.
This is our policy."
Mm-hmm (affirmative).
Uh, you're the judge, but you don't get to
make this choice of [inaudible] quite that
way, but that's the gist of it.
There is ... The interactive, uh, process
can perhaps rub a little bit of the roughness
off, but no, they, they, these are people
with different job descriptions, uh, and with
different choices that they make, you hope
to make them better than they do.
And it goes back to your earlier point that
we have these various nodes of power that,
uh, interact in various sorts of ways.
But the to think about the judge as being,
um, final because they're infallible or even
infal- even final is not precisely to identify
what it is that the judge does, and certainly,
in the absence of a shame factor, uh, which
is rare, uh, they're simply going to [inaudible]
in words or in substance, "This is the way
we view this case."
To tell it like it is, I was a prosecutor
in this state for 13 years.
And there were a few times, not many, when
there were judges who didn't like how my office
charged the case or how I charged the case.
And the judges made it very clear to me beforehand
that they didn't like how I charged the case,
tried to get me to reduce it.
These were not drug cases.
And then made it very difficult for me to
try the case by making many decisions that
went against me that might not have gone against
me had I reduced the case the way that they
thought it should be.
It had no effect whatsoever.
That's [crosstalk]
No effect whatsoever.
(laughing)
[crosstalk] guilty, generally, despite the-
I know, I know.
I know you still won.
-despite the adversity of the judge.
But that's a, that's another form of corruption.
That is-
No.
I agree.
That is the failure on the part of the judge
to recognize that you can make comments, you
can do that kind of thing, but to put it in
the tank-
Yeah.
-that's, that's a form of corruption as far
as I'm concerned.
Or in, in the, in the Federal Court of Massachusetts,
there are judges, no longer on the bench,
but who, uh, would wait for jeopardy to attach
and then dismiss the case.
And that's that.
No appeal.
Right.
Nothing.
Nothing you can do.
That's how they've dealt with cases they didn't
like and [crosstalk]
Would that be an impeachable offense?
That's a rhetorical question.
In Florida you have that.
When you're Assistant U.S. Attorney, you just
walk... pack your bag, and you walk out of
the courtroom.
So, we're getting a little late.
But, but do we have... do we have any more
questions from the house?
There's one back up there.
Yes.
If you could stand up.
Um, something that, uh-
I can't see him.
-his Honor said.
The question is often "who decides?"
And a recurring theme in the play is mercy.
And I just wanted to ask this esteemed panel
whether they think mercy should be within
the purview of an executive like the duke
or whether it should be in the hands of a
judge like Angelo.
Both.
Both.
There, there is a structure.
The judge has a little grid that within which
the judge can make a choice.
And then the president can make choices about
pardon.
And that's profoundly political decision.
I think political in the broadest sense and
also in a sense that might be corrupt.
Um, but the point is that there are a variety
of ways in which mercy can be introduced into
the system.
Uh, and the answer is yes to your question.
Both.
But Judge, Judge Hillman, you labored in the
state district courts for some years.
These are our lowest courts.
Is there room for flexibility, mercy for,
for, in that arena where it might not exist
in a federal court?
Every day, that’s where the battle’s being
fought-
Yeah.
-is in that court, in those courts.
And that's where you're gonna find the larger
measure.
And, and, can you give us an example?
Well, it's... in the state, uh, state district
courts, um, we literally got people off the
streets that didn't have the blood washed
off them.
And then we may... if, if in the lockup in
Worcester, if you passed out at 9:00 in the
morning, you probably wouldn't hit the floor
till around 3:30 or 4:00.
There are so many other people in there.
Ugh.
And, and the, the work of the prosecutors
and the defenders, and most importantly the
court staff, in making sure that those cases
are orderly lined up and presented so that
people are heard and that, that, uh, every
judge has an opportunity to make, uh, uh,
an informed decision.
It's, it's incredible.
I recommend it to everybody.
(laughing)
You... everybody should do it.
It is, uh... it forms a lot of what I've become
in, in many, many ways.
Don't hit that lockup tonight.
(laughing)
True that.
And, and maybe I'll end just by going back
to you, Bob.
Um, when you went to Afghanistan or Uzbekistan
or some of these other countries that you've
traveled to, um, to advise, um, newly free
countries about how to administer justice
and what the rule of law is.
I mean, what did you tell them?
What were they eager to hear?
Well, they were eager to hear a lot of things.
Um, about how we do things.
Um, and mostly how do we gain, how do we as
a government, how do we as a judiciary gain
the respect of the people?
Because the respect in most of those countries
of the judiciaries is very low.
Part of it is transparency, part of it is
consistency, uh, uh fairness, evenhandedness
that can be demonstrated day in and day out:
This is meaningful.
You will be heard.
You will be treated fairly.
And creating that kind of judicial culture,
which is where... what our, what our central
role is to ensure that people have trust that
they can get justice somewhere.
Um, and they can feel it, touch it, see it
day in and day out.
So, it's part... it's judicial ethics.
It's transparency in court proceedings.
Uh, it is, um, uh, it, it is a, it is a culture
of understanding the role of a judge.
And judicial training.
I mean, those are the pieces.
It's not "Well, we're ju- judges, therefore,
we should be respected because we're judges."
That's not going to get you very far.
You have to demonstrate it in all of these
different ways.
And they, they really are interested in how
we've made that work.
But it's law, law enforcement across the board,
isn't it?
It isn't just judges.
Well, it is, it is-
I mean it's rule of law that, that makes the
difference, isn't it?
No.
It is.
But there's a, there's a great focus on...
there may be a lot of other injustices in
society.
But if we can't get justice in our courts,
we can't get justice anywhere.
So, I mean, I, I agree with you on that but
my focus has always been on the role of the
judiciary can and should play in ensuring
a just society and one in which people can
have confidence.
And that a, that's really important.
Well, I hope you all can have confidence in
this great group.
(laughing)
