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court wrestled openly about the ruling . Finally , the plaintiff ’ s counsel told the judge he should cite himself for misconduct and said , “ you ought to be ashamed of yourself ” to the man in robes . 12 There was zeal ; there was a violation of the standards . He crossed over a line by addressing the judge rather than the court .
Zeal may affect the credibility of a witness . When a lawyer was called as a witness to impeach another ’ s testimony , the lawyer was asked on cross whether he represented an insurance company that provided coverage to the defendant railroad . When this question was challenged , the court overruled the objection , and on appeal the Supreme Court agreed the inquiry was proper . “ A party is entitled to find out the full interest of a witness who testifies against him , and all the circumstances calculated to create bias , prejudice , or zeal on the part of such witness may be inquired into .” 13
The persistent efforts of a plaintiff ’ s counsel to place the contents of a letter before the jury after it had been excluded were “ very reprehensible ” and “ beyond the proprieties of practice ,” according to Chief Judge Jonathan Ross in an 1892 decision . “ His conduct may have been occasioned by indiscreet zeal , and the spur of the occasion , and have been regretted as soon as it was over . Yet counsel should never permit their zeal or the excitement of the occasion to carry them beyond the proprieties of practice .” 14
In another case , plaintiff ’ s counsel asked a question he shouldn ’ t have . He asked if the defendant had bragged he had raped another woman and paid some men to testify in his defense . The question was improper . Supreme Court Judge William Taylor ruled , on appeal , “ The question was well calculated to prejudice the rights of the defendant seriously , and nothing was done to counteract its effect upon the minds of the jury . Whatever may have been the motive that prompted the inquiry , we cannot believe that it was done through ignorance or inexperience . The examiner was a lawyer of mature years and of large experience in jury trials , and the court had just ruled against him on a similar question . We are forced to the conclusion that he momentarily let his zeal outrun his better judgment . But the defendant has suffered thereby , and the only relief we can afford him is the benefit of a new trial . We hold that in the circumstances the asking of the question was reversible error .” 15 Zeal is not only a young lawyer ’ s weakness . Apparently that lawyer never grew out of it , and was judged more harshly for it than would one with less experience .
In 1951 , a Vermont attorney ’ s license was suspended because he had represented husband and wife in a divorce action . Justice Walter Cleary concluded , “ The case
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presents a situation where the respondent ’ s zeal outran his discretion . However this may be , it is time that a salutary lesson be given to the end that fidelity and loyalty may be duly recognized and appreciated , and that lapses therefrom may receive proper condemnation .” 16
Justice Dooley , dissenting in State v . Riefenstahl ( 2001 ), condemned the majority for upholding a police stop based on an informant ’ s word alone . “ In our zeal to recognize a role for informants and to combat DUI , we have [ violated the Court ’ s own precedents ].” 17
The zeal used in defending yourself in court cannot be used to show you intended no wrong . In Baldwin Brothers v . Potter ( 1874 ), Chief Judge Pierpoint stated , “ we think the man who receives money in a fiduciary capacity , and refuses to pay it over , does not improve his condition by the tenacity with which he holds on to it .” 18
Justice John Dooley ’ s opinion in the case of In re D . L . ( 1995 ) described the essential role of the judge in hotly-contested trials . The judge has a duty to see that “ prosecutor does not , in a fit of excessive zeal , trample on the witness ’ s fifth amendment rights .” There are risks . If the judge attempts to give legal advice or appear to be “ the intimidating tool of the prosecution ,” this would be a grave error . “ In either situation , it is impossible for the judge to maintain his or her proper role as a neutral arbiter between two parties , each of which is zealously arguing their position . Such detached neutrality is fundamental to the integrity of the judicial office .” 19 Zeal is for lawyers and parties , not for judges .
Justice Peck criticized his brethren for “ their zeal to protect ” the right to a fair trial in State v . Brunelle ( 1987 ), arguing that the “ State ” is not some monolith , and its rights should also be considered . “ We must not divorce the concept of the word ‘ state ’ from the people who are the state . The Preamble to our Federal Constitution begins with the phrase ‘ We the people .’ These people are much more than a sort of collective ‘ person .’ Each one is an individual , a citizen of the state and nation created by their ancestors ; as much so as a defendant . They have the right to be secure in their homes and possessions ; to be free to walk the streets alone at any hour of the day or night without fear of the violence which is so prevalent in today ’ s society ; to drive in their automobiles , also without fear of irresponsible drunks behind the wheel of another vehicle ; to send their children to school free from the seductive blandishments and pressures of peers , drug dealers and pushers , and from those with a propensity for child abuse .” 20
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Other zeals
Zeal in parties is sometimes forgivable , but at least best ignored . The doors of the Windsor County courthouse flew open and Charles Bronson strode into the courtroom , walked up to the startled judge , threw his wallet on the bench , and said , “ Okay , how much is this going to cost ?” He had been cited for hunting with a resident hunting license , although he wasn ’ t a resident . An attorney who was present for this surprising appearance told me all the lawyers in the room were stunned by the actor ’ s demand , expecting the court to treat him harshly . But if this were contempt , it was overlooked , the fine paid , and the court returned to its solemn business .
Zeal is not exclusive to the judicial process . In 1930 , the Vermont Supreme Court struck down the law that prescribed sanctions of a defendant who refused to answer where he obtained liquor , at that time a contraband commodity . This law eradicated the immunity defense against self-incrimination . The fault , explained Justice George Powers , was legislative zeal . 21 Zeal can be good or bad . It is bad when it consumes the debate and prevents the lawmaker from thinking rationally and practically .
Justice Louis Peck forgave the Environmental Board for its overreaching , in his dissent in In re Vitale ( 1989 ). “ In this matter the zeal of the Environmental Board outran its authority . Such overreaching on the part of the Board is understandable even if it should not be condoned . It is , after all , one of the Board ’ s primary duties to protect our natural environment against the cupidity of the would-be spoilers who descend upon the land , generally in the name of what is , somewhat ironically , called ‘ development ,’ and often coming from beyond our borders , like the invasion of the South by the post- Civil War carpetbaggers . It is a serious and a heavy responsibility that the Legislature has placed on this public body ; it is clear that its members take their task seriously .” 22
A town constable tried to persuade a witness not to testify in a trial . In addressing the question of whether the town should be liable for this improper interference , Judge Jonathan Ross stated , “ A town can only act through agents , and it would be a hardship to hold it responsible for the acts of all its citizens whose zeal might happen to outrun their discretion .” 23
In his inaugural address in 1844 , Governor William Slade cautioned the Legislature on how to address slavery , not ignoring it , but not being consumed by it either . “ The true ground is not upon either of these extremes . But neither is it a ground of indifference . That will work no deliverance either from the evils of slavery , or of an over heated and headlong zeal for its abolition . . . . Cold apathy and bitter zeal should alike give
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