I could comment on the recent injunction against the Don't-Ask-Don't-Tell policy issued by United States District Judge Virginia Phillips.
But I don't have much to add on the law. So I will tell a story about the time she threatened to jail me.
This was in the mid-90s. Judge Phillips was then a federal magistrate judge. I was a rookie federal prosecutor. Whenever our duty cycles coincided, I spent hours in front of her processing initial appearances, detention hearings, and other mundane initial matters in federal cases. I found her to be neither pro-government nor pro-defense — she was smart, prepared, tough, and something of a hard-ass. A good judge, in other words.
(Side note: I didn't see her for years after I left the government, until I landed a civil case before her once she was a district court judge. When I appeared on a very meritorious motion I filed, she was effusive, on the record, about how good it was too see me again and how well she remembered me. My client beamed and licked his chops. Then she took up my motion, and utterly boned me, dry.)
Anyway, in the mid-90s I was handling a detention hearing for a serial check-washer. He'd steal mail, steal checks from it, bleach the checks, and rewrite them for larger amounts to himself. He'd just gotten popped for the second time for doing this while on bail for a third check-washing case.
Under the bail reform act, you can't detail someone just because he's a serial dipshit. You can only detain him if no combination of conditions would assure that he'll appear for trial and not pose a danger to the community. This guy was local, and lived with his mother, and had no connections elsewhere, so it was tough to argue he was a flight risk. I was arguing he was a financial danger to the community, because he was so contemptuous of the law that he kept ripping people off and committing fraud whilst on bail for doing the same thing. I cited a federal case for the proposition that danger to the community could be financial, not physical.
My opponent was a court-appointed attorney who was of a certain age and highly excitable. We'd been sniping for the entire hearing, and Judge Phillips and sternly told us to cut that shit out. The panel attorney hauls himself to his feet and says that the government is committing fraud. Wut? Says I. He says that I've cited the case as 110 F.3d whatever, when it's actually 120 F.3d whatever. Judge Phillips rolls her eyes and looks at me. "Do you need to respond?" she says, clearly thinking that it's ridiculous.
I could behave. But then I wouldn't be me. "I take that accusation deadly seriously, Your Honor," says I, "especially because I'm still on probation for that misspelling back in 1993."
The courtroom laughs. The panel lawyer gets red-faced and sputters. "Is it your ambition to leave the courtroom in handcuffs today?" Judge Phillips asks. "Because you're about to."
I apologized. It was worth it.
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