We have an interesting political issue here in Phoenix that touches on apologies, a topic of great interest to many in the ADR world. In a rather routine sentencing hearing at the Superior Court in the midst of defense counsel’s arguments to the court, a detention officer took a document out of the defense attorney’s file and asked a colleague to copy the document. Here’s a link to the video of the event (critical part is the first 2 minutes) from which this photo is pulled.
The detention officer was found to be in contempt of court for his actions and, in order to purge the contempt finding, he was ordered to hold a press conference to apologize for his actions. Specifically, the court ordered the detention officer to arrange a news conference:
where he is to give [defendant’s counsel] a sincere verbal and written apology for invading her defense file and for the damage that his conduct may have caused to her professional reputation.
The detention officer held a press conference, but stated that he refused to apologize because he did not feel sorry for doing his job – trying to maintain court security. He was held in contempt of court and spent several days in jail while the sheriff (the detention officer’s boss) declared his support for the officer’s actions. The case is now on appeal to the Court of Appeals and the officer is released pending that court’s decision.
This case has been featured on CNN and has been heavy fodder for several legal blogs, most of which discuss the larger political squabbles between the bench and the county attorneys office (the County Attorney subsequently filed a Civil RICO action in federal court against several sitting state court judges, including the judge in this case, for what appears to be ruling against him in several connected high profile cases). In turn, these issues are part of larger political squabbles in Maricopa County, which are very interesting both from a rule of law perspective and from a political standpoint. However, I want to focus on the apology because of its use in the ADR world.
Jennifer Robbennolt and Jonathan Cohen have written extensively on the issue of apology, and have defined a full apology as (1) an admission of fault, (2) an expression of regret for an action, and (3) an expression of sympathy for a resulting injury. Based on the words of the judge’s order, it looks like he’s ordered a full apology, an easy out of this mess for the officer. But the officer has a point, if he doesn’t feel regret for his actions, should he lie at a press conference? My guess is that a partial apology would have sufficed if it weren’t worded too poorly. Maybe something like “I’m sorry your professional reputation may have taken a hit”* would have worked. Add an acknowledgment of fault on top of that, and he’s likely in the clear.
This case, however, points out the difficulty surrounding apologies when they are ordered by judges or agreed to by attorneys in settlement of a case. Robbennolt’s study confirms what we intuitively know, for an apology to have any real affect, it must be sincere. It’s easy for third parties (lawyers, judges, parents) to toss an apology into the mix, but in these circumstances the apology is more of a check-the-box task than anything else. It does little for the apologizer and the recipient – even if you subscribe to the theory that an apology’s primary task to get the parties back to an equilibrium state. Outside of being some kind of an individual or mass teaching tool (everyone should know this conduct is wrong), it’s utility is virtually nil. In my mind, rather than ordering an apology, the judge should have focused on the rule of law issues and ordered the officer to simply acknowledge the impropriety of taking papers from the lawyer’s file. The officer may still have refused to acknowledge that, but then the discussion would be focused on where it belongs – the officer’s conduct in taking the file. Instead, we have a serious legal issue derailed by a political sideshow – partisans arguing whether a judge can order the detention officer “to feel something he doesn’t feel.”
* The defense lawyer was worried that her reputation was harmed because she had county law enforcement officers linking her conduct to the conduct of a couple of attorneys who have been charged for smuggling messages and contraband to members of the defendant’s gang.
The initial sanction was incredibly lenient, and the reaction to it by the sheriff’s office that condones the conduct suggests a very deep problem with the administration of justice there.
Given the clarity of the case, the judge could have imposed a very harsh sanction with a biting criticism of the conduct (and the hearing testimony of the officer which was dubious) accompanied by a warning that given the sheriff’s comments, that his officers would not receive the benefit of the doubt in their testimony.
Of course, why is the sheriff’s office so allergic to apologizing? In part, because that may lead to civil liability in large dollar amounts, effectively confessing liability a civil rights suit.
Because apologies in one forum provide ammunition for remedies in other forums, the incentive not to apologize is strong. Sincere apologies, which do have genuine healing force, work better when a single forum decides all outcomes from an incident.
What a fascinating video. Art, I agree, an apology in these circumstances is not appropriate. This whole situation indicates the more serious issues with the Maricopa County Sheriff. As a former public defender I can’t imagine any of the bailiffs I worked with going through my files without my permission (and they knew better than to ask).