DECIDING ISSUES OF FACT

I have had diverse experiences in which it was my task to decide contested issues of fact.

The most substantial experience was sitting as the chair of two commissions appointed by Judge Noel Fox of the District Court for the Western District of Michigan to determine the value of land being taken by the federal government as part of two national parks being created in Michigan. 

The first such assignment was for the land being taken as Pictured Rocks National Lakeshore.  I presided over three weeks of hearings in the federal courthouse in Marquette, on the north shore of the Upper Peninsula.  There were more than thirty parcels to be evaluated.  We listened to a lot of expert testimony comparing each parcel to diverse others.  We also visited the terrain in a four-wheeled motorcycle.  One parcel was presented as a swimming beach.  I offered to take a dip, but was told that Lake Superior was perhaps as warm as fifty degrees, it being only July.  We also examined the highest waterfall in Michigan to consider what value it added to the land over which the stream flowed.   You could not view the falls from the top of the cliff from which it fell.  My worst misdeed was unintentional: O overworked the rookie court reporter so that our transcript proved to be unusable.  But in the end, all parties accepted our evaluations. 

Accordingly I was appointed to repeat the task at Sleeping Bear, a new park being established on the shore of Lake Michigan.  There was really only one parcel to be priced, but it was big.  The owner presented it as a site for a proposed elegant resort.  He had a golf course laid out, and the hotel designed.  We listened to evidence for a week, and filed a report that was again accepted on both sides.

My most intense experience of this sort was in 1970.  Having been in Colombia at the time of a student uprising that spring, I was designated as the hearing officer for a discipline proceeding conducted by the University of Michigan Graduate School.  The students appointed to serve failed to show up, apparently intimidated by the circumstances.  And I was mightily annoyed to find that there was no decanal prosecutor.  There was an assistant vice president in the room who explained that I was the prosecutor as well as the judge.  I called the math professor whose class had been disturbed by those apprehended, and heard his story.  The accused had simply broken up his class.  I then listened to the four defendants who explained that they were exercising their First Amendment rights in a free society, and any punishment would mark the University as an oppressive institution.  They all seemed to assume that I would expel them from Graduate School and explained how that would only make them more deserving of public respect.  I found them guilty of disprderly conduct and ordered each of them to pay an extra $100 for his next semester of tuition.  One of the refused to pay the fine and dropped out.

As a member of the Ann Arbor School Board, I sat not as hearing officer but as judge in nine or ten discipline cases arising from a race riot at Pioneer High School.  Somehow, the district had failed to create a suitable procedure for determining the outcome of these cases.  We met every night for a week in October 1970 to hear each of the accused's case.  There was a considerable crowd watching our hearings.  On one occasion, an accused stepped forward and pounded the table in front of where I was sitting.   I was not threatened but voiced concern about the student.  The Ann Arbor News reported that I was intimidated, causing me to have to write a letter to the paper recounting the event.   We imposed punishments on  the offenders who were all African-Americans without ever really perceiving what was the cause of their agitation.  We had other meetings to discuss the issues, and these, too were well attended.  On one of those occasions, I was confronted by four or five African American students who expressed anger at one the Board's actions.  The speaker in the group asked if I knew who he was.  I said "yes, your name is Harrison; you are in the custody of a juvenile court; and living in Ann Arbor with your aunt."  That ended the conversation and we adjourned.

I served on a jury in Durham.  First, I was tentatively assigned to a jury involving an accusation that the accused had thrown a 500 pound tree trunk on to the hood of his girl friend's car.  When it was noticed that two of us jurors were law professors (George Christie being the other), the prosecutor asked George if he took orders from me.  I could not suppress a giggle; in response, the prosecutor struck us both.

So we were assigned to a second jury in which our connection was not noted.   The accused was charged with striking officers and resisting arrest.  The five police witnesses were asked to stand; did we know any of them?  One juror said, yes, she knew Officer Michaels as a member of her church.  Would you believe him under oath?  Yes, she said, I would believe anything he said, under oath or not.  So she was dismissed but the rest of us had the benefit of her thoughts.  The prosecution witnesses told the story of going repeatedly to a house emitting too much noise.  When the defendant refused to control the noise, they entered his house, where he took a swing at an officer, was suppressed by that officer and two others, was arrested, taken to the station and booked.  No cross-examination by defense counsel who in response offered two defense witnesses.  About the time they were called, five thugs wearing gang regalia came and sat down behind the defendant and his appointed counsel.  The two witnesses were the man and woman who were in the defendant's living room with his wife, listening to the music until the police came.  The guy testified that he had known the defendant for a year or so, and had no idea why the police behaved so badly.  On cross-examination, he was asked to compare the conduct of the police when last year he resisted arrest for carrying brass knuckles on the front seat of his car, or when he and the defendant has been jointly convicted five years ago for firing bullets into an occupied dwelling.  The second witness was then called to say that she loved police officers and had never imagined such behavior as she observed that night.  She was asked if she told the truth under oath, and if so how it happened to be that she had been convicted of perjury.   The jury's deliberation was brief.  As elected foreman, I asked everyone else to speak before hearing from George or me.  I have since thought of reasons who we may have been wrong, but the accused was shortly thereafter convicted of murder, a crime had committed some time back and was awaiting trial at the time of the melee in his living room.  Apparently the aim of the prosecutor and police had been to get this menace off the streets as soon as possible.

 

Tomtop|

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