Motion to Dismiss

Should Judge Lynne Hufnagel be benched? Ask the bankrupt cabbies, bullied witnesses and banished lawyers who've tasted her bitter brand of justice.

Her defenders say the child-molestation cases demonstrate that Hufnagel displays compassion toward victims in her courtroom; when attorneys complain that she lacks a sense of compassion, they say, they're really whining about her brusque treatment of criminal defendants and their lawyers.

"I think there is a certain amount of sexism in the attack on Judge Hufnagel," says Stan Garnett. "The type of demanding behavior that can be put up with by most of the bar out of a Richard Matsch or a Dick Spriggs--people will object to that coming out of a Lynne Hufnagel. It's so subjective to say 'no compassion.'"

Yet her record suggests that Hufnagel isn't always the tough-on-crime crusader her boosters make her out to be. She is best known for the long sentences she's meted out to a handful of violent criminals, including Chris Rodriguez and Quintin Wortham, the Capitol Hill rapist, who got 376 years from her--not once, but twice. (Ordered by a higher court to reconsider the 1988 sentence, Hufnagel gave him the same figure in 1994.) But in practical terms, such whammies are no more punitive than a sentence of life without parole, and Hufnagel has had her moments of leniency, too.

Tatum notes that all three of the major criminal trials he was involved with before Hufnagel resulted in sentences favorable to the defense. One was the case of Michael Mueller, an honor student charged with being an accomplice to murder; in 1989 the judge disappointed the victim's family by sentencing Mueller to six years' probation, including two years of home detention and a requirement that he graduate from college.

More recently, Hufnagel sentenced gang leader Michael Asberry to a term of probation in an anti-gang program in California for an assault on a Denver police officer, despite a long history of arrests and a prior felony conviction. "I'm saving your life or a police officer from dying," Hufnagel told the 27-year-old Crip last year.

Prosecutors and cops were outraged. In August Asberry was arrested in Los Angeles for carrying a concealed weapon, earning Hufnagel a scolding from the ever-hawkish Ken Hamblin, who accused the judge of being an egg-sucking liberal: "In the case of Asberry, Judge Hufnagel, the death he ultimately causes will be your legal legacy to this community," Hamblin wrote in his Post column.

But if Hufnagel is sometimes not so tough on defendants, she can be hell on attorneys--and witnesses. Accountant Thomas Myers appeared before the judge only once, in the early 1990s, and that was enough for him.

"It was unique, I'd say," says Myers, whose firm specializes in providing litigation consulting services. "I've testified in dozens of cases, and I've never had that experience before or since. She was just so incredibly rude and so abrupt, so intimidating."

Myers had been called as an expert witness in a dispute over a promissory note, but he says he "never got a chance to offer any intelligible testimony," because Hufnagel kept interrupting him. "She went on some kind of diatribe on expert witnesses, very personal and derogatory," he says. "I was shocked. I've seen irascible judges before, but never to this extent. There was such clear animosity, such venom. And she didn't even know what my position was."

Although he doesn't know what ultimately happened in that case, Myers supports the commission's recommendation that Hufnagel be voted off the bench. "There's a certain amount of respect you have to accord someone of her stature," he says, "but she doesn't comport herself in a manner that fosters that kind of respect. Her conduct denigrates the whole concept of an impartial judge."

Alack of impartiality is probably the most frequent--and serious--charge raised against Hufnagel. Criminal and civil attorneys alike complain about her tendency to go on and off the record so that the official transcript reflects an incomplete version of what happened in a case; her visible impatience with attorneys who want to "make a record" of their objections for appeal purposes; and the kind of leeway she seems to grant favored practitioners in making their case.

In one such instance, she chided the defense for being "overly sensitive" for objecting to several remarks made by prosecutor Craig Silverman in his closing argument, insinuating that a man accused of burglary had a long history as a thief and that even the defense attorney didn't believe in her own case. Although Hufnagel eventually sustained some objections to Silverman's increasingly prejudicial remarks, an appeals court reversed the conviction.

"There are many subtleties to the way she can influence a jury," says public defender Handley. "I have made a record before when she has turned her back to me. I've had to make certain objections on the record in open court because she won't allow me to approach the bench. She's hoping she can wear you down by the glares, by shouting you down when you want to make a record.

"Now, when I make a record and she has her back to me, how important does the jury think my record is about what happened? They probably think, 'This is some greasy defense lawyer; the judge isn't even listening.'"

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