Sunday, February 17, 2008

The Sentencing of Fr. John Dear, SJ

Professional decorum requires that lawyers begin with "May it please the Court", then respect the office of the person in a black robe sitting on high with "Your Honor." Those two phrases come rippling off a lawyer's tongue habitually from daily practice. That demeanor is so much a part of the very being of one who represents clients in a court of law that nobody ever questions their meaning or the sincerity of their utterance.

It is difficult to abide by that courtesy when considering United States Magistrate Judge Don J. Svet of the United States District Court for the District of New Mexico, who sentenced Fr. John Dear, SJ, on January 24, 2008, for a misdemeanor infraction of a federal rule concerning moving around in a federal building.

Fr. Dear and eight others wanted to deliver a letter to Senator Domenici (R-NM)about the war in Iraq, but were prevented from doing so by employees in the federal building in Albuquerque. They occupied the elevator for several hours and were arrested for violating signs and instructions regarding getting around the building. They earned the descriptive group name of "The Elevator Nine."

While the infraction took place in the summer of 2006, the trial was not held until September of 2007, and Fr. Dear's sentencing was delayed until January of 2008. The case, from beginning to end was assigned to the Honorable Don J. Svet, whose sentence of Fr. Dear was for 40 hours of community service and $510 in fines and fees.

Comments by the Magistrate Judge

The Albuquerque Tribune reported on January 24, 2008:

Dear's attorney, Penni Adrian, had asked the court for mercy, saying Dear had a "lifelong commitment to peace and human decency." His action that day was "but a legal misstep," she said.

Adrian also said she received word Wednesday that Dear had been nominated for the Nobel Peace Prize and the Gandhi Peace Award.

But Dear asked for no mercy, using his time before the court to condemn the Iraq war.

"This war is unjust, morally sinful and just downright impractical," he said.

Dear added that he had contemplated the words of Mohandas Gandhi, who Dear said advocated to reject a court's sanctions if the cause was just.

"I want to take my case to a higher court, to a higher judge — the God of peace," Dear said before uttering a prayer.

But Svet would have none of it, calling Dear a "renegade priest," "a coward" and "no Gandhi."

"Mr. Dear, you frankly are a phony," Svet said. "You preach nonviolence but you are the same man who took a hammer and a can of paint against a U.S. aircraft."

Those in the crowded courtroom, filled mostly with members of Dear's Pax Christi peace group, gasped and shook their heads at the judge's comments.


A Respectful Request to the Magistrate Judge

Unable to shuck off professional habits as a lawyer and an officer of the Court, I begin: May it please the Court," but Judge Svet's insults of Fr. Dear are not impartial, judicious, nor are they befitting the dignity of the very Court in which they were spoken. Fr. Dear was addressed as "Mr. Dear," by a Magistrate Judge who would quickly find any person in contempt of Court were he himself addressed as "Mr. Svet."

I wish to disclose that I am a former Jesuit of the New England Province, 1949 -- 1957, as well as a retired attorney from New Hampshire, Bar # 1341, 1960 -- 2000. In both of those capacities, I respectfully ask Magistrate Judge Svet,

"Your Honor, please review your remarks in a judicial manner, even to the point of pretending that they had been spoken by somebody else. After such a review, you may wish to call to mind the 12th Century challenge of St. Bernard of Clairvaux to Peter Abelard on some public statements the latter had made, 'Amend them. Defend them. Or deny that they are yours.' "

Archbishop Desmond Tutu's Nomination of Fr. Dear for the Nobel Peace Prize

For some assistance in his review and reconsideration of Fr. Dear's good standing as a Jesuit priest and his reputation as a dedicated worker for peace, my simple offer is Archbishop Desmond Tutu's opinion of Fr. Dear. On January 31, 2008., the Archbishop wrote:

Jan 31, 2008

Archbishop Desmond Tutu

In support of The Reverend Father John Dear, S.J.:

Nobel Peace Prize 2008

Dr Leo Rebello, World Peace Envoy from Bombay, India and Dr Charles Mercieca, President of International Association of Educators for World Peace, USA have nominated the Reverend Father John Dear, SJ for the 2008 Nobel Peace Prize. I commend Father Dear to you and support his nomination.

Fr John Dear is a Jesuit priest who has been in the forefront of the religious peace movement in the United States. He is the embodiment of a peacemaker. He has led by example through his actions and in his writings and in numerous sermons, speeches and demonstrations. He believes that peace is not something static, but rather to make peace is to be engaged, mind, body and spirit. His teaching is to love yourself, to love your neighbor, your enemy, and to love the world and to understand the profound responsibility in doing all of these.

He is a man who has the courage of his convictions and who speaks out and acts against war, the manufacture of weapons and any situation where a human being might be at risk through violence. Fr John Dear has studied and follows the teachings of non-violence as espoused by Mahatma Gandhi and Martin Luther King, Jr., he serves the homeless and the marginalized and sees each person as being of infinite worth. I would hope that were he to receive this honor his teachings and activities might become more widely accepted and adopted. The world would undoubtedly become a better and more peaceful place if this were to happen.

For evil to prevail requires only that good people sit on the sidelines and do nothing. Fr John Dear is compelling all of us to stand up and take responsibility for the suffering of humanity so often caused through selfishness and greed. I hope you will consider his nomination favorably.

God bless you,
Archbishop Desmond Tutu

The Sentencing of a Jesuit Priest in Germany 63 Years Ago

Another federal judge in another country in another time sentenced another Jesuit priest to death by hanging for high treason as a dissenter. The Jesuit was Fr. Alfred Delp, SJ. The Judge was Roland Freisler, president of the People's Court of the Third Reich. This is not a comparison of Nazi courts with our federal courts. Please center on the dialogue between Judge and Jesuit. The following is taken from Fr. Delp's biography by Mary Francis Coady, With Bound Hands: A Jesuit in Nazi Germany, 2003, Chicago, Loyola Press, p. 160:

To Fr. Delp's claim that he was absent from a certain meeting,

. . . this fact was thrown at him as a "typically Jesuitical" action: "By that very absence you show yourself that you knew exactly that high treason was afoot and that you would have liked to keep the tonsured little head, the consecrated holy man, out of it. Meanwhile he may have gone to church to pray that the conspiracy should succeed in a way pleasing to God.". . .

Freisler: "You miserable creep, you clerical nobody – who dares to want the life of our beloved Fuehrer taken . . . a rat – that should be stamped on and crushed. . . . Now tell us, what brought you as a priest to abandon the pulpit and get mixed up in German politics . . . Come on, answer!"

Delp: "I can preach forever, and with whatever skill I have I can work with people and keep setting them straight. But as long as people have to live in a way that is inhuman and lacking in dignity, that's as long as the average person will succumb to circumstances and will neither pray nor think. A fundamental change in the conditions of life is needed. . . . "

Freisler: "Do you mean that the state has to be changed so that you can begin to change conditions that keep people away from the Church?"

Delp: "Yes, that's what I mean. . . . "

Fr. Delp was hanged at Plōtzenee prison on February 2, 1945

Judges and Magistrate Judges

In New Hampshire lawyers were privileged to appear before Chief Justice Frank Kenison of the state Supreme Court, Justice Hugh Bownes of the state Superior Court, the U.S. District Court and the Court of Appeals for the First Circuit, and Justice David Souter of the state Superior Court, the Court of Appeals, and the United States Supreme Court. Calling each one of them "Your Honor" was the use of the term to its maximum extent of dignity and respect. The standards of these three jurists, whether as trial Judges or appellate Justices, are indeed extremely high. Magistrate Judge Svet's are not.

It is difficult to complain about a Magistrate Judge's demeanor in sentencing a defendant, convicted of the charges alleged. Human nature being what it is, few lawyers are discouraged about our judicial system when a trial judge vents his or her personal displeasure while sentencing a vicious murderer, rapist, child abuser, or anyone else convicted of a major crime. Many lawyers and most of the public, however, would lose both faith in our legal system and respect for any judge who insults a defendant for sitting in an elevator against the rules of the building.

The language used by Magistrate Judge Svet during sentencing did not demean Fr. Dear. It did destroy the Magistrate Judge's judicial integrity and dissed the dignity of the United States District Court for the District of New Mexico. While not a Federal Judge appointed for life by the President of the United States with the advice and consent of the senate, a Magistrate Judge is nevertheless a judicial officer and is held to the same high standards expected of any Judge.

The Federal Magistrate Judges Association states at:

A United States Magistrate Judge is a federal trial judge appointed to serve in a United States district court for a term of eight years. He or she is appointed by the life-tenured federal judges of a district court, District Judges, who supervise the activities of the Magistrate Judges by assigning civil cases for jury or non-jury trial upon consent of the parties and for pre-trial matters. Similarly criminal cases are assigned to Magistrate Judges on the consent of the parties, except for the trial of felony cases.

Should anyone wish to inquire further about the conduct of Magistrate Judge Don J. Svet during the sentencing of Fr. John Dear, SJ, contact may probably be made with either the Chief Judge or the Chief Magistrate Judge in New Mexico.

The Honorable Martha Vázquez
Chief United States District Judge

United States District Court
Santiago E. Campos Courthouse
106 South Federal Place, Second Floor
Santa Fe, New Mexico 87501

Chambers' Phone: (505) 988-6330
Chambers' Fax: (505) 988-6332
Chambers' Email:


The Honorable Lorenzo F. Garcia
Chief United States Magistrate Judge

United States District Court
333 Lomas Blvd. N.W., Ste 680
Albuquerque New Mexico 87102

Chambers' Phone: (505) 348-2320
Chambers' Fax: (505) 348-2324


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