Missouri Chief Justice George W. Draper III addresses judges, lawyers during virtual joint annual meeting

Chief Justice Draper

Hon. George W. Draper III

Last night, I had the strangest dream.

There was this worldwide pandemic. Everyone was terrified they were going to die. Experts couldn’t decide what we should do – wear a mask (maybe a gas mask, maybe one made from a T-shirt), don’t see anyone, hoard toilet paper, move to the country …. And all the while, Aretha Franklin kept singing “Who’s zooming who?” over and over and over. Then there were wildfires and hurricanes and murder hornets – what?!?!?

Then it got worse. I got stuck on never-ending conference calls with my colleagues. Our oral arguments were virtual; attorneys and judges kept getting stuck on mute, and there was horrible feedback. And everyone expected me to fix these technological problems – but if you know anything about me, this should cause you nightmares.

Plus everyone I knew was stuck at home, trying to work by videoconference while simultaneously helping their kids with online learning and cooking all their own food. And Judge Mary Russell, dressed as Lady Justice, kept trying to give me a huge birthday cake with 200 candles. There were no coins, and no Clorox wipes, and alcohol became what you put on your hands. People of all colors were demonstrating in the streets. We couldn’t agree what was okay to say or do, and nobody felt safe.

When I awoke, I was so relieved to be free from this terrible nightmare. But then I realized it wasn’t a nightmare. This is the 2020 we have all experienced in the past six months.

While my family and I have been lucky to have experienced mostly mild chaos and minor inconveniences, things have been so much worse for so many others. To those who have lost family, friends, jobs and have themselves suffered illness as a result of COVID-19, let me offer my sincerest condolences.

This devastating pandemic is enormous and unprecedented; to human life and tranquility, it is profane. Even for those of us who have not yet been touched personally by this catastrophic disease, the societal changes it has wrought mean our lives are not the same. But as with all obstacles in life, necessity, ingenuity, and intestinal fortitude bolster the human character to ensure our survival.

Missouri’s courts also had to find ways to adjust and innovate in an incredibly short period of time. Many of us were pushed abruptly into a virtual world, trying to balance work and school while staying at home. By mid-March, national and state emergencies were declared, and your Supreme Court of Missouri issued its first order addressing the COVID-19 pandemic. That order and every set of operational directives issued since made one vital principle clear: “The courts of the State of Missouri shall remain open.”

While we need consistency in a statewide judiciary, not all our communities have had the same impacts. So my colleagues and I have tried to strike an appropriate balance between empowering local courts to conduct necessary business and protecting the health and welfare of litigants, witnesses, victims, jurors, attorneys, judicial employees, and all others involved in court proceedings. So in-person appearances may have been suspended, depositions and mediations may have been done remotely, but no matter the capacity in which you interact with our court system, the local courts have remained available.

We also extended our orders to other aspects of our profession, making emergency modifications to rules affecting court reporters, attorneys, and those hoping to become attorneys, as well as procedures for administering oaths and conducting disciplinary proceedings.

Our orders and directives have not gone without criticism – some think we have gone too far, others think we have not gone far enough – but all sectors of business and government are grappling with how best to proceed as COVID-19 continues to ebb and flow throughout our communities.

As Missouri Lawyers Weekly reported in early July, our appellate-level courts have been deciding cases on briefs, hearing arguments remotely, and issuing opinions regularly. In fact, the number of cases decided by these courts in the first half of 2020 actually exceeded that in the prior six-month period. Job well done!

I want to take this time to thank my colleagues for their diligence and unwavering support during this crisis. While we have been unable to see one another in person, thanks to our frequent conference calls, I believe I have spent more time consulting with my colleagues about the content, form, and impact of these orders than on any other decisions we have made during my entire nine years on this Court.

Another principle guiding us throughout these months has been to collaborate with lawyers and trial judges to help ensure we don’t pivot so quickly or so drastically we inadvertently throw our legal system into disarray.

So, at this time, I want to recognize the yeoman’s work contributed by Missouri Bar President Mr. Tom Bender, Executive Director Ms. Mischa Buford Epps, and executive committee members by informing us about the legal community’s vision, concerns, and solutions. For example, the bar’s COVID-19 task force report about proposed operational directives for conducting jury proceedings was invaluable. We know it is hard to consider the needs and wants of 30,000 attorneys across a vast array of practices. To all Missouri attorneys who have offered your thoughtful suggestions through the bar or to the Court, thank you.

Now there is another group that has worked tirelessly. Led by Judge David Dolan of the 33rd Judicial Circuit, the presiding judges’ executive committee has met by conference call nearly every Monday to discuss, evaluate, and convey to us concerns, insights about local issues, and successes in implementing the orders and directives the Supreme Court has imposed. On one issue they all agree: Isn’t it such a great time to be a presiding judge?! (Or chief justice?)

In some ways, Missouri’s legal system was better prepared than those in other states to handle this pandemic’s massive disruptions. We have spent decades building relationships between the bench and the bar, and together we have created the statewide infrastructure for lawyers to continue filing cases and to allow courts to continue considering those filings when in-person proceedings are not required. I want to acknowledge the tireless work of our state courts administrator’s office – and especially its judicial technology staff – in helping to ensure our judges, clerks, and court staff had the tools they needed to move their work home when required.

While many of you practitioners have become adept at conducting routine business using remote means, courts too have employed new technology. Not unlike this annual meeting, which has found its home in a virtual world, judicial committees and commissions have moved their meetings online as well. When Aretha Franklin asked “Who’s zooming who?” back in 1985, I doubt she anticipated millions of people turning to Zoom, Webex, FaceTime, or conference calls for all their communications.

But remote technology does not work for everything, such as critical proceedings taking place in our courthouses, and some matters have had to be conducted in person, such as the bar examination administered in July. I congratulate all those who took the July bar exam under the most unusual and stressful conditions. I thank the Board of Law Examiners, led by Executive Director Ms. Andrea Spillars, the volunteer proctors, and the clerk of our Court, Ms. Betsy AuBuchon, as they all worked in full personal protective equipment to facilitate a safe experience for the lawyers-to-be. While we were concerned for everyone involved, I am happy to report – thanks to the safety measures of those giving the exam and the conscientious efforts of the examinees themselves – zero cases of COVID-19 have been reported as a result of Missouri’s summer bar exam.

Similar protective measures are taking place in courthouses throughout the state. I thank all of you for your patience with the courts and with one another, for your attention to the guidelines we have in place, and for your diligence in trying to keep our legal system operating while protecting each other and your clients.

Whether you practice in the criminal or civil side of our profession, I am sure you have witnessed the irreversible change and innovation this crisis precipitated. But we remain committed to continuously providing legal and court services to our communities.

When this pandemic wanes – and it will, eventually – a sense of normalcy will return, and I hope this profession will return to a focus on safety and inclusion.

The evaluation of court security for the public, litigants, and court personnel has been put on hold, but the issue of inclusion has remained at the fore. Let me take a moment to remind you of a piece of our history. In 1770, a group of citizens gathered, demanding discipline for soldiers, who then fired into a crowd. A lawyer by the name of Adams stepped forward to represent those soldiers.¹ And yet, a cousin of that lawyer fomented sentiment for the crowd and dubbed the incident “The Boston Massacre.” We moved from a colony to a nation. Among the first killed in that demonstration was a black man, Crispus Attucks, a man born to an African father and a Native American mother and who escaped slavery to become a seaman. Nearly 200 years later, a preacher born in Georgia, working in Alabama, and speaking in Memphis the day before his death, said, “Somewhere I read that the greatness of America is the right to protest for right.” 

We in Missouri must remain mindful of our justice system’s failings, from its treatment of Dred Scott and Lloyd Gaines in centuries past to more recent abuses. A new era of urgency for change in our justice system has been ushered in by the untimely death of those for whom the opportunity for justice ended on the streets.

A recent poll of more than 600 judges nationwide asked whether they believe systemic racism exists in the criminal justice system. A staggering 65% responded yes. For those who accuse judges of being out of touch with their communities, surely this is evidence that they are not. They too have witnessed demonstrations, destruction, and death in cities large and small across America as part of a national movement some have compared with a call for a third reconstruction.

We have been forced to acknowledge there still is not equal treatment of African Americans and people of color in our justice system. Like it or not, the issue of race and racial disparity in our profession is undeniable, although its full impact is yet to be seen. We need to be open and honest in our conversations to make our profession and our society more inclusive.

Last year, I spoke to you of inequalities in the judicial evaluation process. This year, let me direct your attention to a Missouri Lawyers Weekly piece in late July hailing “The Power 30” among certain civil attorneys – a prestigious group, but including only four women and zero minorities of any ethnic or racial group.

The need for diversity, inclusion, and a real understanding of racial bias that divides and threatens our communities, our industries, and our democracy is imperative. Our state constitution promises that our courts are open and accessible to all. Recent events force us to see our courts through the lens of the oppressed and to ask ourselves what kind of culture we are establishing in our courts and legal community. So I am asking that we look within, take a holistic view of our entire profession, truly listen to and see one another, and find ways we can do better.

That preacher I spoke of earlier also said, “The ultimate measure of a man is not where he stands in moments of comfort, but where he stands at times of challenge and controversy.” Our society is on a precipice, with so many Americans crying out to be heard, demanding reforms be made so they all can be treated equally, with the respect and dignity to which they are entitled under the law, but which they have not always been given.

Life is about choices, and I choose to stand before you an optimist, believing … that the rallying cry of the people will be heard, that we can right wrongs of the past, and that we can build a more tolerant world for those who will follow.

In Missouri, our bench and bar are taking steps to build a more inclusive legal system. That work began in earnest when our fellow attorney, former Kansas City Mayor Sylvester “Sly” James Jr., encouraged law firms to sign a pledge to increase minority practitioners in their organizations. His work sparked a statewide effort, and now your Missouri Bar has established a special committee on lawyers of color in the profession.

As the bar noted, diversity in the legal profession means equality of opportunity to practice law in a position of influence throughout society. Equality for all requires everyone to have a seat at the table and a voice in developing and administering the rules that govern our society. It is my hope for people of color to be as overrepresented in our professions as they are in our prisons.

This new committee is about action – its charge is to recommend specific actions the bar can take in the next 12 to 24 months to increase the retention, promotion, and advancement of minority lawyers in Missouri.

You see, for change to be accomplished, a true shift in paradigm must occur, and action must be taken. I hope each and every attorney keeps an open mind in approaching the continuing legal education requirements of Rule 15.05 mandating training about eliminating implicit bias. We have to flatten the curve of prejudice, so the department of justice someday is not just a namesake of a division of the federal government but a reality in which everyone in our society can believe. A culture of respect and fairness, and a justice system in which all persons are truly equal under the law, is a far better dream for 2021 and beyond than the nightmare 2020 has thrust upon us.

Waking from a nightmare makes us thankful for what we do have. I am thankful the institution in which I serve is celebrating its 200th birthday this year – maybe that’s why I was dreaming of cake and 200 candles! From this Court’s pronouncement “once a slave, always a slave” to the six colleagues I am proud to call friends today, our entire judicial branch has made much progress over the past 200 years.

I am also thankful for the two most important women in my life: my Judge Judy and my Chelsea Westin Draper, esquire. Having my family close has been one of the remarkably wonderful consequences of these strange and uncertain times.

Lastly, as this may be my last opportunity to thank them publicly and for me to make a statement about the importance of law clerks in the judiciary, let me say: There are new lawyers who are chosen to be clerks … and then there are lawyers who choose to be clerks. On the state and federal level, career law clerks have chosen commitment to clear and honest work product over compensation. They are often the reason justice does not turn as slowly as it otherwise would. Specifically, as to Ms. Kelly Dunsford and Ms. Misty Ramirez, who have worked with me for more than 20 years, they are highly accomplished, intelligent lawyers who are underpaid, overworked, and vastly underappreciated by too many members of our profession. Most of all, they are wonderful people who have become like extended members of my family. Thank you both, for your years of service and fidelity.

Finally, to all of you who have lived this strange, nightmarish dream but have stayed the course and continued to work in home offices, corporate offices, law offices, and courtrooms – thank you. To all who have faced personal adversity but continued to assist others in theirs – thank you.

And so, to all, stay healthy and well, and may you prosper in our great profession of service.

Endnotes
1 Rex v. Wemms, et al, (Suffolk Superior Court, Boston, Massachusetts, December 5, 1770) (in which John Adams served as counsel for the defense of eight British soldiers accused of murder during the Boston Massacre); but compare United States v. Schooner Amistad, 40 U.S. 518 (1841) (in which John Quincy Adams advocated successfully for the release and freedom of enslaved Africans seized from the schooner Amistad).