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VOL. 128 | NO. 41 | Thursday, February 28, 2013

Fowlkes Talks Adjustments to Federal Court

By Bill Dries

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After seven months as a judge in the U.S. District Court for the Western District of Tennessee, John Fowlkes said he is adjusting to the difference between being a federal judge and a state criminal court judge.

And the attorneys he sees in federal court on civil and criminal cases are adjusting as well.

“My philosophy when I was a Criminal Court judge is pretty much the same as the philosophy I employ being a federal district court judge – basically hands on and hands off,” Fowlkes told the Memphis Rotary Club Tuesday, Feb. 26. “I’m hands on prior to trial. I encourage the lawyers to move their cases expeditiously through the process. … But don’t misunderstand me. Once the case goes to trial and we have hearings, basically I believe hands off – that the lawyers should be able to present their case before the jury within the parameters of the rules of evidence and the rules of procedure.”

Fowlkes was a “career prosecutor” before going from the U.S. Attorney’s office where he was first assistant to become chief administrative officer for then-Shelby County Mayor A C Wharton Jr.

During his first two years as an assistant U.S. attorney, Fowlkes tried 42 cases, a number that corresponds to what Chief Administrative Federal Judge Jon McCalla and Fowlkes say was a higher trial caseload in the 1990s.

“We were trying many, many cases,” McCalla said. “We still try a lot of cases. We’re still one of the busiest courts in the nation. … But those numbers have gone down.”

Fowlkes returned to the law as a Shelby County Criminal Court judge for five years before President Barack Obama appointed him to the federal bench and the U.S. Senate confirmed that appointment last August.

Fowlkes contrasted and compared his time in Criminal Court with his time as the newest federal judge in Memphis, which is part of a Western District that goes from the Mississippi River to the Tennessee River.

Even the technical differences like the electronic case and document filing system used in federal court have an impact on the way court matters are conducted.

Fowlkes likes the system but also has some problems with what it has meant in terms of motions to delay cases.

“It’s good to be able to get to what they are making reference to in a short amount of time. Less paper – less fuss,” he said of the good side before turning to his concerns. “It causes the judges to have almost less accountability. There’s many a time when a lawyer files a motion for more time, a motion for continuance, at 5 o’clock the night before the case is set. I guess they assume that I’m just going to grant it. … Many times they will just have to come in and talk with me.”

Attorneys who spend much of their practice in Criminal Court are also known as “201 attorneys” for 201 Poplar Ave., the address of the Criminal Justice Center where criminal courts are.

Fowlkes said they tend more toward “oral type advocacy” and motions and arguments made “really on the fly.”

“Many people think that the lawyering in criminal court really isn’t up to par. But the lawyering over there, I have to say generally is very good,” he added. “You have more inexperienced lawyers on the state side than you do on the federal side. There is apprehension among some lawyers about appearing in federal court. The quality generally on the federal side – I have to say as far as criminal law and civil law is excellent.”

Fowlkes was asked whether he rules with the idea of being “reverse proof” in mind – the idea that an appeals court could reverse his decision.

“The bottom line is no. Judges have to make the call based on the law and evidence,” he said. “If you stepped off the bench every time an objection was made to go and research every line of the law and cases and things like that … you’d never get done with the trial.”

Asked about cameras and blogging in federal courts, Fowlkes said federal judges must abide by current prohibitions against still or video photography in courtrooms. Blogging is up to individual federal judges and Fowlkes said he is “fine” with the digital media updates from his court.

He also said his experience with news cameras in Shelby County Criminal Court is that it had a “minimal impact” on the court’s business and that most attorneys forgot the cameras were present once they got into arguing the case.

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