Seeing Can Be Deceiving

by Ken Stewart

A newspaper item reporting that Richard Bernstein was elected to the highest court in Michigan noted that he is the first totally blind judge in the U.S.  But many of us who knew Richard Casey from his participation in Ski For Light events remembered that he was appointed by the President to the federal court many years ago and became the first totally blind federal court judge.
I was reminded of a conversation that Dick and I had after his appointment while lunching at a restaurant near the federal court building in lower Manhattan.  I shared with him an experience I had just had while presiding as an Impartial Hearing Officer.  At the start of the second day of the hearing, the attorney for one of the parties asked me to recuse myself because my blindness, which prevented observation of facial clues, was hindering my ability to detect when a witness was testifying less than completely honestly.  I considered the request, then declined to do so, concluding that I might actually be better at detecting a conniving witness than an I.H.O. who is depending on staged visual clues like avoidance of eye contact and other facial gestures.  I was likely more aware of non-visual nervousness clues like the sound of shifting shoes and voice characteristics, not noted by a sighted I.H.O.!
Dick's reaction was immediate and totally supportive. He recounted his experience undergoing examination by a panel of sitting federal justices during his appointment process, when one of the examiners asked him if he thought his blindness might be a limitation on his judicial effectiveness.  Dick responded that his blindness actually could be helpful.  He would not be improperly influenced by irrelevancies like a witness’ race or quality of attire. One of the examining panel erupted with enthusiastic agreement.  That judge proceeded to recount his experience during a trial with a gorgeous woman in gorgeous attire on the stand.  He confessed, “When she was finished testifying, I had no recollection of anything she said!”