The Honorable, and the Slightly Less Honorable

Alright, alright, settle down, I'm back. Just trying to avoid the internet and avoid finding out who won Survivor until I can clear off my Tivo.

Sometimes people find this blog in some random way or another and stumble onto a very old post. Sometimes they leave a comment there, but no one is unlikely to ever see it. And who knows if they bookmark the blog and come back or if they leave their question and never come back to see if there has been any reply.

Anyway, an anonymous commenter left a question on this very old post that I thought was worth addressing.
WHAT CAN BE DONE WHEN A JUDGE ACTS IN WAYS, SOMETIMES SUBTLE, THAT SUGGEST S/HE'S NOT GOING TO GIVE ONE AN UNBIASED RULING? IF JUDGES LAUGH AT AN OPPOSING ATTORNEY'S DISRESPECTFUL MOCKING OF COUNSEL, FOR EXAMPLE, AND MAKING DEMEANING COMMENTS ABOUT COUNSEL OUT LOUD, TOO, DOESN'T THAT MAKE HIM/HER SEEM LESS LIKELY TO BE FAIR? IF COUNSEL BEHAVED LIKE THAT, HE'D BE IN CONTEMPT.

I've been dealing with a very biased and unfair judge lately, and, the truth is, judges can get away with a lot that opposing counsel can't.

A smart judge also knows how to present his opinion (and let the jury know too) without having it reflected in the record. (For example, by laughing or rolling his eyes.)

One judge that I actually like has a tendency to play "on the record, off the record," usually while trying to persuade a defendant to plead guilty. He'll say, "Now, Mr. Smith. You don't have to plead guilty. You have the right to a trial.

Off the record: I can't possibly tell you whether you would win or lose at trial. But I can tell you that juries believe the police, and there's no reason a police officer would lie to say that you were selling drugs when you really weren't.

Back on the record: At that trial you would have the right to remain silent or the right to testify in your own defense.

Off the record: But, really, that would be a stupid idea, because you have a criminal record a mile long. And if you testified, I would make sure the jury heard all about it, even this attempted murder back in '75. Oh, is that just an assault? Oh well, just a technicality. Anyway...

Back on the record: You will have an opportunity to call witnesses and to confront the witnesses against you. Your lawyer will have an opportunity to cross-examine those witnesses.

Off the record: Not that she can just ask whatever the hell she wants. The prosecutor will object, and I'll sustain those objections. In the end, the jury will just hear what the respected police office have to say about you, and they'll believe the police officers, and you'll be convicted, and I'll get to sentence you, and I won't be happy that you wasted my time with this trial.

Back on the record: Knowing all of these rights, do you wish to plead guilty now?

You want to guess what my client says?

I think the only way to deal with a judge like that, is to beat him at his own game. Obviously, he's very concerned with making sure the record reflects him as fair and impartial. So, you could respond, "Yes, knowing that his record will be unfairly used against him, and any of defense objections will be sustained, and that he will be sentenced more harshly because he chose to invoke his right to trial, my client will plead guilty." I guess you have to decide whether it is worth it. If your client is pleading guilty anyway, maybe it's not worth it, I don't know. That's a decision you have to make - are you the kind of lawyer who sticks her neck out? For every client?

And you can do the same thing at trial. You can say, "Judge, I don't appreciate you laughing (or whatever he's doing)," so that at least the record reflects what he is doing.

But I have to add one more caveat. Sometimes, not always, but sometimes, the judge is trying to do you a favor. Just think about this, keep it in mind. I posted here back in November that I tried a case with a terribly inept co-counsel (here and here.) In that case, the judge made a few comments like, "Move it along," or "I'm not sure you want to ask that."

My co-counsel thought the judge was picking on her, but I believe the judge was trying to help her (and her client). And, I guess you could say that the "on the record, off the record" judge was just trying to help my client by telling it like it is - saying the things most other judges are probably thinking. At least that client knows where he stands.

So I guess that's the long-winded answer on how to deal with biased judges. I'd love to hear what ideas the rest of you have.

8 comments:

  1. Judicial bias is pretty rampant, wherever you practice. You have to do what is best for your client, no matter what. Sometimes, this includes filing motions to disqualify judges based on judicial bias. Sometimes, if your jurisdiction/rules allow, it involves recusing the judge from your cases, every single time, until the other judges get tired of hearing all your cases. Sometimes it involves appeals; no judge likes the appellate court to read a nice, detailed, judicial bias argument. It sucks, but public defending is not a popularity contest.

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  2. A similar issue arises when court reporters clean up the record even when the Judge doesnt say it "off the record". I've been toying with the idea of just digitally recording all hearings with these less honorable judges, keeping the recordings where there are questionable statements made, and using the recording to create a record on appeal. I haven't been able to find any rules requiring permission for recording by non-media, but I'd be interested to hear if anyone else is aware of case law or statutes on point.

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  3. In Illinois, trial counsel can prepare a "bystander's report" of off-the-record statements or proceedings to provide a record for the appeal. Also, I like what BJ says about making the record - restating what the court said off-the-record on the record. Makes for a much better argument on appeal or in a post-conviction proceeding. I'm an appellate defender, by the way.

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  4. In California, blanket papering would be the answer.

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  5. Ummm, did you watch the finale of Survivor yet? I'm assuming you did. I just wanted to know what you thought about it.

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  6. your blog is beautifull wolud you please visit my blog?
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  7. Yeah, judges are human, too. A lot of them think they're above the law and forget that they're not demi-gods.

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  8. Hey erfan, couldn't get your blog to work. what happened?

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