The other day, I was in court when a judge I actually like did something that I definitely don’t.
It’s not just a matter of my not liking it, however. It’s part and parcel of why the United States of America no longer exists under its original charter, the United States Constitution.
Lest anyone think this post is a criticism of that judge, it is not. One day, I think it’s even possible that judge will become a fine judge. The judge is just a product of zeitgeist and has not yet thought clear of it.
The thing about zeitgeist is that, almost by definition, we don’t normally recognize the effect it has upon us. Daniel Boone Davis, the protagonist in Robert Heinlein’s The Door into Summer, noted that the ideas one can conceive are often limited by the era in which one finds oneself. Only upon serious reflection — in which, frankly, judges are supposed to engage — does it become evident how our thoughts, attitudes, and actions may be impacted, for better or worse, by the attitudes prevalent in our society, or the milieu, in which we find ourselves.
But judges don’t really do that anymore.
The majority of judges today are drawn from the ranks of the District Attorney’s Office: they’re prosecutors. Supposedly chosen because of their ability, knowledge of law, and character, they are more often chosen because they fit the “tough on crime” mold currently in vogue — which too often requires a tendency to look the other way on questionable ethical issues, or, at the very least, to ignore the overall systemic safeguards in favor of obtaining convictions — and because they’ve pleased the right people.
Which does not mean those who adhere to the laws of the United States, as written.
It does not mean this because the core laws of the United States are primarily written for the purpose of reigning in the government and those who work within the government do not want to be reigned in. Our public servants are irked that the bedrock principles of American law act as a brake on the otherwise unbridled power of “public servants.”
Which includes judges.
Yes, you wouldn’t know it from sitting in a courtroom, watching an ordinary citizen, or a private attorney, or even another public servant, receiving an ass-chewing from a judge, but judges aren’t actually meant to be demi-gods; they’re public servants.
Each of us in the legal system which acts to balance the varying interests and mediate the squabbles of the citizens of the Republic has a role to play. Theoretically, prosecutors act to the best of their ability to ensure Justice is carried out. To the extent that we think protecting society means protecting the rest of us from those who commit crimes, then protecting society is the job of the prosecution.
To the extent we think it includes protecting innocent people from losing their liberty interests, there are other players, other functions, other public services to be performed by other public servants within the legal system.
For example, defense attorneys have a different assignment. Our “goal,” if you will, is to force the prosecution to prove its case. We defend — not criminals — people accused of having committed crimes. (They aren’t “criminals,” in the true meaning of that word, until and unless a conviction occurs.) Surprisingly, not everyone who is arrested and accused of committing a crime has actually done so. Our job is to work to ensure that people do not lose their liberty interests unless and until the prosecution has proven, beyond a reasonable doubt, their guilt; we fight to keep people from being convicted and saddled with a record, being fined, and being sent to jail or prison.
In that sense, we, too, work to protect the public.
In the middle of these two sides — the prosecution and the defense — sits the judge.
The job of the judge is to make sure that the other parties, in performing their duties, follow the laws of the State and the Federal Republic. Those chosen to be judges are supposed to be of the highest caliber, to have the most knowledge and discernment, and the temperament that will allow them to perform their duties without being swayed by the emotive aspects of either the defense, or the prosecution. They are to favor neither side in the contest before them, but to make sure the contest remains subject to rules laid down through centuries of experimentation and experience in the pursuit of Justice and the proper balance of competing societal interests.
When a judge properly performs his or her function, the judge — just like the defense attorney — helps to ensure that the public is protected.
When a judge forgets his or her function, ignores the bedrock principles of our republic, such as (among other things) due process of law, to favor one side over another, then no amount of saying that it is being done for the protection of the public makes it true. By abdicating the role assigned, by failing to perform duties spelled out in law so as to assist one side or the other, the judge helps to destroy public safety.
So it was that I was disturbed recently in the courtroom. A man arrested for a crime presented himself as ordered. The prosecution, having decided there was not enough evidence for a conviction, refused to file charges. The Probation Department, having realized that even under the incredibly low standards for probation violation hearings it could not prove its case, withdrew an alleged violation of probation.
The prosecution (in theory) must prove cases “beyond a reasonable doubt.” Probation merely has to win by a preponderance of evidence; in other words, it has to be “more likely than not” that the accused probationer committed the acts of which he is accused. Neither the prosecution, nor probation, felt there was enough evidence for them to proceed. Both departments refused to proceed: the prosecution did not file charges; probation withdrew their original too-hastily-filed charge.
That should have been the end of it. After all, there were no charges pending — not even an allegation of violation of probation.
But then the judge, egged on by the Probation Department, indicated a desire to impose new restrictions upon the no-longer-legally-accused man. “I am concerned about public safety. I am concerned that he continues to engage in behavior like that for which he was already convicted.”
This might be true. I don’t know. Neither does anyone else. There is currently no legal charge to which the man must answer. There is therefore no vehicle for the court to consider any new evidence, if such evidence exists. When even the Probation Department withdraws its charges from a lack of evidence to prove them, you know whatever “basis” for the accusation exists is weak.
At least, under the law.
The law the judge has sworn an oath to uphold.
The law whose intent is to protect the public.
As I said, not everyone accused of having done something illegal has actually done that something. That’s why we have courts. That’s why we have prosecutors. That’s why we have defense attorneys. That’s why we have judges.
When each of us performs the duties assigned to us, the system (in theory) works to protect the public safety.
It’s not a perfect system. When the system is working at its optimum, sometimes guilty people go free. Unfortunately and paradoxically, the better the system works to make sure guilty people do not go free, which is the aim the judge in this case apparently believes in, the more people who were not really guilty go to jail or prison. The judge here embraced not the proper role of ensuring the two adversarial parties to the contest followed the rules, but the improper role of making sure guilty people are punished.
Ensuring guilty people are punished is not a duty assigned to judges. That is the “job,” if you will, of the legal system as a whole.
When one of “us public servants” — any officer of the court — fails to perform the duties assigned to us, the system does not work to protect the public safety, neither in theory, nor in fact.
I do not know if the client I was representing actually did what they think he did. It is, of course, possible. It is, in fact, not proven. Nor can it be, at least at this point in time.
And so what the judge wants to do is wrong. It is a slap in the face of the Rule of Law. It is in direct contravention of judicial duty.
That does nothing to protect the public. I don’t think it’s going too far to say that it actually harms the public.