Time for Judgment

November 24, 2009
/ Author: Rick

Quite often on this blog and my more popular blog (Probable Cause: The Legal Blog with the Really Low Standard of Review), I write things about judges that are perhaps less than flattering.  After all, I’m usually writing about the failure to follow the law, the result-oriented judging that I too often see, and that this seems to be related to the fact that most judges are former prosecutors unable to shake off the old job and take on the new.

This entry is different.

In a recent case, I showed up in court only to learn that nobody seemed to have my case on calendar.  My notes — and the clerk at the front window of the courthouse — indicated that my case was on calendar, but none of the courtrooms had it on their calendars.  The end result was that, while this was being sorted out and I waited for the case to be called, I had the opportunity to sit and wait and watch.

I will not name the judge I was watching.  I don’t want him to be harassed for his fairness and his determination to ensure that everyone in the courtroom understood the legal reasoning behind the result he was handing down.

The result, by the way, was not what the accused, the accused’s attorney, or the accused’s family wished.  But after hearing the judge explain things, there did not seem to be any question that it was fair.

“Well, if that’s all true,” you ask, “why should you be considered that the judge would be harassed?”

The answer is simple: to do what that judge did takes time and time is something very few judges have in surfeit.

First, the judge was careful to hear all the parties; to give them an unquestionable opportunity to express themselves.  In this particular case, that included allowing the attorney and at least one family member speak.  Second, in explaining the ruling he was about to hand down, he was careful to do two other things: he made sure the accused person understood what he was saying and he explained the reasons for his disposition of the case.

Those two things are not the same thing, just differently worded.  As I’ve stated elsewhere (parenthetically, and leaving the issue for further explication in an as-yet-unwritten blog article), attorneys and judges too often use words that we understand clearly, because we have the education that teaches the meaning of those terms.  We forget, however, that a law school education — or any kind of advanced education at all — is not the norm.  In Fresno, for example, fewer than one out of every five people holds a college degree; yep, fewer than 20% of us graduate from a four-year college. That’s for a “lower-level” degree, not a post-graduate degree.  And some of those degrees are in criminology, which doesn’t set the highest standards for reading or deep thinking — as the spelling, grammar and “reasoning” in probation and police reports prove daily.

Now, I do not agree that Fresno is the dumbest city in America (as the linked article above suggests) or that Fresnans, in general, are stupid.  What I’m saying is that certain common “simple” legal terms such as the word “waive” in “waive your rights” are neither common nor simple to most people coming before a court.  Yet the court entertains — among numerous other “legal fictions” — that when it asks “do you waive your right to this-or-that?,” the accused person who answers “yes” gets it.  This is true even when the court can clearly see the accused and often scared person, realizing the court wants some kind of answer, turning to his attorney, who either nods or says out loud or mouths “yes,” which the client then parrots, completely (perhaps stupidly) trusting the attorney, but parroting nonetheless.

In adult cases, the disconnect between what an accused person believes has happened and what has actually happened is A Bad Thing™.  In juvenile cases, or any context where the aim is rehabilitation, it is A Horrific and Counterproductive Thing™.   If a kid does not understand what is happening in the courtroom, he probably does not really understand the connection between what is happening in the courtroom and his behavior prior to arriving in the courtroom.  Sure, he might get that he did something wrong and that what is happening is connected to that.  He might.  But surprisingly often, he does not.

So, for me, it is an amazing and wonderful thing that I got to watch a judge actually take the time to listen to the individual before him (and a family member) and explain not only what was going to happen, but to actually stop and explain the meaning of certain words.  In addition, the judge clearly explained why he was giving the particular orders that he was giving, instead of some other orders; i.e., the orders the defense attorney and family hoped for.  He explained the connection between the disposition and the behavior of the person to whom he was speaking.  Not only was it clear that the judge had carefully considered everything, but he had specific reasons for what he did.

In short, I was impressed that the judge took the time for judgment.

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