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The Black Arts of the Black Robes

No, not those Black Robes. I’m sure priests have secrets in addition to those involving child abuse, but I am not privy to them. I mean legal profession priests, The Judges. I was at a judicial conference recently in Texas, a state that practices partisan election of judges.

Before I quit the party over the failure of Congress to pass President Obama’s programs when he allegedly had majorities in both the House and the Senate, I had been elected as a Democrat. I have watched as Texas morphed from a one party Democratic state to a one party Republican state. Demographics say it will move back, but my own opinion is that a Democratic state just means the crooks are Democrats. It does not mean there are no crooks.

At this recent conference, it was brought home to me that there really are values differences between the political parties. While I would rather corporations did not buy politicians, it’s simply not true that being bought by Halliburton and Koch Industries is the same as being bought by Google and Starbucks.

I’m not sure it’s realistic to propose that judges ought not to be politicians. When they run, they are cast in that role. When they are appointed, the appointment is a political reward for them or somebody supporting them. This is so in state, federal, and tribal justice systems. The question is not whether the judge is a politician, but whether, once the politician puts on the black robe, he or she can become a judge.

There are some things about judges as a group that might surprise those outside the legal priesthood to which I’m accustomed after wearing the black robe off and on for 36 years.

I first heard the remark that the police had stopped a man for “black in a no-black zone” at a judicial conference. It drew hearty laughs, but there was no failure to communicate. Everybody knew what the judge meant, and the laughter did not signify agreement. It was just a common affirmation that overt racism is common enough on the streets that we are forced to recognize it.

I remember being in a class with over a hundred other judges and speaking out against the practice of sentencing criminal defendants more harshly after a trial than I would have if they had just pled guilty, a practice I referred to as “charging for the use of the courtroom.” I thought then and now that every denizen of the US (not just citizens) shoulders a tax load that pays for the courthouse and pays my salary, and it’s wrong to make them pay a second time if they decide to use the courtroom and my time for their intended purposes. I was a minority of one, and from the hoots and hollers my argument scored zero points with my colleagues.

I’ve also been in disagreements with my colleagues about charging “personal bond fees” for people to get out of jail if they are not subsequently convicted of a crime. The argument on the other side is that the personal bond fee supports a program without which people would have to pay bail bondsmen, whether or not they are subsequently convicted of a crime.

Don’t get me started on bail bondsmen, but all I was saying was we ought to collect the fee at the back end of the case rather than the front end and blow it off for the innocent. If they think so many innocent people are being booked that letting them skate would challenge the solvency of the system, then the system has bigger problems than how to handle jail release.

I’ve always believed that in a criminal case, where the burden of proof is “beyond a reasonable doubt,” you cannot convict based on the testimony of one witness when the defendant also testifies unless one of the witnesses is effectively impeached by cross examination. Even if the one witness is a police officer.

Most of my colleagues believe that a police officer has no motive to fabricate and is therefore more credible than an accused, who is trying to beat a criminal charge. I disagree that police officers don’t care about winning, but even if I agreed that there’s no motive to fabricate, I think there’s a substantial public interest in the courthouse not becoming generally known as kangaroo habitat.

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These are general questions where I’m not in the mainstream of judges and I know it, and it has little or nothing to do with donkeys and elephants. Just, in my view, kangaroos.

Recently, though, we had a judge from California speaking about methods for teasing out the necessary facts to decide a case when one of the litigants or both is not represented by a lawyer. The methods she offered involved the judge doing a lot more than sitting like a potted plant, and many of her tips involved how to accomplish fact finding without appearing to favor either side.

Useful stuff, I thought.

A judge rose to object. We have all, he said correctly, presided at trials where one lawyer was much more effective than the other. Or where both lawyers were ineffective, in which case he believed the “correct” outcome would be that the party with the burden of proof loses.

It would be wrong, he claimed, for the judge to ask a question a lawyer forgot to ask, and therefore it would be wrong to do the same to “help” a litigant who had no lawyer.

Furthermore, he claimed that people who come to court without lawyers are mostly not poor people, but people who are too arrogant to take legal advice, let alone pay for it, and therefore they must be made to live with their choices.

Just as I was thinking what a barbarian this judge was, the room erupted in applause. That rousing approval of rich man’s “justice” would not have come back when Democrats dominated the Texas judiciary. Not that nobody thought that way, but we were not susceptible to that particular bit of damaging groupthink. That judge would have been as much an outlier as I was in my solicitude for the falsely accused.

When a judge takes a role in uncovering facts in an adversarial system, she is not helping anybody, because “anybody” does not have to sign the judgment. Just as a jury charge is not anybody’s charge but the judge’s, a judgment belongs to the judge, not to either lawyer. And if the judgment is incorrect, so is the judge, try as she might to put it off on an incompetent lawyer or the absence of a lawyer.

Therefore, if one side can afford an excellent lawyer and the other side can afford a mediocre lawyer or no lawyer at all, the judge should not be spoon fed facts by the party with the best representation.

Or so I think of a judge’s responsibility to do justice as far as the rules allow it. There was a time in Texas when I like to think that most judges would have agreed that the adversarial tail should not be allowed to wag the justice dog. But maybe it was just me.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.