Deliberate Fairly Before You Convict

Franklin County, Ohio, Judge Amy Salerno disagreed with the verdict of a jury. Oh boy. As she explained it to the Columbus Dispatch, “(I) failed to contain my surprise at this particular meeting (with jurors).” This may be a bit of an understatement.

“(The judge) said, ‘Ninety-nine percent of the time, the jury is correct,’  ” according to [juror LeShawn] Chapman. “  ‘Now it’s 98 percent. You got this wrong.’

“She berated us,” Chapman, 39, said of the judge. “It was just nasty.”

In theory, the judge is a neutral in a criminal trial, there to assure that the trial proceeds in accordance with the proper procedure and that all constitutional mandates are fulfilled.  But to believe that judges have no opinion as to the merit of the prosecution is mind-numbingly naïve. Of course they do, as is usually pretty obvious from their attitude and rulings. The good judges keep their view under wraps, let the lawyers try their case and, well, keep their opinions to themselves.

But the Honorable Amelia A. Salerno just couldn’t manage to keep her opinions to herself. She’s hardly the first judge to indulge her deepest feelings.

Notably, prior to becoming a judge, she served a term in the Ohio legislature before running for election as a judge. That’s usually an indication that her political party wanted to get her out of the Ohio House, and lower court judgeships are commonly the dumping ground for failed politicians.

As a judge, she seems to present herself as something of a populist:

I try to run my courtroom in a relaxed atmosphere. Considering the number of cases that come through our courtroom on a daily basis, it is important that the parties, the attorneys, and all other persons involved with the  court are willing to discuss the matters with a goal of efficient termination of the cases. It is important to remember that this is the “people’s court.” Because it is, we have to give  the people the benefit of an efficient system.

While this may sound kinda folksy on the surface, whenever a judge openly suggests that she has “a goal of efficient termination,” one’s spidey sense should start to tingle. Not that it means termination with extreme prejudice, but that termination in itself is a very disturbing goal.  After all, it’s easy enough to achieve “efficient (though it strikes me that she uses the wrong word here, a common mistake) termination” by doing all the bad things that deprive people of their right to fairly challenge the allegations against them. It may make the trains run on time, but rarely achieves due process.

But regardless of her conflicted judicial philosophy, her post-verdict rant reflects something far more nefarious than merely disagreeing with a verdict.  She was intemperate.  She charged the jury (presumably, since this is a part of every jury charge) that they were the sole triers of the facts, and they alone had complete authority to return a verdict of guilty or not guilty.  No doubt she told them this with a straight face, even though she was reading from pattern jury instructions. Jurors rarely appreciate how rote much of a trial is, particularly the judge’s efforts to be charming and funny at the expense of the lawyers and litigants.

But when she turned unfunny (and as the above photo shows, Judge Salerno really knows how to put on an unfunny face when she wants to), she defied the basic precept of judicial involvement. She used the authority of her position to tell the “sole and exclusive triers of fact” that they blew it, they cut the bad guy loose. So if he later goes out and rapes and pillages, it will be their fault. Are you proud of yourselves now, jurors?

And yet, the scenario gets worse.

One of the jurors who spoke to [administrative] Judge Green was visibly upset while describing the actions of Salerno, who also stated that she was not done with the defendant that had been acquitted.

“They reported to me [that] she made a comment to them, it was okay because she would have another chance to get this defendant because he had other charges pending,” he said.

Following the outrage caused by Judge Salerno’s improper rant, she recused herself from the defendant’s subsequent prosecution.  But the notion that she would have used her position of neutral authority to assure that what she perceived to be a wrongful acquittal was “corrected” the next time is a flagrant violation of her ethical and legal duty.

Yet, had she not been intemperate, had she been capable of controlling her self-indulgence, no one would have known what darkness existed in this judge and a subsequent conviction of the same defendant would have drawn yawns.

One of the most fragile and facile aspects of the legal system is the avoidance of the appearance of impropriety.  The downside to the concept is that it doesn’t mean there is no impropriety, but only that there is no outward evidence of it.  And so cases move forward to their “efficient termination” and everybody walks away, comfortable in the belief that everything is going just fine.

We need a Judge Amy Salerno from time to time to remind us that judges are people, sometimes deeply flawed people, and for all the fancy rhetoric about what a great legal system we have, it’s only as good as the worst judge on the bench.

 

14 comments on “Deliberate Fairly Before You Convict

  1. Anne

    Efficiency sounds like an evil goal, but think of it this way — if you are a young person stuck in “the system,” would you rather have your family/placement options sorted out a.s.a.p., or at some far-off, fuzzy future time? If you are being denied benefits, would you like to get a hearing now or later? If you are being held in a facility of any kind, would you rather have a hearing tomorrow, or whenever the court gets around to it? Would you rather remove the “speedy” part of the right from the Constitution?

    “Efficiency” sounds like a factory product, not something we associate with justice. It need not be.

    Certainly, as a pro-jury person I’m not going to defend this judge’s conduct here. But, I will defend timeliness and efficiency as non-evil, essential goals. Fairness should be the ultimate goal, but efficiency is part of that fairness.

    1. SHG Post author

      Ah, dear Anne, you have fallen into the black hole of “efficiency,” a dark, awful place to be. The word “efficiency” doesn’t mean what most people think it does. It does not mean accomplishing a task expeditiously, but rather the minimum expenditure of time and effort to complete a task, despite the respective loss of quality. Contrast efficiency with effectiveness, the latter demanding no sacrifice in quality.

      Therein lies the fly in the ointment. No one suggests that defendants should suffer any longer than absolutely necessary in court, but the speed of proceedings cannot come by sacrificing fairness. And most of the time, they get neither.

    2. Nikky Fleming

      The quickest, most efficient way to “terminate” a criminal case is for the defendant to plead guilty and accept whatever the State dishes out. But if a lawyer wants to actually represent the defendant and achieve a good outcome, it takes time.

  2. Jim Majkowski

    In Michigan, going from the legislature to judicial office means a pay raise and no more nasty term limits, plus elections are at longer intervals. As for efficiency, that means plead guilty so I can scold you and impose a sentence.

  3. Bruce Coulson

    Sadly, we have a lot of things to be embarassed about in the Heartland; Judge Salerno is one of them. However, since most judicial ‘elections’ are a choice of vote for the one candidate or don’t vote, I suspect we’ll have more to be embarassed about later. (At least we do get to vote for judges; we’ve avoided the inefficiency of a City Council election for decades.)

  4. Gloria Wolk

    If she is not removed from office, she should be required to pass tests on “reasonable doubt” and respect for the foundation and rationale for the jury system.

    1. SHG Post author

      I’m not quite sure what a test for “reasonable doubt” would look like, but I’m fairly sure it would very hard to grade.

  5. Bruce Coulson

    No link per rules, but Columbus Monthly in September 2009, using ABA ratings, ranked Judge Salerno as the worst jurist on the local bench (out of 15). The article also cites previous cases of Judge Salerno lecturing people from the bench as well. This isn’t a new problem; merely a more public example.

  6. Jessi

    Although I am not totally fond of elected judges, this may persuade me. At least in this system we can vote out bad judges and the citizens can have a referendum on poor judges. This is exactly the reason to elect judges.

    Salerno is up for reelection this November and I really hope Franklin county remembers this! Kristen McKinley is running against her and she would be a judge who respects the judicial system!

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