There’s No Party When It’s Ex Parte

Mark Bennett, the Texas Tornado, came home from New York to a surprise:  An order signed by a judge based on a motion that says it was served on him, as required, beforehand.  Except it wasn’t.  This, for you non-lawyers out there, is what we call an ex parte communication, where one side communicates with the court and the other side knows nothing about it.  It’s generally considered a very bad thing.

Bennett asks some important questions, though I’m sure he knows the answers.  They do it because they can.  And they can because Court’s let them get away with it.  Not just the ex parte communication, but the affidavits of service that never happened, class A misdemeanors. 

While the problem of prosecutors neglecting to serve papers isn’t one that I’ve experienced in New York (although they routinely screw up the sequence by serving the court by hand with papers including an affidavit of service, and then mailing the papers out to defense counsel a day or two later), Mark’s secondary question to the judge is the one that intrigues me the most.

Mark asks why judges allow, tolerate, facilitate illegal conduct by prosecutors.   Mark pushes further:

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that’s not really appropriate, but it’s going to happen however much I fuss — even if you don’t care whether the state wins, you naturally want the state’s inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

It’s a fascinating irony that the less experienced, less competent a prosecutor, the more a judge will involve herself in assisting the prosecutorial function.  Sure, we talk about an adversarial system, but when the judge gets down from the bench and starts showing the prosecutor what to do, you start to get the sense that they’re ganging up on you.

The answer to the question is precisely what Mark suggests.  The prosecutorial function is for the benefit of the State, the Commonwealth, the People, whatever they are called in your jurisdiction.  The defense represents the defendant.  One person versus society at large. 

The prosecutor is often a youngster, inexperienced and undertrained.  The fact that they are pompous and flush with power and authority has nothing to do with their skill level.  So the judge takes it upon herself to be a part of the training process of baby prosecutors by helping them along.  Is it so wrong that judges want to make sure that violent criminals don’t walk free because of some kid’s inexperience?  Doesn’t society have an interest in putting bad guys behind bars?

Of course society cares.  Even criminal defense lawyers, when not in the well, admit that we want bad guys convicted.  We just want it done fairly and properly.  It is not the judge’s role to play super-prosecutor.  This leads to rank partiality, even when the judges believe that they aren’t favoring the prosecution.

This also leads to judges cutting prosecutors a break on the “technicalities” of criminal prosecutions, like serving motions and filing false affidavits.  They don’t mean it.  They just don’t know any better.  What do you expect from them?

A very slippery slope, when perjurious affidavits become routine and incompetence is rewarded by judicial facilitation.

Some wags might suggest that the training of baby prosecutors be left to grown up prosecutors.  Worse still, some might suggest that judges are doing no favors by easing prosecutors into the job, encouraging sloppy work and bad institutional habits. 

But what do the judges think?  That they’re just leveling the playing field between experienced and vicious criminal defense lawyers, ready at the drop of a hat to rip some young prosecutor’s heart out through his nose if he makes the slightest mistake, and young, well-intended, over-burdened prosecutors trying to do their best to serve the public good.  And they don’t see this as presenting a bit of a problem with impartiality.

6 thoughts on “There’s No Party When It’s Ex Parte

  1. Gregory Conen

    I don’t see an inherent problem with Judges teaching prosecutors to be better lawyers. It’s the manner in which it’s done that’s the problem. The proper time would be AFTER the sentence/verdict/decision is handed down. That’s when you tell the prosecutor that maybe it would have been a good idea to prove the defendant was actually driving the car, rather than merely proving that he was intoxicated.

    Likewise, there are situations where the judge can properly forgive a mistake of inexperience. But they should not compromise justice, which denying the chance to respond to a motion does.

  2. SHG


    There’s a dynamic that occurs when judges become engaged in helping prosecutors.  They become vested in what they do, and it has a huge potential to create an unintended bias in favor of the prosecution.  A judge has a job, and it’s not to mentor prosecutors, before, during or after trial. 

    You say that judges should not compromise justice.  There are a multitude of ways in which this can happen, denying a defendant procedural due process is just one, relatively obvious, way.  There are many more insidious ways in which this happens, and the problem with trying to “test” whether a judge has “compromised” justice is that you can’t always see it on the surface, and everyone has a different view of what degree of partisan judicial involvement is “reasonable” or “harmless”. 

    Rather than constantly fear impropriety, or skirt the line of reasonableness, why not leave judges to fulfill their function and stay out of partisan affairs where they don’t belong to begin with.  That way, we can avoid the constant potential taint of impropriety and prejudice.

  3. Kathleen

    Let the JURY tell the prosecutor that maybe it would have been a good idea to prove the defendant was actually driving the car, rather than merely proving that he was intoxicated.

    With an acquittal. And after it, if the prosecutor cares to get educated on how he lost.

  4. Greybear

    To be fair, I have also seen judges do the same for baby PD’s. My judges locally would, I think, prefer to stay fairly neutral–they just can’t resist trying to balance the teeter-totter. In fact, they have this attitude that “we all work together to manage the system.”
    Personally, I disagree; but that’s the institutional mindset.

  5. Gregory Conen

    The actual case I was thinking of was ended on with a motion for judgment of acquittal. The prosecution called it’s last witness, the defense lawyer called for a motion, and the judge made the motion. And then basically said “You’ve failed to prove the defendant was driving a vehicle on the mentioned occasion, which is why I’m acquitting”.

    In general, I would find it to be better for prosecutors (and PDs) to be skilled than not. But SHG’s criticism is persuasive; judges should stay out of the legal education business. The above case might still be appropriate, on the grounds of that she was explaining her reasoning, rather than educating.

  6. Mark Bennett

    That might happen here . . . if we had a PD’s office. But we don’t, so the only lawyers that the judges see in their courtrooms every day are the four prosecutors assigned to that court.

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